                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-6910


MICHAEL ANTHONY DILWORTH,

                 Plaintiff - Appellant,

           v.

CAPTAIN ADAMS; A R. FALES, JR.; LT. L. ROBINSON; LT. R.
JOHNSON; OFFICER COOKSON; OFFICER TROTT,

                 Defendants – Appellees,

           and

ED MCMAHON, Sheriff; New Hanover County; LT. TRAVIS ROBINSON;
SGT. WHITMORE; OFFICER MARINO; MR. WHITE; MR. THOMAS,

                 Defendants.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:13-ct-03291-D)


Argued:   September 20, 2016                 Decided:   November 7, 2016


Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.


Reversed in part, vacated in part, and remanded by published
opinion.    Judge Harris wrote the opinion, in which Judges
Wilkinson and Motz joined.


ARGUED: E. Brantley Webb, MAYER BROWN LLP, Washington, D.C., for
Appellant.   Scott Christopher Hart, SUMRELL, SUGG, CARMICHAEL,
HICKS & HART, P.A., New Bern, North Carolina, for Appellees. ON
BRIEF: Jason R. LaFond, MAYER BROWN LLP, Washington, D.C., for
Appellant.




                              2
PAMELA HARRIS, Circuit Judge:

      In 2013, Michael Anthony Dilworth was a pretrial detainee

at    North   Carolina’s       New    Hanover          County    Detention          Facility.

While    awaiting     trial,    Dilworth         spent    a     total   of    85     days   in

disciplinary     segregation         as     punishment        for      two    disciplinary

infractions,     one    arising       from       an     altercation          with     another

prisoner and one from an altercation with correctional officers.

Dilworth was not afforded a hearing in connection with either of

his placements in disciplinary segregation.

      Dilworth sued various Detention Facility officials under 42

U.S.C.    §   1983,    arguing       that    the       imposition       of    disciplinary

segregation     without    a     hearing         violated        his    procedural          due

process rights.        The district court granted summary judgment to

the   defendants,      reasoning      that       due    process     requirements         were

satisfied by Dilworth’s opportunity to file a written appeal

after he was placed in disciplinary segregation.                             We disagree,

and hold that as a pretrial detainee, Dilworth was entitled to a

hearing before he was punished.                  As the defendants concede, no

such hearing was afforded, and we therefore direct that judgment

be entered for Dilworth on his due process claim.

      Dilworth also raised an excessive force claim against the

two officers involved in his second fracas.                       Again, the district

court granted summary judgment to the defendants, on the ground

that the record showed the officers had acted in good faith and

                                             3
without a culpable state of mind.                    As the parties agree, a

subsequent Supreme Court decision has made clear that excessive

force claims by pretrial detainees are governed by an objective

standard, rather than the subjective one applied by the district

court.    Accordingly, we remand for consideration of Dilworth’s

excessive force claim under the proper standard.



                                        I.

                                        A.

     Dilworth     was    held   in   the     New     Hanover   County       Detention

Facility as a pretrial detainee.             A pretrial detainee is someone

who has been charged with a crime – in Dilworth’s case, failing

to appear in court as ordered – but not yet tried.                             Though

Dilworth had “not been adjudged guilty of any crime,” he could

be detained pending trial in order to ensure his presence at

that proceeding.        See Bell v. Wolfish, 441 U.S. 520, 536 (1979).

     During     his     pretrial     detention,       at    4:20     p.m.    on    the

afternoon of May 11, 2013, Dilworth was involved in a physical

fight    with   another     inmate.          Officer       Charles    Thomas,      the

supervising     guard,    immediately       placed    the    unit    on   “lockdown”

while he summoned assistance.           Less than an hour later, at 5:05

p.m., Thomas filed an “Inmate Disciplinary Report” describing

the incident and stating that he had taken the “disciplinary

action” of placing Dilworth in segregation for 45 days.                           J.A.

                                        4
58.     By 5:30, the watch commander on duty, Lieutenant Robert

Johnson, had reviewed and approved that penalty.

       Dilworth maintained that he had been disciplined in error,

as he was not the aggressor in the fight but had only protected

himself.       On May 21, he filed a written appeal pursuant to the

Detention Facility’s disciplinary procedures.                    On May 23, two

days later and twelve days after Dilworth’s initial placement in

segregation, administrative review officer A.R. Fales dismissed

the appeal, finding that a videotape of the incident did not

make clear “who started the fight or how[.]”                  J.A. 55.    Dilworth

ultimately was released from segregation on June 20, 2013.                          At

no     point    during     his    time   in   disciplinary       segregation    was

Dilworth afforded a hearing.

       Shortly     after    his    release,   Dilworth     was    involved     in   a

second altercation, this one involving Officers B.M. Cookson and

A. Trott.        The incident ended with Cookson using physical force

to restrain Dilworth, “throw[ing] multiple knee spears to his

legs     and    multiple     punches     to   his    head,”      and   with    Trott

“assist[ing] Cookson in taking Dilworth to the floor.”                    J.A. 126

(internal quotation marks omitted).                 How the incident began is

disputed:       According to the officers, force was required because

Dilworth refused to comply with orders and resisted an effort to

handcuff him; according to Dilworth, Cookson rushed him after

the    two     exchanged   verbal    insults.       This   incident,     too,    was

                                          5
captured    on    video     tape,    but    although         Dilworth       requested     the

video in a “Motion for Production of Documents” filed with the

district court, there is no indication that the tape was turned

over to Dilworth or viewed by the district court.

         Again,    Dilworth        was   placed     in      disciplinary       segregation

for 45 days.       Again, no hearing was provided.                    Within five hours

of   the    July       5,   2013     fight,      Trott       had      filed    an    Inmate

Disciplinary       Report    calling       for   45    days      in   segregation        as   a

disciplinary       action,    and    Lieutenant          Johnson      had    reviewed     and

approved    the     sanction.            Dilworth      once      more       contested     his

sanction, and this time, he filed a grievance seeking a hearing

at which he suggested he would present witnesses supporting his

account of events.          And Dilworth again filed a written appeal of

the disciplinary action, which was again dismissed by Fales, who

emphatically       rejected    the       request      for    a   hearing:      “I   am    NOT

required to recommend a disciplinary hearing if grounds for such

do not exist.”         J.A. 60 (emphasis in original).                  Dilworth served

the entirety of his 45-day sentence.

                                            B.

     In November 2013, Dilworth filed this pro se action under

42 U.S.C. § 1983.            He alleges, first, that Detention Facility

officials including Johnson and Fales violated the Due Process

Clause     of    the    Fourteenth        Amendment         by   failing       to   provide

adequate procedural safeguards – and, particularly, a hearing –

                                             6
in    connection         with    his    two     disciplinary           sanctions.       Second,

Dilworth        claims     that    Cookson         and       Trott   used     excessive      force

against him, also in violation of the Fourteenth Amendment.

          The defendants moved for summary judgment on both claims,

and the district court granted their motion.                                 As to procedural

due process, the district court held that because Dilworth was a

pretrial detainee, he could not be “placed in segregation as a

punishment for a disciplinary infraction” without due process.

J.A. 129 (internal quotation marks omitted).                                  Due process was

satisfied here, the district court reasoned, because Dilworth

was       provided       with     notice      of       the    charges        against   him    and

permitted to file a written appeal of his disciplinary sanction.

On that basis, the district court awarded summary judgment to

the defendants.

          On   Dilworth’s        excessive      force         claim,    the    district      court

applied        a    subjective         standard,         holding       that     Dilworth      was

required to establish that officers Cookson and Trott had used

force “maliciously and sadistically to cause harm,” rather than

in    a    “good-faith          effort”    to      maintain      discipline.           J.A.    130

(internal quotation marks omitted).                          Because no reasonable juror

could find that the officers had a “sufficiently culpable state

of    mind,”       the    district      court      concluded,          the    defendants      were

entitled to summary judgment.                      J.A. 131-32 (internal quotation

marks omitted).

                                                   7
       Dilworth timely appealed.



                                              II.

       We review a district court’s award of summary judgment de

novo.     Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015).

Summary judgment is appropriate only if “no material facts are

disputed    and     the     moving    party        is   entitled    to    judgment    as   a

matter of law.”            Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.

2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352

F.3d    896,     899      (4th   Cir.    2003))         (internal     quotation      marks

omitted).

                                              A.

       We begin with Dilworth’s contention that the district court

erred when it granted summary judgment to the defendants on his

procedural due process claim.                 The due process question presents

two     related      but      distinct       inquiries:            whether    Dilworth’s

placement      in      disciplinary      segregation         implicated       a     liberty

interest triggering procedural due process requirements; and, if

so,    whether      the    procedures        afforded     Dilworth       satisfied    those

requirements.           See   Wolff     v.    McDonnell,     418     U.S.    539,    556-57

(1974) (applying procedural due process analysis to denial of

prisoner good-time credits); Slezak v. Evatt, 21 F.3d 590, 593–

94 (4th Cir. 1994) (applying procedural due process analysis to

prison classification system).                     We hold that the disciplinary

                                               8
actions      taken     against    Dilworth       necessitated       compliance      with

procedural due process standards, and further hold that those

standards were not satisfied here.

                                           1.

       At the first step of the procedural due process inquiry, we

must    determine       whether       Dilworth’s       placement    in   disciplinary

segregation       implicates      a    protected       liberty   interest   and     thus

warrants procedural safeguards.                 See Sandin v. Conner, 515 U.S.

472, 484–86 (1995).          The district court answered that question

in     the   affirmative,        holding        that    pretrial    detainees       like

Dilworth may not be placed in disciplinary segregation without

due process.         On this point, we agree with the district court.

       By definition, pretrial detainees have not been convicted

of the crimes with which they are charged.                   For that reason, the

Supreme Court held in Bell v. Wolfish, they retain a liberty

interest     in    freedom   from       “punishment,”       even    while   they    are

detained to ensure their presence at trial.                      441 U.S. at 535-37.

Though “[l]oss of freedom of choice and privacy are inherent

incidents” of pretrial detention, discrete “punitive measures”

imposed during pretrial detention intrude on a protected liberty

interest.      Id. at 537; Surprenant v. Rivas, 424 F.3d 5, 17 (1st

Cir. 2005) (“Pretrial detainees, unlike convicts, have a liberty

interest     in   avoiding       punishment[.]”);         Martin   v.    Gentile,    849

F.2d 863, 870 (4th Cir. 1988) (finding pretrial detainees are

                                            9
protected with respect to “any form of ‘punishment’”) (emphasis

in original).

       Though        Bell       would          appear    to     settle          the    issue,         the

defendants       take       a       different          position.           According            to    the

defendants, the Supreme Court clarified in Sandin v. Conner that

only   a     subcategory            of    prison       “punishments”        will       infringe        on

protected       liberty             interests          and     necessitate            due       process

protections:            those            that    impose       “atypical         and     significant

hardship”       on    prisoners.                 See    515     U.S.       at    484.           Because

disciplinary segregation, the Court held in Sandin, does not

rise to this level, id. at 485-86, the defendants conclude that

Dilworth      had    no     protected           liberty      interest       and       thus      was   not

entitled to due process at all.

       But    Sandin,       which         concerned       the   punishment            of     convicted

prisoners, id. at 474-75, 484-85, has no application to pretrial

detainees like Dilworth.                    In Sandin, the Supreme Court explained

that prison regulations providing for procedures in connection

with   punishment           will         not    give    rise    to     a    protected           liberty

interest unless the punishment in question “imposes atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.”                      Id. at 484.          That was so, the Court

reasoned,       because         a    wide       range     of    “[d]iscipline              by    prison

officials . . . falls within the expected perimeters of the

sentence imposed by a court of law.”                                 Id. at 485 (emphasis

                                                   10
added).      But pretrial detainees, as we have explained, have not

been convicted or sentenced by a court of law, and thus fall

plainly outside this rationale.                And indeed, the Court in Sandin

expressly distinguished Bell on precisely this ground.                        Id. at

484 (rejecting prisoner’s reliance on Bell because “Bell dealt

with   the    interests      of     pretrial    detainees     and    not    convicted

prisoners”); see also Kingsley v. Hendrickson, 135 S. Ct. 2466,

2475 (2015)        (“pretrial     detainees      (unlike    convicted      prisoners)

cannot be punished at all”).

       Every federal court of appeals to consider the question has

concluded     that     Sandin’s      “atypical     and     significant      hardship”

standard does not govern the procedural due process claims of

pretrial detainees.          See Jacoby v. Baldwin Cty., No. 14-12932,

2016 WL 4506051, at *6 (11th Cir. Aug. 29, 2016); Hanks v.

Prachar,     457     F.3d    774,    776   (8th    Cir.     2006)    (per    curiam);

Surprenant, 424 F.3d at 17; Peoples v. CCA Det. Ctrs., 422 F.3d

1090, 1106 n.12 (10th Cir. 2005); Benjamin v. Fraser, 264 F.3d

175, 188–89 (2d Cir. 2001); Rapier v. Harris, 172 F.3d 999,

1004–05 (7th Cir. 1999); Mitchell v. Dupnik, 75 F.3d 517, 524

(9th Cir. 1996); see also Fuentes v. Wagner, 206 F.3d 335, 342

n.9 (3rd Cir. 2000) (holding Sandin inapplicable to detainee

convicted     but    not    yet   sentenced),     cert     denied,   531    U.S.   821

(2000).      We join our sister circuits and hold that Dilworth, as

a pretrial detainee, was entitled under Bell to procedural due

                                           11
process in connection with any “punishment” imposed on him by

the Detention Facility.

     It remains to be considered only whether Dilworth’s two

placements in disciplinary segregation constitute “punishment”

within the meaning of Bell.                 That a “disability is imposed for

the purpose of punishment,” the Court held in Bell, may be clear

from “an expressed intent to punish on the part of detention

facility officials[.]”              441 U.S. at 538.       If it is not, then a

court still may infer an intent to punish if a “restriction or

condition is not reasonably related” to some other legitimate

goal.     Id. at 539; see Martin, 849 F.2d at 870 (to establish

that restriction is “punishment,” pretrial detainee must show

“either that it was (1) imposed with an expressed intent to

punish    or    (2)    not    reasonably       related    to    a    legitimate      non-

punitive governmental objective”); Slade v. Hampton Rds. Reg’l

Jail, 407 F.3d 243, 251 (4th Cir. 2005) (same).

     In    this       case,    an     intent      to   punish       is    express,    and

manifestly      clear    from       the   record.      Dilworth’s         placement    in

segregation was identified as a “disciplinary action[] taken” on

the “Inmate Disciplinary Report” filed in connection with each

of his altercations.             J.A. 64, 69.          In dismissing Dilworth’s

appeals, administrative review officer Fales referred expressly

to the “disciplinary sanctions” and “disciplinary actions” on

review.        J.A.   55,     60.     And    in   their   brief      on    appeal,    the

                                            12
defendants     similarly,       and   consistently,      describe       Dilworth’s

placement    as    “disciplinary,”      a    “disciplinary      action,”      and    a

“penalty    for    []   disciplinary    violations.”       When    it    comes      to

intent, in other words, this is the easy case in which we need

not go beyond what is express.

      The    defendants     suggested       for   the   first    time    at    oral

argument that the restriction imposed on Dilworth might be so

“de minimis” that it cannot amount to punishment under Bell,

whatever its intent.         See Bell, 441 U.S. at 539 n.21 (defining

“punishment” in terms of intent but noting that there is “a de

minimis level of imposition with which the Constitution is not

concerned”) (internal quotation marks omitted); Robles v. Prince

George’s Cty., Md., 302 F.3d 262, 269 (4th Cir. 2002) (finding

pretrial detainee must show that official action was not “de

minimis” to invoke due process protections); Slade, 407 F.3d at

251 (same).        Though some cases may present close questions on

this score, see Collins v. Ainsworth, 382 F.3d 529, 545 (5th

Cir. 2004) (finding denial of phone calls and mattresses for

less than 24 hours to be de minimis), this one does not.                         For

the   85    days   in   which    he   was    in   disciplinary      segregation,

Dilworth was confined to his cell for 23 hours each day and

denied all personal contact except with attorneys or clergy.

Other courts have had no difficulty classifying this sort of

disciplinary segregation as “punishment” under Bell.                     See Kirk

                                        13
v. Boyles, 2010 WL 2720886, at *2 (E.D. Cal. July 8, 2010)

(magistrate        report)        (rejecting         argument       that        three-day

disciplinary confinement is de minimis), adopted by, 2010 WL

3516630 (E.D. Cal. Sept. 8, 2010); see also Surprenant, 424 F.3d

at    13–14     (treating       disciplinary       segregation      as     punishment);

Higgs    v.    Carver,     286    F.3d    437,    438     (7th   Cir.    2002)    (same);

Mitchell, 75 F.3d at 524 (same).                  The Detention Facility itself,

in    its   policy    on    inmate      disciplinary       procedures,         appears   to

agree,        treating      disciplinary          segregation      as      a     sanction

implicating        liberty        interests        and      triggering         procedural

protections.         J.A. 105.          We, too, conclude that disciplinary

segregation of a pretrial detainee, intended as a penalty for

disciplinary         infractions,         implicates        a    protected        liberty

interest under the Fourteenth Amendment and may not be imposed

without due process.

                                            2.

       Having determined that Dilworth was entitled to due process

before he was punished with disciplinary segregation, we turn to

the     question     of     whether      the      procedures      afforded       Dilworth

satisfied Fourteenth Amendment requirements.                       We do not doubt,

as the Supreme Court has held, that the realities of the prison

environment      require        “some    amount    of     flexibility”     in     the    due

process inquiry, so as to accommodate the very real interest of

prison      officials      in   maintaining       order    and   safety.         Wolff   v.

                                            14
McDonnell, 418 U.S. 539, 566 (1974).                         But the Supreme Court has

set out certain procedural minimums that pertain even in the

prison setting, and those requirements were not met here.

       The     elements          of    due     process       in     prison        disciplinary

proceedings         were     established        by    the    Supreme      Court      in     Wolff.

Emphasizing the need for “mutual accommodation” of institutional

objectives         and   constitutional          rights,      id.    at    556,      the     Wolff

Court    struck      a     careful      balance       between      inmates’       due     process

interests and the legitimate goals and security concerns of a

penal    institution,            id.   at     556-63.        The    result     was      a   clear

explication of the necessary procedural safeguards, beginning,

most critically, with a hearing, at which an inmate may call

witnesses and present documentary evidence unless doing so would

present       an    undue     hazard.           Id.    at    557-58       (“The      Court    has

consistently held that some kind of hearing is required at some

time    before       a     person      is    finally     deprived         of   his      property

interests      .    .    .   .    We    think    a    person’s      liberty        is     equally

protected[.]”).            An inmate also is entitled, the Court held, to

written notice of the alleged disciplinary violation at least 24

hours before the hearing, and, after the hearing, to a written

statement      describing         the       reasons    for    the   disciplinary            action

taken.       Id. at 563-65.

       We note that the requirements laid out in Wolff are clear

enough that the Detention Facility has incorporated them into

                                                15
its   own   published      policy      on    inmate     discipline.         Under      that

policy,     as   per   Wolff,    an    inmate     charged      with   a    disciplinary

violation implicating a liberty interest is entitled, after 24

hours notice of the charges, to a hearing at which the inmate

may make a statement on his or her behalf, present witnesses and

evidence, and ask questions of his or her accuser.                           After the

hearing, the inmate is provided a written report describing the

disciplinary findings made as a result of the hearing. 1

      As the defendants concede, the process afforded Dilworth

complies with neither the Detention Facility’s policy nor the

dictates of Wolff.           There is no factual dispute as to what

process Dilworth received:              the opportunity to take a written

appeal after his sanction was finalized.                      Nor can there be any

question      but   that    this      process     falls       short   of   what     Wolff

requires.

      Under      Wolff,    the   core       component    of    due    process     in   the

prison discipline context is the right to a hearing.                                To be

      1To be clear, Dilworth’s liberty interest, as explained in
Bell, arises from the Constitution itself, and not from any
mandatory language in the Detention Facility’s policy. See 441
U.S. at 535 (“[U]nder the Due Process Clause, a detainee may not
be punished prior to an adjudication of guilt in accordance with
due process of law.”); cf. Sandin, 515 U.S. at 483-84
(discussing circumstances under which state may create liberty
interest through mandatory regulatory language).   The Detention
Facility’s policy does, however, suggest both that Wolff’s
requirements are generally understood and that the Detention
Facility believes itself able to comply with them.



                                             16
sure, Wolff does not contemplate “full adversary proceedings,”

Benjamin,         264    F.3d   at     190,   and    prison      officials      retain       the

discretion to “keep [a] hearing within reasonable limits” in an

effort to avoid disruption and threats to safety.                                   Wolff, 418

U.S. at 566.            For instance, prison officials need not permit an

inmate      to    cross-examine         witnesses        against    him,      nor    allow    an

inmate to call witnesses who would “create a risk of reprisal or

undermine authority”; and inmates do not possess the right to

retained or appointed counsel.                 Id. at 566-70; see also Baker v.

Lyles, 904 F.2d 925, 932–33 (4th Cir. 1990) (permitting use of

hearsay      statements           by    unidentified         informants         in      prison

disciplinary        hearings).          But   the     hearing      itself,      at    which    a

pretrial detainee like Dilworth may contest whether he has in

fact violated a disciplinary rule before he is punished, is the

minimal requirement of the Wolff process.                          See 418 U.S. at 557-

58;    see       also,    e.g.,      Mitchell,      75    F.3d     at   524    (“[P]retrial

detainees may be subjected to disciplinary segregation only with

a     due    process       hearing[.]”);            Benjamin,       264    F.3d       at     190

(contrasting hearing required by Wolff with more minimal process

required for prison administrative actions). 2


       2
       Indeed, the petitioner in Wolff was afforded a hearing
before he was sanctioned; the issue in Wolff was whether that
hearing provided sufficient process, or whether more was
required.   418 U.S. at 559-60.   In holding that an inmate’s
right to call or cross-examine witnesses must be balanced
(Continued)
                                              17
      That minimal requirement was not satisfied here.                   As the

defendants    acknowledge,       Dilworth     never   was    provided    a    due

process hearing.        Instead, when Dilworth requested a hearing, a

Detention Facility official informed him that the official was

“NOT required to recommend a disciplinary hearing if grounds for

such do not exist.”           J.A. 60 (emphasis in original).           Nor can

Dilworth’s opportunity to file a written appeal substitute for

the missing hearing.          A statement in writing is not a hearing,

and it is not what is contemplated by Wolff – as is clear, for

instance, when Wolff holds that an inmate has a qualified right

to call witnesses to testify at his hearing.                 418 U.S. at 566-

67.   And by definition, an appeal is a request for review of an

action already taken, whereas Wolff’s due process hearing is to

be provided before final deprivation of a liberty interest.                  Id.

at 557-58.

      That   is   not    to    say,   of    course,   that   prison     or   jail

officials are barred from taking immediate action, without a

prior hearing, in response to altercations like Dilworth’s or

other disciplinary offenses.          On the contrary, it is clear – and

Dilworth does not dispute – that for safety or security reasons,




against a prison’s need for order and security, in other words,
the Court cast no doubt on the necessity of the underlying
hearing itself.



                                       18
a jail may take immediate preventative action to segregate a

detainee after a fight or disruption.                          See, e.g., Baker, 904

F.2d at 930-31; Higgs, 286 F.3d at 438.                         And prisons and jails

may and routinely do place inmates charged with disciplinary

infractions         in     “administrative            segregation”         pending         their

disciplinary        hearings,        allowing         both     prison       officials        and

inmates time to investigate and prepare for those hearings.                                  See

Hewitt v. Helms, 459 U.S. 460, 463-65, 473-74 (1983) (approving

placement      of        inmate     in     administrative        segregation          pending

investigation and hearing on disciplinary charges), receded from

on other grounds by Sandin, 515 U.S. at 482–83; see Brown v.

Braxton, 373 F.3d 501, 503 (4th Cir. 2004) (inmate placed in

“administrative           detention”       pending     disciplinary         hearing        while

officials investigated altercation).                      The Detention Facility’s

disciplinary        policy        contemplates      as   much,       providing        that   an

inmate   may    be       placed     in   segregation         prior   to     a   hearing      and

formal disciplinary action to ensure order and security, and we

have   no   quarrel        with     that    understanding.            But       all   of    this

presupposes that there is, in fact, a hearing in connection with

the final imposition of disciplinary action, and that is the

element that is missing here.

       On this record, it is plain that Dilworth was not provided

a hearing before he was subjected to punishment in the form of

disciplinary        segregation,         and    the    defendants         do    not   contend

                                               19
otherwise.              That is enough to resolve Dilworth’s due process

claim        as    a    matter      of   law.             We    remand       for     resolution       of

Dilworth’s damages claim, consistent with this opinion.

                                                     B.

        We    next       address     Dilworth’s           contention          that     the   district

court erred in granting the defendants summary judgment on his

excessive          force      claim.          As    noted       above,       the   district        court

applied       a    subjective        standard         to       Dilworth’s       claim,       requiring

Dilworth to show that Officers Cookson and Trott had acted “with

a sufficiently culpable state of mind” in the form of an intent

to    “maliciously            and   sadistically               []    cause    harm.”         J.A.    130

(internal quotation marks omitted).                                 Because the record could

not support such a finding, the district court granted summary

judgment to the defendants.

       After the district court issued its ruling, the Supreme

Court    held          in    Kingsley    v.        Hendrickson         that     “the    appropriate

standard          for    a    pretrial    detainee’s                excessive      force     claim    is

solely an objective one.”                      135 S. Ct. at 2473.                   It is enough,

the Supreme Court concluded, that a pretrial detainee show that

the     “force          purposely        or        knowingly          used    against        him     was

objectively unreasonable,” id., regardless of an officer’s state

of mind, id. at 2472.

       The parties agree that the district court has not evaluated

Dilworth’s claim under the standard set out by the intervening

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decision   in   Kingsley.      Accordingly,         we   remand   so   that   the

district   court   may   consider,    in     the    first    instance,    whether

under the “facts and circumstances” of this particular case, and

from the “perspective of a reasonable officer on the scene,” the

force used against Dilworth was objectively excessive.                    Id. at

2473; see Barrett v. Applied Radiant Energy Corp., 240 F.3d 262,

264 (4th Cir. 2001) (remanding for reconsideration in light of

intervening authority).        In deciding whether summary judgment

may be granted to the defendants under that objective standard,

the district court should view the video of the July 5 incident

and consider it along with other relevant evidence bearing on

objective reasonableness.       Cf. Ingle ex rel. Estate of Ingle v.

Yelton, 439 F.3d 191, 197 (4th Cir. 2006) (holding grant of

summary    judgment   on    excessive       force    claim    premature     where

district court has not considered videotape evidence).



                                     III.

     For the foregoing reasons, we reverse the district court’s

grant of summary judgment to the defendants on Dilworth’s due

process claim, order that judgment be entered for Dilworth, and

remand for resolution of Dilworth’s damages claim.                     We vacate

the district court’s grant of summary judgment to the defendants



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on the excessive force claim and remand for further proceedings

consistent with this opinion.



                  REVERSED IN PART, VACATED IN PART, AND REMANDED




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