PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SYLVESTER EMERSON WILLIAMS,
Plaintiff-Appellant,

v.

CLARENCE BENJAMIN, Captain, Lieber
                                                                      No. 94-7122
Correctional Institution; SHIRLEY J.
TOMLIN, Lieutenant, Lieber
Correctional Institution,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
G. Ross Anderson, Jr., District Judge.
(CA-93-2874-2-3BC)

Argued: October 31, 1995

Decided: March 6, 1996

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed in part and reversed in part by published opinion. Judge
Motz wrote the opinion, in which Judge Michael joined. Judge Hamil-
ton concurred in the judgment and wrote a separate concurring opin-
ion.

_________________________________________________________________

COUNSEL

ARGUED: W. Gaston Fairey, FAIREY, PARISE & MILLS, P.A.,
Columbia, South Carolina, for Appellant. Isaac McDuffie Stone, III,
LEWIS, REEVES & STONE, Columbia, South Carolina, for Appel-
lees. ON BRIEF: Rochelle L. Romosca, J. Christopher Mills,
FAIREY, PARISE & MILLS, P.A., Columbia, South Carolina, for
Appellant. Amy Dare Lohr, LEWIS, REEVES & STONE, Columbia,
South Carolina, for Appellees.

_________________________________________________________________

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This appeal involves a prisoner's claim that correctional officers
violated his constitutional rights when they sprayed him with mace,
confined him in four-point restraints on a bare metal bed frame and,
while refusing to allow him to wash off the mace, continued the con-
finement for more than eight hours, without providing him the benefit
of medical care or the use of a toilet.

I.

In his pro se complaint and in an affidavit filed in support of his
claim, Sylvester Emerson Williams, an inmate at the Lieber Correc-
tional Institution in Ridgeville, South Carolina, related the following
facts. On December 27, 1991, defendant Shirley J. Tomlin, a Lieber
correctional officer, became involved in a disagreement with inmate
James Pleskac, who was confined, like Williams, in the administrative
segregation unit. Williams heard Tomlin threaten to mace Pleskac.
Along with Pleskac and five other inmates, Williams protested this
threat by throwing water out of his cell's food service window. Tom-
lin ordered the inmates to stop and then ordered Williams to remove
his arm from the food service window. When Williams asked why,
Tomlin instructed another correctional officer to spray mace at Wil-
liams, hitting him in the chest and face. The other inmates involved
in the incident were also maced.

As the defendant officers concede, once the inmates were maced,
all "immediately ceased there (sic) actions." Williams at once began
"hollering in pain from the burning of the mace," and "pleaded with
Lt. Tomlin for a shower." Tomlin refused, allegedly informing Wil-

                    2
liams, "you will not get a shower today." Tomlin then "locked [Wil-
liams'] food service window and turned off all the water in [his] cell."1

Ten minutes later, defendant Captain Clarence Benjamin
approached Williams' cell with a "strange looking gun" and ordered
Williams to come to the food service window. Williams complied and
without incident was placed in handcuffs. The other inmates were
similarly handcuffed without resistance or protest. As Williams was
being cuffed, he again asked to be allowed to wash the mace from his
eyes, face, and body. Benjamin refused the request, responding that
the mace was "your [Williams'] problem."

Benjamin instructed other officers to take everything, including
Williams' bed mattress, out of his cell. He then ordered three officers
to place Williams in four-point restraints on the metal bed frame. This
involved securing Williams to the metal bed frame with handcuffs
attached to his wrists and leg shackles attached to his ankles, so that
Williams was immobilized. While officers placed Williams in the
restraints, he "pleaded" with Benjamin for medical attention and for
a shower because his skin and eyes were burning from the mace. Ben-
jamin responded, "there's nothing wrong with you." After Williams
was secured in the four point restraints, his cell door and window
were again locked. The other inmates were also secured, without inci-
dent, in four-point restraints. Williams and the other inmates were
kept in four-point restraints continuously for the next eight hours.
(The record is silent as to any other facts concerning the confinement
of the other inmates.)

During his eight-hour confinement, Williams was not permitted to
wash the mace from his eyes, face, or skin. He was"never provided
any opportunity to use the toilet during the entire time." Furthermore,
he "was forced to inhale chemical munitions fumes" from the mace
_________________________________________________________________
1 A solid metal door secures each of the individual cells; this door con-
tains a food service window, which is covered by vertical bars, with a
horizontal opening at the bottom of the window. The opening is large
enough to slide food trays through without having to open the cell door.
The food service window also has its own metal door. Once the smaller
food service door is closed, an inmate is completely"sealed" within his
cell. Throwing liquid or objects outside of the cell is no longer possible.

                    3
and was not "checked by medical [personnel] during the hours [he]
was restrained." Williams' "body felt as if it was on fire because of
the chemical fumes," which caused "intense pain and suffering the
whole time he was chained to the bed." Williams alleges that he "suf-
fered with great difficulty and immense pain while inhaling the chem-
ical munitions." The mace caused "intense pain and burning of the
eyes." Only after he had suffered in this manner for eight hours was
Williams "given a shower and medical attention."

The defendant prison officials acknowledge that Williams was
maced and confined in four-point restraints on a bare steel bed frame
for more than eight hours. They offer no evidence to dispute Wil-
liams' assertions that he asked for and was denied an opportunity to
wash himself, that mace fumes were not fumigated from his cell, and
that he was never permitted to use a toilet. However, the prison offi-
cials assert that Williams (and the other inmates confined in the same
manner) precipitated the macing and confinement by throwing cups
of unidentified foul-smelling liquids at Tomlin and another officer.
The defendants further assert that in accordance with a written South
Carolina Department of Corrections (SCDC) policy, the prison's
medical director authorized the use of four-point restraints, a nurse
checked to determine that the restraints were applied properly, and a
corrections officer monitored the restrained inmates every fifteen
minutes.

In his pro se complaint, after outlining the above factual allega-
tions, Williams alleged that the defendants violated his Eighth
Amendment right to be free from cruel and unusual punishment and
his right under the Fourteenth Amendment not to be deprived of lib-
erty without due process. The defendants filed an answer, denying,
inter alia, that "any constitutional rights of the Plaintiff ha[d] been
violated." The defendants then moved for summary judgment, based
entirely on the argument that Williams' complaint failed to state a
cause of action under the Eighth Amendment. In response to that
motion, Williams filed an affidavit in which he detailed the above fac-
tual assertions under oath.

The magistrate judge recommended that summary judgment be
granted to defendants. First, with regard to the Eighth Amendment
claim, he found Williams'"claim of unnecessary or excessive force

                    4
[was] simply not supported by any evidence in the record." Second,
the magistrate judge concluded that Williams' allegation that the four-
point restraints were imposed in violation of the SCDC policy, even
if true, failed to establish a Due Process claim. The district court
adopted the magistrate judge's report and recommendation and
granted summary judgment to the defendants.

II.

The Eighth Amendment prohibits the infliction of"cruel and
unusual punishments." U.S. Const. amend. VIII. It not only outlaws
excessive sentences but also protects inmates from inhumane treat-
ment and conditions while imprisoned. Determination of whether the
Eighth Amendment has been violated requires analysis of subjective
and objective components. See Wilson v. Seiter , 501 U.S. 294, 302
(1991). Specifically, Eighth Amendment analysis necessitates inquiry
as to whether the prison official acted with a sufficiently culpable
state of mind (subjective component) and whether the deprivation suf-
fered or injury inflicted on the inmate was sufficiently serious (objec-
tive component). What must be established with regard to each
component "varies according to the nature of the alleged constitu-
tional violation." Hudson v. McMillian, 503 U.S. 1, 5 (1992).

For example, when an inmate claims that prison officials failed to
provide him with adequate medical care or that conditions of confine-
ment constitute cruel and unusual punishment, he must demonstrate
that prison officials acted with "deliberate indifference" in order to
state an Eighth Amendment claim. See Estelle v. Gamble, 429 U.S.
97, 104 (1976). In both of these situations, the subjective component
requires proof of more than mere negligence but less than malice.
This standard is appropriate because "the State's responsibility to pro-
vide inmates with medical care [or decent living conditions] ordinar-
ily does not conflict with competing administrative concerns."
Hudson, 503 U.S. at 6. However, when an inmate claims, as Williams
does here, that prison officials used excessive force on him, he is
forced to meet a higher standard to establish the subjective compo-
nent. Officials are entitled to use appropriate force to quell prison dis-
turbances. Because officials must act "in haste, under pressure, and
frequently without the luxury of a second chance," deliberate indiffer-
ence is not a sufficiently rigorous standard. Whitley v. Albers, 475

                     5
U.S. 312, 320 (1986). Rather, in these circumstances, in order to
make out an Eighth Amendment claim, a prisoner must demonstrate
that officials applied force "maliciously and sadistically for the very
purpose of causing harm." Id. at 320-21 (quoting Johnson v. Glick,
481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)).

Although an inmate asserting an excessive force claim is thus
required to meet this more demanding standard with regard to the
subjective component of Eighth Amendment analysis, the objective
component of an excessive force claim is less demanding than that
necessary for conditions-of-confinement or inadequate medical care
claims. This is so because the objective component of all Eighth
Amendment claims is "contextual and responsive to`contemporary
standards of decency.'" Hudson, 503 U.S. at 8 (quoting Estelle, 429
U.S. at 103). Since "routine discomfort" is part of prison life and "so-
ciety does not expect that prisoners will have unqualified access to
health care," in order to demonstrate the objective component of
conditions-of-confinement or medical care claims prisoners must
demonstrate "extreme" deprivations or neglect of "serious" medical
needs. Hudson, 503 U.S. at 8-9. In contrast, when, as here, a prisoner
asserts that officials have "maliciously and sadistically use[d] force to
cause harm, contemporary standards of decency always are violated."
Id. at 9 (emphasis added). A prisoner, like Williams, asserting mali-
cious and sadistic use of force need not show that such force caused
an "extreme deprivation" or "serious" or"significant" pain or injury
to establish a cause of action. Id. All that is necessary is proof of more
than de minimis pain or injury. Id.

The defendant officers' entire Eighth Amendment argument is
directed at the subjective component; they maintain that "their con-
duct could not be characterized as an `unnecessary and wanton inflic-
tion of pain' in derogation of the Eighth Amendment." The officers
do not assert that Williams' pain was not significant enough to satisfy
the minimal standard necessary to meet the objective component of
Eighth Amendment analysis. They do question the amount of pain
Williams suffered, but only as it relates to the subjective component
of the analysis. Thus, for present purposes, they apparently concede
that there is at least an issue of fact with regard to the objective com-
ponent. This concession appears wise. Mankind has devised some tor-

                     6
tures that leave no lasting physical evidence of injury.2 Indeed, we
have specifically recognized that the objective component can be met
by "the pain itself," even if an inmate has no"enduring injury."
Norman v. Taylor, 25 F.3d 1259, 1263 n.4 (4th Cir. 1994) (en banc),
cert. denied, 115 S. Ct. 909 (1995). See also, Jordan v. Gardner, 986
F.2d 1521, 1526, 1546 (9th Cir. 1993) (en banc) (majority and dissent
agree that psychic pain female prisoners suffer when subjected to
cross-gender pat down search satisfies objective component). In any
event, because the officers do not contest the objective component,
but instead direct their attention to the subjective justification for the
use of force, we do not further address the issue. See Shakka v. Smith,
71 F.3d 162, 167 n.3 (4th Cir. 1995) ("We do not address the objec-
tive component of the Eighth Amendment analysis because it appears
that the prison officials have conceded for the purposes of this appeal
that the evidence is sufficient to create a question of fact on this issue.")3

Turning then to the subjective component, the Supreme Court has
directed that several factors should be balanced in determining
whether prison officials acted maliciously and sadistically. These fac-
tors, set out originally in Whitley v. Albers , 475 U.S. 312 (1986),
include:

          [1] the need for application of force, [2] the relationship
          between that need and the amount of force used,[3] the
          threat "reasonably perceived by the responsible officials,"
          and [4] "any efforts made to temper the severity of a force-
          ful response."

Hudson, 503 U.S. at 7 (citations omitted). The absence of serious
injury is a relevant, but not dispositive, additional factor to be consid-
_________________________________________________________________
2 For this reason, courts should be wary of finding uses of force that
inflict "merely" pain but not injury to be de minimis, and therefore
beyond requiring justification under the Eighth Amendment.
3 Moreover, because the officers did not move for summary judgment
on the ground that Williams had failed to satisfy the objective compo-
nent, Williams was under no obligation to come forward in response with
evidence to show that he had suffered sufficient pain or injury to satisfy
that component. See Jones v. Owens-Corning Fiberglas Corp., 69 F.3d
712, 719 n.7 (4th Cir. 1995).

                     7
ered in the subjective analysis. Id. With these "Whitley factors" in
mind, we examine each application of force in turn.

A.

The first application of force was, of course, the deployment of
mace. The defendant officers maintain that the use of mace was justi-
fied because Williams and the other inmates threw unidentified foul-
smelling liquids at them, creating a health risk. The district court
appeared to rely on this argument when it "determine[d] that Defen-
dants' actions were necessary to protect them and the prisoners from
health risks associated with the Plaintiff's conduct." Williams cor-
rectly points out that in considering whether the defendants are enti-
tled to summary judgment, the court cannot accept as true defendants'
version of the facts (the inmates threw "foul-smelling liquids" at the
guards) -- but must accept as true Williams' version (the inmates
threw water at the guards). See, e.g. , Shakka, 71 F.3d at 165. Never-
theless, by Williams' own account, the inmates threw water at Tomlin
and refused to obey the command to desist. Applying the first Whitley
factor, the guards' decision to use some force to quell the disturbance
was justifiable.

When the guards' "reasonable perception" of the threat posed by
the prisoners is examined (the third factor in the Whitley analysis) it
is more evident that some use of force was justified. Tomlin and the
other guards perceived that they were targets of foul-smelling liquids.
It is certainly not unknown for inmates to throw waste products at
their jailors. See, e.g., LeMaire v. Maass, 12 F.3d 1444 (9th Cir.
1993). Hence, even accepting Williams' version of the events, the
guards' perception that the inmates were throwing"foul" liquids was
reasonable, and they could reasonably perceive such conduct as pos-
ing a more significant threat.

Analysis of the second and fourth Whitley factors is more compli-
cated. It is generally recognized that "it is a violation of the Eighth
Amendment for prison officials to use mace, tear gas or other chemi-
cal agents in quantities greater than necessary or for the sole purpose
of infliction of pain." Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.
1984), cert. denied, 470 U.S. 1085 (1985). For this reason, we have
closely scrutinized the use of tear gas or mace (a trade name for tear

                    8
gas, Soto, 744 F.2d at 1261) in correctional facilities. See, e.g., Bailey
v. Turner, 736 F.2d 963 (4th Cir. 1984); Greear v. Loving, 538 F.2d
578 (4th Cir. 1976). This is because, even when properly used, such
weapons "possess inherently dangerous characteristics capable of
causing serious and perhaps irreparable injury to the victim." Slakan
v. Porter, 737 F.2d 368, 372 (4th Cir. 1984), cert. denied, 470 U.S.
1035 (1985). Accordingly, although it is not per se unconstitutional
for guards to spray mace at prisoners confined in their cells, it is nec-
essary to examine the "totality of the circumstances, including the
provocation, the amount of gas used, and the purposes for which the
gas is used [to] determin[e] the validity of the use of tear gas in the
prison environment." Bailey, 736 F.2d at 969. See also, Justice v.
Dennis, 834 F.2d 380, 383 (4th Cir. 1987) (en banc), vacated on other
grounds, 490 U.S. 1087 (1989).

However, mace can be constitutionally used in small quantities to
"prevent riots and escapes" or to control a"recalcitrant inmate."
Landman v. Peyton, 370 F.2d 135, 138 & n.2 (4th Cir. 1966), cert.
denied, 388 U.S. 920 (1967). See also Bailey , 736 F.2d at 968-69. A
limited application of mace may be "much more humane and effec-
tive than a flesh to flesh confrontation with an inmate." Soto, 744 F.2d
at 1262. Moreover, prompt washing of the maced area of the body
will usually provide immediate relief from pain. Id. Furthermore,
because a limited use of mace constitutes a relatively "mild" response
compared to other forms of force, the initial application of mace indi-
cates a "tempered" response by the prison officials. Thus, on balance,
analysis of the second and fourth Whitley factors also leads us to con-
clude that the district court did not err in deciding, as a matter of law,
that the initial application of mace did not constitute cruel and
unusual punishment.

B.

Ten minutes after the macing, officers placed Williams in four-
point restraints. In our civilized society, we would like to believe that
chaining a human being to a metal bed frame in a spread-eagled posi-
tion would never be necessary. Unfortunately, it sometimes is. Courts
have thus approved the limited use of four-point restraints, as a last
resort, when other forms of prison discipline have failed. See, e.g.,
Stenzel v. Ellis, 916 F.2d 423, 428-29 (8th Cir. 1990).

                     9
The need here for the initial imposition of four-point restraints is
not as evident as was the need for the initial application of mace. The
defendant officers acknowledge that, upon being maced, all "inmates
immediately ceased there [sic] actions." Arguably, with the food ser-
vice windows closed and the inmates sealed in their cells, the guards
could no longer reasonably perceive any threat from Williams or the
other inmates and, thus, the imposition of the restraints was not neces-
sary.

Nevertheless, the Supreme Court has explained that the necessity
of the guards' actions is not the proper focus of inquiry. Whitley, 475
U.S. at 319. Instead, we focus on whether the evidence supports the
inference that the guards wantonly punished Williams. Id. at 322. The
guards' decision to impose the restraints, in itself, does not support
such an inference. When the officers decided to confine Williams in
the restraints, only minutes had elapsed since the disturbance had
begun, Williams was still "hollering," and it was not obvious that the
disturbance had ended. In view of these undisputed facts, we cannot
conclude that there was no "need" for the application of force or that
the guards were unreasonable in their apparent belief that the imposi-
tion of four-point restraints was necessary to obtain "order and con-
trol." Furthermore, although closing the food service windows may
have been all that was necessary to stop the inmates from throwing
liquids outside their cells, inmates cannot be allowed to dictate
whether their cell windows remain open or closed.

Analysis of the second and fourth Whitley factors--whether the
imposition of four-point restraints was rationally related to the need
for force and evidenced any effort to "temper" the severity of the
response--also indicates that the decision to apply the restraints,
standing alone, does not suggest a malicious or sadistic intent. Such
restraints undoubtedly pose a significant threat of physical injury. See,
e.g., Washington v. Harper, 494 U.S. at 226-27 ("Physical restraints
. . . can have serious physical side effects when used on a resisting
inmate . . . ."). However, imposition of such restraints is seemingly
a not uncommon "next" step, if verbal commands, show of force, and
mace, are ineffective in controlling prisoners.

For these reasons, we cannot conclude that the initial decision to
impose four-point restraints, in itself, evidenced a sadistic or mali-
cious intent to punish Williams.

                     10
C.

We are thus left to consider the most difficult issue, whether con-
fining Williams in four-point restraints for eight hours, without per-
mitting him to wash off the mace, use a toilet or receive medical
attention, could constitute an Eighth Amendment violation. The offi-
cers do not claim that Williams (or the other inmates who were also
restrained for eight hours) did anything once confined in the four-
point restraints that necessitated an application of force. They do not
even assert that the inmates, while held in the restraints, verbally
assaulted or threatened the guards.

Furthermore, as to the severity of Williams' pain or injury, while
the officers point out that Williams did not suffer any documented
medical injury as a result of his confinement, they do not offer any
evidence to counter Williams' sworn statement that although he was
"hollering with pain" and begging to be permitted to wash off the
mace, they did not permit him to wash it off for more than eight hours.4
A total of 5.5 grams of the mace (CS or o-chlorobenzylidene
malonitrile) was sprayed into the cells. Although this does not sound
like much, one medical text indicates that based on animal studies an
"estimated lethal dose" of CS is "only" 6 grams. John B. Sullivan, Jr.
& Gary R. Krieger, Hazardous Materials Toxicology 999 (1992). See
also, Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979) (pharma-
cological expert testified that "tear gas can be lethal in the confines
of a small cell"); Howard Hu & Preston Reynolds, Tear Gas --
Harassing Agent or Toxic Chemical Weapon, 262 JAMA 660 (1989).

In sum, on the present record, the only "need" for force and the
only "threat" the defendants' perceived justifying the extended con-
_________________________________________________________________
4 Permitting a prisoner who has been maced to wash the chemical
munitions out of his eyes is required by the policy governing the use of
chemical agents in federal prisons. Program Statement, CPD 5566.04,
Department of Justice, Federal Bureau of Prisons§ 10(d) (June 13, 1994)
("The eyes are to be flushed with cold water within five minutes of expo-
sure, to ensure appropriate decontamination.") Moreover, the fact that
prisoners were permitted to wash off mace shortly after its application
has been a significant factor in upholding the use of mace. See, e.g., Soto,
744 F.2d at 1266.

                    11
finement was that occasioned by the original throwing of liquids.
They offer no evidence to dispute Williams' affidavit that his long
confinement without being able to wash off the mace caused "im-
mense" pain. Nevertheless, the defendants maintain that the decision
to confine Williams for eight hours without permitting him to wash
or to use the toilet was a constitutionally permissible "exercise of offi-
cial discretion." Maybe so. Certainly we afford prison administrators
"discretion" to determine what is necessary for the "prison's internal
security." Whitley, 475 U.S. at 319. Moreover, when, as here, prison
administrators initially apply force in a good faith effort to maintain
discipline, "[h]ow long restraint may be continued calls for the exer-
cise of good judgment on the part of prison officials." Williams v.
Burton, 943 F.2d 1572, 1576 (11th Cir. 1991), cert. denied, 505 U.S.
1208 (1992). However, the Supreme Court has specifically reminded
us that the "deference" that is afforded to prison administrators "does
not insulate from review actions taken in bad faith and for no legiti-
mate purpose." Whitley, 475 U.S. at 322. Deference to prison officials
does not give them constitutional license to torture inmates. See
Wilkerson v. Utah, 99 U.S. 130, 136 (1878).

It must be remembered that at this stage we are not called upon to
determine whether there was sufficient evidence that the prison offi-
cials actually acted in bad faith or for no legitimate purpose. Instead,
our present inquiry is whether the evidence, viewed in the light most
favorable to Williams, supports a "reliable inference of wantonness in
the infliction of pain." Whitley, 475 U.S. at 322. When the guards
placed Williams in the restraints, he was allegedly screaming in pain
as the mace "burned" his face. Once immobilized, Williams begged
and pleaded for water to wash off the mace. The guards refused to
wash off the mace or permit Williams to wash himself, informing him
that he would not get a shower and that the mace was"his problem."
Under Williams' version of the facts, no medical personnel checked
on his condition and he was left helpless and in immense pain for
eight hours.

Although great deference should be afforded prison officials, it is
difficult to conceive of a legitimate purpose for refusing to allow Wil-
liams to wash and denying him medical attention, particularly when
his confinement in restraints lasted for such an extended period of
time. After the guards had imposed the restraints on the prisoners, the

                     12
immediacy of the disturbance was at an end. In such a circumstance,
the unnecessary infliction of continued pain throughout a prolonged
time period clearly supports an inference that the guards were acting
to punish, rather than to quell the disturbance. See United States v.
Cobb, 905 F.2d 784, 789 (4th Cir. 1990) ("[P]unitive intent behind a
defendant's use of force may be inferred when the force is not reason-
ably related to a legitimate nonpunitive governmental objective.")
(quotations omitted), cert. denied, 498 U.S. 1049 (1991).

The record at present contains no reason for the guards' refusal to
permit Williams to wash, no evidence that Williams was not in the
"immense pain" he alleges, and no justification for the extended
period of time Williams was left in the restraints. The award of sum-
mary judgment on this record would create a harmful precedent. It
would establish that whenever any inmate causes a disturbance by
throwing water or something similar at a guard, and refuses to obey
a further command, guards can--without fear of violating the
Constitution--spray an inmate in the face with mace and then confine
him in four-point restraints for an extended period of time without
permitting him to wash or use the toilet, without fumigating the cell,
and without allowing him the benefit of medical attention of any kind.
Although the officers' conduct here may ultimately be held not to vio-
late the Eighth Amendment, we are unable to rule that the record, at
this juncture, viewed in the light most favorable to Williams, does not
support a "reliable inference of the wanton infliction of pain."
Whitley, 475 U.S. at 322.

The defendants' own arguments demonstrate why this is so. The
defendant officers heavily rely on their asserted compliance with the
South Carolina Department of Corrections (SCDC) Policy 1500.12,
governing the use of four-point restraints, as evidence that they acted
in good faith and without malice. Pursuant to Policy 1500.12:

          Mechanical restraints will never be applied as punishment
          and/or discipline, and will be used only as a precaution
          against escape prior to and during transfer; and to prevent
          inmate self-injury or injury to others.

...

                    13
          Four-point restraints will be used only as a last resort to pre-
          vent harm or physical danger to him/herself or others, and
          then only upon the order/approval of a physician. Under no
          circumstances will such restraints be applied to enhance
          security of the facility, prevent escape from the facility, or
          for punishment. Restraints will be used no longer than the
          condition prevails, and the use of restraints beyond a period
          of four hours must be approved by the Chief Medical Physi-
          cian for the Department or his/her medical staff designee. In
          addition to review by the prescribing physician, any inmate
          so restrained will be the subject of continuous monitoring
          during the period of restraint, and the need for restraint will
          be reevaluated at 15-minute intervals. A medical and obser-
          vation log of such evaluations will be maintained.

(emphasis in original). (The above quotation is from the version of the
Policy in effect at the time of this incident; it has been modified
slightly, but not substantively, since that time.)

The officers maintain that (1) compliance with the Policy evi-
dences their good faith and (2) the record establishes that they com-
plied with the Policy. The officers' first point has merit. Policy
1500.12 is not, of course, a constitutional requirement and so compli-
ance with it would not necessarily demonstrate that the defendants
acted constitutionally.5 Nevertheless, compliance with the Policy
would provide powerful evidence that the application of force was
tempered and that the officers acted in good faith in imposing the
restraints. Cf. Miller v. Leathers, 913 F.2d 1085, 1088 (4th Cir. 1990)
(guard's violation of regulations supports the "inference" of bad
intent), cert. denied, 498 U.S. 1109 (1991).
_________________________________________________________________
5 For this same reason, even if the guards were found to have violated
the Policy in all respects, this would not mean that Williams would auto-
matically prevail on his Eighth Amendment claim. However, if, as Wil-
liams swears, the guards totally immobilized him, knowing that he was
in pain and that he was physically vulnerable after the macing, and then
left him for eight hours in that position, without medical care of any
kind, it would strongly indicate that the guards sadistically and mali-
ciously intended to cause Williams unnecessary pain and suffering.

                    14
The critical flaw in the officers' argument is in their second point.
Their compliance with Policy 1500.12, rather than being uncontro-
verted, is hotly disputed. The officers argue that the use of four-point
restraints for eight hours was authorized and supervised as required
by the Policy. Williams swears that he received no medical attention
until after the restraints were removed and, although the prison medi-
cal records provide some support for the defendants' arguments, they
do not support their claim that the Policy was complied with in all
respects. Most significantly, the officers insist, in their Answer to the
complaint, that Williams' confinement in the restraints for a long
period was necessary "to defend themselves from the danger imposed
by the plaintiff." Williams claims the restraints were maintained to
punish him (expressly forbidden by Policy 1500.12), and not imposed
"as a last resort" to prevent escape, harm, or physical injury (as the
Policy directs). Williams offered some evidentiary support for his
claim that the four-point restraints were not employed as a "last
resort" protection device: a memorandum authored by defendant Ben-
jamin and dated September 10, 1991, just three months before the
incidents at issue in this case. That memorandum directs that anytime
an inmate throws a substance at an officer, "immediately and without
question" the prison medical director is to be called for a "four-point
restraining order" and that "[o]nce this order is obtained, it must be
adhered to and the inmate must be placed in four-point restraints."
(emphasis in original). In sum, the principal factual basis for the offi-
cers' argument that they acted in good faith--their compliance with
the Policy--is in dispute. This severely undermines their position that
summary judgment was proper.

Moreover, the legal authority that the officers cite, rather than sup-
porting them, also indicates the inappropriateness of summary judg-
ment at this time. The officers point to three cases in which appellate
courts have held the application of four-point restraints for an
extended period of time did not violate the Eighth Amendment. See
LeMaire v. Maass, 12 F.3d 1444 (9th Cir. 1993); Williams v. Burton,
943 F.2d 1572 (11th Cir. 1991), cert. denied, 505 U.S. 1208 (1992);
Bruscino v. Carlson, 854 F.2d 162, 164 (7th Cir. 1988), cert. denied,
491 U.S. 907 (1989). In addition to being factually distinguishable
from the case at hand in important respects (e.g., none involved a
plaintiff who was maced and not permitted to wash off the mace prior
to imposition of a lengthy confinement in four-point restraints), there

                     15
is an even more fundamental reason why these cases do not assist
defendants. The basis for all three decisions was an extensive factual
record developed in the trial court.6

Critical to the appellate decision in each case was a wealth of evi-
dence as to the dangerousness of the inmate-plaintiff or the entire
population of the prison. Each appellate court heavily relied on this
evidence to justify the need for the challenged extensive confinement
and the reasonableness of the officers' perception of a threat from the
inmate-plaintiffs. For example, in LeMaire, the record made in the
district court contained "meticulously documented" evidence of the
plaintiff's "numerous egregious violations of prison rules" including
repeated brutal assaults on guards and other prisoners, which was
found by the Ninth Circuit to justify his lengthy confinement in four-
point restraints. LeMaire, 12 F.3d at 1447-49. Indeed, the Ninth Cir-
cuit specifically commented that it was "most impressed by the exten-
sive prison records in this case documenting LeMaire's misconduct."
Id. at 1462.

In Bruscino, the trial court held evidentiary hearings for nearly
twenty-eight days, hearing testimony from "approximately ninety wit-
nesses," and admitting "into evidence approximately 150 exhibits,
which consisted of several thousand pages of material." Bruscino v.
Carlson, 654 F.Supp. 609, 611 (S.D. Ill. 1987). Judge Posner, for the
Seventh Circuit, twice noted the "extensive evidentiary hearings" and
clearly relied on the record evidence of a "remarkable narrative of
violence" to conclude that "[s]ince the principal victims of murders
and armed assaults in Marion penitentiary are inmates, the procedures
that the plaintiffs describe as cruel and unusual punishment are the
very procedures that are protecting them from murderous attacks by
fellow prisoners." Bruscino, 854 F.2d at 164-65. See also Williams,
943 F.2d at 1574 (upholding a lengthy confinement on the strength
_________________________________________________________________
6 Even when the Ninth Circuit vacated portions of the broad injunctive
relief granted by the district court in LeMaire , it acknowledged not only
its need to defer to the district court's factual findings but the importance
of the factual record to its decision. 12 F.3d at 1450-51 ("[T]he district
court has provided us with an excellent and complete factual record
which permits us to decide this appeal based on recent clarification of the
controlling law.").

                    16
of factual findings that during his incarceration the plaintiff had been
convicted of eighty-four charges of violating prison regulations,
including seventy-five major violations for "assault, failure to obey,
threats, insubordination, intentionally creating a security hazard and
inciting to riot.")

Similarly necessary to the holdings in LeMaire , Bruscino, and
Williams was evidence that the prison officials, in subjecting the
plaintiffs to lengthy confinement in four-point restraints, had com-
plied with correctional regulations or otherwise provided the prisoners
with adequate safeguards. In LeMaire, the Ninth Circuit upheld the
use of four-point restraints only "when imposed in strict compliance
with existing prison regulations." LeMaire , 12 F.3d at 1460. The
appellate court "agree[d] with the district court's finding that the
prison was not following these regulations" and so approved the dis-
trict court's injunction to the extent it required"the prison's strict
adherence to the regulations they have already established." Id. In
Bruscino, Judge Posner particularly remarked upon the district court's
finding that the restraints were maintained in accordance with "proce-
dures that the prison adopted in the wake of a crescendo of violence."
Bruscino, 854 F.2d at 164. Similarly important to the Eleventh Circuit
in Williams was that "the record support[ed] the [district court's] deci-
sion that adequate precautions were taken to safeguard the prisoner's
physical well being through constant monitoring and examinations by
medical personnel." Williams, 943 F.2d at 1575.

Of course, we have no comparable evidentiary record. In granting
summary judgment neither the magistrate judge nor the district court
did or could weigh evidence or make findings of fact. Moreover,
while Williams submitted an affidavit and several exhibits in oppos-
ing summary judgment, our review of the record indicates that the
defendant officers offered no exhibits or affidavits in support of their
motion. Thus the evidentiary record before the district court when it
considered the defendants' summary judgment motion was sparse.7
_________________________________________________________________
7 The defendant officers seem to have recognized this deficiency--
albeit, too late. After the district court granted defendants summary judg-
ment and after Williams had noted his appeal and filed his appellate
brief, the defendants filed a motion in the district court to supplement the

                     17
When the record is further developed, it may be that Williams can-
not prove that he was confined in the manner he alleges. It may be
that there was a need for the force that was applied, that the officers
reasonably perceived a continuing threat justifying it, that the extent
and severity of the confinement were in keeping with the need for
force, that the lengthy confinement was executed in a way that tem-
pered its severity, and that the amount of mace used could not have
caused immense pain. However, on this record we cannot so hold. At
this juncture, the facts surrounding the eight hour confinement are
heavily disputed. At present, the evidence as to Williams' lengthy
confinement, while suffering the effects of the mace, when "viewed
in the light most favorable to the plaintiff, will support a reliable
inference of wantonness in the infliction of pain." Whitley, 475 U.S.
at 322. Accordingly, the grant of summary judgment on this Eighth
Amendment claim was error.

III.

The remaining issue on appeal is whether summary judgment was
properly granted on Williams' claim that his Due Process rights were
violated. In his filings before the magistrate judge, Williams included
an assertion that those rights had been violated when the defendants
failed to comply with Policy 1500.12. Policy 1500.12 incorporated
provisions of a federal consent decree (commonly referred to as the
"Nelson Consent Decree") that the State had entered into to resolve
an inmate class action suit. See Plyler v. Leeke , No. 82-876-2, 1986
WL 84459 (D.S.C. March 26, 1986). The magistrate judge concluded,
without addressing whether the defendants had in fact violated the
Policy, that "the use of four-point restraints or chemical munitions is
not a violation of any federal law or statute. The mere fact that institu-
tional policy sets forth standards for the use of these things does not
provide a claim for relief under § 1983."
_________________________________________________________________
record on appeal with evidence as to Williams' disciplinary history while
at Lieber. The district court denied the motion. This evidence might well
provide the basis for concluding that special measures were required to
control Williams--even if his past conduct was not in the category of
inmate LeMaire's. See LeMaire, 12 F.3d at 1447-49. However, Williams
has been given no opportunity to challenge this evidence. Indeed, it was
not even considered by the district court in granting summary judgment.

                    18
Although Williams' argument on this point is not absolutely clear,
he apparently maintains that in violating Policy 1500.12 and necessar-
ily the Nelson Consent Decree, the defendant officers violated both
his substantive and procedural Due Process rights. As to his claim of
a substantive due process violation, it is now well established that the
Eighth Amendment "serves as the primary source of substantive pro-
tection to convicted prisoners," and the Due Process Clause affords
a prisoner no greater substantive protection"than does the Cruel and
Unusual Punishments Clause." Whitley, 475 U.S. at 327. Accordingly,
Williams' substantive Due Process claim adds nothing to his Eighth
Amendment claim.

His procedural due process claim cannot be disposed of as quickly.
Williams apparently claims that Policy 1500.12 provided him with a
liberty right to be free from punishment in four-point restraints and
that, for this reason, the guards' violation of this Policy, without pro-
viding him any "process," constituted a violation of the procedural
due process rights guaranteed by the Fourteenth Amendment. In
response, the defendant officers do not argue that the Policy does not
provide Williams with a liberty interest or that a violation of the Pol-
icy cannot provide the basis for a § 1983 claim. Instead, defendants'
sole argument is that there has been no violation of the Policy. As
explained above, the defendants are wrong in asserting that, on this
record, it has been established that they complied with Policy
1500.12. Because a material dispute exists as to whether the officers
violated the Policy, we must address Williams' claim that a violation
of it (and the Nelson Consent Decree) provides the basis for a proce-
dural due process claim.8

Williams relies on Sandin v. Conner, #6D 6D6D# U.S. ___, 115 S. Ct.
2293, 2300 (1995). There the Supreme Court reaffirmed its well-
established holding that "States may under certain circumstances
create liberty interests which are protected by the Due Process
_________________________________________________________________
8 Because Policy 1500.12 and the Nelson Consent Decree are in all
material respects identical, we need not decide whether a consent decree,
standing alone, can create a protected liberty interest. See Kentucky Dep't
of Corrections v. Thompson, 490 U.S. 454, 465 n.5 (1989); Slezak v.
Evatt, 21 F.3d 590, 595 n.5 (4th Cir.), cert. denied, 115 S. Ct. 235
(1994).

                     19
Clause." Nevertheless, the Court advised that state-created liberty
interests "will be generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life." Id. (citations omit-
ted). Williams has a forceful argument that confinement in four-point
restraints poses an atypical and significant hardship. Total immobili-
zation in the restraints surely "work[ed] a major disruption in his
environment." Id. at 2301. Indeed, the limitations and protections in
Policy 1500.12 and the consent decree demonstrate the "atypical and
significant" nature of the imposition of the restraints.

Additionally, Williams has a forceful argument that Policy 1500.12
and the Nelson Consent Decree are written in "unmistakably manda-
tory" language and create an enforceable expectation on the inmate's
part that he will not be placed in four-point restraints absent enumer-
ated substantive predicates.9 The regulations provide that four-point
restraints will not be imposed except as a last resort to prevent harm,
and with medical approval. To create a liberty interest, such manda-
tory language is required. See Washington v. Harper, 494 U.S. 210,
221 (1990). For the above reasons, Williams has a persuasive argu-
ment that the regulations create a protected liberty interest. We note
merely that Williams' arguments are persuasive and forceful without
deciding the issue, because even if we accept his position, he still can-
not establish a procedural due process violation.

We decline to find a procedural due process violation in this case
for several reasons. First, Williams has made no argument as to what
sort of procedural protections were required. Second, the restraints
were imposed in response to a disturbance. In such a circumstance,
process is not possible.10 See Lunsford v. Bennett, 17 F.3d 1574, 1583
_________________________________________________________________
9 Moreover, Policy 1500.12 does not implicate one of the concerns the
Supreme Court mentioned in Sandin. There, the Court noted that the pro-
liferation of alleged liberty interests based on the language of regulations
worked to punish those prisons that (laudably) created regulations to con-
trol correctional officers' discretion. Sandin , 115 S. Ct. at 2299. In this
case, the State did not adopt the Policy wholly of its own accord but as
a result of a federal class action suit.
10 This point gives us some pause as it relates to this case. Simply
because the initial application of the restraints occurred soon after a dis-

                     20
(7th Cir. 1994) ("[P]redeprivation protections [cannot] reasonably be
applied to a prison disturbance situation where institutional security
is threatened."); Albers v. Whitley, 546 F.Supp. 726, 732 n.1 (D. Ore.
1982). Third, Williams has not even alleged that his post-deprivation
state remedies were inadequate. Cf. Zinermon v. Burch, 494 U.S. 113,
126-30 (1990) (discussing significance of adequate state post-
deprivation procedures); Martin v. Gentile, 849 F.2d 863, 870 (4th
Cir. 1988). When, as here, it is not possible to provide full pre-
deprivation procedural protections because of an emergency situation,
there is particular reason for a federal court to conclude that post-
deprivation state remedies adequately protect state-created liberty
interests. Zinermon, 494 U.S. at 128 (explaining that in some circum-
stances, post-deprivation process is adequate where it is impracticable
to provide pre-deprivation process). Accordingly, the district court did
not err in granting the defendants summary judgment on Williams'
Due Process claim.

IV.

In sum, we reverse and remand for further proceedings that portion
of the district court's order granting summary judgment on Williams'
claim that the officers violated the Eighth Amendment by retaining
him in four-point restraints in a mace-filled cell for eight hours, with-
out allowing him to wash off the mace or providing him with any
medical care, or even the use of a toilet. We affirm in all other
respects.

AFFIRMED IN PART
AND REVERSED AND REMANDED IN PART

HAMILTON, Circuit Judge, concurring in the judgment:

I concur in the court's judgment. I write further only to emphasize
that on remand, in addition to examining the subjective component of
_________________________________________________________________
turbance does not mean that four-point restraints may be imposed indefi-
nitely. At some point in time, an inmate so restrained would be entitled
to some procedural protection to ensure that his liberty interest was not
being arbitrarily and capriciously denied. In this appeal, we decline to
resolve where that point exists.

                     21
Williams' Eighth amendment claim based on his eight-hour confine-
ment in light of a fully developed record, the district court is free to
examine two additional issues not raised by the defendants: (1)
whether Williams satisfied the objective component of his Eighth
Amendment claim, and (2) whether the defendants are entitled to
qualified immunity on this claim.

With respect to the first issue, in Norman v. Taylor, this court, sit-
ting en banc, held that "absent the most extraordinary circumstances,
a plaintiff cannot prevail on an Eighth Amendment excessive force
claim if his injury is de minimis." 25 F.3d 1259, 1263 (4th Cir. 1994),
cert. denied, 115 S. Ct. 909 (1995). Extraordinary circumstances are
present when "the force used . . . [is] . .. of a sort repugnant to the
conscience of mankind . . . or the pain itself [is] such that it can prop-
erly be said to constitute more than de minimis injury." Id. at 1263 n.4
(citations and internal quotation marks omitted).

In this case, the record is crystal clear that Williams suffered no
injury from the defendants' actions. In particular, Williams' affidavit
does not contradict the prison clinic's notes that he was "OK" after
he was released from the four-point restraints. (J.A. 61). Further, Wil-
liams did not report back to the prison clinic until some two weeks
after the incident, and his visit was for an unrelated reason. (J.A. 61).
Therefore, because Williams suffered no injury, to prevail on his
Eighth Amendment claim, he must show "that either the force used
. . . [was] . . . of a sort repugnant to the conscience of mankind . . .
or the pain itself [was] such that it can properly be said to constitute
more than de minimis injury." Norman , 25 F.3d at 1263 n.4 (citations
and internal quotation marks omitted).

The absence of briefing, argument, and a factual record bearing on
the issue of whether this case meets the extraordinary circumstances
exception recognized in Norman makes the objective component
issue too difficult to resolve at this point. In any event, the issue is
not properly before the court because the defendants' sole basis for
seeking summary judgment was that Williams failed to establish the
subjective component. See Jones v. Owens-Corning Fiberglas Corp.,
69 F.3d 712, 719 n.7 (4th Cir. 1995) ("`When a party moves for sum-
mary judgment on ground A, his opponent is not required to respond
to ground B--a ground the movant might have presented but did

                     22
not[.]'") (quoting Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th
Cir. 1989)). But, of course, the defendants' failure to raise this ground
below does not preclude them from raising it on remand. If the record
is fully developed on this issue on remand, it may well be that sum-
mary judgment is appropriate on the basis that Williams failed to
establish the objective component.1

As to the second issue, the question is whether, at the time of the
defendants' actions, their conduct violated "clearly established statu-
tory or constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In light of
the line of authority upholding the application of four-point restraints
for extended periods of time, see, e.g., Williams v. Burton, 943 F.2d
1572, 1576 (11th Cir. 1991) (upholding the use of four-point
restraints for a period of twenty-eight and a half hours), cert. denied,
505 U.S. 1208 (1992), it may well be that a reasonable officer would
not have known that the defendants' actions would violate Williams'
Eighth Amendment rights. But, for some reason, the defendants--as
with the objective component issue--have not placed the defense of
qualified immunity before the court, and of course, the district court
will be free to visit this issue on remand should it arise.2
_________________________________________________________________

1 Contrary to the court's suggestion, the record does not reflect that the
defendants "concede[d]" the existence of a material issue of genuine fact
as to the objective component, see ante at 7-8; rather, the record reflects
that the issue--for whatever reason--was never raised in the district
court. From such facts, one cannot draw the conclusion that the issue was
conceded, especially since Norman was decided after the defendants
moved for summary judgment and no hearing was held on the motion.
In any event, my comments here should not be construed as expressing
an opinion as to the merits of whether Williams can satisfy the objective
component.
2 As with the objective component, I express no opinion as to the merits
of the defendants' defense of qualified immunity.




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