                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-1360


CHARLES EDWARD WERNERT, II,

                 Plaintiff - Appellee,

           v.

JOSHUA GREEN,     Deputy   Sheriff,   sued    in   his   individual
capacity,

                 Defendant – Appellant,

           and

RYANT L. WASHINGTON, Sheriff, sued in his official capacity,

                 Defendant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:09-cv-00031-nkm-bwc)


Argued:   December 10, 2010                  Decided:    March 22, 2011


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, TRAXLER,
Chief Judge, and KEENAN, Circuit Judge.


Affirmed by unpublished opinion.     Justice O’Connor wrote the
opinion, in which Chief Judge Traxler and Judge Keenan joined.


ARGUED: John Adrian Gibney, Jr.,             THOMPSON    MCMULLAN, PC,
Richmond, Virginia, for Appellant.             Jeffrey   Edward Fogel,
Charlottesville, Virginia, for Appellee.     ON BRIEF: Steven D.
Rosenfield, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
O’CONNOR, Associate Justice:

       Charles Edward Wernert II, the Appellee, filed suit against

Fluvanna County Police Department Deputy Joshua Greene, 1 alleging

that Greene used excessive force against him.                         Appellant Greene

invoked a defense of qualified immunity and moved for summary

judgment.          For    the    reasons      explained     herein,    we     affirm   the

district court’s denial of summary judgment.



                                               I

       On    the   evening       of     May   4,   2007,    Fluvanna    County    Police

Department Deputy Joshua Greene was on patrol with auxiliary

Deputy Francis Ferki.             The deputies heard over their radio first

that an individual had jumped onto an ambulance on Kents Store

Road and then that a man had committed an assault at a residence

on   the    same    road.         The    man   who    committed      the     assault   was

described as being approximately six feet tall, wearing a white

tee shirt and blue jeans, and carrying one or two suitcases.

Near   the    location      of    the     assault,    the    deputies      saw   Appellee

Wernert, who matched the description they had received.

       When Wernert saw the deputies, he started walking away,

carrying      a    bag.         The   deputies       stopped   him     and    asked    for

       1
       Deputy Greene’s name has been inconsistently spelled in
filings.   We adopt the spelling employed in his brief to this
court.



                                               3
identification, which Wernert provided. Wernert, who appeared to

be intoxicated, explained that he was on parole in Pennsylvania

and therefore was not supposed to leave that state.                              The radio

dispatcher confirmed that Wernert was a Pennsylvania parolee and

informed the deputies that Pennsylvania authorities wanted the

Fluvanna County authorities to detain Wernert.                              The deputies

then handcuffed Wernert behind his back.

       The    deputies   spoke      with     individuals        at    the    home    where

Wernert allegedly committed the assault.                       A person at the home

explained      that   Wernert       became       angry   and    began       to   swing   at

people; he also claimed that Wernert had head-butted someone who

attempted to calm him down.             Wernert claims that there was only

a verbal argument.

       The    deputies       then     drove        Wernert      to     the       Sheriff’s

Department.      Upon arrival, Deputy Greene instructed Wernert to

take off his belt and shoes.                Wernert asked how he was supposed

to do that while still in handcuffs and was told to “figure it

out.”    Wernert Dep. at 57 (J.A. 35).                   Wernert managed to remove

his belt. Deputy Greene then told Wernert to “kick your shoes

off.”    Id. at 59 (J.A. 36).           Wernert kicked off his right shoe,

but had difficulty removing his left shoe.                       When he managed to

kick    off    his    left   shoe     “it    flipped       up    on   [him],       and   it

accidentally hit [Deputy Ferki] in the face.”                           Id.        Wernert

quickly apologized.          Id. at 60 (J.A. 115).               Deputy Greene then

                                             4
slammed Wernert to the ground.             Upon seeing a pool of blood

around Wernert’s face, the deputies sought medical assistance.

Wernert   suffered   multiple    facial     fractures    and    impacted      and

displaced   teeth.       He     received     stitches,    had        his     teeth

straightened, and had a wire splint placed in his mouth.

     Wernert   filed   suit     against    Deputy   Greene      in    the     U.S.

District Court for the Western District of Virginia. 2                     Wernert

brought a 42 U.S.C. § 1983 claim alleging that Greene subjected

him to excessive force in violation of the Fourteenth Amendment. 3

Construing the facts in the light most favorable to Wernert, the

district court concluded that Deputy Greene’s actions violated

Wernert’s   Fourteenth    Amendment       rights,   which      were        clearly

established at the time of the incident.                The district court

therefore denied Greene’s motion for summary judgment on the

basis of qualified immunity.       Wernert v. Washington, No. 3:09cv-

     2
       Wernert also filed state law assault, battery, and gross
negligence claims against both Greene and Fluvanna County
Sheriff Ryant L. Washington.     The district court granted the
defendants’ summary judgment motion on the assault claim and
denied their motions for summary judgment on the other two
state-law claims. Wernert v. Washington, No. 3:09cv-00031, 2010
WL 924281, at *8-*9 (W.D. Va. Mar. 11, 2010).     The state law
claims are not at issue in this appeal.
     3
       Wernert also cited the Eighth Amendment as a basis for his
excessive force claim, but the district court properly granted
summary judgment on the Eighth Amendment claim because excessive
force claims by pretrial detainees are the purview of the
Fourteenth Amendment.   See Orem v. Rephann, 523 F.3d 442, 446
(4th Cir. 2008).



                                     5
00031, 2010 WL 924281 (W.D. Va. Mar. 11, 2010).              Deputy Greene

appeals the district court’s denial of his motion for summary

judgment on qualified immunity grounds.



                                       II

       Under 28 U.S.C. § 1291, this Court has jurisdiction over

all    final   district     court   orders.   Qualified    immunity    is   an

“immunity from suit rather than a mere defense to liability; and

. . . it is effectively lost if a case is erroneously permitted

to go to trial.”        Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Therefore, “[t]o the extent that an order of a district court

rejecting a governmental official’s qualified immunity defense

turns on a question of law, it is a final decision within the

meaning of § 1291 under the collateral order doctrine recognized

in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),

and . . . is subject to immediate appeal.”             Winfield v. Bass,

106 F.3d 525, 528–29 (4th Cir. 1997) (en banc) (citing, inter

alia, Behrens v. Pelletier, 516 U.S. 299 (1996), and Mitchell,

472 U.S. at 524–30).

       However, a defendant invoking a qualified immunity defense

“may    not    appeal   a   district   court’s   summary   judgment     order

insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact for trial.”               Johnson

v. Jones, 515 U.S. 304, 319–320 (1995).            In other words, on an

                                       6
interlocutory appeal “we possess no jurisdiction over a claim

that a plaintiff has not presented enough evidence to prove that

the plaintiff’s version of the events actually occurred, but we

have jurisdiction over a claim that there was no violation of

clearly    established          law   accepting      the    facts     as     the    district

court viewed them.”             Winfield, 106 F.3d at 530; see also Witt v.

W. Va. State Police, 2011 WL 338792, No. 10-1008, at *2 (4th

Cir. Feb. 4, 2011); Iko v. Shreve, 535 F.3d 225, 235 (4th Cir.

2008).

       Contrary       to       Appellee     Wernert’s         contention,          we    have

jurisdiction over this appeal.                    Wernert’s reliance on Culosi v.

Bullock, 596 F.3d 195 (4th Cir. 2010), is misplaced.                                    Culosi

involved     a    §     1983    excessive      force       claim     under    the       Fourth

Amendment. There we determined that we did not have jurisdiction

over an interlocutory appeal because the district court denied

summary judgment due to a genuine dispute of material fact over

what happened—whether the police officer discharged his weapon

intentionally or accidentally—not simply due to a dispute over

the legal effect of an agreed set of facts.                           Id. at 202.           In

this   case,     by     contrast,     Deputy       Greene    does    not     dispute      what

happened on the night of May 4; he disputes its legal effect:

whether the force he used violated Wernert’s clearly established

constitutional           rights       under         the     Fourteenth         Amendment.

Therefore,       this    is    a   “claim   that      there    was    no     violation     of

                                              7
clearly   established          law       accepting      the    facts     as    the    district

court viewed them,” Winfield, 106 F.3d at 530, over which we

have jurisdiction.

     We    now       proceed        to    consider      Greene’s        arguments         on    the

merits.



                                               III

     Generally,        “government            officials       performing       discretionary

functions . . . 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.”              Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982).     Qualified immunity ensures that “[o]fficials are not

liable    for    bad    guesses          in   gray   areas;      they     are    liable         for

transgressing        bright     lines.”          Iko,    535     F.3d    at    238    (quoting

Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)).

     In     evaluating          a        qualified      immunity        claim,       we        first

determine       whether,       construing        the     facts     in    the     light         most

favorable       to   the   nonmoving          party,     the     government       official’s

actions    violated        a    constitutional           right.          If    so,    we       must

ascertain whether the right was clearly established at the time

of the violation.              Saucier v. Katz, 533 U.S. 194, 201 (2001).

Although that order of decision is no longer mandatory, Pearson

v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009), we have

                                                8
discretion to follow it in appropriate cases, id., and we do so

here.

      We review a district court’s denial of summary judgment and

qualified immunity de novo, construing the facts in the light

most favorable to the non-moving party, here Wernert.                           Orem v.

Rephann, 523 F.3d 442, 445 (4th Cir. 2008).

                                             A

      The    district       court    correctly       understood     that   Wernert’s

excessive force claim falls under the Due Process Clause of the

Fourteenth Amendment.          Wernert, 2010 WL 924281, at *5; see Orem,

523 F.3d at 446.

      To    prevail    on    his    claim,       Wernert   must   show   that    Deputy

Greene “‘inflicted unnecessary and wanton pain and suffering.’”

Taylor v. McDuffie, 155 F.3d 479, 483 (4th Cir.1998) (quoting

Whitley v. Albers, 475 U.S. 312, 320 (1986)), abrogated on other

grounds by Wilkins v. Gaddy, 130 S. Ct. 1175, 1178–79 (2010)

(per curiam).       In other words, he must show that “the officers’

actions amounted to punishment and were not merely ‘an incident

of   some   other     legitimate      governmental         purpose.’”      Robles    v.

Prince George’s Cnty., Md., 302 F.3d 262, 269 (2002) (quoting

Bell v. Wolfish, 441 U.S. 520, 538 (1979)).                        “In determining

whether [this] constitutional line has been crossed, a court

must look to such factors as the need for the application of

force, the relationship between the need and the amount of force

                                             9
used, the extent of the injury inflicted, and whether the force

was    applied    in    a    good    faith     effort    to   maintain     and   restore

discipline or maliciously and sadistically for the very purpose

of causing harm.”                Orem, 523 F.3d at 446 (quoting Johnson v.

Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

       Construing       the       facts   in    the     light     most   favorable    to

Wernert, a reasonable jury could conclude that Deputy Greene’s

“takedown”       of    Wernert      was   “wanton”      and   “unnecessary,”      rather

than “a good faith effort to maintain and restore discipline,”

id.,    and      that       it    therefore         constitutes    a     constitutional

violation.

       The injuries inflicted on Wernert were severe.                            Medical

records from the University of Virginia Health System, which

treated Wernert, show that he suffered multiple facial fractures

and impacted and displaced teeth.                      J.A. 162–63.        He required

stitches for facial lacerations and a wire splint to treat the

affected teeth.         Id.

       Turning to the need for and amount of force employed, the

facts support the conclusion that the force used was excessive.

Neither Wernert’s actions nor his possible actions about which

Deputy Greene claims to have been concerned appear particularly

threatening.          Wernert’s act of kicking off his shoe, an act he

avers that Deputy Greene told him to do, did not result in

injury to Deputy Ferki.               In fact, Deputy Ferki explained that

                                               10
when he felt an object strike his cheek and realized it was

Wernert’s shoe, he smiled and “was going to say good shot or

nice   shot,”    Ferki    Dep.    at   53     (J.A.     144),    when     Greene    took

Wernert to the ground.           Wernert, of course, alleges that it was

an accident that the shoe hit Deputy Ferki at all.                      Wernert Dep.

at 60 (J.A. 115).

       Deputy Greene’s own statements support the proposition that

Wernert did not pose a threat.                Deputy Greene stated that when

they   arrived    at     the    police   station,        Wernert     “wasn’t       being

disrespectful     or     aggressive,”       and    so    he     planned    to   remove

Wernert’s handcuffs.           Greene Dep. at 81 (J.A. 61).               Greene also

stated that prior to the shoe hitting Deputy Ferki, he did not

perceive Wernert to be a threat to either deputy.                          Id. at 90

(J.A. 65).       When Wernert kicked off his shoe, however, Greene

explained that he used an “escort takedown” maneuver to take

Wernert to the floor because Wernert might “[k]ick me, at the

very least.”      Id.    He further explained, “at the time [Wernert]

was a threat to me, as well as still a threat to Ferki.                         I was,

you know, within a few inches, a foot of Mr. Wernert.                           He had

already been involved in one altercation . . . that night.                            He

appeared intoxicated at the time.                 Once you are on the ground,

it eliminates the whole threat.”              Id. at 89–90 (J.A. 64–65).

       In the district court, Wernert submitted an affidavit by

Timothy Lynch, an expert in police defensive tactics.                              Lynch

                                         11
explained    that,      in   his       opinion,      “[t]he       need    to    stabilize      a

restrained       subject     such       as     Mr.        WERNERT,       who     offered      no

resistance or signs of aggression, would not require the use of

an Escort Takedown.”              Lynch Declaration at 3 (J.A. 170).                          He

concluded that “no reasonable law enforcement officer would have

felt    threatened      under     these      circumstances.”              Id.    at    2   (J.A.

169).

        The particular manner in which Deputy Greene took Wernert

to the floor further suggests that the type of force used was

excessive.       Greene      claims      that      he     used    an    “escort       takedown”

because     he    believed        it     would       be     less       harmful     than      the

alternative      “leg    sweep”         maneuver,         which        could    have       caused

Wernert to break his arm or wrist.                         Greene Dep. at 108 (J.A.

72).      Greene describes the “escort takedown” he performed as

“help[ing]”      Wernert     to    the       ground.        Id.    at     96    (J.A.      134).

Greene concedes that he then got on top of Wernert, putting his

knee on Wernert’s back.

        Lynch’s declaration, however, explains that Deputy Greene’s

use of the escort takedown maneuver was “not consistent with the

purpose for which it was intended.”                          Lynch Declaration at 2

(J.A. 170).       He explained that the proper technique “requires

the subject’s controlled arm to be extended at a right angle to

the body, with downward pressure directed to the triceps area of

the arm just above the elbow.                  The subject is in a position to

                                              12
brace his fall with the ‘free’ hand as the officer can control

the angle and direction of the takedown to the prone position.

In this manner, the subject’s fall is directed to the chest and

abdomen.”        Id.     In this case, however, with Wernert handcuffed

and    impaired     by    alcohol,          Lynch       explained    that     “it    would    be

extremely difficult, if not improbable, for [Wernert] to brace

his fall in a forward direction . . . [and] equally difficult

for    Deputy    GREENE        to    be     able    to    control    Mr.    WERNERT’s        body

weight     during        the        takedown.”           Id.     Lynch     concluded        that

application of the escort takedown in the circumstances of the

restraints imposed on Wernert “would most likely cause a subject

to hit the floor face first, rather than chest first.”                               Id.

       All of this evidence, again construed in the light most

favorable to Wernert, supports the conclusion that even if force

was      justified        at         all,     the        force      applied         here     was

disproportionate to any threat posed, especially since Wernert

was no longer wearing shoes and was still handcuffed.

       The question remains whether the force “was applied in a

good     faith    effort        to        maintain       and   restore      discipline        or

maliciously and sadistically for the very purpose of causing

harm.”      Orem, 523 F.3d at 446 (quoting Johnson, 481 F.2d at

1033).     Given the minimal and allegedly accidental nature of the

breach    of     discipline          Wernert       committed,       coupled    with        Deputy

Greene’s own perception that Wernert was not aggressive, the

                                                   13
fact and magnitude of force employed against Wernert suggests

that    it   was    unnecessary          to    “restore     discipline.”           Lynch’s

declaration suggests the example of “[w]ristlock controls” as a

“less forceful and more effective” technique.                        Lynch Declaration

at 2 (J.A. 170).          Deputy Ferki’s account of the incident also

suggests     that   Deputy    Greene          may   have    acted    in   a   retaliatory

manner.      Ferki recounts that Greene told Wernert to “[g]et on

the ground” and stated “don’t be kicking your shoes off at my

deputy.      Don’t be trying to assault my deputy.                        That’s assault

on an officer.”      Ferki Dep. at 59 (J.A. 83).

       Although “‘[n]ot every push or shove, even if it may later

seem unnecessary,’” Graham v. Connor, 490 U.S. 386, 396 (1989)

(quoting Johnson, 481 F.3d at 1033), violates an individual’s

constitutional rights, the facts in this case, viewed in the

light   most    favorable     to     Wernert,        demonstrate      that     the   force

Deputy Greene employed was not a good faith effort to restore

discipline.

                                               B

       Having   concluded         that    Deputy      Greene’s       conduct      violated

Wernert’s Fourteenth Amendment right as an arrestee to be free

from punishment, we must determine whether the constitutional

right was clearly established at the time of the incident.                              We

have    no   difficulty      in    concluding        that    in     May   2007,    it   was

“clearly established that an arrestee or pretrial detainee is

                                              14
protected from the use of excessive force.”                      Orem, 523 F.3d, at

448 (citing Bell, 441 U.S. 520); Martin v. Gentile, 849 F.2d

863, 870 (1988) (“[T]he pretrial detainee, who has yet to be

adjudicated guilty of any crime, may not be subjected to any

form of ‘punishment.’”).

       Greene nonetheless argues that “a reasonable officer would

not    have   known    that    the    force     used      by   Greene    violated      the

plaintiff’s due process rights.”                Appellant’s Br. at 20.            He is

entitled to qualified immunity if “a reasonable officer could

have   believed    [Greene’s         actions]       to   be    lawful,   in    light    of

clearly established law and the information the . . . officers

possessed.”       Anderson v. Creighton, 483 U.S. 635, 641 (1987);

Orem, 523 F.3d at 448 (citing Hunter v. Bryant, 502 U.S. 224,

227 (1991)).

       The unreasonableness of Greene’s actions is put into sharp

relief by Deputy Ferki’s very different perception of the shoe

incident.      Ferki stated that after the shoe hit him, he was

smiling and “was going to say good shot or nice shot.”                            Ferki

Dep. at 53 (J.A. 144).           There is a world of difference between

the reaction of Deputy Ferki—the person who absorbed the blow

from the shoe—and that of Deputy Greene.                       In addition, Lynch’s

declaration supports the idea that a “reasonable law enforcement

officer”      would     not     “have      felt          threatened      under    these

circumstances     to    take    someone        in    custody     to   the     ground    so

                                          15
violently.”          Lynch       Declaration           at   2     (J.A.    169).         In    these

circumstances, a reasonable officer in Deputy Greene’s position

could not have believed that it would be lawful to slam an

already restrained detainee face first into a concrete floor.

       This    conclusion           finds     further        support       in     this    court’s

decision in Orem v. Rephann, 532 F.3d 442, which bears factual

similarities to this case.                    In Orem, we affirmed the district

court’s denial of summary judgment on qualified immunity grounds

to a police officer who twice tasered an unruly woman while she

was restrained in the back of a police car.                                     We held that,

viewing the facts in the light most favorable to the tasered

woman, the officer’s use of the taser in such circumstances “was

wanton,       sadistic,        and    not     a    good         faith     effort    to    restore

discipline.”         Id. at 447.            We recognized there, as we do here,

that    the    right      of   an     arrestee         to    be    free    from    the        use    of

excessive force was clearly established.                                 Id. at 448 (citing

Bell, 441 U.S. 520).                  Considering the behavior of the officer

who    used    the    taser      in    comparison           to    that    of    other    officers

present at the scene who merely secured the woman’s restraints,

we concluded that the use of the taser was “not objectively

reasonable.”         Id. at 449.

       Similarly         here,       Deputy       Greene’s        use     of    force     against

Wernert, who was already restrained and posed little possibility

of    harm    to   the    officers,         was    not      objectively         reasonable          and

                                                  16
contravened clearly established law.     Therefore, Deputy Greene

is not entitled to qualified immunity.



                               IV

     For the foregoing reasons, the judgment of the district

court is affirmed.

                                                         AFFIRMED




                               17
