                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-6882


KORY PUTNEY,

                Plaintiff - Appellant,

           v.

R. LIKIN, Correctional Officer; J. PHILIP MORGAN, Warden; S.
A. WILSON, Correctional Officer; W. SLATE, Correctional
Officer; R. WATSON, Assistant Commissioner; J. MICHAEL
STOUFFER, Deputy Secretary,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cv-01837-GLR)


Argued:   September 15, 2015                 Decided:   July 14, 2016


Before GREGORY, Chief Judge, and NIEMEYER and THACKER, Circuit
Judges.


Vacated and remanded by unpublished per curiam opinion.    Judge
Niemeyer wrote a separate opinion concurring in part, dissenting
in part, and concurring in the judgment.


ARGUED: Ruthanne Mary Deutsch, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.   Dorianne Avery Meloy, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: Steven H. Goldblatt, Director, Matthew J.
Greer, Student Counsel, Utsav Gupta, Student Counsel, Appellate
Litigation   Program,    GEORGETOWN  UNIVERSITY   LAW   CENTER,
Washington, D.C., for Appellant.     Brian E. Frosh, Attorney
General of Maryland, Stephanie Lane-Weber, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

             Kory Putney (“Appellant”) appeals the district court’s

grant   of        summary    judgment      to     officials      at    the   Western

Correctional Institution (“WCI”) (collectively, “Appellees”) on

his Eighth Amendment claim.               After a “shakedown” in his housing

unit,   Appellant’s         mattress      was    removed.        Although    he    was

adjudged not guilty of hiding contraband in the mattress, prison

officials did not return his mattress for more than four months.

Appellant claims the deprivation of his mattress caused lack of

sleep, confusion, headaches, backaches, and other infirmities.

Appellees moved to dismiss, or in the alternative, for summary

judgment.     Although Appellant requested discovery, the district

court   construed      the    motion      as    one    for   summary   judgment    and

granted it without addressing Appellant’s discovery request.

             We hold that the district court failed to conduct a

plenary analysis on the objective prong of Appellant’s Eighth

Amendment claim, and it erred in failing to grant Appellant’s

discovery request.           We therefore vacate and remand for further

proceedings.

                                           I.

                                           A.

             We    view     the   facts    in    the    light   most   favorable    to

Appellant.        See Butler v. Drive Auto. Indus. of Am., Inc., 793


                                           3
F.3d 404, 407 (4th Cir. 2015).             At all times relevant to this

appeal, Appellant was in the custody of the Maryland Department

of Public Safety and Correctional Services and confined at WCI

in Cumberland, Maryland.

             In   November   2010,    Appellant   was    placed   in   a    WCI

housing unit designated for disciplinary segregation after he

was found guilty of assaulting a correctional staff member (the

“November 2010 incident”).       Appellant claims that from November

2010 to February 2011, correctional officers (“COs”), including

Officer S.A. Wilson, deprived Appellant of a pillow and blanket

“as revenge” for the November 2010 incident.            J.A. 136. 1

             Then, on June 28, 2011, COs conducted a shakedown in

Appellant’s housing unit.         During the shakedown, COs searched

the   inmates’     mattresses   for   contraband,    usually      cutting    or

damaging the mattresses.        Appellant’s mattress was damaged and

confiscated. 2     Appellees claim that, pursuant to WCI policy, a

copy of which is absent from this record, each inmate whose

mattress had been removed and/or damaged had to either pay for

the mattress, or receive an infraction “ticket” and resolve the


      1Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
      2   It appears that Appellant retained his sheets and blanket.




                                       4
matter via a disciplinary hearing.                  J.A. 137.        Appellant chose

the latter course.

                On July 1, 2011, Appellant’s disciplinary hearing was

held.      He was adjudged not guilty.                 Appellees claim that a

search     of    Appellant’s     mattress       revealed   that        his   mattress

contained a “fishing line,” made out of state-issued bed sheets,

which inmates often use to pass contraband from cell to cell.

See Appellees’ Br. 7; J.A. 64.               However, they claim that because

the infraction ticket listed “someone other than [Appellant] in

error,” Appellant was found not guilty.                J.A. 92.        Appellant, on

the other hand, claims that he “did nothing to the mattress that

was taken from [him] and destroyed.”                  Id. at 36.        Viewing the

facts in the light most favorable to Appellant, we must proceed

under the assumption that he had no contraband in his mattress.

In any event, it is undisputed that Appellant was adjudged not

guilty of any prison rule violation on July 1.

            After the disciplinary hearing, having been found not

guilty of any infraction, Appellant asked Wilson for a mattress.

Wilson replied, “[Lt. Rodney] Likin is the reason you don’t have

a mattress and I’m not going to get my ass chewed off for going

against Likin’s orders.”           J.A. 137.         Appellant claims he also

asked    Officer    W.   Slate    for    a    mattress,    and       although   Slate

“ensured    all    [other]     inmates       were   provided     a    mattress,”   he


                                         5
“deprived [Appellant of] a mattress as revenge for the November

[2010] incident.”          Id.

              Despite the fact that Appellant had been adjudged not

guilty, Likin ordered a second infraction ticket to be issued to

Appellant on July 6, 2011.             At a hearing on July 11, all charges

underlying that second ticket were also dismissed.                         During the

July    11    hearing,     Slate   “spitefully       informed     [Appellant]      that

money       [that    is,   payment     for   the    damaged     mattress     per   the

purported WCI policy] was not the reason [he] was being deprived

[of] a mattress.”           J.A. 140.        This July 11 second not guilty

verdict was affirmed by Warden J. Phillip Morgan on July 21.

              Meanwhile, Appellant “began suffering [from] headaches

from sleeping on cold hard metal.”                 J.A. 183.      He also had lower

back, neck, and hip pain.               In a sick-call request form dated

July 11, 2011, Appellant complained, “I am having headaches.

Sound (loud) and bright lights are hurting me.                      It is worse in

the morning when I wake up.              My mind is confused all day.”             Id.

at    17.       On    another    sick-call       request   form    dated    July   17,

Appellant complained, “[m]y lower back is hurting.                         My muscles

are tight.          My neck is hurting, along my spine . . . .”                Id. at

19.     WCI physicians prescribed him Amitriptyline Hydrochloride

(an antidepressant with sedative effects), Ibuprofen, Baclofen

(a     muscle       relaxer),    and   Excedrin      Migraine.       On     July   22,


                                             6
Appellant filed yet another sick-call request form, indicating

he was still “suffering from headaches and . . . having trouble

sleeping” and his “neck, back, and head” were in pain.                       Id. at

23.    In a declaration, Appellant later stated that lying on the

“metal [bunk]” made it “hard to sleep,” and when he did sleep,

he did not sleep “well or long.”                Id. at 144-45.

            On June 28, 2011, Appellant filed a grievance seeking

the return of his mattress.          On July 28 Warden Morgan dismissed

the grievance, explaining, “Your mattress was destroyed as a

result of staff retrieving contraband that you had hidden inside

of    it.    .   .   .   [Y]ou   will       be    issued    a   new   mattress   when

restitution has been made to the institution for destruction of

property.”       J.A. 22.    Appellant appealed the dismissal of his

grievance, and on October 17, R. Watson, Assistant Commissioner

of Corrections, directed Morgan to give Appellant a mattress,

explaining, “[Appellant’s] appeal has been reviewed and is found

meritorious.         The investigation revealed [Appellant was] found

not guilty of the infraction received on 6/28/11 for destruction

of state property and possession of contraband.”                          Id. at 36

(emphasis supplied).

            Appellant     received      a       copy   of   the   order    directing

Morgan to give him a mattress, and he presented it to “every

C.O. who would give [him] time”; however, still “none would give


                                            7
[him] a mattress.”           J.A. 142.             Two Inmate Grievance Officers

visited the facility on November 3 and “made prison officials

give [him] a mattress.”            Id. at 11, 142.               More than four months

after Appellant was first adjudged not guilty, prison officials

finally complied.

                                            B.

            On June 21, 2013, Appellant filed a pro se complaint

pursuant    to    42     U.S.C.    §    1983       in    the    District     of    Maryland.

Appellees filed a motion to dismiss, or in the alternative, for

summary judgment.           They argued that Appellant was deprived a

mattress only because he refused to pay restitution, he failed

to   show   any    objective       injury,         and     he    failed      to   show    that

Appellees had a culpable state of mind.                         Additionally, Appellees

claimed qualified immunity.

            Appellant,        still        proceeding            pro      se,     filed    an

opposition along with a declaration seeking discovery before the

entry of judgment.         In the opposition, Appellant claimed that he

was deprived of his mattress because of Appellees’ “malicious

behaviors,   motivated        by       revenge”         based   on     the   November     2010

incident.         J.A.    120,     123.        He       further      urged      that   prison

officials were “deliberate[ly] indifferen[t]” to the injuries he

suffered as a result of this deprivation.                         Id. at 130 (internal

quotation marks omitted).


                                               8
              The district court construed Appellees’ filing as a

motion      for   summary         judgment       and   granted      it.       Treating

Appellant’s       claim      as     an     Eighth      Amendment      conditions-of-

confinement claim, the district court concluded that Appellees

“were aware that [Appellant] was without a mattress long after

he    was   exonerated       of    disciplinary        charges      related   to    its

destruction.”         J.A.    256.         Nonetheless,       the    district      court

granted     summary   judgment,          reasoning     that   Appellant   could      not

show an objectively significant physical injury:

             [Appellant] maintains that he still suffers
             from back pain as a result of sleeping in a
             cell without a mattress.      Medical records
             indicate   that   Plaintiff   was   prescribed
             Baclofen,   Amitriptyline,   Ibuprofen,    and
             Excedrin migraine on July 25, 2011.        The
             same   record,    however,   indicates    that
             [Appellant] appeared to be in little to no
             distress.    There are no medical records
             documenting any continued problems with pain
             or discomfort during the following months
             when Plaintiff did not have a mattress.
             [Appellant] claims that he continues to
             suffer pain from sleeping on a metal bunk
             without a mattress.    He does not, however,
             forecast evidence which would establish the
             injury claimed.

Id. (footnotes and citations omitted).                    The district court did

not    address     Appellant’s           discovery      request      or   Appellees’

qualified immunity argument.




                                             9
                                            II.

            Appellant maintains the district court erred by, inter

alia, failing to consider the risk of harm posed by depriving

him of a mattress for four months, and by failing to grant his

request to pursue discovery before ruling on Appellees’ motion.

Because we agree that the district court erred on both counts,

we vacate and remand.

                                            A.

            We      first     address       Appellant’s        argument        that     the

district court erroneously failed to consider the risk of harm

in   its   Eighth     Amendment      analysis.            We   review    the    district

court’s legal analysis at summary judgment de novo.                            See Front

Royal & Warren Cty. Indus. Park Corp. v. Town of Front Royal,

Va., 135 F.3d 275, 284-85 (4th Cir. 1998) (reversing grant of

summary     judgment        where    “district          court’s    analysis      stopped

short”).

            The Eighth Amendment “protects inmates from inhumane

treatment     and     conditions          while    imprisoned.”          Williams       v.

Benjamin,    77     F.3d    756,    761    (4th    Cir.    1996).       It   “prohibits

punishments      which,     although       not    physically      barbarous,     involve

the unnecessary and wanton infliction of pain, or are grossly

disproportionate       to    the    severity       of    the   crime.”         Rhodes    v.




                                            10
Chapman,      452       U.S.       337,   346    (1981)          (citations       and   internal

quotation         marks       omitted).

              When an inmate raises an Eighth Amendment claim based

on a prisoner’s conditions of confinement, 3 he must first prove

he experienced a “deprivation of a basic human need [that] was

objectively        sufficiently           serious.”          De’Lonta        v.   Johnson,     708

F.3d       520,    525        (4th    Cir.      2013)       (alterations          and   internal

quotation marks omitted) (the “Objective                              Prong”).      Second, the

inmate must prove that “subjectively the officials acted with a

sufficiently        culpable          state     of    mind.”          Id.    (alterations      and

internal quotation marks omitted) (the “Subjective Prong”).

              On the Objective Prong, the district court concluded

the physical injuries actually suffered by Appellant “do[] not

qualify      as     .     .    .     significant        .    .    .    for    purposes    of    a

constitutional            claim.”             J.A.     256.           This     conclusion       is

incomplete.         By focusing only on the injury Appellant actually

suffered, the court erred by ignoring the risk of harm posed by

depriving someone of a mattress for over four months.                                   We have

made clear that a prisoner can satisfy the objective prong of an

       3Appellant attempts to cast his cause of action as an
excessive force claim to this court; however, we decline to rule
on the propriety of this characterization at this stage.
Appellant’s arguments on this point may be presented upon
remand.




                                                 11
Eighth      Amendment       claim    by   showing         this   “substantial     risk    of

. . . serious harm.”                Shakka v. Smith, 71 F.3d 162, 166 (4th

Cir. 1995); see also Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir.

2016); De’Lonta, 708 F.3d at 525; cf. Helling v. McKinney, 509

U.S. 25, 33 (1993) (“We              have     great       difficulty     agreeing     that

prison authorities . . . may ignore a condition of confinement

that       is   sure   or    very    likely    to     cause      serious    illness      and

needless        suffering      the    next         week     or   month     or    year.”). 4

Therefore, on remand, the district court should complete the

analysis and consider the risk of harm posed to Appellant.

                                              B.

                Next, Appellant contends the district court improperly

ruled on Appellees’ motion for summary judgment without allowing

Appellant to conduct discovery.                     We give district courts “wide

latitude        in   controlling      discovery,”          and   will    not    disturb   a

district        court’s     discovery     order      “absent      a   showing    of   clear


       4
       This court has remanded Eighth Amendment actions in two
recent unpublished decisions, directing the district court to
address the risk of harm analysis. See Webb v. Deboo, 423 F.
App’x 299, 301 (4th Cir. 2011) (per curiam) (concluding that the
district court erred by only considering actual injury suffered
and not the risk of harm); Thomas v. Younce, 604 F. App’x 325,
326 (4th Cir. 2015) (per curiam) (“Although Thomas may have
suffered a relatively minor injury to his knee, the risk of more
significant harm from a fall down the stairs (or out of an upper
bunk) is obvious.”).




                                              12
abuse of discretion.”         Rowland v. Am. Gen. Fin., Inc., 340 F.3d

187, 195 (4th Cir. 2003) (internal quotation marks omitted); see

also McCray v. Md. Dep’t of Transp., Md. Transit Admin., 741

F.3d 480, 483 (4th Cir. 2014).

              In response to a summary judgment motion, the non-

moving party may present an “affidavit or declaration that, for

specified reasons, it cannot present facts essential to justify

its opposition.”        Fed. R. Civ. P. 56(d).              The court may then

“defer considering the motion or deny it”; “allow time to obtain

affidavits or declarations or to take discovery”; or “issue any

other appropriate order.”           Fed. R. Civ. P. 56(d)(1)-(3).           Here,

the    district   court     chose    the    third   path,    simply   ruling    on

Appellees’      summary     judgment       motion   without    addressing      the

discovery request.        We find this to be an abuse of discretion.

                                       1.

              First, despite Appellees’ arguments to the contrary,

Appellant’s request for discovery was procedurally sufficient.

              We have explained a non-moving party “cannot complain

that summary judgment was granted without discovery unless that

party had made an attempt to oppose the motion on the grounds

that   more    time   was   needed   for     discovery.”      Evans   v.   Techs.

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).

Along these lines, Appellees contend that Appellant failed to


                                       13
comply with the formal substantive requirements of Rule 56(d).

They contend Appellant “failed to specify the reasons why he

could not present facts essential to justify his opposition” and

“failed to specify the facts he wished to discover.”                          Appellees’

Br.   29-30.         Appellees’       argument        fails       both   legally         and

factually.

             We    have   not    insisted       on   an    affidavit     in    technical

accordance        with    Rule     56(d)    “if      the    nonmoving         party      has

adequately informed the district court that the motion is pre-

mature and that more discovery is necessary.”                        Harrods Ltd. v.

Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002);

see also Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008).

Harrods explains:

             [I]f the nonmoving party’s objections before
             the district court served as the functional
             equivalent of an affidavit, and if the
             nonmoving party was not lax in pursuing
             discovery, then we may consider whether the
             district   court  granted  summary  judgment
             prematurely, even though the nonmovant did
             not record its concerns in the form of a
             Rule 56[(d)] affidavit.

302 F.3d at 244-45 (citation, footnote, and internal quotation

marks omitted).           This is especially true where, as here, the

non-moving party is proceeding pro se.                     See Erickson v. Pardus,

551   U.S.   89,    94    (2007)    (“A    document       filed    pro   se    is   to    be

liberally construed[.]” (internal quotation marks omitted)); cf.


                                           14
Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (“What

might be a meritorious claim on the part of a pro se litigant

unversed in the law should not be defeated without affording the

pleader       a    reasonable      opportunity       to    articulate   his     cause    of

action.”).

                  And   although    Appellant’s           declaration   may     not   have

mentioned Rule 56 or been filed in technical accordance with

Rule 56(d), Appellant clearly “made an attempt to oppose the

motion on the grounds that more time was needed for discovery.”

Evans, 80 F.3d at 961.              In his opposition to Appellees’ motion,

Appellant specifically stated that he had “not yet had access to

discovery”          and    that    it   was    “difficult        for    [him]    to     get

documentation and declarations[,] especially from prisoners and

prison    officials        from    the[]   Cumberland         region,   and     prisoners

who[] have          been   released.”         J.A.    119.      Further,      Appellant’s

declaration, filed as an exhibit to his opposition, stated, “I

need Discovery to uncover information that is essential to my

suit.”        Id. at 147.         The declaration delineates nine pieces of

evidence Appellant needs but cannot obtain in order to mount an

adequate opposition, including:

          •       The names of “[t]he other inmates who
                  refused restitution but were given another
                  mattress”;




                                              15
          •    “[M]edical” evidence;

          •    “[C]ircumstances” surrounding the           “November
               3, 2011” return of his mattress;

          •    The “WCI policy,” which is referred to but
               not provided as part of the record in this
               appeal; and

          •    Information regarding “[t]he July 6, 2011
               incidents,” in which Likin allegedly ordered
               a second infraction ticket to be issued to
               Appellant.

Id. at 147-48.          Appellant also gave an explanation as to why he

was not more specific: “I fear de[s]cribing what I need because

it may disap[p]ear.”             Id. at 148.      This statement should have

indicated      to   the    district    court    that    much     of    the       evidence

Appellant desired was in the custody of the Appellees, against

which Appellant had already made allegations of maliciousness.

               Therefore,        Appellees’     argument       that         Appellant’s

submissions were procedurally insufficient is unfounded.

                                         2.

               Second,     the    district     court    should        have,      in   its

discretion, determined that Appellant was entitled to discovery

before    it    ruled     on   Appellees’     motion.    Ruling        on    a   summary

judgment motion before discovery “forces the non-moving party

into a fencing match without a sword or mask.”                   McCray, 741 F.3d

at 483.       This is especially true where the information requested




                                         16
is in the sole possession of the moving party, and where the

district court would be otherwise unable to conduct a proper

summary judgment assessment without the requested evidence.

            This    court   has       emphasized,      “56(d)    motions       for    more

time to conduct discovery are proper . . . where most of the key

evidence lies in the control of the moving party.”                        McCray, 741

F.3d at 484; see also Harrods, 302 F.3d at 246–47.                        In Ingle ex

rel.    Estate     of   Ingle    v.    Yelton,      for   example,       we   held     the

district court abused its discretion in denying a Rule 56(d)

request    where    a   mother    sought         videotape    evidence,       which    the

police allegedly kept pursuant to department policy, of a police

chase that ended in her son’s death.                   See 439 F.3d 191, 193-94

(4th Cir. 2006).         We explained, “courts should hesitate before

denying Rule 56[(d)] motions when the party opposing summary

judgment    is      attempting        to    obtain     necessary     discovery         of

information possessed only by her opponent.”                    Id. at 196-97; see

also Willis v. Town of Marshall, 426 F.3d 251, 263 (4th Cir.

2005)    (concluding      district         court    wrongly     denied    Rule       56(d)

request where evidence plaintiff sought was “wholly within the

knowledge of” defendant).

            Here, essentially all of the evidence Appellant seeks

is in the possession of WCI officials, including the names of

other inmates who refused restitution but were given mattresses


                                            17
back    anyway,    and        a    copy    of    the     WCI   policy     upon    which   WCI

officials have relied throughout this litigation.                            This evidence

is not only controlled by Appellees, but also bears on “fact-

intensive issues, such as intent” of the moving party.                               Harrods,

302 F.3d at 244.

            Moreover, we cannot fathom how Appellant can mount a

successful defense -- nor can we fathom how the district court

could     properly       assess           Appellant’s      claims       --    without      the

discovery Appellant requests.                     Indeed, requests for discovery

are “broadly favored and should be liberally granted because the

rule is designed to safeguard non-moving parties from summary

judgment motions that they cannot adequately oppose.”                                Greater

Baltimore    Ctr.       for       Pregnancy      Concerns,       Inc.   v.   Mayor    &   City

Council of Baltimore, 721 F.3d 264, 281 (4th Cir. 2013) (en

banc); Ingle, 439 F.3d at 195 (Rule 56 “requires that summary

judgment be refused where the nonmoving party has not had the

opportunity to discover information that is essential to his

opposition.”       (internal           quotation          marks     omitted)       (emphasis

supplied)).

            For example, on the Eighth Amendment Objective Prong,

the     district     court          noted       “there     are    no    medical      records

documenting       any    continued          problems       with    pain      or   discomfort

during the [] months [after July 25] when [he] did not have a


                                                 18
mattress.”       J.A. 256.         But Appellant was not able to conduct

discovery to access or present additional records, despite the

fact that he requested it.                 Thus, Appellant was only able to

present     evidence   of    injury       from    a    limited    three-week        period

after he was first deprived of his mattress.                        And disputes of

fact remain regarding the extent of Appellant’s injuries: even

as   late   as   February     2014,      Appellant       alleged    that       he   “still

suffer[s] pain in [his] lower back.”                    Id. at 146; cf. Pisano v.

Strach, 743 F.3d 927, 932 (4th Cir. 2014) (finding no abuse of

discretion where non-moving party’s proposed evidence “would not

create a genuine issue of material fact”).                         We found similar

error where a district court granted summary judgment for prison

officials, faulting the plaintiff-inmate for “not providing any

evidence,      other   than        his     own    affidavit,       to     support      his

allegations,”     when      the    court    had       already    stayed       his   earlier

discovery requests.          Raynor, 817 F.3d at 130 (alterations and

internal quotation marks omitted).

             As to the Eighth Amendment Subjective Prong, it is

unclear whether the prison’s policy (which, again, is not in the

record) allows for the return of a mattress after a prisoner is

found   “not     guilty”     for    any     reason.         Drawing       a    reasonable

inference that it does -- indeed, Assistant Commissioner Watson

himself ordered Appellant’s mattress to be returned because he


                                            19
was “found not guilty of the infraction received on 6/28/11 for

destruction       of    state    property     and    possession         of   contraband,”

J.A. 36 -- issues of fact remain as to whether the officials

were abiding by their own policy, or rather, were acting in a

deliberately indifferent or malicious manner.                         Further discovery

would   give       Appellant        the     chance      to     demonstrate         how   the

“officers’ account . . . conflicts with” his account.                                Ingle,

439   F.3d   at    196.         Moreover,    whether         the    policy   was    applied

uniformly is duly contested, and “[a] course of conduct that

tends to prove that [a prison regulation] was merely a sham, or

that [prison officials] could ignore it with impunity, provides

equally strong support for the conclusion that they were fully

aware of the wrongful character of their conduct.”                                 Hope v.

Pelzer, 536 U.S. 730, 744 (2002).

                                             C.

             For       these    reasons,     the     district        court   abused      its

discretion in failing to grant Appellant’s discovery request.

“Once discovery . . . is completed, the district court may again

consider [Appellees’] motion for summary judgment” or qualified

immunity,    “if       it   deems    that    to    be   the        appropriate     course,”

Ingle, 439 F.3d at 197, keeping in mind that qualified immunity

questions “should be resolved at the earliest possible stage of




                                             20
a litigation.”       Anderson v. Creighton, 483 U.S. 635, 646 n.6

(1987).

                                      III.

           For   all    of     the   foregoing    reasons,    we   vacate   the

district   court’s     grant    of   summary     judgment    and   remand   for

further proceedings consistent with this opinion.



                                                       VACATED AND REMANDED




                                       21
NIEMEYER, Circuit Judge, concurring in part, dissenting in part,
and concurring in the judgment:

      The majority remands this case to the district court for

two nonexclusive purposes:       (1) to permit the district court to

“consider the risk of harm posed by depriving [Putney] of a

mattress [but not blankets and pillows] for four months,” and

(2) “to grant [Putney] his request to pursue discovery.”

      While those purposes may become relevant -- and I do not

disagree with the majority’s discussion given in connection with

them -- they jump over two other essential determinations that

the   district   court   must   make    before   reaching   the   subjects

identified by the majority.       First, the district court must, at

the outset, address the defendants’ claim of qualified immunity,

because such immunity is designed to protect the defendants from

both discovery and trial.       Second, the court must, in connection

with the Eighth Amendment claim, determine whether Putney was

deprived of a basic human need, which is a condition precedent

under the Eighth Amendment to conducting an inquiry into the

risk of injury.     I will address these two points, in reverse

order, to provide the district court with further guidance when

it reconsiders this case.




                                   22
                                              I

        On    his    conditions-of-confinement             claim    under    the     Eighth

Amendment, Putney contends that, in depriving him of a mattress

(but not blankets and pillows) for a four-month period, prison

officials knowingly failed to provide him with a basic human

need, causing him harm in violation of the Eighth Amendment.

       The     Eighth     Amendment     provides,       in    relevant       part,      that

“cruel and unusual punishments [shall not be] inflicted.”                               U.S.

Const. amend. VIII.          The Supreme Court has construed this clause

to require prison officials to “provide humane conditions of

confinement.”           Farmer    v.   Brennan,      511     U.S.    825,    832   (1994).

Thus,        “prison    officials      must       ensure     that     inmates      receive

adequate food, clothing, shelter, and medical care, and must

‘take        reasonable    measures     to        guarantee    the     safety      of   the

inmates.’”          Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27

(1984)).        But the Court has noted that “the Constitution does

not mandate comfortable prisons.”                    Rhodes v. Chapman, 452 U.S.

337, 349 (1981).          To succeed on an Eighth Amendment claim that a

prisoner was not provided humane conditions of confinement, the

prisoner must prove “(1) that the deprivation of [a] basic human

need     was        objectively    sufficiently         serious,       and     (2)      that

subjectively the officials act[ed] with a sufficiently culpable

state of mind.”           De’Lonta v. Angelone, 330 F.3d 630, 634 (4th



                                             23
Cir. 2003) (alterations in original) (emphasis added) (internal

quotations      marks        and    emphasis    omitted)       (quoting          Strickler     v.

Waters, 989 F.2d 1375, 1379 (4th Cir. 1993)); see also Farmer,

511   U.S.      at     834     (explaining          that,    to     violate       the     Eighth

Amendment, “a prison official’s act or omission must result in

the   denial         of    ‘the      minimal        civilized       measure        of   life's

necessities’” (quoting Rhodes, 452 U.S. at 347)).

      In this case, Putney has so far failed to explain how the

denial of a mattress was anything more than a discomfort, and

the Constitution, of course, does not afford him the right to a

“comfortable”          prison.        Rhodes,        452     U.S.     at    349;    see      also

Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (“We have no

doubt that Trammell was made uncomfortable by the deprivation of

his clothing, but there is simply no factual dispute regarding

whether    the       temperature       in   his      cell     posed    a     threat     to    his

‘health    or    safety’       of    the    sort      that    would        disallow     summary

judgment in defendants’ favor”).                     Indeed, when children or young

adults    participate          in    sleepovers       or     “crash”       at    each   other’s

apartments, sleeping on the floor and using only blankets and

pillows, they do not deprive themselves of a basic human need.

Neither do soldiers on a mission away from their barracks, nor

hikers    on     the      trail.       In   fact,      people       have        slept   without

mattresses from time immemorial, and do so routinely even today,



                                               24
using only blankets and some form of headrest to serve as a

pillow.

      Understandably, Putney has not yet advanced any precedent

to support his position that a mattress, on its own, qualifies

as an indisputable life necessity, but this is a matter that

must be explored by the district court on remand.             Failing such

support for his claim, Putney would fail, as a matter of law, to

satisfy the objective prong of the test that governs such claims

-- the prong requiring that he show that he suffered an extreme

deprivation of a basic human need.         See Strickler, 989 F.2d at

1379 (“Because we conclude that Strickler has not established

the   serious   deprivation   of   a   basic   human   need   required   to

survive summary judgment on his claim of an Eighth Amendment

violation, we need not consider whether Sheriff Waters acted

with an intent sufficient to satisfy the Amendment’s state-of-

mind requirement” (emphasis added)).


                                   II

      Even before addressing whether the first prong of an Eighth

Amendment   conditions-of-confinement      claim   has   been   satisfied,

however, the district court will have to address the defendants’

claim of qualified immunity, the analysis for which includes




                                   25
whether       Putney      demonstrated        a    “clearly     established”        Eighth

Amendment violation.

       “The       doctrine        of   qualified   immunity     protects       government

officials ‘from liability for civil damages insofar as their

conduct       does     not    violate       clearly      established        statutory    or

constitutional rights of which a reasonable person would have

known.’”           Pearson        v.   Callahan,       555   U.S.    223,     231   (2009)

(emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982)).         The doctrine thus involves two steps:                    (1) whether

a constitutional right would have been violated on the facts

alleged, and (2) whether that right was clearly established at

the relevant time.                See Plumhoff v. Rickard, 134 S. Ct. 2012,

2020 (2014).         A district court has discretion as to which step

to address first.            Pearson, 555 U.S. at 236.

       Qualified immunity is “an immunity from suit rather than a

mere defense to liability,” and it is therefore “effectively

lost   if     a    case      is    erroneously     permitted        to   go   to    trial.”

Pearson, 555 U.S. at 231 (emphasis added) (quoting Mitchell v.

Forsyth, 472 U.S. 511, 526 (1985)).                     Indeed, the “driving force”

behind the doctrine is the “desire to ensure that ‘insubstantial

claims against government officials [will] be resolved prior to

discovery.’”           Id.    (alteration         in   original)     (emphasis      added)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).



                                              26
The Supreme Court has accordingly “repeatedly . . . stressed the

importance      of     resolving      immunity       questions   at   the    earliest

possible stage in litigation.”                   Id. at 232 (quoting Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

       The majority recognizes that the district court did not

originally address qualified immunity, and it properly indicates

that it be addressed on remand.                  I only add that, to protect the

defendants from both discovery and suit, it should be addressed

at the outset as a gateway issue.

       In addressing the immunity issue, the district court will

have    to    determine        whether      Putney    demonstrated    that     prison

officials violated clearly established constitutional rights of

which a reasonable official would have known.                    See Pearson, 555

U.S. at 231.          And to determine whether a constitutional right

was clearly established, he would have to show a violation of

the right that is “particularized” to the circumstances of his

case, such that a reasonable prison official “would understand

that   [confiscating          Putney’s   mattress]      violate[d]    that    right.”

Anderson,      483     U.S.     at   640.         “[T]he   unlawfulness      must   be

apparent.”      Id.

       Of    course,    if    the    defendants      are   entitled   to    qualified

immunity, it would not be necessary for the district court to

reach the Eighth Amendment claim on the merits.



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