                                     Filed:    September 27, 2001

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 00-6129
                           (CA-95-271-WMN)



Quinten X. Jackson,

                                                 Plaintiff - Appellee,

           versus


Lamont A. Morgan, etc., et al.,

                                              Defendants - Appellants.



                              O R D E R



     The court amends its opinion filed September 24, 2001, as

follows:

     On page 2, section 1 -- the section is corrected to begin:

“Reversed and remanded by unpublished opinion.       Judge Duffy wrote

the opinion, in which Chief Judge Wilkinson joined. . . .”

     On page 2 -- the opinion is corrected to begin “DUFFY,

District Judge.”

                                          For the Court - By Direction



                                           /s/ Patricia S. Connor
                                                    Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

QUINTEN X. JACKSON,
Plaintiff-Appellee,

v.

LAMONT A. MORGAN, Correctional
Officer; STANLEY LOCKLEAR,
Lieutenant; GREGORY MADDOX,
Sergeant; KEVEN FENTON, Corporal;
ROBERT HICKS; MAARUFU AULU; ERIK
                                                               No. 00-6129
NELSON,
Defendants-Appellants,

and

STEVEN HARLEE; HOWARD GRANT;
RICHARD LANHAM; EUGENE NUTH; T.
CARTER, Sergeant; R. PARKER,
Corporal,
Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Paul W. Grimm, Magistrate Judge.
(CA-95-271-WMN)

Argued: April 5, 2001

Decided: September 24, 2001

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and Patrick Michael DUFFY, United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________
Reversed and remanded by unpublished opinion. Judge Duffy
wrote the opinion, in which Chief Judge Wilkinson joined. Judge
Motz wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Glenn William Bell, Assistant Attorney General, Balti-
more, Maryland, for Appellants. Brian Alain Zemil, VENABLE,
BAETJER & HOWARD, L.L.P., Towson, Maryland, for Appellee.
ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland,
Baltimore, Maryland, for Appellants. Mitchell Y. Mirviss, VEN-
ABLE, BAETJER & HOWARD, L.L.P., Towson, Maryland; Theo-
dore F. Roberts, DANAHER, TEDFORD, LAGNESE & NEAL, P.C.,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

DUFFY, District Judge:

Appellants Locklear, Maddox, Fenton, Hicks, Aulu, Morgan, and
Nelson appeal from a jury verdict in the amount of $1 actual damages
and a total award of $9,500 punitive damages. Appellants argue, inter
alia, the district court erred in denying their motion for judgment as
a matter of law. For the reasons set forth below, we reverse.

I.

Jackson brought claims under 42 U.S.C. § 1983 against Appellants
for excessive force violating his Eighth Amendment rights. Appel-
lants worked at the Maryland Correctional Adjustment Center, where
Jackson was incarcerated during the relevant times in this case.
Appellants were the response team sent to Jackson's cell by the duty
officer who had already decided to remove Jackson from his cell for

                  2
an earlier disturbance and to place him in the isolation cell. Jackson
alleged Appellants used excessive force January 11-13, 1994, in two
instances: (1) Appellants' use of pepper spray inside Jackson's cell,
and (2) Appellants' placement of Jackson into an isolation cell known
as "the pink room" for two days wearing only underwear and in three-
point mechanical restraints and after spraying him with pepper spray.

On January 11, 1994, Lieutenant Locklear responded to Jackson's
cell as the Duty Lieutenant in charge of all housing on that particular
shift. The shift commander had ordered Jackson removed from his
cell and placed in an isolation cell because he had been causing a dis-
turbance. Lieutenant Locklear attempted to carry out that order with
authorization to use pepper spray if necessary.

Jackson refused to comply with removal procedures and the orders
of Lieutenant Locklear. Pursuant to regulations, Lieutenant Locklear
ordered Jackson to remove and deliver his clothing for inspection
prior to opening Jackson's cell. Also according to regulations, Appel-
lants then began to videotape their actions. Jackson still failed to com-
ply, and Lieutenant Locklear sprayed pepper gas into Jackson's cell.
The pepper spray hit Jackson in his face and groin. After twelve
bursts of pepper spray at three different times and after repeated
orders to comply, Jackson complied with removal procedures.

After removal, Jackson was taken to the medical department for
treatment. The registered nurse on duty washed his head under run-
ning water and allowed him to wipe his groin with wet paper towels.
Jackson was in three-point restraints during his flushing of the pepper
spray. The response team then escorted Jackson to the isolation cell.
Jackson was provided clean underwear and left in three-point
mechanical restraints.

The district court allowed two of Jackson's claims to be submitted
to the jury. Those two claims were for the amount of pepper spray
used by Lieutenant Locklear and for Jackson's placement in the isola-
tion cell for two days. The district court gave the jury a verdict form
containing eleven pages of special interrogatories to assist its determi-
nation. The jury returned a verdict for Appellants on Jackson's claim
for the use of pepper spray on January 11, 1994, but the jury found
against Appellants for Jackson's claim of excessive force for his stay

                  3
in the isolation cell. The jury also found Jackson proved by a prepon-
derance of the evidence, but not by clear and convincing evidence,
Appellants acted with malice. The jury then awarded $1 actual dam-
ages and punitive damages against specific Appellants totaling
$9,500. The district court denied Appellants' motion for judgment as
a matter of law in a post-trial order.

II.

We review de novo a district court's legal determinations under a
Rule 50(b) motion for judgment and determine questions of the suffi-
ciency of the evidence on whether a reasonable jury, based upon the
evidence presented, could have reached their verdict. Trimed, Inc. v.
Sherwood Medical Co., 977 F.2d 885, 888 (4th Cir. 1992). The evi-
dence is viewed in the light most favorable to the party against whom
the motion is made, and that party given the benefit of all reasonable
inferences. We will not reweigh the evidence or judge credibility.
GSM Dealer Servs. Inc. v. Chrysler Corp., 32 F.3d 139, 142 (4th Cir.
1994).

Appellants argue the district court erred in denying their motion for
judgment as a matter of law because Jackson failed to establish the
objective and subjective requirements of an excessive force claim.
Specifically, Appellants argue that Jackson failed to establish they
"acted with a sufficiently culpable state of mind and the deprivation
suffered was not sufficiently serious." We agree.

The Eighth Amendment expressly prohibits the infliction of "cruel
and unusual punishments." U.S. Const. amend. VIII. "It not only out-
laws excessive sentences but also protects inmates from inhumane
treatment and conditions while imprisoned." Williams v. Benjamin, 77
F.3d 756, 761 (4th Cir. 1996); see Wilson v. Seiter, 501 U.S. 294, 298
(1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). To succeed on
any Eighth Amendment claim for cruel and unusual punishment, a
prisoner must prove: (1) objectively the deprivation of a basic human
need was sufficiently serious, and (2) subjectively the prison officials
acted with a "sufficiently culpable state of mind." Wilson, 501 U.S.
at 298; Williams, 77 F.3d at 761.

We are mindful that prison officials should be allowed latitude in
taking preventive measures to maintain safety of the officers and

                  4
medical workers. The Supreme Court has clearly recognized the dan-
ger of overstepping the boundaries of judicial review in this area:

        "Prison administrators . . . should be accorded wide-ranging
        deference in the adoption and execution of policies and
        practices that in their judgment are needed to preserve inter-
        nal order and discipline and to maintain institutional secur-
        ity." That deference extends to a prison security measure
        taken in response to an actual confrontation with riotous
        inmates, just as it does to prophylactic or preventive mea-
        sures intended to reduce the incidence of these or any other
        breaches of prison discipline. It does not insulate from
        review actions taken in bad faith and for no legitimate pur-
        pose, but it requires that neither judge nor jury freely substi-
        tute their judgment for that of officials who have made a
        considered choice.

Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (quoting Bell v. Wolf-
ish, 441 U.S. 520, 547 (1979)).

III.

The objective element of an excessive force claim requires more
than a de minimis use of force. The Supreme Court has proscribed
recovery based on de minimis force, unless that use of force is "re-
pugnant to the conscience of mankind." Hudson v. McMillian, 503
U.S. 1, 9-10 (1992) (internal quotation marks omitted). De minimis
injury is evidence of de minimis force. Norman v. Taylor, 25 F.3d
1259, 1262-63 (4th Cir. 1994). This Court en banc has recognized a
bright-line rule in the Supreme Court's jurisprudence that de minimis
injury defeats a plaintiff's excessive force claim "absent the most
extraordinary circumstances," i.e., unless the force used was "repug-
nant to the conscience of mankind." Id. at 1263.

In Norman the district court granted summary judgment against the
plaintiff. Although this case presents a different procedural posture,
we must also look at the facts in the light most favorable to the plain-
tiff and make all reasonable inferences in his favor. Given the firmly
established law in Norman, we believe no reasonable jury could have
found for Jackson.

                   5
The district court's order denying Appellants' motion for judgment
as a matter of law gave several justifications for the decision. The dis-
trict court relied on testimony about the pain and disability caused by
the pepper spray from Jackson. The district court found the medical
treatment to relieve the effects of the pepper spray was insufficient
given the amount of pepper spray used and the length of his confine-
ment in the isolation room.1 The district court also found that Jack-
                           1
son's claim was supported by evidence that the force used by
appellants was "repugnant to mankind" and therefore satisfied Jack-
son's burden of proof even if his injury was de minimis. However, the
court pointed only to the jury's "statement regarding their feelings
about the Defendants' conduct."

The jury added to the verdict form two handwritten pages admon-
ishing Appellants and Maryland Department of Corrections for condi-
tions of the isolation room and urging punishment for Appellant
Fenton who they thought had struck Jackson without provocation dur-
ing the transfer of Jackson from his cell to the isolation cell.2 Most
                                                                2
of the jury's statement was directed at the conditions in the isolation
cell. We recognize that this court has condemned cell conditions simi-
_________________________________________________________________

1 Despite the alleged pain and disability, two minutes after exiting his
cell--at 2:05 p.m. on the video tape--Jackson was shouting in Officer
Fenton's face, calling him a devil, and "speaking in tongues." By 2:10
p.m. on the video tape, Jackson had washed his face and head eight
times; the nurse had cleaned his head three times; and he exhibited no
effects of the pepper spray. In fact, Jackson limited his decontamination
and can be heard on the video tape telling the nurse, "That's alright."
Jackson was then provided wet paper towels with which to wash his
groin, and he cleaned his groin several times.

2 This apparent act by Officer Fenton has been described as a blow. A
blow is a sudden hard hit, as with a fist; an unexpected shock. The tape
does not disclose any blow. During Jackson's transfer to the medical
department, Officer Fenton can be seen making a gesture or swipe in the
air when Jackson was turned around toward Officer Fenton and chanting
in his face. No contact can be seen on the video tape. If there was any
contact at all, then Jackson did not so much as blink. He did not flinch,
recoil, react, or cry out. Jackson continued unabated shouting over his
shoulder in Officer Fenton's face. Forceful contact, if any, must be
assumed from the video tape. In any event, any possible injury to Jack-
son was de minimis.

                   6
lar, though admittedly more severe, than those of the isolation cell
used in this case. See Kirby v. Blackledge, 530 F.2d 583, 586-87 (4th
Cir. 1976) (identifying conditions that "taken alone reach the level of
cruel and unusual punishment" and describing a strip cell that has "no
bedding, no light, and no toilet, save a hole in the floor"). The jury
in this case came to the same conclusion about the conditions of the
isolation cell, but their comments were gratuitous.

This appeal involves a claim for excessive force and facts, such as
the use of pepper spray and placement in an isolation cell in three-
point restraints, that are not being reviewed for the first time. Taking
the evidence in the light most favorable to Jackson, no reasonable jury
could find the force used in this case was "repugnant to the con-
science of mankind." Therefore, the propriety of sending this case to
the jury depends on a showing of sufficient evidence for a reasonable
jury to find Jackson suffered more than de minimis injury. See Nor-
man v. Taylor, 25 F.2d at 1263.

The jury's verdict included $1 actual damages which could be con-
strued as a finding of de minimis injury to Jackson. However, the jury
instructions, provided upon request of the Court after oral arguments,
reveal the jury was instructed: "If you find that the plaintiff is entitled
to a verdict in accordance with these instructions, but do not find that
the plaintiff has suffered substantial actual damages, then you may
return a verdict for the plaintiff in some nominal sum such as one dol-
lar." (J.I. 30, emphasis added.) The instructions also provided: "You
may not, however, compensate a plaintiff who has not suffered any
actual pain or injury which is more than de minimis as a result of the
unconstitutional conduct." (J.I. 26, emphasis added.) We recognize
the jury's verdict of $1 actual damages reflects their view that Jack-
son suffered more than de minimis injury but less than substantial
injury. However, in reviewing a district court's denial of a motion for
judgment as a matter of law, we do not defer to the jury's verdict.
Rather, we must review the district court's decision on the motion.

The district court erred in relying on this court's decision in Wil-
liams to support the denial of Appellants' motion for judgment as a
matter of law. Williams does not control disposition of this case. Sev-
eral material facts distinguish this case and warrant reversal. First,
Williams discussed only the subjective element of the excessive force

                  7
claim and did not address the objective element because the officers
conceded Williams had met his burden on that issue. Second, the
chemical spray in Williams was CS tear gas, the type used by military
and discontinued prior to 1994 by Maryland Department of Correc-
tions. See Williams, 77 F.3d at 764 (recognizing CS tear gas as poten-
tially lethal). Appellants used OC pepper spray on Jackson. The
experts in this case testified to the differences between CS tear gas
and OC pepper spray, not the least of which was the timing and
appropriateness of using the two different sprays as a use of force.
Pepper spray is a milder irritant and is employed to avoid physical
confrontation among inmates and guards; whereas CS tear gas was
used primarily as a weapon with greater consequences and required
more thorough decontamination.

Third, the greater effects and severity of damage caused by CS tear
gas than by OC pepper spray directly affects the necessary medical
treatment after exposure and prior to being placed in isolation. Appel-
lants' expert in this case testified that the effects of OC pepper spray
did not last more than an hour and had no known permanent effects.
Williams received no medical treatment following the use of the more
potent CS tear gas against him. Jackson's treatment and decontamina-
tion was documented on the videotape and included flushing his face
and head with running water and wiping his groin with wet paper
towels. Jackson's decontamination was adequate, and Jackson did not
complain to the nurse or the officers.

The notes of the registered nurse who treated Jackson on January
11, 1994, showed Jackson had no complaints that day. In addition, the
videotape showed Jackson's recovery from the effects of the pepper
spray. Jackson submitted no medical testimony that the OC pepper
spray had any lasting effect or aggravated an existing condition. Jack-
son's own testimony revealed his allegations were not supported by
any complaints to the medical department. Jackson made no com-
plaints of any kind until January 27, more than two weeks after he
was sprayed with pepper spray, and even then none of his complaints
referenced the January 11-13, 1994, incident.

Fourth, the type of restraints and effect on the inmate in those
restraints was substantially more severe in Williams even though Wil-
liams stayed in the restraints only eight hours. The four-point

                  8
mechanical restraints prevented Williams from eating and required
him to urinate on himself. Jackson argues his three-point restraints
were too tight and caused him constant pain during the time he was
in the isolation cell. Jackson also claims the restraints prevented him
from eating and properly urinating in the isolation cell.

The three-point restraints did not totally prevent either activity for
Jackson though his movement was restricted. The videotape showed
Jackson used his hands to wipe his face and groin area wearing the
same restraints in which he was placed in the isolation cell. The
record of isolation confinement shows all meals were at least offered
to Jackson during confinement in the isolation cell and that Jackson
refused breakfast and lunch on January 12, 1994. Jackson's testimony
does not dispute this. Jackson made no complaints of these allegations
even though he knew how to make complaints and had done so
before, and the record of confinement reveals no complaints or dis-
cussion with Jackson while he was in the isolation cell.

Jackson has not shown more than de minimis injury. Taking the
evidence in the light most favorable to Jackson and making all rea-
sonable inferences in his favor, we believe no reasonable jury could
find excessive force was used. Therefore, the district court should
have granted Appellants' motion for judgment as a matter of law, and
we reverse.

IV.

Because this Court reverses the district court's ruling on Appel-
lants' motion for judgment, we do not reach the questions presented
on the subjective element of an excessive force claim, qualified
immunity, and punitive damages.

CONCLUSION

For the reasons stated herein, we reverse Jackson's jury verdict
against Appellants and remand to the district court with direction to
enter judgment for the Appellants in accordance with Rule 50(b) of
the Federal Rules of Civil Procedure and this opinion. See Mutual Life
Ins. Co. of N.Y. v. Asbell, 163 F.2d 121, 123 (4th Cir. 1947).

REVERSED AND REMANDED

                  9
DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

The Eighth Amendment outlaws the unnecessary infliction of pain,
even on convicted felons. Quentin Jackson presented ample evidence
from which the jury could conclude, as it did, that correctional offi-
cers maliciously and sadistically used excessive force to inflict unnec-
essary and wanton pain on him, in clear violation of the Eighth
Amendment. The jury's award to Jackson of one dollar in actual dam-
ages and $9,500 in punitive damages is a measured and entirely
appropriate response to the evidence presented at trial. Accordingly,
I would affirm the jury verdict and must respectfully dissent from the
majority's refusal to do so.

I.

The facts giving rise to this lawsuit occurred on January 11, 1994,
during a routine "shakedown," (body and cell search) at the Maryland
Correctional Adjustment Center (MCAC). At trial, the parties offered
conflicting testimony as to what transpired during this search. In light
of the jury verdict in favor of Jackson, we are required to view the
facts in the light most favorable to him. See Fed. R. Civ. P. 50(a).
Nevertheless, in order to set forth all of the legal issues involved, I
also include the officers' version of the facts.

Jackson testified that, while he was unclothed, Officer Morgan
ordered him to turn in circles repeatedly, not just once or twice as is
normal in a shakedown. Jackson objected to this perceived harass-
ment, calling Officer Morgan a homosexual. Jackson stated that,
despite this harassment, he permitted the officers to continue the
search, and then, when they were finished, he asked to see the offi-
cers' superior so that he could voice his concerns and obtain the
appropriate form to make a written complaint to the Warden. A few
minutes later, according to Jackson's testimony, instead of the offi-
cers' superior, a Response Team arrived wearing riot gear and gas
masks to extract Jackson from his cell.

The officers testified, to the contrary, that Jackson refused to leave
his cell during the shakedown, thereby preventing them from search-
ing it. Although the officers acknowledged that they ultimately per-
suaded Jackson to vacate his cell so that it could be searched, they

                  10
maintained that Jackson created a disturbance in the cell block by
yelling obscenities and banging on the walls. According to the offi-
cers, when they informed Jackson that he would be placed in an isola-
tion cell for creating a disturbance, he refused to comply with the
ordinary removal procedures. For this reason, they assembled a six-
person Response Team to transport Jackson to the isolation cell
known as the Pink Room to "cool down."

Jackson maintains that he created no disturbance necessitating
removal from his cell to "cool down." When the Response Team
arrived at his cell, Jackson testified that he was sitting quietly on his
bunk reading. Jackson's account, rather than the officers' was appar-
ently credited at a subsequent prison disciplinary hearing, in which
Jackson was found not guilty of creating a cellblock disturbance.

Many of the remaining relevant facts are clearly documented in the
Response Team's videotape, which begins with the Team's arrival at
Jackson's cell. The tape starts at 1:54 p.m. with an introduction and
identification of the Response Team. The tape shows only the outside
of Jackson's cell, from which point Jackson cannot be seen, but no
disturbance can be heard.

The videotape reveals that, at 1:56 p.m., Officer Locklear orders
Jackson to pass his clothes out and to place his hands in the feed slot
to be cuffed. Jackson responds by stating that he had just been
searched, and asks the purpose of the officers' request. Locklear then
sprays two bursts of pepper spray into Jackson's cell.1 Jackson testi-
                                                        1
fied, without contradiction, that the first burst of pepper spray struck
him in the groin, causing a painful burning sensation, and the second
_________________________________________________________________

1 Jackson introduced the following uncontroverted evidence as to the
pepper spray the officers used against him. The spray consisted of ninety
percent Freon-based chemical, which acted as a propellant, and ten per-
cent Oleo Resin Capsicum, which is derived from the hot oil and waxes
of the cayenne pepper. This chemical takes effect upon contact with skin
and mucous membranes and causes a painful, burning sensation, inflam-
mation of the mucous membranes in the eyes, nose and throat, skin
inflammation, coughing or gagging if inhaled and an involuntary closing
of the eyes. The physical effects of the spray are accompanied by psy-
chological effects, including fear, disorientation, anxiety and panic.

                   11
burst struck him in the face, causing him to cry out in pain. Jackson
stated that he felt like his body was burning and he began to choke
and gag from inhalation of the pepper spray. His eyes swelled shut
and he was unable to breathe. Due to the pain he was experiencing,
Jackson maintains that he became confused and disoriented, and was
unable to understand the orders the Response Team directed to him.

At 1:58 p.m., two minutes after the first bursts of pepper spray,
Jackson has still not complied with the Response Team's orders;
Locklear sprays four additional bursts of pepper spray into Jackson's
cell. At 1:59 p.m., Jackson passes his jumpsuit through the feed slot
to the officers. Locklear then orders Jackson to send out the rest of
his clothes as well. At 2:00 p.m., Locklear sprays an additional burst
of pepper spray, this one lasting a full six seconds. The videotape
reveals that this burst of pepper spray causes Jackson to cough and
gag. At 2:01 p.m., Jackson passes his underwear and shoes through
the feed slot. Nevertheless, at 2:02 p.m., the administration of five
additional bursts of pepper spray can be heard. At trial, Officer Mad-
dox acknowledged that, at that point, he had gone around to the back
of Jackson's cell and sprayed into Jackson's cell through the window,
which was covered by a mesh screen.

At 2:03 p.m., Jackson places his hands in the feed slot to be hand-
cuffed, and exits his cell wearing a jumpsuit. The tape reveals that
Jackson is in obvious pain; he gasps for air and rubs his teary eyes.
At 2:04 p.m., the Response Team leads Jackson to the infirmary.
Jackson has difficulty walking and, at one point, falls down. At 2:05
p.m., while walking to the infirmary, Jackson begins babbling inco-
herently. (Jackson testified that at this time he was "speaking in
tongues" and praying to God.) At 2:06 p.m., shortly after going
through a doorway, Jackson testified that Officer Fenton struck him
in the back of the head. Although Officer Fenton denied striking Jack-
son, the blow can be seen on the videotape.

At 2:07 p.m., the officers take Jackson to the nurse. The officers
permit him to rinse his head in a sink for several minutes and to rub
his genitals with a wet paper towel. In addition, the nurse rubs Jack-
son's face with a paper towel. This is the only medical treatment that
the officers provided Jackson before confining him to the Pink Room
isolation cell.

                  12
From 2:12 p.m. to 2:19 p.m., the Response Team prepares Jackson
for placement in the Pink Room. During this period the Team
removes Jackson's shackles and orders Jackson to remove his jump-
suit and underwear. After several minutes, during which time Jackson
is naked, the officers provide him with clean underpants, but nothing
else. The officers then re-shackle Jackson and place him in the isola-
tion cell, clothed only in his underwear. The videotape record of the
entire preparation period shows Jackson remaining calm throughout.
Department of Corrections (DOC) regulations state that prison offi-
cials can place in-cell shackles on an inmate only when he presents
a serious threat of violence.

Although it is no longer in use, at the time of this incident, the Pink
Room was a bare cell approximately ten feet by ten feet with metal
walls, a concrete floor and no furniture. It lacked a toilet, and instead
had a hole in the floor, covered by a grate, which, during Jackson's
confinement, was encrusted with feces and blood.

Jackson testified that the shackles placed on him throughout his
confinement in the Pink Room were so tight that he could not move
his hands, and so he could not even remove his underwear to urinate.
Although it was very cold in the Pink Room and Jackson was clad
only in underwear, the officers provided him with no bedding or
clothes. In addition to the cold and the painful shackles, Jackson testi-
fied that he was in continual pain due to the effects of the pepper
spray during the entire period of his confinement in the Pink Room.

According to the logs of Jackson's confinement, although he was
awake and alert, the officers did not provide him with any food for
sixteen hours. When he was finally provided with food, during the
seventeenth hour of his confinement, Jackson testified that the shack-
les prevented him from eating. The logs record that Jackson remained
calm for the first seventeen hours he was imprisoned in the Pink
Room. Nevertheless, his confinement there continued for nearly forty-
five hours.

Captain Jeffrey Wells, a DOC employee, testified at trial as an
expert witness for the officers. Wells stated his opinion that this case
presented a need to use force and to remove Jackson from his cell. He
also opined that the use of twelve bursts of pepper spray was an

                  13
appropriate amount of force. He agreed that in-cell restraints should
never be used as a form of punishment but only as a "management
tool" to control an inmate while the inmate was in an isolation cell.

Vincent Nathan, a lawyer specializing in prison law, testified as an
expert for Jackson. Nathan noted that Jackson was not creating a dis-
turbance or threatening anyone at the time the Response Team forci-
bly extracted him from his cell, and so there was no need to relocate
him. Nathan also noted that the correctional officers made no attempt
to use non-forceful means to resolve the situation. Nathan further tes-
tified that the prison officials did not sufficiently decontaminate Jack-
son from the pepper spray. All of the exposed areas of Jackson's body
should have been flushed with water and washed with soap after the
incident. (Although the prison's protocol also required that all
exposed areas of an inmate's body be flushed with water, the officers
only permitted Jackson to rinse his head and genitals with water for
a short time.) Given these facts, Nathan opined that the Pink Room
confinement of Jackson constituted a grossly excessive use of force.

II.

In March 1995, Jackson initiated this action, alleging that the
MCAC officers' use of excessive force on January 11-13, 1994, vio-
lated his Eighth Amendment right to be free from cruel and unusual
punishment. With the parties' consent, Magistrate Judge Paul W.
Grimm presided over a jury trial on Jackson's claims. The jury found
for the correctional officers on Jackson's claim that use of the pepper
spray in itself constituted excessive force, but found for Jackson on
his claim that the officers used excessive force in confining him in
three-point restraints in the manner they did for almost two days.2 The
                                                                     2
jury awarded Jackson one dollar in compensatory damages and
$9,500 in punitive damages.
_________________________________________________________________

2 Jackson also alleged that he was placed in an isolation cell without
due process of law. Judge Grimm granted the officers' motion for judg-
ment as a matter of law on Jackson's Fourteenth Amendment due pro-
cess claim on qualified immunity grounds, concluding that there was no
clearly established constitutional right to a pre-deprivation hearing prior
to placement of an inmate in the isolation cell. Jackson does not appeal
that ruling.

                  14
The jurors also requested that the following statement be read into
the record:

        We find that the conditions existing at the Maryland Correc-
        tional Adjustment Center, in particular, the isolation cell
        known as the "pink room" violate the eighth amendment
        rights of prison occupants. Specifically we regard the condi-
        tions inflicted upon the prisoners of "a sort repugnant to the
        conscience of mankind.". . . We urge the cessation of the use
        of the "pink room" while its conditions violate the eighth
        amendment.

Judge Grimm denied the officers' post-trial motion for judgment as
a matter of law, and the officers appealed to this court.

As the majority recognizes, although we review de novo a district
court's legal determinations, a jury's factual finding must be affirmed
unless there is "no legally sufficient evidentiary basis for a reasonable
jury" to so find. Fed. R. Civ. P. 50(b). Indeed, reviewing courts "owe
great deference to the jury's view of the evidence." Newman v.
Holmes, 122 F.3d 650, 653 (8th Cir. 1997) (affirming jury verdict for
prisoner where question of whether guard was deliberately indifferent
was "very close"). Moreover, we, as an appellate court, cannot re-
weigh the evidence or judge credibility, but rather must view the evi-
dence in the light most favorable to Jackson as the prevailing party.

III.

The Eighth Amendment prohibits the infliction of "cruel and
unusual punishments." U.S. Const. amend. VIII. Undeniably, the "un-
necessary and wanton infliction of pain," constitutes cruel and
unusual punishment forbidden by the Eighth Amendment. Hudson v.
McMillian, 503 U.S. 1, 5 (1992); Whitley v. Albers, 475 U.S. 312, 319
(1986); Ingraham v. Wright, 430 U.S. 651, 670 (1977).

To determine whether a prison official has violated the Eighth
Amendment, courts must analyze both subjective and objective com-
ponents. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Specifically,
this analysis requires "inquiry as to whether the prison official acted

                   15
with a sufficiently culpable state of mind (subjective component) and
whether the deprivation suffered or injury inflicted on the inmate was
sufficiently serious (objective component)." Williams v. Benjamin, 77
F.3d 756, 761 (4th Cir. 1996). "What is necessary to establish an
unnecessary and wanton infliction of pain" with regard to each com-
ponent "varies according to the nature of the alleged constitutional
violation." Hudson, 503 U.S. at 5 (internal quotation marks omitted).

In an excessive force case, a claimant must meet a heavy burden
to satisfy the subjective component of the claim; specifically, he must
prove that correctional officers applied force "maliciously and sadisti-
cally for the very purpose of causing harm." Whitley, 475 U.S. at 320-
21. The objective component of an excessive force claim is not nearly
as demanding, however, because "[w]hen prison officials maliciously
and sadistically use force to cause harm, contemporary standards of
decency always are violated. This is true whether or not significant
injury is evident." Hudson, 503 U.S. at 9. With these principles in
mind, I turn to the facts of this case.

IV.

The majority rests its decision to reverse the jury verdict solely on
the ground that Jackson failed to offer sufficient evidence to satisfy
the objective component of his excessive force claim. Accordingly, I
begin with an analysis of that component.

To establish the objective component of an excessive force claim,
generally a plaintiff must simply prove that he suffered more than de
minimis injury. Id. at 9-10. However, if "a particular application of
force . . . cause[s] relatively little, or perhaps no, enduring injury, but
nonetheless . . . result[s] in an impermissible infliction of pain," the
pain itself "will be such that it can properly be said to constitute more
than de minimis injury." Norman v. Taylor, 25 F.3d 1259, 1263 n.4
(4th Cir. 1994). Moreover, when the amount of force used is "of a sort
repugnant to the conscience of mankind," the plaintiff need not show
even de minimis injury to satisfy the objective component. Id. In such
a case, even if the plaintiff suffered no lasting injury, he can prevail
on the objective component of an excessive force claim. Jackson
offered the following evidence in support of the objective component
of his claim:

                   16
- The officers sprayed his cell with pepper spray twelve times.

- Pepper spray causes pain, burning, inflammation of the mucous
        membranes in the eyes, nose and throat, skin inflammation,
        induces coughing or gagging and causes the eyes to close involun-
        tarily. The spray also produces psychological effects, such as fear,
        disorientation, anxiety and panic.

- Jackson did not receive any medical treatment after being exposed
        to the pepper spray. Satisfactory decontamination from the effects
        of pepper spray requires one to flush all affected areas with water
        and wash them with soap. The officers' only attempt at decontami-
        nation was limited to giving Jackson a few minutes to rinse his
        face and groin area with water.

- After removing him from his cell, the officers locked Jackson in
        an isolation cell, known as the Pink Room, for forty-four hours.

- The Pink Room was a bare cell approximately ten feet by ten feet
        with metal walls, a concrete floor and no furniture. It lacked a toi-
        let, and instead had a grate in the floor encrusted with feces and
        blood.

- Although it was January, Jackson was not provided with any bed-
        ding, clothing -- save a single pair of underpants -- or other
        means of staying warm.

- The officers withheld food from Jackson for sixteen hours.

- During his confinement, Jackson was forced to wear excessively
        tight three-point restraints which caused him pain when he moved
        and prevented him from eating and removing his clothes to uri-
        nate.

After receipt of this evidence, Judge Grimm instructed the jury that
it could award nominal damages, such as one dollar, but only if it
found "that the plaintiff is entitled to a verdict in accordance with
these instructions, but [did] not find that the plaintiff has suffered sub-
stantial actual damages." See ante at 7 (quoting jury instructions). The

                   17
officers do not offer any objection to the jury instructions, nor could
they since the instructions are clearly proper. Thus, a properly
instructed jury awarded Jackson one dollar in nominal damages and
$9,500 in punitive damages. Even the majority acknowledges that this
award reflects the jury's clear finding that Jackson had suffered more
than de minimis injury. See ante at 7.

In rejecting this finding, the majority relies on the distinctions
between this case and Williams v. Benjamin, 77 F.3d 756 (4th Cir.
1996). See ante at 7-9. The majority contends that Jackson did not
suffer more than de minimis injury in the form of an impermissible
infliction of pain because (i) pepper spray is a milder irritant than the
tear gas used in Williams, (ii) exposure to pepper spray does not
necessitate medical treatment as does tear gas, nor does it have any
permanent effect and (iii) the four-point restraints used in Williams
were more restrictive than the three-point restraints used here. See
ante at 7-9.

Cases seldom present identical facts, and the facts in this case obvi-
ously are not identical to those in Williams; however, I believe that
in significant respects the facts here evidence a more, not less, egre-
gious infliction of unnecessary pain. Although pepper spray may be
a milder irritant than tear gas, Vincent Nathan, Jackson's expert, testi-
fied that exposure to pepper spray causes painful burning in the eyes,
nose, and throat, swelling, skin irritation and coughing or gagging, as
well as psychological trauma, including fear, disorientation, anxiety
and panic. Jackson's testimony confirmed that he experienced all of
these effects, and that he was not properly decontaminated after his
exposure to pepper spray -- a fact which MCAC's own regulations
confirm. Moreover, while Jackson was bound in three-point restraints,
as opposed to the four-point type used on Williams, Jackson was con-
fined in the painfully tight restraints and prevented from using his
hands to feed himself or assist in urination for forty-four hours --
almost six times as long as Williams's confinement. 3
_________________________________________________________________

3 The majority concludes that the three-point restraints could not have
totally prevented Jackson from using his hands because he was wearing
three-point restraints when he used his hands to flush his face and groin
with water in the infirmary. See ante at 9. However, between Jackson's

                   18
Even if this were not a stronger case than Williams, the evidence
summarized above undoubtedly constitutes ample proof of an imposi-
tion of pain sufficient to support the jury's verdict. Despite the major-
ity's efforts to recast the evidence, a reasonable jury could certainly
have found that the evidence offered of forty-four hours of pain and
inhumane treatment demonstrated "an impermissible infliction of
pain" resulting in greater than de minimis injury. Norman, 25 F.3d at
1263 n.4.

Moreover, even if I agreed with the majority's conclusion that
Jackson's prolonged confinement in the Pink Room did not cause him
to suffer an impermissible amount of pain constituting more than de
minimis injury, we would nonetheless be obligated to sustain the
jury's verdict because the record reveals abundant evidence that the
force used on Jackson was of the sort "repugnant to the conscience
of mankind." Id. Where the amount of force used rises to this level,
a claimant need not show even de minimis injury to satisfy the objec-
tive element of an excessive force claim. See id.

In the instant case, the jury not only found for Jackson on his
excessive force claim arising from his confinement in the Pink Room,
it also took the "extraordinary measure" of requesting that a statement
be read into the record expressing its disapproval of the guards' treat-
ment of Jackson. In this statement, the jury stated unequivocally that
it "regard[ed] the conditions inflicted upon the prisoners [in the Pink
Room] of a sort repugnant to the conscience of mankind." Although
the majority dismisses the jurors' statement as "gratuitous," ante at 7,
surely these words, in conjunction with the jurors' modest damages
award, signal that they carefully assessed the evidence presented and
_________________________________________________________________

visit to the infirmary and his confinement in the Pink Room, Jackson's
shackles were removed to permit him to change his underwear and he
was then re-shackled before being placed in the Pink Room. Thus, the
fact that he could move his hands while in the infirmary does not mean
that he could move them equally well when confined in the Pink Room
because the shackles could have been placed on Jackson more tightly the
second time. In any event, we are required to credit Jackson's testimony
that, during his time in isolation confinement, he could not move his
hands to remove his underwear or to eat.

                   19
concluded, as they expressly stated, that the guards acted in a manner
"repugnant to the conscience of mankind." I fear that, in its dismissal
of the jury's words, the majority forgets that it is juries, and not
courts, who are charged with expressing the conscience of the com-
munity. See Jones v. United States, 527 U.S. 373, 382 (1999) ("[I]n
a capital sentencing proceeding, the Government has`a strong interest
in having the jury express the conscience of the community on the
ultimate question of life or death.'") (quoting Lowenfield v. Phelps,
484 U.S. 231, 238 (1988)); see also BMW of North America, Inc. v.
Gore, 517 U.S. 559, 600 (1996) (Scalia, J. dissenting) ("[P]unitive
damages represent the assessment by the jury, as the voice of the
community, of the measure of punishment the defendant deserved.").

In sum, Jackson offered more than sufficient evidence to satisfy the
objective component of his excessive force claim.

V.

The evidence is equally clear that Jackson satisfied the subjective
component, i.e., he offered abundant evidence that the correctional
officers applied force "maliciously and sadistically for the very pur-
pose of causing harm." Whitley, 473 U.S. at 320-21.

In determining whether prison officials have acted "maliciously
and sadistically" a court should balance: (i) the need for the applica-
tion of force, (ii) the relationship between that need and the amount
of force used, (iii) the threat reasonably perceived by the responsible
officials, and (iv) any efforts made to temper the severity of a forceful
response. See Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321-
22). The absence of serious injury is also a relevant, but not disposi-
tive, factor to be considered in the subjective analysis. Id.

With respect to the first Whitley factor, the need to use force, the
jury unquestionably could have concluded that the officers did not
need to confine Jackson to the Pink Room in unduly tight three-point
restraints, without clothing, bedding, a toilet or even the opportunity
to properly clean off the pepper spray, for nearly two days. No doubt,
in certain situations, pepper spray, isolation confinement, and three-
point restraints can serve valid penological purposes. But the officers

                  20
have not even offered a justification for the prolonged use of all three
of these tools in this case, or for the manner in which they were used.

The record evidence reveals that when the Response Team arrived
at Jackson's cell, he was calm; any disturbance caused by Jackson's
earlier disruptive behavior had clearly ceased. Even if Jackson ini-
tially disobeyed orders to submit to a search (and we are bound to
credit Jackson's testimony that he did not), it is undisputed that Jack-
son complied with these orders as quickly as he could after being
sprayed, given the disorienting effects of the pepper spray. By the
time Jackson was placed in the Pink Room, he was not a danger to
himself or the officers. He did not possess any weapons or contraband
-- the officers knew this because Jackson had just submitted to two
body searches -- and he was rendered helpless by the pepper spray.
Given this, a reasonable jury could easily have found that extended
isolation confinement without the opportunity to wash off the pepper
spray was unnecessary. But, even assuming that it was necessary to
transfer Jackson to the Pink Room, the officers have offered no justi-
fication for the prolonged use of the painfully tight restraints. Thus,
a reasonable jury could certainly have concluded that the prolonged
use of in-cell shackles were unnecessary.

The second Whitley factor, the relationship between the need for
the force and the amount of force used, is closely related to the first
factor. As stated above, while Jackson's intransigence might have jus-
tified the use of some force, the evidence supports a finding that the
amount of force used in this case was grossly disproportionate to the
need. By the time the Response Team arrived at Jackson's cell, he
was calm and had ceased to cause a disturbance. Nonetheless, the
officers sprayed him with twelve bursts of pepper spray. After that,
Jackson was nearly helpless and complied with all of the officers'
orders. Nonetheless, the officers painfully restrained him and placed
him in the Pink Room for an extended period of time, without cloth-
ing or an opportunity to wash off the pepper spray. Given that the
Pink Room is designed to allow an inmate creating a disturbance an
opportunity to "cool off," and Jackson was calm for the first seven-
teen hours of his forty-four hour confinement, there was no justifica-
tion for keeping Jackson in the Pink Room for such an extended
period.

                  21
With respect to the third Whitley factor, the jury certainly could
have found that the officers did not "reasonably perceive" that Jack-
son posed any threat to their safety that would require them to use this
amount of force. As stated above, at the time of the incident, the offi-
cers knew that Jackson did not possess any contraband, or anything
that could be used as a weapon, because they had just subjected him
to a cell and body search. Even if the officers needed to place Jackson
in restraints while transporting him to the Pink Room for a limited
cooling-off period, there was no evidence of any threat justifying the
officers' excessive response. In fact, the prison's own policy states
that in-cell restraints are only to be used when an inmate poses a
threat to himself or others, and the officers offered no evidence that
Jackson posed any such danger here.

As to the fourth Whitley factor -- the officers' effort to temper the
severity of their response -- it appears that no such effort was made
in this case. The officers persisted in using force against Jackson --
including Officer Fenton's unwarranted blow to Jackson's head --
even after he was incapacitated by the pepper spray and had complied
with all orders. Moreover, even though Jackson was calm during his
confinement in the Pink Room, the officers kept him there, in
restraints, for nearly two days. Both of these facts indicate that the
officers failed to temper their response to accord with the situation.

In short, reviewing the evidence, as we must, with the appropriate
deference to the jury's factual findings, each of the four Whitley fac-
tors weighs in favor of Jackson.4 Given the officers' unjustifiable use
                                4
of force and excessively punitive measures, it was certainly reason-
able for the jury to conclude that they acted both maliciously and
sadistically in confining Jackson to the Pink Room in these conditions
for a period of nearly two days.
_________________________________________________________________

4 Although it is true, as the majority notes, that courts should afford
deference to prison officials, see ante at 5, particularly where the initial
application of force is a "good faith effort to maintain discipline," it is
equally true that courts must not allow such deference to "insulate from
review actions taken in bad faith for no legitimate purpose." Whitley, 475
U.S. at 322. Where, as here, prison officials' actions lack a legitimate
purpose, it is reasonable to infer, that those actions constitute wanton
punishment.

                  22
VI.

For the reasons set forth above, I believe that there was a "legally
sufficient evidentiary basis for a reasonable jury" to decide that the
officers' actions constituted excessive force in violation of the Eighth
Amendment. Fed. R. Civ. P. 50(a)(1); Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149-50 (2000). Accordingly, I respectfully
dissent from the majority's holding to the contrary. 5
_________________________________________________________________

5 The officers assert that even if they used excessive force in confining
Jackson to the Pink Room, they are entitled to qualified immunity
because, at that time, it was not clearly established that the level of force
used in this case was excessive. "[G]overnment officials performing dis-
cretionary functions generally are granted a qualified immunity and are
`shielded 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.'" Wilson v. Layne, 526 U.S. 603,
609 (1999). "Clearly established for the purposes of qualified immunity
means that the `contours of the right must be sufficiently clear that a rea-
sonable official would understand that what he is doing violates that
right.'" Id. at 614-15. At the time of the events at issue in this case, it was
"clearly established" that the wanton infliction of pain on an inmate with-
out penological justification constitutes cruel and unusual punishment.
See Whitley, 475 U.S. at 319 ("[T]he unnecessary and wanton infliction
of pain constitutes cruel and unusual punishment forbidden by the Eighth
Amendment . . . ."). Abundant and virtually uncontroverted evidence
demonstrated that, after failing to decontaminate Jackson properly from
the effects of the pepper spray, the officers confined him to the Pink
Room for a period of two days -- shackled the entire time in painful
three-point restraints -- and that they took these actions even though
Jackson posed no danger to himself or others and was calm for the first
seventeen hours of his confinement. In doing so, the officers "unneces-
sar[ily] and wanton[ly] inflict[ed] . . . pain," an act which the Supreme
Court held more than a dozen years ago is "forbidden by the Eighth
Amendment." Id. Qualified immunity offers no escape for those who
engage in such conduct.




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