                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-18-2000

Brooks v. Kyler
Precedential or Non-Precedential:

Docket 98-7626




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Recommended Citation
"Brooks v. Kyler" (2000). 2000 Decisions. Paper 31.
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Filed February 18, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-7626

ALAN T. BROOKS,
       Appellant,

v.

KYLER, Superintendent; PORTERFIELD, Sgt.; RUPINSKI,
C.O.; ALL DEFENDANTS ARE BEING SUED IN THEIR
OFFICIAL AND INDIVIDUAL CAPACITY, C.O.

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 95-cv-00448)
District Judge: Honorable Edwin M. Kosik

Submitted Under Third Circuit LAR 34.1(a)
September 27, 1999

Before: BECKER, Chief Judge, MCKEE and COWEN,
Circuit Judges

(Filed February 18, 2000)

       ALAN T. BROOKS,
       Appellant Pro Se
       SCI Graterford
       P.O. Box 244
       Graterford, PA 19426




       D. MICHAEL FISHER, ESQUIRE
       Attorney General
       HOWARD G. HOPKIRK, ESQUIRE
       Deputy Attorney General
       CALVIN R. KOONS, ESQUIRE
       Senior Deputy Attorney General
       JOHN G. KNORR, III, ESQUIRE
       Chief Deputy Attorney General
       Chief Appellate Litigation Section
       Office of the Attorney General
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

       Counsel for Appellees

OPINION OF THE COURT
BECKER, Chief Judge.

Appellant Alan T. Brooks, a Pennsylvania state prisoner,
brought this suit under 42 U.S.C. S 1983 against four
prison officials, claiming, among other things, that they
violated his right under the Eighth Amendment to be free
from cruel and unusual punishment. Brooks has appealed
the District Court's final order granting summary judgment
in favor of the defendants. The appeal presents the question
whether a prisoner who testifies that he was violently
beaten by three prison guards, but who adduces no
objective evidence of anything but de minimis injuries, may
survive a summary judgment motion on his Eighth
Amendment claim. We conclude that he may, and hence we
reverse. In so doing, we look to Hudson v. McMillian, 503
U.S. 1 (1992), in which the Supreme Court concluded that
proof of significant injury was not an independent
requirement for an Eighth Amendment claim of excessive
and wanton force. Following Hudson's focus on the force
used, as opposed to the injury inflicted, we conclude that
although the degree of injury is relevant for any Eighth
Amendment analysis, there is no fixed minimum quantum
of injury that a prisoner must prove that he suffered
through objective or independent evidence in order to state
a claim for wanton and excessive force.

                                2


I.

In May, 1994, Brooks was confined at the State
Correctional Institution in Camp Hill, Pennsylvania (SCI-
Camp Hill). Defendants, Superintendent Kenneth Kyler,
Sergeant Russell Porterfield, Correctional Officer Michael
Rupinski, and Correctional Officer Gerald Devlin were
assigned to SCI-Camp Hill during the time in question.1
Brooks contends that on the evening of May 5, 1994,
Officers Devlin and Rupinski and Sergeant Porterfield
physically assaulted him while he was attempting to
complete an authorized phone call. The facts adduced by
Brooks in opposition to the defendants' motion for
summary judgment are as follows.

According to Brooks, before the assault took place, Devlin
and Rupinski came to his cell in the isolation confinement
unit and told him that he had been approved for a legal
phone call. They then handcuffed him to a waist restraint
belt and conducted a pat down search. After being escorted
to another cell, Brooks placed his call. Approximately ten
minutes later, Devlin told Brooks to terminate his
conversation. Brooks maintains that he acknowledged the
directive but that less than a minute after Devlin issued his
order, and while he was in the process of hanging up,
Sergeant Porterfield pushed Devlin aside, ran into the cell,
and pushed down the telephone receiver.

When Brooks turned and asked Devlin what was
happening, Porterfield is said to have struck the right side
of Brooks's head with his fist, and then to have continued
with more punches. Brooks, still handcuffed to the waist
restraint belt, fell face down as Porterfield allegedly
continued to punch him in the head while Devlin and
Rupinski stomped on his back and neck. As Porterfield
continued punching him in the back of the head, Brooks
represents that he went "unconscious semi-conscious," and
that several minutes later, Rupinski placed him in leg
shackles. According to Brooks, he was then raised about
four feet from the floor by the leg shackles' chains and
_________________________________________________________________

1. Although Devlin's name does not appear in the caption, he was a
defendant in the District Court, and summary judgment was granted in
his favor.

                               3


waist restraint belt, and slammed into a cell wall. At that
point, Porterfield allegedly began choking Brooks with both
hands, nearly rendering Brooks unconscious. As he was
choking Brooks, Porterfield is said to have threatened to kill
Brooks and to have told him that "no one will ever find
out." Finally, Brooks alleges that, after the attack, the
officers transported him back to his cell where he was
subjected to further physical and verbal abuse prior to
being unshackled.

As a result of the alleged attack, Brooks suffered injuries
including abrasions (or "scratches" as the defendants call
them) on his neck and hands. When the assault ended,
Brooks requested to see the shift commander and to receive
medical treatment. A nurse arrived five minutes later and
gave Brooks his daily medication for a previously diagnosed
condition of high blood pressure. The officer accompanying
the nurse told Brooks to file a grievance. Brooks claims that
shortly thereafter he, as well as other inmates, saw Devlin,
Rupinski and Porterfield congregating with a lieutenant in
what appeared to be an attempt to cover up the assault.
When the lieutenant passed Brooks's cell roughly thirty
minutes later, Brooks told him what had happened. The
lieutenant allegedly told Brooks that he did not believe him
and walked away. When the shift changed, Brooks, upon
his request, was examined and treated by a physician and,
the following day, received various pain medications.
Brooks maintains that his blood pressure remained very
high for two to three weeks after the alleged assault.2
Brooks also alleges that he was given medication for
anxiety, stress, and depression as a result of being attacked.3
_________________________________________________________________

2. Defendants have submitted the declaration of SCI-Huntingdon Medical
Records Technician Sharon Wolfe to the effect that Brooks's institutional
medical records show that: Brooks's blood pressure was not checked on
the date of the incident contrary to Brooks's allegations; Brooks had a
history of high blood pressure; and Brooks was prescribed Vistaril on
March 29, 1994, prior to the events at issue. See Appellees' Appendix at
SA-69, PP 11-14. Given summary judgment posture, we construe this
disputed fact in the light most favorable to plaintiff.
3. Brooks apparently contacted Superintendent Kyler and filed a
grievance. Two in-house investigations were conducted and Brooks was
cited for misconduct against Porterfield and for failing to obey an order.
After a hearing, Brooks was found guilty of both charges and was
sanctioned to 140 days in solitary confinement.

                               4


Based on the described events, Brooks commenced this
pro se action claiming, among other things, that the
defendants' actions violated the Eighth Amendment's
prohibition against the use of excessive force. 4 The
defendants filed an answer denying the allegations of the
complaint and, after discovery, moved for summary
judgment. Brooks responded to the motion by submitting
an affidavit setting forth his version of the events and
arguing that he had been provided with inadequate
discovery. The District Court found that Brooks's claims of
being violently beaten by three correctional officers were
unsupported by the medical evidence:

       Although there are material facts in dispute regarding
       the underlying cause and events at issue, it is
       apparent that the type of vicious, prolonged attack
       alleged by Brooks would have resulted in far greater
       injuries than those which he indisputably sustained.

Accordingly, the Court entered an order granting summary
judgment in favor of the defendants. Brooks now appeals.
The District Court had jurisdiction under 28 U.S.C.
_________________________________________________________________

4. Brooks also alleges that the defendants were deliberately indifferent
to

his medical needs, that his due process rights were violated, that his
request to file criminal charges against correctional officers was
improperly denied, and that he was provided insufficient discovery. We
agree with the District Court that Brooks cannot survive summary
judgment as to these claims. Although a deliberate failure to provide
medical treatment motivated by non-medical factors can present a
constitutional claim, see Durmer v. O'Carroll , 991 F.2d 64, 67 (3d Cir.
1993), in this case, it is uncontroverted that a nurse passing out
medications looked at Brooks's injuries within minutes of the alleged
beating, and that Brooks was treated by prison medical staff on the
same day. Moreover, he presented no evidence of any harm resulting
from a delay in medical treatment. See Hudson v. McMillian, 503 U.S. 1,
9 (1992) ("Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to medical
needs amounts to an Eighth Amendment violation only if those needs
are serious."). There was no evidence that the officers who did not
immediately grant his request for a doctor thought that Brooks needed
immediate medical treatment, or that the temporary denial "expose[d] the
inmate `to undue suffering or the threat of tangible residual injury.' "
Monmouth Cty. Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987) (citations omitted).

                               5


SS 1331, 1343. We have jurisdiction under 28 U.S.C.
S 1291. We set forth the familiar standard of review in the
margin.5

II.

A.

After conviction, the Eighth Amendment serves as the
primary source of substantive protection in cases where an
inmate challenges a prison official's use of force as
excessive and unjustified. See Whitley v. Albers, 475 U.S.
312, 327 (1986). In an excessive force claim, the central
question is "whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson v. McMillian, 503 U.S.
1, 7 (1992). Summary judgment in favor of a defendant is
not appropriate if "it appears that the evidence, 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; see also Sampley v. Ruettgers,
704 F.2d 491, 495 (10th Cir. 1983) (holding that
wantonness exists when a prison guard intends to harm an
inmate).

In determining whether a correctional officer has used
excessive force in violation of the Eighth Amendment,
courts look to several factors including: (1) "the need for the
application of force"; (2) "the relationship between the need
and the amount of force that was used"; (3) "the extent of
_________________________________________________________________

5. We exercise plenary review over a District Court's grant of summary
judgment and review the facts in the light most favorable to the party
against whom summary judgment was entered. See Coolspring Stone
Supply, Inc. v. American States Life Ins. Co., 10 F.3d 144, 146 (3d Cir.
1993). Summary judgment is proper if there is no genuine issue of
material fact and if, viewing the facts in the light most favorable to the
non-moving party, the moving party is entitled to judgment as a matter
of law. See F.R.C.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
At the summary judgment stage, the judge's function is not to weigh the
evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986).

                               6


injury inflicted"; (4) "the extent of the threat to the safety of
staff and inmates, as reasonably perceived by responsible
officials on the basis of the facts known to them"; and (5)
"any efforts made to temper the severity of a forceful
response." Whitley, 475 U.S. at 321 (citations omitted).

In support of their motion for summary judgment, the
defendants maintain that they employed only the minimal
force necessary to protect their safety and institutional
security, as we describe in the margin.6 They also rely on
two internal investigations which concluded that Brooks's
claims of excessive force were unfounded. See Appellees'
Appendix at SA-88-9, PP 4-7. On this evidence, the
defendants assert that they are entitled to summary
judgment. While these considerations support the
defendants' position, and might well lead to the defendants'
verdict at trial, they are controverted by facts adduced by
Brooks. If Brooks is believed, while the application of some
force may have been needed to reign in Brooks's apparently
overtime telephone call, he was shackled at the time so that
the extent of his threat to staff would not have been great.

What the appeal turns on then, under the Whitley
factors, is the defendants' third argument that the medical
evidence in the record does not support Brooks's allegation
that he was violently beaten. They contend that Brooks's
visible injuries, which include a few scratches to his neck
and wrists, were de minimis and create a presumption that
the force used against him was inadequate to state an
Eighth Amendment claim:
_________________________________________________________________

6. In his declaration, Porterfield states that after Brooks ignored three
orders to hang up the telephone, Porterfield entered the cell and
terminated the conversation. See Appellees' Appendix at SA-59-60, PP 3-
9. Thereafter, Porterfield contends, Brooks threw the phone against the
wall, spun around, and grabbed Porterfield's shirt. See id. at P 10. With
the assistance of Devlin and Rupinski, Porterfield states that he then
restrained Brooks and shackled Brooks's legs. See id. at P 11. Finally,
Porterfield denies each of Brooks's allegations of verbal and physical
abuse, adding that Brooks remained conscious throughout the entire
incident and was issued a misconduct for assault and refusing to obey
an order. See id. at PP 16-26. Devlin and Rupinski also deny Brooks's
allegations of excessive physical abuse and substantiate the version of
events Porterfield set forth in his sworn declaration.

                               7


       [T]he undisputed medical evidence shows that the only
       injuries which Brooks had were a few scratches to his
       neck and hands. Even assuming that the corrections
       officials were not justified in using force against
       Brooks, he has failed to present any medical evidence
       which would demonstrate that he sustained anything
       more than de minimis injuries.

(Brief of Appellees, p. 20).

B.

The Supreme Court case most on point is Hudson v.
McMillian. In Hudson, an inmate sued after an alleged
assault in which he suffered minor bruises and swelling of
his face, mouth, and lip, as well as a cracked dental plate.
See 503 U.S. 1, 4 (1992). The defendants in that case
argued that these injuries were "minor" and therefore could
not be redressed through an Eighth Amendment suit, but
the Court insisted that "[t]he dissent's theory that . . . an
inmate who alleges excessive use of force [must] show
serious injury in addition to the unnecessary and wanton
infliction of pain misapplies Wilson and ignores the body of
our Eighth Amendment jurisprudence." Id. at 10. Therefore,
Hudson primarily stands for the proposition that a showing
of "significant" or "serious" injury is not necessary to make
an Eighth Amendment claim. Id. at 8.

Hudson dictates that we must assess the degree of force
employed in relation to the apparent need for it. In
discussing this balance the Court used language indicating
that de minimis force may, in extreme instances, violate the
Eighth Amendment. The statement in Hudson that there is
no constitutional violation for "de minimis uses of physical
force, provided that the use of force is not of a sort
repugnant to the conscience of mankind," id. at 9-10
(citations omitted), counsels that, where the force is
"repugnant to the conscience of mankind," even a de
minimis use of force could be constitutionally significant.

We need not now resolve whether de minimis force would
support a constitutional claim in this case, however,
because Brooks's allegations rise far above the de minimis
level. Three correctional officers allegedly assaulted Brooks

                               8
by repeatedly punching him in the head, stomping on his
back and neck, slamming him into a wall, choking him,
threatening him, and nearly rendering him unconscious --
all while he was handcuffed to a waist restraint belt and, at
some points, even restrained by leg shackles -- simply
because he did not promptly respond to an order to end a
phone call. If a jury believes Brooks's version of the facts,
there is no question that the defendants' use of force was
excessive in light of the circumstances confronting them.

C.

The defendants claim that Brooks' evidence does not
support his claim, and that we cannot rely on his
declarations because there is a requirement of objective or
independent proof of something more than de minimis
injury in order to state this kind of Eighth Amendment
claim. The absence of medical evidence supporting Brooks's
allegations of being violently beaten is conclusive proof,
they submit, that the force used was de minimis by
constitutional standards. In granting summary judgment in
favor of the defendants, the District Court endorsed this
view. The Court's conclusion finds support in an opinion of
the Court of Appeals for the Fourth Circuit, which decided
in a similar case (but with less egregious allegations) that
evidence of only de minimis injury provided"conclusive
evidence" that only de minimis force was used. Norman v.
Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc). Focusing on
the following passage in Hudson:

       The blows directed at Hudson . . . are not de minimis
       for Eighth Amendment purposes. The extent of
       Hudson's injuries thus provides no basis for dismissal
       . . . .

Id. at 1262 (quoting Hudson, 503 U.S. at 10), the Norman
court concluded that the conjunction of these sentences
negatively implied that certain injuries could be so
insignificant as to warrant dismissal.

We disagree. Although the Norman reading is plausible,
drawing instruction from Supreme Court passages through
the use of the negative pregnant is risky and
unsatisfactory. We find the better reading of these

                               9


sentences to be the more straightforward one, drawn from
the general teaching of Hudson: i.e., the absence of
significant resulting injury is not a per se reason for
dismissing a claim based on alleged wanton and
unnecessary use of force against a prisoner. Although the
extent of an injury provides a means of assessing the
legitimacy and scope of the force, the focus always remains
on the force used (the blows). "[T]he constitutional
touchstone is whether punishment is cruel and unusual."
Hudson, 503 U.S. at 11 (emphasis added).

We acknowledge that Hudson itself leaves open the
possibility that there is some minimum amount of injury
required to make a wanton infliction of force claim.
However, a thorough probe of the Hudson opinion indicates
that the absence of proof of minor or significant injury
should not mandate dismissal. As we read the opinion, the
Supreme Court is committed to an Eighth Amendment
which protects against cruel and unusual force, not merely
cruel and unusual force that results in sufficient injury. In
Hudson, the Court distinguished between prisoner
conditions-of-confinement and medical-deprivation claims,
on the one hand, and wanton use of unnecessary force
claims on the other. Although the former kind of claim
cannot survive without evidence that a deprivation was
"harmful enough" (because contemporary standards of
decency do not require that the government give succor to
the medical and maintenance needs of inmates), the latter
kind of claim has no such requirement:

       When prison officials maliciously and sadistically use
       force to cause harm, contemporary standards of
       decency always are violated. This is true whether or
       not significant injury is evident. Otherwise, the Eighth
       Amendment would permit any physical punishment, no
       matter how diabolic or inhuman, inflicting less than
       some arbitrary quantity of injury.

Id. at 9.

Requiring objective or independent proof of minor or
significant injury, would ignore this teaching and place
protection from injury, instead of protection from wanton
force, at the hub of the Eighth Amendment. See Moore v.

                               10


Holbrook, 2 F.3d 697, 700 (6th Cir. 1993) ("No actual injury
needs to be proven to state a viable Eighth Amendment
claim."). But see Gomez v. Chandler, 163 F.3d 921, 924
(5th Cir. 1999) ("[T]o support an Eighth Amendment
excessive force claim a prisoner must have suffered from
the excessive force a more than de minimis physical
injury."). This is not to say, as the Hudson court observed,
that the degree of resulting injury is not highly relevant to
the determination of the unreasonableness of the force
used; rather, it merely says that the absence of objective
proof of non-de minimis injury does not alone warrant
dismissal. If we were to adopt the District Court's
reasoning, a prisoner could constitutionally be attacked for
the sole purpose of causing pain as long as the blows were
inflicted in a manner that resulted in visible (or palpable or
diagnosable) injuries that were de minimis. 7

D.

In sum, in light of Hudson, the District Court's ruling
cannot stand. The defendants' acts are not shielded from
constitutional scrutiny simply because Brooks did not
proffer objective evidence of more than de minimis injuries.
_________________________________________________________________

7. In his concurring opinion in Hudson, Justice Blackmun observed that
requiring significant (i.e., externally observable) injury would not

       constrain prison officials from lashing prisoners with leather
straps,
       whipping them with rubber hoses, beating them with naked fists,
       shocking them with electric currents, asphyxiating them short of
       death, intentionally exposing them to undue heat or cold, or
forcibly
       injecting them with psychosis-inducing drugs.

Hudson, 503 U.S. at 14 (Blackmun, J., concurring in the judgment).

We note in this regard that Brooks cannot seek independent medical
advice from a specialist or his personal physician to corroborate his
allegations regarding his injuries (or that he suffered from high blood
pressure as a result of the attack, see supra n.2). Therefore, when courts
do focus on the injury, it is important that they recognize that "an
inmate who is proceeding pro se, is in a decidedly difficult position from
which to generate `record evidence' on his behalf. . . [u]nder these
circumstances, his affidavits . . . are about the best that can be
expected

from him [at the summary judgment phase of] the proceedings." Norman
v. Taylor, 25 F.3d 1259, 1265 (4th Cir. 1994) (Hall, J., dissenting).

                               11


We have, throughout the opinion, used the language of de
minimis, minor, and significant injury as if there were such
categories, because the problem presented to us by the
District Court, the Fourth Circuit's opinion in Norman, and
the defendants, required us to respond to their effort to
make such delineations. However, we do not deem these
differences constitutionally significant; rather, an essential
aspect of our holding is that a plaintiff 's claim does not
turn on these definitions.
Therefore, our opinion should not be read to conclude
that the superficial lacerations and abrasions that Brooks
indisputably suffered were de minimis or minor. Regardless
of the category of the injury, Brooks adduced evidence of
the use of wanton, unnecessary force resulting in severe
pain. This creates a disputed issue of material fact for the
trier of fact to resolve. Accepting Brooks's allegations as
true, as we must, a jury could find that the defendants
acted not merely in good faith to maintain or restore
discipline, but rather out of malice for the very purpose of
causing harm. See Hudson, 503 U.S. at 7. On this record,
we cannot say as a matter of law, viewing the facts in the
light most favorable to Brooks, that excessive force was not
used. Accordingly, it was improper to grant summary
judgment on this claim.

We will reverse the District Court's judgment with respect
to the Eighth Amendment excessive force claim and remand
the case for further proceedings consistent with this
opinion. In all other respects, the judgment of the District
Court will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
