                        United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-3539
                                   ___________

Jeffrey E. Samuels,                   *
                                      *
          Appellant,                  *
                                      *
     v.                               * Appeal from the United States
                                      * District Court for the
Regina Hawkins; Jackie Robinson;      * Western District of Missouri.
Mark Boucher; James McCoy; Charles *
Megerman,                             *       [UNPUBLISHED]
                                      *
          Appellees.                  *
                                 ___________

                         Submitted: April 6, 1998

                               Filed: May 19, 1998
                                   ___________

Before BOWMAN, Chief Judge, WOLLMAN, MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                            ___________

PER CURIAM.

      Jeffrey E. Samuels appeals from the district court&s1 adverse grant of summary
judgment in his 42 U.S.C. § 1983 action alleging constitutional violations against
Jackson County Missouri Detention Center employees. Having carefully considered



      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.
the record in this case, we affirm the judgment of the district court. See 8th Cir. R.
47B.

      MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and dissenting.

      I concur in the affirmance of the district court&s judgment as to Mr. Samuels&s
claims against Captain Jackie Robinson, Officer Mark Boucher, Manager of Detention
James McCoy, and Director Charles Megerman.

     As to Mr. Samuel&s Eighth Amendment claim against Officer Regina Hawkins,
however, I respectfully dissent.

       Although the facts are contested, I recount them most favorably to Mr. Samuels,
the non-moving party. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997).
On the evening of May 24, 1994, Officer Hawkins reported that Mr. Samuels, then a
Jackson County Detention Center (JCDC) inmate, had thrown urine on her, and Mr.
Samuels was placed in restraints. He was shackled to his cell bed on his back, and his
arms and hands were chained and handcuffed at his sides.

       Four hours later, Officer Hawkins was admitted to the module in which Mr.
Samuels was housed. Officer Hawkins went directly to the open doorway of Mr.
Samuels&s cell. With her hands behind her back, she asked Mr. Samuels whether he
was serving a life sentence; stated, “I&m gonna make sure you never see, again!”; and
brought a cup out from behind her back and threw a clear liquid at Mr. Samuels, which
caused him to experience a slight burning sensation in his eyes and on his face.
Because of his restraints, Mr. Samuels was unable to avoid the liquid or shield his face.
Officer Hawkins then ran from the area. Other inmates, hearing Mr. Samuels yell that
Officer Hawkins had thrown a liquid on him that seemed to be burning his face, called



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for help. Mr. Samuels was examined by a JCDC nurse, who found his vision was
intact, but told him to apply cold compresses to his eyes.

       After the occurrence, Mr. Samuels experienced sleeplessness, nightmares,
flashbacks, extreme stress, paranoia, and vision problems, and doctors diagnosed him
with “reactive anxiety” and “post-traumatic stress disorder.” He was prescribed anti-
depressant and anti-anxiety medications.

       The unnecessary and wanton infliction of pain is cruel and unusual punishment
forbidden by the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1, 5 (1992).
Where an inmate’s Eighth Amendment claim is based on excessive force, the “core
judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” See id. at 6-7.
Considerations relevant to this determination include the threat prison officials
reasonably perceived, the need for force, the efforts made to minimize the force used,
the relationship between the need for using force and the amount of force used, and the
degree of injury inflicted. See id. at 7; McLaurin v. Prater, 30 F.3d 982, 984 (8th Cir.
1994).

       Based on the Hudson considerations, I conclude that Mr. Samuels offered
sufficient evidence that Officer Hawkins’s conduct was malicious and sadistic to
survive summary judgment. Because Mr. Samuels was fully restrained and posed no
threat to anyone, no force was necessary. His subsequent symptoms and psychiatric
treatment demonstrated a cognizable injury under the circumstances of this case. Cf.
Hobbs v. Lockhart, 46 F.3d 864, 869 (8th Cir. 1995) (inmate&s emotional distress was
sufficiently serious to support Eighth Amendment failure-to-protect claim; citing
Hudson, 503 U.S. at 16 (Blackmun, J., concurring) (“#[p]ain& in its ordinary meaning
surely includes a notion of psychological harm”)).



                                          -3-
        I disagree with the district court&s statement that Officer Hawkins cannot be
liable because “de minimis” force was employed. “De minimis” uses of force are not
excluded from the Eighth Amendment&s prohibition against cruel and unusual
punishment where the use of force is of a sort “repugnant to the conscience of
mankind.” Hudson, 503 U.S. at 10 (quotation marks and quoted cases omitted). Here,
viewing the evidence favorably to Mr. Samuels, Officer Hawkins intentionally and with
premeditation approached Mr. Samuels while he was on his back and fully restrained
to the bed by chains and handcuffs, reminded him of his life sentence, threatened him
with permanent blindness, while throwing a stinging liquid into his eyes, and then ran
from the area without providing any aid. I believe that such conduct, when examined
in its totality, would have placed Mr. Samuels, who was helpless to assist himself, in
reasonable and immediate fear of permanent blindness, and I conclude that such
conduct is “repugnant to the conscience of mankind.”

      Consequently, I would reverse the judgment entered in favor of Officer Hawkins
and remand that claim to the district court for further proceedings. I would affirm the
judgment of the district court in all other respects.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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