PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES RICHARD RILEY,
Plaintiff-Appellant,

v.

JAMES M. DORTON,
Defendant-Appellee.

SOUTH CAROLINA SHERIFF'S
                                                               No. 94-7120
ASSOCIATION; J. AL CANNON, Sheriff
of Charleston, South Carolina;
VIRGINIA DEPARTMENT OF
CORRECTIONS; VIRGINIA SHERIFFS
ASSOCATION; VIRGINIA ASSOCIATION
OF CHIEFS OF POLICE; VIRGINIA STATE
POLICE ASSOCIATION,
Amici Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-94-259)

Argued: December 3, 1996

Decided: June 16, 1997

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER,
HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges, sitting en banc.

_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judges Russell, Widener, Wilkins, Nie-
meyer, Hamilton, Luttig, and Williams joined. Judge Hamilton wrote
a concurring opinion. Judge Michael wrote a dissenting opinion, in
which Judges Hall, Murnaghan, Ervin, and Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: Steven H. Goldblatt, Director, Appellate Litigation Clini-
cal Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Joseph Paul Rapisarda, Jr., County
Attorney, COUNTY OF HENRICO, VIRGINIA, Richmond, Vir-
ginia, for Appellees. Sandra J. Senn, STUCKEY & SENN, Charles-
ton, South Carolina, for Amici Curiae South Carolina Sheriff's
Association and Cannon. ON BRIEF: Michelle J. Anderson, Super-
vising Attorney, Mary J. Clark, Supervising Attorney, Ellen R. Finn,
Supervising Attorney, Joseph C. Brandt, Student Counsel, Ajay K.
Gambhir, Student Counsel, Gregory C. Lisa, Student Counsel, Appel-
late Litigation Clinical Program, GEORGETOWN UNIVERSITY
LAW CENTER, Washington, D.C., for Appellant. James T. Moore,
III, Assistant County Attorney, COUNTY OF HENRICO, VIR-
GINIA, Richmond, Virginia, for Appellees. Stephanie P. McDonald,
STUCKEY & SENN, Charleston, South Carolina, for Amici Curiae
South Carolina Sheriff's Association, et al. James S. Gilmore, III,
Attorney General, Mark R. Davis, Senior Assistant Attorney General,
Lance B. Leggitt, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Amicus Curiae
Department of Corrections. Patrick A. O'Hare, Walter A. Marston,
Jr., HAZEL & THOMAS, Richmond, Virginia, for Amici Curiae Vir-
ginia Sheriffs Association, et al.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Pretrial detainee Charles Riley sued Henrico County police detec-
tive James Dorton, alleging that the officer had used excessive force

                    2
against Riley while he was at the police station awaiting booking. The
district court granted Officer Dorton's motion for summary judgment
based on its conclusion that any injuries Riley may have suffered
were de minimis. We reject appellant's attempts to characterize this
as an interrogation case. We hold that Riley's claims are properly ana-
lyzed under Bell v. Wolfish, 441 U.S. 520 (1979), and the Fourteenth
Amendment. We further hold that the purely de minimis level of
injury alleged by this inveterate malcontent does not constitute the
kind of excessive force amounting to punishment that Bell requires.

I.

At approximately 11:30 a.m. on March 31, 1993, detective Dorton
arrested Riley on charges of rape, sodomy, and abduction for immoral
purposes, pursuant to outstanding warrants. Riley was handcuffed and
taken to the Norfolk Police Department. He was then released into the
custody of detective Dorton and another officer, detective Ross, who
transported Riley to Henrico County.

Upon his arrival at the Public Safety Building in Henrico County
at 1:30 p.m., Riley's handcuffs were removed briefly to permit him
to sign a waiver for DNA samples to be taken without a search war-
rant. Riley refused to sign the waiver, so detective Dorton replaced
the handcuffs and told Riley he would stay handcuffed until Dorton
got a search warrant. Riley alleges that Dorton also insulted Riley and
his family, both in the car and at the Public Safety Building. Accord-
ing to Riley, Dorton called Riley's family "a bunch of dumb country
hicks" and threatened to tie Riley to a tree and leave him. When Dor-
ton asked Riley at the Public Safety Building if he knew "what scum
looked like," Riley responded by asking whether Dorton had "looked
in the mirror lately."

The events that transpired in the next 30 seconds form the basis for
Riley's claim. Riley alleges that Dorton became angry at Riley's
insult, came over from the desk where he had been filling out papers,
and inserted the tip of his pen a quarter of an inch into Riley's nose,
threatening to rip it open. Riley claims that Dorton also threatened to
throw him into a corner and beat him, and that Dorton slapped him
across the face with "medium" force, scraping Riley's face with his
fingernails.

                    3
Riley's handcuffs were again removed at approximately 3:30 p.m.
so that Riley could eat a hamburger Dorton had bought for him.
Shortly after he ate, Riley was transported to a hospital where DNA
samples were taken pursuant to the search warrant which Dorton had
obtained. Riley's cuffs were removed at the hospital, and again later
during booking at the Public Safety Building. Riley concedes that the
handcuffing was not continuous, that the handcuffs were not too tight,
that he was properly cuffed behind his back according to state proce-
dure, and that the discomfort he suffered from the handcuffs disap-
peared each time they were removed.

There is no medical evidence that Dorton ever inflicted any injury
on Riley. Riley saw medical personnel approximately sixty times dur-
ing the fifteen months following his arrest, complaining about virtu-
ally every conceivable physical ailment, but he never once
complained to medical staff that he had been injured by the handcuffs,
pen, or slap. Records from dozens of mental health sessions reflect no
mention of the incident. Nonetheless, Riley filed a section 1983 action
against detective Dorton, alleging excessive force in connection with
the handcuffs, pen, slap, and threats. The district court granted sum-
mary judgment for Dorton on the grounds that Riley had at most suf-
fered only de minimis injury. A divided panel of this court reversed
and remanded for trial. Riley v. Dorton, 93 F.3d 113 (4th Cir. 1996).
We agreed to hear the case en banc, and we now affirm the district
court.

II.

The Supreme Court has instructed us that "[i]n addressing an
excessive force claim brought under § 1983, analysis begins by iden-
tifying the specific constitutional right allegedly infringed by the chal-
lenged application of force." Graham v. Connor, 490 U.S. 386, 394
(1989). We must therefore first determine whether Riley's claims are
governed by the Fourth, Fifth, Eighth, or Fourteenth Amendment.

A.

The Fourth Amendment governs claims of excessive force during
the course of an arrest, investigatory stop, or other "seizure" of a per-
son. Graham v. Connor, 490 U.S. at 388. The events about which

                     4
Riley complains, however, took place at least two hours and ninety
miles from the time and place of Riley's arrest. Furthermore, as Riley
concedes, Dorton arrested him pursuant to a valid warrant. "[A]s one
lawfully arrested and being held prior to a formal adjudication of
guilt," Riley is adjudged in our circuit to be a pretrial detainee. United
States v. Cobb, 905 F.2d 784, 788 (4th Cir. 1990); see also Cooper
v. Dyke, 814 F.2d 941, 948 (4th Cir. 1987).

Riley urges this court to broaden Fourth Amendment protection
beyond the point of arrest to cover all persons in pretrial detention.
The Supreme Court, however, has declined to adopt Riley's position,
having reserved the question in Graham v. Connor :

          Our cases have not resolved the question whether the Fourth
          Amendment continues to provide individuals with protec-
          tion against the deliberate use of excessive physical force
          beyond the point at which arrest ends and pretrial detention
          begins, and we do not attempt to answer that question today.
          It is clear, however, that the Due Process Clause protects a
          pretrial detainee from the use of excessive force that
          amounts to punishment.

Id. at 395 n.10.

Riley argues that more recent Supreme Court precedent, Albright
v. Oliver, 510 U.S. 266 (1994), "all but commands" us to apply the
Fourth Amendment to Riley's pretrial detention. Riley's reliance on
Albright, however, is misplaced. The Court in Albright was address-
ing not a claim of excessive force after arrest, but rather a claim that
the police lacked probable cause to initiate a criminal prosecution
against Kevin Albright. In deciding that Albright's case should have
been brought under the Fourth Amendment rather than the Due Pro-
cess Clause of the Fourteenth, a plurality of the Court noted that
"[t]he Framers considered the matter of pretrial deprivations of lib-
erty, and drafted the Fourth Amendment to address it." Id. at 274.

Applying the Fourth Amendment to deprivations of liberty, how-
ever, is not a new or remarkable proposition. The Court had previ-
ously stated in Gerstein v. Pugh, 420 U.S. 103 (1975), that the Fourth
Amendment was the constitutional provision to use when evaluating

                     5
questions of probable cause for arrest and detention. A deprivation of
liberty, however, is not the same thing as a condition of detention. For
"evaluating the constitutionality of conditions or restrictions of pre-
trial detention," the Supreme Court has specifically directed that the
"proper inquiry" is "whether those conditions or restrictions amount
to punishment of the detainee" under the Due Process Clause. Bell v.
Wolfish, 441 U.S. at 535. As in Bell,"[w]e are not concerned with the
initial decision to detain an accused and the curtailment of liberty that
such a decision necessarily entails," 441 U.S. at 533-34, but rather
with the conditions of ongoing custody following such curtailment of
liberty.

It is true that Justice Ginsburg, who joined the plurality in Albright,
also wrote separately to argue that the concept of a"continuing sei-
zure" justified applying the Fourth Amendment beyond the point of
arrest. She contended that the seizure of a person, as contemplated by
the Fourth Amendment, does not end after arrest, but continues as
long as the person is "seized" (either in custody or on bail) by the
government. Justice Ginsburg therefore concluded that Fourth
Amendment protections should extend to the end of trial. Albright,
510 U.S. at 276-81 (Ginsburg, J., concurring). With all respect, we
cannot, as Riley urges, apply the suggestion of a single Justice in the
face of squarely contrary Supreme Court precedent. Because we
believe that Bell instructs us to analyze excessive force claims of pre-
trial detainees under the Due Process Clause of the Fourteenth
Amendment, we shall not extend the Fourth Amendment to cover
Riley's situation.

A review of the Supreme Court's basic jurisprudence reinforces
our refusal to adopt the "continuing seizure" theory of the Fourth
Amendment. Decades of Fourth Amendment precedent have focused
on the initial deprivation of liberty. See Wayne R. LaFave, Search
and Seizure: A Treatise on the Fourth Amendment (3d ed. 1996). The
core of this Fourth Amendment jurisprudence thus addresses arrest --
what constitutes an arrest, California v. Hodari D., 499 U.S. 621
(1991); what constitutes probable cause to make an arrest, Henry v.
United States, 361 U.S. 98 (1959); Draper v. United States, 358 U.S.
307 (1959); when probable cause must be found by a neutral magis-
trate, County of Riverside v. McLaughlin, 500 U.S. 44 (1991);
Gerstein v. Pugh, 420 U.S. 103 (1975); which officials may issue a

                     6
warrant, Shadwick v. City of Tampa, 407 U.S. 345 (1972); what type
of information is required to support a valid warrant, Whiteley v.
Warden, 401 U.S. 560 (1971); Giordenello v. United States, 357 U.S.
480 (1958); and what force may be used during an arrest, Graham v.
Connor, 490 U.S. 386 (1989); Tennessee v. Garner, 471 U.S. 1
(1985). The remaining cases concentrate on identifying at what point,
short of arrest, an individual may have suffered a deprivation of per-
sonal freedom implicating the Fourth Amendment. E.g., Michigan v.
Chesternut, 486 U.S. 567 (1988); INS v. Delagado, 466 U.S. 210
(1984); United States v. Mendenhall, 446 U.S. 544 (1980); United
States v. Brignoni-Ponce, 422 U.S. 873 (1975); Davis v. Mississippi,
394 U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1 (1968).

This body of Supreme Court precedent simply reflects the Fourth
Amendment's core concerns. The Amendment establishes that "[t]he
right of the people to be secure in their persons . . . against unreason-
able searches and seizures, shall not be violated." This guarantee does
not stand alone, however, but is coupled with strictures on the issu-
ance of warrants, indicating that the Amendment is directed at the
arrest of persons and not at the conditions of their custody. The
requirements for securing a warrant have nothing to tell us about the
conditions controlling subsequent detention. By its own terms, the
Fourth Amendment thus applies to the "initial decision to detain an
accused," Bell, 441 U.S. at 533-34, not to the conditions of confine-
ment after that decision has been made. Indeed, in defining the nature
of "seizure" in the context of an arrest, the Supreme Court quoted
Thompson v. Whitman, 18 Wall. 457, 471 (1874), for the proposition
that "[a] seizure is a single act, and not a continuous fact." California
v. Hodari D., 499 U.S. 621, 625 (1991).

Several of our sister circuits likewise have declined to adopt the
"continuing seizure" concept and continue to apply the Fourteenth
Amendment framework of Bell v. Wolfish rather than the Fourth
Amendment to excessive force claims of pretrial detainees. As the
Fifth Circuit recently explained:

          First, the text of the Fourth Amendment -- prohibiting
          unreasonable "seizures" -- does not support its application
          to a post-arrest encounter. Second, the Supreme Court has
          refused to apply the Fourth Amendment to protect inmates

                     7
          after incarceration. And third, Graham and Bell v. Wolfish
          (refusing to concede that Fourth Amendment applied to pre-
          trial detainee subjected to body cavity search), dictate that
          the Due Process Clause is the appropriate constitutional
          basis for pretrial detainee excessive force suits.

Brothers v. Klevenhagen, 28 F.3d 452, 456 (5th Cir. 1994) (citations
omitted). The Seventh Circuit has also endorsed the position that the
Fourth Amendment's text limits "seizure" to the "initial act of seiz-
ing." Wilkins v. May, 872 F.2d 190, 192 (7th Cir. 1989). While recog-
nizing that Albright "casts considerable doubt on the applicability of
substantive due process" to malicious prosecution and probable cause
challenges, Garcia v. City of Chicago, 24 F.3d 966, 971 n.6 (7th Cir.
1994), the Seventh Circuit continues to reject the concept of continu-
ing seizure in excessive force cases, Reed v. City of Chicago, 77 F.3d
1049, 1052 n.3 (7th Cir. 1996). The Eleventh Circuit likewise recently
reconfirmed that "[c]laims involving the mistreatment of arrestees or
pretrial detainees in custody are governed by the Fourteenth Amend-
ment's Due Process Clause . . . ." Cottrell v. Caldwell, 85 F.3d 1480,
1490 (11th Cir. 1996).

The Second, Sixth, and Ninth Circuits do extend Fourth Amend-
ment coverage to the period the suspect remains with the arresting
officers. See Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989)
("Fourth Amendment standard probably should be applied at least to
the period prior to the time when the person arrested is arraigned or
formally charged, and remains in the custody (sole or joint) of the
arresting officer"); McDowell v. Rogers, 863 F.2d 1302, 1306 (6th
Cir. 1988) (Fourth Amendment seizure "continues throughout the
time the person remains in the custody of the arresting officers");
Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985) ("once a sei-
zure has occurred, it continues throughout the time the arrestee is in
the custody of the arresting officers"). We shall not, however, apply
the "arresting officer" rule to Riley's case. In addition to lacking tex-
tual and precedential support, this rule would have Fourth Amend-
ment coverage depend upon the fortuity of how long an arresting
officer happens to remain with a suspect. If the arresting officer

                     8
quickly transferred custody of the arrestee to a back-up officer, he
could bring Fourth Amendment protection to an abrupt end.1

In sum, we agree with the Fifth, Seventh, and Eleventh Circuits
that the Fourth Amendment does not embrace a theory of "continuing
seizure" and does not extend to the alleged mistreatment of arrestees
or pretrial detainees in custody.

B.

If he is not covered by the Fourth Amendment, Riley contends that
he was at least the subject of custodial interrogation and that he can
therefore invoke protection against self-incrimination. Riley's Fifth
Amendment claim, however, suffers from a variety of flaws.

To begin with, Riley gave no incriminating statement to the offi-
cers. Courts have not found Fifth Amendment violations where no
statements whatsoever were made. See, e.g., Mahan v. Plymouth
County House of Corrections, 64 F.3d 14, 17 (1st Cir. 1995) (finding
no Fifth Amendment violation where suspect made no statements per-
tinent to the investigation against him). Indeed, following the plain
text of the Amendment that "[n]o person . . . shall be compelled in
any criminal case to be a witness against himself," most courts refuse
to find a Fifth Amendment violation even where statements were
made, but were not actually used in a criminal proceeding. Weaver v.
Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (finding no Fifth Amend-
_________________________________________________________________
1 The Ninth and Tenth Circuits hold that the Fourth Amendment also
applies to persons arrested without warrants until a probable cause hear-
ing is held. Pierce v. Multnomah County, Oregon , 76 F.3d 1032, 1042
(9th Cir. 1996) ("Fourth Amendment sets the applicable constitutional
limitations on the treatment of an arrestee detained without a warrant up
until the time such arrestee is released or found to be legally in custody
based upon probable cause for arrest"); Austin v. Hamilton, 945 F.2d
1155, 1160 (10th Cir. 1991) (Fourth Amendment "impose[s] restrictions
on the treatment of the arrestee detained without a warrant"). Riley was
arrested pursuant to valid arrest warrants. To the extent that the Ninth
and Tenth Circuits rest their rule on an absence of an arrest warrant, see
Austin, 945 F.2d at 1158-60; Pierce, 76 F.3d at 1043, it is therefore inap-
plicable to this case. To the extent that these cases represent another vari-
ation of the continuing seizure rule, we cannot accept their reasoning.

                    9
ment violation when no evidence was used in a criminal proceeding);
Mahoney v. Kersey, 976 F.2d 1054, 1061 (7th Cir. 1992) ("Fifth
Amendment does not forbid the forcible extraction of information but
only the use of information so extracted as evidence in a criminal
case" (citation omitted)); Davis v. City of Charleston, 827 F.2d 317,
322 (8th Cir. 1987) (finding no Fifth Amendment violation where
suspect's statements were not used against her during trial).

Indeed, only the Ninth Circuit has held that a Fifth Amendment
violation may occur even when compelled statements are never used
at a criminal proceeding. Cooper v. Dupnik, 963 F.2d 1220, 1238-45
(9th Cir. 1992) (en banc). This circuit has already criticized Cooper's
reasoning, however, noting that the dissenters in that case made "per-
suasive arguments that the privilege against self-incrimination is not
violated until the evidence is admitted in a criminal case." Wiley v.
Doory, 14 F.3d 993, 998 (4th Cir. 1994) (Powell, J.); see also Giuffre
v. Bissel, 31 F.3d 1241, 1256 (3d Cir. 1994) (expressing approval for
the position of the dissenters in Cooper).

If anything, the Supreme Court has been even more emphatic on
this point than the circuits. The Court has noted that the Fifth Amend-
ment right against self-incrimination is a fundamental trial right,
Withrow v. Williams, 507 U.S. 680, 691 (1993), and "applies only
when the accused is compelled to make a testimonial communication
that is incriminating," Fisher v. United States, 425 U.S. 391, 408
(1976) (emphasis omitted). While Fifth Amendment concerns can
certainly be implicated prior to trial, the Supreme Court has declared
that a Fifth Amendment violation occurs only when self-incriminating
statements are introduced at trial, thereby compelling the defendant to
"become a witness against himself."

          The privilege against self-incrimination guaranteed by the
          Fifth Amendment is a fundamental trial right of criminal
          defendants. Although conduct by law enforcement officials
          prior to trial may ultimately impair that right, a constitu-
          tional violation occurs only at trial.

United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) (cita-
tions omitted). Any Fifth Amendment claim here thus fails, because

                    10
Riley never made a statement, much less a statement that was used
at trial.

Moreover, Riley's efforts to characterize his interaction with detec-
tive Dorton as interrogation fail. The Supreme Court has held that in
the context of the Fifth and Fourteenth Amendments,

          the term "interrogation" . . . refers not only to express ques-
          tioning, but also to any words or actions on the part of the
          police (other than those normally attendant to arrest and cus-
          tody) that the police should know are reasonably likely to
          elicit an incriminating response from the suspect.

Rhode Island v. Innis, 446 U.S. 291, 301 (1980). At oral argument,
this court questioned counsel about whether the activities at issue in
this case even qualified as custodial interrogation. Riley does not
allege that the detectives ever directly questioned him regarding his
crimes. Indeed, Riley's time at the Henrico County Public Safety
Building was not devoted to any questioning about his offenses but
rather to routine criminal processing -- fingerprinting, obtaining
DNA samples, and setting bond. Further, Riley fails to identify any
words or conduct of the officers which were "reasonably likely to
elicit an incriminating response." Id. at 301. Even Riley's version of
his encounter with the detectives is best characterized as a tawdry
exchange of insults rather than an attempt on the part of the officers
to get Riley to confess. The much ballyhooed pen incident, for exam-
ple, was at most an emotional response to Riley's earlier insult rather
than a ploy to obtain incriminating information. Finally, we reject
Riley's suggestion that the officers' request that he sign a waiver con-
senting to DNA testing constitutes interrogation. Such a request is no
more an interrogation than a request that a drunk driver submit to a
blood alcohol test. See South Dakota v. Neville , 459 U.S. 553, 564
n.15 (1983).

The dissent also attempts to push the hot button of interrogation in
an effort to salvage Riley's case. The record simply fails to support
the dissent's assertions. The indicia of interrogation are notably
absent -- indeed, the record is devoid as to what was asked or what
was obtained. The dissent cannot point to a single incriminating state-
ment made by Riley. The dissent cannot point to a single statement

                     11
used against Riley at trial. The dissent cannot point to a single shred
of evidence that Riley sustained injury. The dissent cannot even point
to a single question asked of Riley regarding his crimes. Indeed, all
the dissent can do is try to weave a fleeting incident and a request that
Riley consent to DNA testing into an interrogation scenario.2 Our dis-
senting colleague suggests that Detective Dorton made no statement
denying that interrogation took place, but no denial is necessary to
refute that which has never been established. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (Rule 56(c) mandates entry of sum-
mary judgment "against a party who fails to make a showing suffi-
cient to establish the existence of an element essential to that party's
case."). If the dissent's view of "interrogation" is accepted, then all
varieties of interaction between a custodian and a pretrial detainee in
the course of processing can henceforth be characterized as covert
questioning. Notwithstanding the dissent's misapprehension, Innis
does not extend that far.

In sum, no incriminating statement was made; no such statement
was introduced at trial; and no interrogation was in fact conducted.3
Perforce, there can be no Fifth Amendment violation.
_________________________________________________________________
2 Riley's own deposition contradicts the dissent's assertion that the offi-
cers sought to obtain a second waiver from him:

          Q So . . . it was two things [Dorton] was asking you to agree
          to; one was to talk without a lawyer and the other was to
          agree to have the specimens taken?

          A No, he asked me to sign a waiver.

          Q And you didn't know what the waiver was?

          A Well, all I know is what he told me.

          Q And what did he tell you?

           A He told me it was so that I'd take my own DNA instead of
           them taking it like that. I'd pluck my own hair.
3 Riley's reliance on Gray v. Spillman, 925 F.2d 90 (4th Cir. 1991), is
misplaced for this same reason. In Gray, this court held that "the exis-
tence of physical injury is not an essential element of a § 1983 claim
when a person during custodial interrogation is beaten or psychologically
intimidated in a manner equivalent to beating." Id. at 94. This case stands
in stark contrast to the facts of Gray. In Gray, the defendants allegedly

                    12
C.

Similarly, Riley's claims are not properly analyzed under the
Eighth Amendment ban against cruel and unusual punishment. The
Eighth Amendment does not apply "until after conviction and sen-
tence." Graham, 490 U.S. at 392 n.6. Riley's case clearly had not
reached the point of a formal adjudication of guilt at the time of the
events at issue.

D.

Having established the inapplicability of the Fourth, Fifth, and
Eighth Amendments, we conclude that the excessive force claims of
pretrial detainees are governed by the Due Process Clause of the
Fourteenth Amendment, which provides the standard for "evaluating
the constitutionality of conditions or restrictions of pretrial detention."
Bell, 441 U.S. at 535. While "[i]t is fundamental that the state cannot
hold and physically punish an individual except in accordance with
due process of law," the Supreme Court has stated that under the
Fourteenth Amendment "[t]here is, of course, a de minimis level of
imposition with which the Constitution is not concerned." Ingraham
v. Wright, 430 U.S. 651, 674 (1977). Similarly, the Court has held
that "[t]he Eighth Amendment's prohibition of`cruel and unusual'
punishments necessarily excludes from constitutional recognition de
minimis uses of physical force." Hudson v. McMillian, 503 U.S. 1, 9-
10 (1992). In Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994)
(en banc), we applied the Hudson rule, holding that "a plaintiff cannot
prevail on an Eighth Amendment excessive force claim if his injury
is de minimis." In light of Bell and Ingraham, we conclude that the
_________________________________________________________________
questioned Gray directly about his crimes, kept him for several hours
without food and water, did not allow him to use the restroom, beat him
such that he required surgery, and threatened him with further beating
unless he confessed. Id. at 91. Gray was also asked to sign an incriminat-
ing statement and a waiver of his right to counsel, and he eventually
made such a statement. Id. Riley, in contrast, never alleges that he was
questioned, significantly injured, threatened for failure to discuss the
crimes, or deprived of necessities. Riley's case simply does not fall under
Gray.

                    13
holding of Norman extends to excessive force claims of pretrial
detainees.

Notwithstanding their respective perspectives on the matter of pun-
ishment, the Eighth and the Fourteenth Amendment approaches share
much in common. Both seek to balance the rights of prisoners and
pre-trial detainees against the problems created for officials by the
custodial context. "The management by a few guards of large num-
bers of prisoners, not usually the most gentle or tractable of men and
women," accurately depicts the tensions inherent in custodial settings,
be they pre-trial or post-conviction. Johnson v. Glick, 481 F.2d 1028,
1033 (2d Cir. 1973). And the management of a single truculent indi-
vidual may cause difficulties for a custodian as well. The Eighth and
Fourteenth Amendments thus establish only qualified standards of
protection for prisoners and pretrial detainees-- against "cruel and
unusual punishment" and against "excessive force that amounts to
punishment," respectively. U.S. Const. amend. VIII; Graham, 490
U.S. at 395 n.10 (citing Bell, 441 U.S. at 535-39). Thus, inherent in
the Eighth and Fourteenth Amendments is the principle that:

          [N]ot . . . every malevolent touch by a prison guard gives
          rise to a federal cause of action. See Johnson v. Glick, 481
          F.2d at 1033 ("Not every push or shove, even if it may later
          seem unnecessary in the peace of a judge's chambers, vio-
          lates a prisoner's constitutional rights").

Hudson, 503 U.S. at 9.

To permit those in custody to bring excessive force claims without
any showing of injury would violate that very principle. The de
minimis nature of Riley's alleged injuries cannot be squared with
Riley's need to demonstrate excessive force amounting to punish-
ment. Bell, 441 U.S. at 535. Punishment must mean something more
than trifling injury or negligible force. Otherwise, every touch would
be actionable and every alleged "push or shove" would entitle plain-
tiff to a trial. This is no idle concern. Those in detention often detest
those charged with supervising their confinement, and seek to even
the score through the medium of a lawsuit. The Constitution, how-
ever, does not exist to scoop up every last speck of detainee discon-
tent. To hold that every incident involving contact between an officer

                     14
and a detainee creates a constitutional action, even in the absence of
injury, trivializes the nation's fundamental document.

Moreover, the Supreme Court has specifically admonished that the
Constitution is not a "font of tort law" to be"superimposed upon
whatever systems may already be administered by the States." Paul
v. Davis, 424 U.S. 693, 701 (1976). "Although`the least touching of
another in anger is a battery,' Cole v. Turner , 6 Mod. 149, 87
Eng.Rep. 907, 90 Eng.Rep. 958 (K.B. 1704) (Holt, C.J.), it is not a
violation of a constitutional right actionable under 42 U.S.C. § 1983."
Johnson, 481 F.2d at 1033. But without a de minimis threshold, every
"least touching" of a pretrial detainee would give rise to a section
1983 action under the Fourteenth Amendment. Not only would such
a rule swamp the federal courts with questionable excessive force
claims, it would also constitute an unwarranted assumption of federal
judicial authority to scrutinize the minutiae of state detention activi-
ties. The de minimis rule thus serves the interest of our federal system
by distinguishing claims which are cognizable under the Constitution
from those which are solely within the jurisdiction of state courts.

An injury need not be severe or permanent to be actionable under
the Eighth Amendment, but it must be more than de minimis.
Norman, 25 F.3d at 1262-63. We think this same rule applies to
excessive force claims brought by pre-trial detainees.

III.

Riley contends that he has suffered both physical and psychologi-
cal injury from his encounter with detective Dorton. He claims he
experienced pain from being cuffed behind his back for six hours, and
pain and a welt from the slap on the face. He also alleges that the pen
incident caused him to fear for his life and safety, and that he now
experiences nightmares and depression, and fears being assaulted
whenever he is handcuffed.

The record simply fails to bear out Riley's allegation of injury. In
fact, the opposite conclusion emerges -- that Riley has cried rivers
of crocodile tears over every aspect of his detention except the very
encounter of which he now complains. Riley has not hesitated to
report any psychological or physical discomfort, no matter how tri-

                    15
fling, to medical staff. In a span of less than fifteen months at Henrico
County Jail after his arrest, Riley met with medical personnel approx-
imately sixty times. He requested medical attention for a stream of
physical ailments, including a hangnail, an ingrown toenail, a runny
nose, a chill, dizzy spells, a "knot" in his groin, broken skin between
his toes, and soreness in his back, neck, ear, throat, and left thumb.
He complained that he needed to soak his foot after losing a toenail,
that his cellmate kept him awake, and that his back pain prevented
him from relinquishing his bottom bunk to a fellow inmate who had
suffered "only" a leg injury. Riley even sought medical authorization
to receive boxer underwear instead of briefs because of a mole on his
thigh (which medical staff, after examination, deemed unaffected by
his type of undergarments).

Riley's list of alleged psychological discomforts is equally impres-
sive. In dozens of mental health sessions, he complained of being
depressed for several years and of having crying spells once or twice
a day. He expressed fear of harassment by other inmates and found
it difficult to deal with their teasing and taunting. He frequently
reported being discouraged by the course of his legal defense, the
potential sentence he faced, the societal reaction to his offenses, and
the possible outcome of his eventual trial. He grew angry after hear-
ing the testimony of certain witnesses, and he worried about conflicts
between his girlfriend and his family. More than once, he related sui-
cidal urges. Examiners reported that "Mr. Riley can turn on tears at
will," and he "rather enjoys making manipulative gestures and threats
to get attention," an assessment "[h]e did not deny."

In light of this seemingly endless list of medical complaints, one
would expect to find at least some mention of the physical and psy-
chological injury he supposedly suffered as a result of the handcuff-
ing, pen, threats and slap. But the Health Services Administrator at
Henrico County Jail, where Riley was detained, "found no record of
any complaints by Mr. Riley to either medical or mental health staff
of injury to, or discomfort in, [his] nose or shoulders which relates to
his allegations." She also "found no record of any concerns related to
the alleged threats" by detective Dorton among Riley's scores of men-
tal health sessions. Riley's own testimony, in fact, is that he never
specifically complained of any injury from the incidents he now iden-
tifies in this suit. In short, Riley has compiled a singular record as a

                     16
chronic, uninhibited complainer, yet he never once mentioned the
events which he now asserts caused him substantial injury.

If this court were to hold that Riley's claim presented a triable
issue, the consequences would be all too easy to foresee. Amicus Vir-
ginia Department of Corrections advises us that it is inundated by an
ongoing "tide of meritless prisoner claims" virtually identical to
Riley's -- claims where contrary to plaintiffs' allegations, the evi-
dence shows no injury at all or injury that is at the very most de
minimis. Noting the supposed pen incident "took approximately 30
seconds" and left no evidence of injury, the district court appropri-
ately and commonsensically dismissed this action. 4 While we do not
require that an injury be serious or leave visible marks or scars, we
do conclude that "de minimis injury can serve as conclusive evidence
that de minimis force was used." Norman, 25 F.3d at 1261. To hold
otherwise would make the most minor and fanciful custodial incidents
the routine subjects of federal lawsuits.

IV.

We affirm the judgment of the district court granting summary
judgment to the defendant.

AFFIRMED
_________________________________________________________________

4 In a last-ditch effort, Riley argues that even if the Fourth Amendment
does not apply and his injuries are de minimis , he is still entitled to relief
because the force used against him was of a sort"repugnant to the con-
science of mankind," Hudson v. McMillian , 503 U.S. at 10, and thus "ex-
pressly outside the de minimis force exception," Norman, 25 F.3d at
1263 n.4. This contention is completely meritless. The exchange of ver-
bal barbs and angry slap described by Riley in his complaint, even if
taken as entirely true, is certainly not the sort of behavior that "shocks
the conscience" like forcibly pumping a suspect's stomach for evidence
after unlawfully entering his house and bedroom, Rochin v. California,
342 U.S. 165 (1952), or severely whipping and hanging a suspect in
order to obtain a confession, Brown v. Mississippi, 297 U.S. 278 (1936).
Therefore, Riley's case falls squarely within the de minimis category.

                     17
HAMILTON, Circuit Judge, concurring:

I join Chief Judge Wilkinson's opinion and add this brief statement
to express my understanding of today's holding. The court holds that
excessive force claims of state pretrial detainees are not to be gov-
erned by the Fourth, Fifth, or Eighth Amendments, but rather the Due
Process Clause of the Fourteenth Amendment. The court further holds
that excessive force claims of state pretrial detainees, based on state
conduct occurring outside the context of a custodial interrogation, are
subject to the de minimis injury standard set forth in Norman v.
Taylor, 25 F.3d 1259 (4th Cir. 1994) (en banc). The court, however,
leaves intact the principle established in Gray v. Spillman, 925 F.2d
90, 93-94 (4th Cir. 1991), that a state pretrial detainee's rights under
the Due Process Clause of the Fourteenth Amendment are violated if
he is beaten or sufficiently threatened during the course of a custodial
interrogation. Dorton's assault on Riley did not occur during a custo-
dial interrogation; therefore, Riley has no claim under the Due Pro-
cess Clause of the Fourteenth Amendment unless his injuries were
more than de minimis. Because Riley's injuries, if any, were no more
than de minimis, his Fourteenth Amendment claim fails. With these
observations, I join Chief Judge Wilkinson's opinion.

MICHAEL, Circuit Judge, dissenting:

The record does not support the majority's conclusion that Riley
was not being questioned when a detective stuck a pen up Riley's
nose, threatened to rip it open, and then slapped him. As a result, a
standard requiring more than de minimis injury cannot be invoked to
bar Riley's claim. For "the existence of physical injury is not an
essential element of a § 1983 claim when a person during custodial
interrogation is beaten or psychologically intimidated in a manner
equivalent to beating." Gray v. Spillman, 925 F.2d 90, 94 (4th Cir.
1991). Because Riley's claim fits squarely under Gray, I respectfully
dissent.

I.

The majority begins its analysis by deciding "whether Riley's
claims are governed by the Fourth, Fifth, Eighth, or Fourteenth
Amendment." Ante at 4. Characterizing Riley's complaint as an

                    18
excessive force claim by a pretrial detainee, the majority then pro-
ceeds to find the Fourth, Fifth, and Eighth Amendments to be inappli-
cable. Ultimately, the majority concludes that Riley's claim is
governed by the Due Process Clause of the Fourteenth Amendment
under the standard set forth in Bell v. Wolfish , 441 U.S. 520 (1979).

Bell, however, did not deal with the protection the Due Process
Clause affords to a pretrial detainee who is being interrogated.
Instead, Bell examined conditions and restrictions of pretrial detention
alleged to be unconstitutional, such as "double bunking" (two inmates
in a room designed for one), a "publisher only" rule (inmates only
allowed hardcover books mailed directly from the publisher or book-
store), and the practice of body cavity searches following contact vis-
its. See id. at 541-43, 548-60. According to Bell the "proper inquiry"
for evaluating these claims about "conditions or restrictions of pretrial
detention" is whether they "amount to punishment of the detainee."
Id. at 535.

Nothing in Bell restricts the actual right upheld in Gray v. Spillman
-- namely, the right not to be "beat[en] and threaten[ed] . . . in the
course of custodial interrogation." Gray, 925 F.2d at 93. This right,
like the protections afforded to pretrial detainees, stems from the Due
Process Clause. However, this right to be free from physical violence
and coercion during custodial interrogation affords more protection
than the general due process right (considered in Bell) relating to
conditions of pretrial detention. The right not to be beaten during cus-
todial interrogation gets closer to the core of the liberty interest and
thus warrants more stringent standards.

Two wrong turns by the majority have led to its failure to recognize
that the due process right confirmed in Gray forms the basis for a
§ 1983 claim by Riley. First, the majority believes that any right to
be free from coercion during interrogation can come only from the
Fifth Amendment's protection against self-incrimination. Since Riley
does not appear to have made any incriminating statements, the
majority concludes that the Fifth Amendment is inapplicable to his
claim. Second, the majority concludes that the physical abuse and
threats alleged by Riley did not take place during a custodial interro-
gation. I will explain how the majority got off course.

                    19
A.

The majority does not dispute that the Constitution protects indi-
viduals against coercion during an interrogation. However, it only dis-
cusses this protection in the context of the Fifth Amendment right
against self-incrimination. See U.S. Const. amend. V ("No person . . .
shall be compelled in any criminal case to be a witness against him-
self . . . ."). In discussing this right, the majority contends that the
Fifth Amendment is only violated when a compelled statement is
actually used in a criminal proceeding. Since Riley does not claim to
have given a statement to the interrogating officers, the majority rea-
sons, he cannot bring a § 1983 claim under the Fifth Amendment.

The majority does have some support for its argument that actions
can be brought under the Self-Incrimination Clause only if a confes-
sion has been obtained and offered in court. See, e.g., Wilkins v. May,
872 F.2d 190, 194 (7th Cir. 1989) (noting that it would be "odd" to
find a violation of the Self-Incrimination Clause if a confession was
not obtained and then used in a criminal case). The majority is wrong,
however, if it means to suggest that violence and threats during custo-
dial interrogation are unconstitutional only if a confession is wrung
out and subsequently used. To so hold would overrule Gray, since in
Gray the plaintiff's confession was not used at his criminal trial. See
Gray, 925 F.2d at 91. More importantly, such a holding would be
based on an erroneous belief that constitutional protections against
coercion during interrogation stem only from the Self-Incrimination
Clause.

As this court said in Gray, "[i]t has long been held that beating and
threatening a person in the course of custodial interrogation violates
the fifth and fourteenth amendments of the Constitution." Id. at 93.
Although Gray does not specify the exact source of its protections for
custodial interrogation, it has clearly based them on the Due Process
Clause. See Wiley v. Doory, 14 F.3d 993, 998 n.11 (4th Cir. 1994)
("Gray relies on cases involving violations of the Due Process Clause
rather than the Self-Incrimination Clause."). In Adamson v.
California, 332 U.S. 46, 54 (1947), which Gray cites for support, the
Supreme Court said that "[t]he due process clause forbids compulsion
to testify by fear of hurt, torture or exhaustion." Later cases have con-
firmed that "[t]he due process violation caused by coercive behavior

                     20
of law-enforcement officers in pursuit of a confession is complete
with the coercive behavior itself." Cooper v. Dupnik, 963 F.2d 1220,
1244-45 (9th Cir. 1992) (en banc). For example, in Wilkins v. May,
872 F.2d 190 (7th Cir. 1989), the plaintiff brought a Bivens action in
which he claimed that two federal agents had interrogated him while
pointing a gun at his head. In determining whether"brutal police con-
duct in custodial interrogation states a constitutional claim," the court
expressed doubt as to whether the Self-Incrimination Clause was vio-
lated. Id. at 194. The court did find, however, that the plaintiff stated
a claim under the Due Process Clause. See id. at 195 ("It is for the
trier of fact to decide whether a particular incident involving interro-
gation at gunpoint is so terrifying in the circumstances as to constitute
a deprivation of liberty within the meaning of the due process
clause.").

Moreover, even some who may agree with the majority's limitation
on actions based on the right against self-incrimination have noted
that the Due Process Clause protects against coercion alone. See
Weaver v. Brenner, 40 F.3d 527, 534 (2d Cir. 1994) (noting that
"[t]he right of a citizen to be free from[police coercion during custo-
dial interrogation] is guaranteed by the Due Process Clause of the
Fourteenth Amendment"); Cooper, 963 F.2d at 1253 (Brunetti, J., dis-
senting) (since the police interrogation techniques"involved no physi-
cal abuse or threats of physical abuse," the plaintiff had not "stated
a valid § 1983 claim under a due process theory"). Indeed, to hold
otherwise would make physical force constitutionally permissible
unless the suspect actually confessed and the confession was later
used in a criminal proceeding. That cannot be the law. See Cooper v.
Dupnik, 924 F.2d 1520, 1538 (9th Cir. 1989) (Noonan, J., concurring
in part and dissenting in part), rev'd en banc , 963 F.2d 1220 (9th Cir.
1992).

B.

I recognize, of course, that Detective Dorton's assault on Riley had
to occur during interrogation for Riley to take advantage of the spe-
cial due process protection that prohibits the police from resorting to
violence during custodial questioning. The majority concludes that
"Riley's time at the Henrico County Public Safety Building was not
devoted to any questioning about his offenses but rather to routine

                     21
criminal processing." Ante at 11. The circumstances and the summary
judgment record simply do not support this conclusion.*

Riley had just been arrested on warrants charging him with abduc-
tion, rape, and sodomy -- crimes for which corroborating witnesses
are often not available. This is exactly the circumstance where the
police would be expected to question the suspect, and the undisputed
summary judgment record compels the conclusion that Riley was
indeed questioned.

First, it appears that Detective Dorton attempted to get Riley to
sign a waiver of his right to a lawyer during interrogation. The major-
ity points out that Riley was asked to sign a waiver consenting to
DNA testing, but Dorton also wanted Riley to sign a"waiver to talk
to [Dorton] without the presence of an attorney." J.A. 250. According
to Riley, Dorton offered to buy him a meal "to get me to sign a
waiver, to talk to him." J.A. 250. Second, in describing the events that
led up to the assault, Riley testified as follows in his deposition:

          Then they started up again during his interrogation, and he
          [Detective Dorton] was asking me, you know, you know,
          different things like my fat sister, is she a whore, and things
          like that, you know, and just trying to get me to
          break[ ]down.

J.A. 266. The use of insults is a well-known method of interrogation
aimed at getting the suspect to "break down." See James Becket, Bar-
barism in Greece 112 (1970) (describing an interrogation technique
in which "the prisoner is verbally assaulted by obscenities, lies, and
threats," such as "how is it with a mother who is a whore?"). Simi-
larly, Riley states that after the assault, "Detective Dorton left the
room, and then Detective Ross started trying to play-- they tried to
play the `good cop/bad cop' routine." J.A. 276. This routine, too, is
a standard interrogation technique. See Miranda v. Arizona, 384 U.S.
436, 452 (1966) ("One ploy often used has been termed the `friendly-
_________________________________________________________________
*The majority seems to forget that on appeal from summary judgment
we must view "the facts and inferences in the light most favorable to the
non-moving party," i.e., Riley. Donmar Enters., Inc. v. Southern Nat'l
Bank of N.C., 64 F.3d 944, 946 (4th Cir. 1995).

                    22
unfriendly' or the `Mutt and Jeff' act . . . ."). Finally, there is an addi-
tional indication in Riley's deposition that the officers were looking
to get a statement from him. In response to a question whether the
officers had denied him the right to counsel, Riley responded:

            I didn't make any statements, even though I understand that
            through my attorney[']s motion for discovery[in the crimi-
            nal case] that Officer Dorton claims that I made a statement,
            but I did not make any statements.

J.A. 275.

Throughout the proceedings in the district court, where Riley
appeared pro se and prepared his own papers, he continually
described the underlying encounter as an "interrogation." See Plain-
tiff's Motion at J.A. 179 ("The assault occured[sic] during interroga-
tion . . . ."); Plaintiff's Memorandum in Support of Plaintiff's Answer
to the Defendant's Motion to Dismiss at J.A. 228-29 (noting that "the
assault occurr[ed] during the interrogation process"); Plaintiff's Affi-
davit at J.A. 232 (describing the underlying events as taking place
"[d]uring the interrogation process"); Plaintiff's Deposition at J.A.
266 ("Then they started up again during his interrogation . . . .").
Detective Dorton never challenged the "interrogation" description in
district court.

Because of Detective Dorton's acquiescence on this point, the
majority places too much weight on Riley's "fail[ure] to identify any
words or conduct of the officers which were `reasonably likely to
elicit an incriminating response.'" Ante at 11 (quoting Rhode Island
v. Innis, 446 U.S. 291, 301 (1980)). As noted, Detective Dorton did
not once dispute Riley's assertion that the incident took place during
interrogation. In particular, Riley was not challenged on this in his
deposition, and Detective Dorton did not offer any evidence to contra-
dict Riley's numerous statements that he was being interrogated. If
the detective had offered something to indicate that there was no
interrogation, then Riley might have been compelled to respond with
more specific facts. As things stand, what Riley did offer is uncontra-
dicted, and it is sufficient to establish that the incident occurred dur-
ing interrogation. The majority's effort to construct a different picture
is simply contrary to the record.

                      23
Indeed, the majority's refusal to recognize this as a custodial inter-
rogation case is causing it needless worry. Returning Riley's claim for
trial would not mean that "every `least touching' of a pretrial detainee
would give rise to a section 1983 action under the Fourteenth Amend-
ment." Ante at 15. The reason is simple: there is a fundamental differ-
ence between the use of force in interrogation and the use of force to
maintain good order and discipline among those in jail awaiting trial.
No one is against jailors being able to do their jobs as custodians
without the burden of frivolous lawsuits. The only thing I am against
here is prohibited by a longstanding rule: when a jailor or custodian
switches his role to investigator and begins interrogating a detainee,
no physical force is constitutionally permissible. See Ware v. Reed,
709 F.2d 345, 351 (5th Cir. 1983). Applying this rule, which is
already in the books, will not open the floodgates.

II.

Because we must accept for summary judgment purposes that
Riley was being interrogated at the time of the alleged assault, he
should be allowed to bring his § 1983 claim under the Due Process
Clause's specific protections for interrogatees. The rule set forth in
Gray is that "the existence of physical injury is not an essential ele-
ment of a § 1983 claim when a person during custodial interrogation
is beaten or psychologically intimidated in a manner equivalent to
beating." Gray, 925 F.2d at 94. Thus, Riley's claim should survive
summary judgment if he has proffered evidence that"he was beaten
or sufficiently threatened, even if that did not result in any outward
or inward manifestations of harm." Id. In his unchallenged deposition
testimony and affidavits, Riley says that Detective Dorton repeatedly
threatened and insulted him, stuck a pen up his nose, threatened to rip
it open, and slapped him hard, causing his head to snap to the side and
raising welts on his face. Because these abusive acts, which had noth-
ing to do with maintaining order in the police station, took place dur-
ing custodial interrogation, they provide the basis for a due process
claim that survives summary judgment.

The majority erroneously applies a de minimis injury standard to
Riley's claim of unjustified force during custodial interrogation. This
is the wrong standard because the due process violation was complete
the minute Detective Dorton resorted to physical abuse during the

                    24
questioning. Again, a detainee has an actionable right to be free from
brutality while police seek a confession. Thus, when violence is used
in custodial interrogation, the severity of a § 1983 plaintiff's injuries
is relevant only to the question of damages, and a plaintiff may be
awarded nominal damages and attorney's fees even if his injuries are
not serious. Id. at 93-94 & n.1.

I respectfully dissent because Riley does have a claim. Judge Hall,
Judge Murnaghan, Judge Ervin, and Judge Motz join in this opinion.

                     25
