                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 19-6359


MICHAEL JERMAINE GREENE,

                     Plaintiff - Appellant,

              v.

SIDNEY FEASTER; DOUG WHITE,

                     Defendants - Appellees.



Appeal from the United States District Court for the Northern District of West Virginia, at
Wheeling. Frederick P. Stamp, Jr., Senior District Judge. (5:16-cv-00051-FPS-MJA)


Submitted: August 12, 2019                                        Decided: August 16, 2019


Before KING, WYNN, and RUSHING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael Jermaine Greene, Appellant Pro Se. Shawn Angus Morgan, STEPTOE &
JOHNSON PLLC, Bridgeport, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Michael Jermaine Greene, a West Virginia inmate, appeals the district court’s order

dismissing his 42 U.S.C. § 1983 (2012) complaint alleging excessive force against

corrections officers Sidney Feaster and Doug White (collectively, “Defendants”).

Previously, we vacated the district court’s dismissal of Greene’s excessive force claim after

determining that the court improperly ignored the allegations in Greene’s verified

complaint. Greene v. Feaster, 733 F. App’x 80, 81-82 (4th Cir. 2018) (No. 17-7179). On

remand, the court reviewed newly produced surveillance footage, which, in the court’s

opinion, conclusively refuted Greene’s sworn assertions. Because, in our view, this video

evidence does not actually settle the parties’ central factual dispute, we vacate the district

court’s order and remand for further proceedings. 1

       “We review de novo a district court’s grant or denial of a motion for summary

judgment, construing all facts and reasonable inferences therefrom in favor of the

nonmoving party.” Gen. Ins. Co. of Am. v. U.S. Fire Ins. Co., 886 F.3d 346, 353 (4th Cir.

2018). A party moving for summary judgment bears the initial burden of “‘show[ing] that

there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.’” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th

Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). If the movant makes this showing, “the


       1
          Despite reviewing the parties’ evidentiary submissions, the district court
characterized its order as a dismissal for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B)(ii) (2012). However, because “we are not bound by the label that the
district court places upon its disposition,” Waugh Chapel S., LLC v. United Food &
Commercial Workers Union Local 27, 728 F.3d 354, 360 (4th Cir. 2013) (internal quotation
marks omitted), we construe the order as a grant of summary judgment.
                                              2
nonmoving party [must then] go beyond the pleadings” and rely on “affidavits, . . .

depositions, answers to interrogatories, and admissions on file” to prove that a genuine

issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal

quotation marks omitted). Thus, to withstand a summary judgment motion, the nonmoving

party must produce more than “[c]onclusory or speculative allegations” or “a mere scintilla

of evidence.” Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)

(internal quotation marks omitted). However, a court cannot “credit[] the evidence of the

party seeking summary judgment and fail[] properly to acknowledge key evidence offered

by the party opposing that motion,” Tolan v. Cotton, 572 U.S. 650, 659 (2014), unless the

record “blatantly contradict[s]” the nonmoving party’s version of events, Scott v. Harris,

550 U.S. 372, 380 (2007).

       The parties largely agree that Feaster, at White’s direction, used pepper spray on

Greene, but they dispute whether this level of force was appropriate. Greene contends that

Defendants deployed the pepper spray maliciously, while Defendants maintain that

resorting to pepper spray was necessary because Greene refused to comply with orders to

stop kicking his cell door. In our prior opinion, we concluded that Greene’s verified

pleading was sufficient to avoid summary judgment and application of qualified immunity.

See Greene, 733 F. App’x at 81-82; see also Brooks v. Johnson, 924 F.3d 104, 112-13, 118

(4th Cir. 2019) (providing standards for excessive force and qualified immunity).

However, we acknowledged that surveillance footage of the incident—which Defendants

had yet to produce—might conclusively resolve whether Defendants’ use of force was

justified. Greene, 733 F. App’x at 82.

                                            3
       According to the district court’s review of the surveillance footage, 2 the relevant

videos—which contained no audio—showed Defendants apparently speaking to Greene

through his cell door, though Greene was not actually visible in the frame. After ending

the conversation, Defendants walked five cell lengths away before “suddenly stop[ping] in

unison and whirl[ing] around, as if simultaneously startled by hearing a loud noise behind

them.” Greene v. Feaster, No. 5:16-cv-00051-FPS-MJA, 2019 WL 1006234, at *7

(N.D.W. Va. Mar. 1, 2019). Defendants then hastened back to Greene’s cell, talked with

Greene, and deployed pepper spray into the cell.

       Based on this description, it is clear that the district court observed no direct video

or audio evidence establishing that Greene resumed kicking his cell door after Defendants

instructed him not to do so. Instead, the court relied only on indirect evidence showing

Defendants stopping simultaneously before turning around and walking back to Greene’s

cell. From this, the court drew two inferences: first, that a noise precipitated Defendants’

sudden movements, and, second, that Greene caused the noise by kicking his cell door.

However, these inferences, while not unreasonable, are not compelled by the surveillance

videos. Given that Greene could be neither seen nor heard in the pertinent footage, a

factfinder could reasonably conclude that Defendants returned to Greene’s cell for some




       2
           The parties have not made the video evidence available to this court on appeal.


                                               4
reason other than Greene creating a disturbance. Thus, we disagree with the court’s

conclusion that the video evidence rendered Greene’s account incredible. 3

       Accordingly, we vacate the district court’s order and remand for further

proceedings. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                              VACATED AND REMANDED




       3
         The district court also justified its dismissal by weighing Greene’s sworn
allegations against the documentary evidence presented by Defendants. However, it is well
established “that a judge’s function at summary judgment is not to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Tolan, 572 U.S. at 656 (internal quotation marks omitted). Thus, the court’s erroneous
decision to weigh the evidence cannot support its dismissal of Greene’s claim. In addition,
by concluding that Greene insufficiently pleaded his excessive force claim, the district
court overlooked our prior determination that “Greene’s detailed, consistent narrative of
events was hardly so conclusory or speculative to warrant an out-of-hand dismissal.”
Greene, 733 F. App’x at 82.

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