UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANTHONY TYRONE WILLIAMS,
Plaintiff-Appellant,

v.

CATHY DEHAY, Warden; DEANA
                                                               No. 94-7114
LANGSTON, Nurse; SERGEANT DAY;
SERGEANT WRIGHT; EARL SMITH,
Sergeant; SERGEANT ADCOCK,
Defendants-Appellees.

ANTHONY TYRONE WILLIAMS,
Plaintiff-Appellant,

v.
                                                               No. 94-7115
RAY ISGETT, Sheriff, Berkeley
County; CATHY DEHAY, Warden,
Berkeley County Jail,
Defendants-Appellees.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CA-93-1947-2-18AK, CA-93-1607-2-18AK)

Argued: February 1, 1996

Decided: March 21, 1996

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

ARGUED: Lori Campione, Third Year Law Student, Bruce E. Cun-
ningham, Third Year Law Student, Neal Lawrence Walters, Supervis-
ing Attorney, Appellate Litigation Clinic, UNIVERSITY OF
VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appel-
lant. Sandra J. Senn, STUCKEY & SENN, Charleston, South Caro-
lina; Andrew Steven Halio, HALIO & HALIO, Charleston, South
Carolina, for Appellees. ON BRIEF: Elliott T. Halio, HALIO &
HALIO, Charleston, South Carolina, for Appellee Langston.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Appellant, Anthony Tyrone Williams, at all relevant times a pre-
trial detainee at the Berkeley County Jail in South Carolina, filed two
separate actions under 42 U.S.C. § 1983 against various prison offi-
cials. The first action, filed against the Warden, the prison's nurse
practitioner, and a number of guards, alleged that the named officials
were deliberately indifferent to Williams' serious medical needs in
violation of the due process clause of the Fourteenth Amendment for
failing to provide him with a pain medication (a narcotic) and a sleep
aid. The second action, filed against the Warden and Sheriff Isgett,
alleged that Williams' due process right to be free from the excessive
use of force was violated when Williams was attacked with mace by
Sheriff Isgett while Williams was securely locked in his cell. These
two actions were consolidated and the district court granted summary
judgment in favor of all defendants. Finding no reversible error, we
affirm.

I.

Williams first alleges that various prison officials were deliberately
indifferent to his serious medical needs when they refused to give him

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Darvocet, a narcotic, and Restoril, a sleep aid. The prison officials
refused to give Williams these two particular medications because of
a jail policy prohibiting the dispensation of narcotics and sleep aids
without a court order and because Dr. Hodges, Williams' doctor both
prior to and during his incarceration at the Berkeley County Jail,
refused to prescribe any narcotics or sleep aids. Williams, who was
diagnosed as HIV-positive, had one of his arms amputated, and has
insomnia, did receive numerous other drugs on a daily basis to treat
his various conditions.

To establish a due process violation, Williams must show that the
prison officials acted with deliberate indifference to his serious medi-
cal needs. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).1
Recently, in Farmer v. Brennan, the Supreme Court adopted a subjec-
tive test for deliberate indifference, "hold[ing]" that,

          a prison official cannot be found liable under the Eighth
          Amendment for denying an inmate humane conditions of
          confinement unless the official knows of and disregards an
          excessive risk to inmate health or safety; the official must
          both be aware of facts from which the inference could be
          drawn that a substantial risk of serious harm exists, and he
          must also draw the inference.

114 S. Ct. 1970, 1979 (1994) (emphasis added). Because Williams
cannot establish that any of the officials were deliberately indifferent,
the district court properly granted summary judgment in favor of the
defendants.
_________________________________________________________________

1 While a claim of deliberate indifference to serious medical needs nor-
mally arises under the Eighth Amendment's cruel and unusual punish-
ments clause, see Estelle, 429 U.S. at 102-05, Williams' claim is
analyzed under the due process clause because he was a pretrial detainee
and thus not subject to punishment of any kind. This distinction is of no
import, however, because the inquiry as to whether officials were delib-
erately indifferent to serious medical needs is the same under both the
due process clause of the Fourteenth Amendment and the cruel and
unusual punishments clause of the Eighth Amendment. See Martin v.
Gentile, 849 F.2d 863, 871 (4th Cir 1988) (citing Estelle, 429 U.S. at
104-06).

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With respect to appellee Nurse Langston, the evidence is uncontro-
verted that she consulted with the Warden about Williams' request for
Darvocet and Restoril on numerous occasions. See J.A. at 119, 120,
125. Nurse Langston also informed Williams about the prison policy
concerning narcotics and sleep aids on numerous occasions and
checked to see if Williams had complied with the policy by obtaining
a court order that he be given Darvocet and Restoril. See id. at 119-
31. Additionally, Nurse Langston had no responsibility for prescrib-
ing, dispensing or approving the two drugs Williams claims he was
denied. Thus, far from being deliberately indifferent, Nurse Langston
did everything she could to help Williams obtain the Darvocet and
Restoril he requested. Cf. Smith v. Barry, 985 F.2d 180, 184 (4th Cir.)
(affirming directed verdict for prison guards who were not in a posi-
tion to "act meaningfully" in regards to a prisoner's medical needs),
cert. denied, 114 S. Ct. 207 (1993).

With respect to the other appellees, Williams' claim also fails. The
record is unclear as to whether a doctor ever prescribed Darvocet and
Restoril. However, even assuming that a doctor did prescribe these
two drugs, Williams has failed to produce any evidence that he ever
obtained a court order. While Williams now claims that he has a court
order that he be given these medications or be transferred to a facility
equipped to handle his medical condition, see J.A. at 100, 192, aside
from Williams own assertions, there is no evidence of such a court
order anywhere in the record. More importantly, even if Williams had
a court order, there is absolutely no evidence in this record that Wil-
liams ever told any prison official about such an order. In the absence
of evidence that Williams obtained a court order and informed prison
officials about the order, the officials can in no way be deemed to
have been deliberately indifferent under the Farmer standard.

Additionally, even if there were no policy to control the dispensa-
tion of sleep aids and narcotics, the appellees would still be entitled
to summary judgment on the ground that they were not deliberately
indifferent because Dr. Hodges, Williams' doctor both prior to and
during Williams' incarceration, clearly did not prescribe narcotics or
sleep aids for Williams. See J.A. at 190. As Williams himself
acknowledges in his opposition to summary judgment:

          On each occasion, [Dr. Hodges] refused to prescribe me
          anything for sleep, or depression. I was a client of his prior

                    4
          to being incarcerated. I asked him on a number of occasions
          to prescribe me medication for depression when I visited
          Mental Health as a free citizen. . . . [Dr. Hodges] has never
          prescribed me anything.

Id. (emphasis added). Prison officials are not "deliberately indiffer-
ent" to serious medical needs when they follow one of two conflicting
medical opinions.

II.

Williams next claims that his due process right to be free from the
use of excessive force was violated when Sheriff Isgett attacked Wil-
liams with pepper mace. Williams alleges that on May 25, 1993,
while he was securely locked in his cell, Isgett attacked him with
mace until he fell to the floor and lost consciousness. According to
Isgett, Isgett went to Williams' cell on May 25 to inform Williams
that further attempts to harm officers by slinging, or threatening to
sling, blood would lead to criminal charges. Isgett stated that during
the conversation Williams became agitated and threatened Isgett.
Isgett, who noticed that Williams had a cut on his elbow, became con-
cerned for his safety and sprayed Williams with mace. Williams
denies that he ever threatened Sheriff Isgett or any other prison offi-
cial or that he became agitated while speaking with Isgett.

The due process clause protects a pretrial detainee from "`the use
of excessive force that amounts to punishment.'" 2 United States v.
Cobb, 905 F.2d 784, 788 (4th Cir. 1990) (quoting Graham v. Connor,
490 U.S. 386, 395 n.10 (1989)), cert. denied, 498 U.S. 1049 (1991).
In Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc),
cert. denied, 115 S. Ct. 909 (1995), this court, sitting en banc, held
that "absent the most extraordinary circumstances" excessive force
claims do not lie where the injury is de minimis . Since Williams has
at most established a de minimis injury (and probably not even that)
_________________________________________________________________
2 Again, because Williams was a pretrial detainee at the time of this
incident, his claim is analyzed under the due process clause of the Four-
teenth Amendment rather than under the Eighth Amendment. See supra
note 1.

                    5
and there are no extraordinary circumstances the district court prop-
erly granted summary judgment on Williams' excessive force claim.

Immediately after the mace, which effects are minimal and last
only thirty minutes, was administered, Williams was given soap, ice
and water to clean up. Williams claims that he has continuing lower
back pain and shoulder injuries as a result of falling down after being
maced. However, the medical records offer no evidence whatsoever
that he ever complained about his alleged shoulder and back injuries
despite repeated visits to medical personnel. See J.A. at 119-31.
Moreover, on June 23, just eight days after he filed his complaint
alleging the use of excessive force and noting his continuing back and
shoulder pain, Williams went to the prison's nurse practitioner com-
plaining of only a headache and left eye irritation which had begun
two days earlier and "denie[d] . . . any other complaints or requests."
Id. at 129. Transitory back and shoulder aches of limited duration is
at most a de minimis injury.

Williams responds that he was denied medical attention for these
injuries. See Appellant's Br. at 28 & n.6. This last claim we reject
also. Williams went to medical practitioners numerous times after he
was sprayed with mace on May 25 without ever reporting the sup-
posed shoulder and back injuries. Williams cannot withstand sum-
mary judgment by merely alleging that he was injured, see Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986), Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986), especially given that, as coun-
sel readily conceded at oral argument, Williams saw medical person-
nel on many occasions after the macing incident. Thus, Warden
DeHay and Sheriff Isgett are entitled to summary judgment on Wil-
liams' claim that the use of mace constituted excessive force in viola-
tion of the due process clause.

                    6
CONCLUSION

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

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