                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 11-7254


DAVID BACCHUS,

                 Plaintiff - Appellant,

          v.

LT. SCARBOROUGH; LT. RICHARDSON; LT. ROGERS; LT. GOODMAN;
SGT. JOHNSON; LT. MIMS; SGT. ROACH; SGT. ANDERSON; SGT.
SCARBOROUGH; OFC. EPPS; OFC. GERBODE; OFC. SILIMON; OFC.
SIMON; OFC. M. WILLIAMS; OFC. YORK; MS. S. ROBERTS; MR.
CARTER; MR. POLIETMAN; LT. JUNE; SC DEPT OF CORRECTIONS;
ROBERT WARD; DEPUTY COMMISSIONER OF OPERATIONS; INSPECTOR
GENERAL DAN MURPHY; IGC A. HARDIN; DR. STAHL; NURSE LORIMER;
WARDEN PADULA; A-W BELL; A-W BROOKS; MAJOR DEAN; CAPTAIN R.
JOHNSON; CAPTAIN THOMAS; LT. HANCOCK; LT. COMMANDER; LT.
STEWART, in their official and individual capacity,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    Henry M. Herlong, Jr., Senior
District Judge. (6:10-cv-02857-HMH)


Submitted:   February 6, 2012              Decided:   February 16, 2012


Before DUNCAN, WYNN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.
David Bacchus, Appellant Pro Se.   Walker Heinitsh Willcox,
WILLCOX BUYCK & WILLIAMS, PA, Florence, South Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             David Bacchus, a South Carolina state inmate, appeals

the district court’s order adopting the recommendation of the

magistrate judge and granting the defendants’ Fed. R. Civ. P.

56(a) motion for summary judgment.                    Bacchus’ complaint, filed

pursuant to 42 U.S.C. § 1983 (2006), alleged numerous violations

of   his    Eighth    Amendment       rights,       including       excessive   use   of

force,     deliberate       indifference       to   his    safety,     and   deliberate

indifference to his medical needs.                  Bacchus’ claims stem from a

confrontation        with    prison    officials          spurred    by   his   violent

attack on one of the defendant corrections officers, Lieutenant

Cedric June.     We affirm in part, vacate in part, and remand for

further consideration.

             We review de novo a district court’s order granting

summary judgment and draw all reasonable inferences in the light

most favorable to the non-moving party.                    See Robinson v. Clipse,

602 F.3d 605, 607 (4th Cir. 2010).                   Summary judgment “shall” be

granted when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).           Summary judgment is appropriate unless a

reasonable jury could return a verdict for the nonmoving party

on the evidence presented.            Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986).



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                              I. Excessive force claim.

            In the prison context, the Eighth Amendment “protects

inmates      from        inhumane           treatment        and     conditions         while

imprisoned.”        Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.

1996).      Eighth Amendment analysis necessitates inquiry as to

whether a specific prison official “acted 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).”                         Id.

            In     a    claim     for       excessive    application         of    force,      a

claimant    must       meet   a   heavy      burden     to    satisfy       the   subjective

component.       See Whitley v. Albers, 475 U.S. 312, 320-21 (1986).

He   must    show       that      a     correctional         officer        applied     force

“maliciously and sadistically for the very purpose of causing

harm” rather than in a good faith effort to maintain or restore

discipline.            Id.    (internal        quotation       marks       omitted).         The

objective    component          of     an    excessive       force    claim       is   not   as

demanding, however, because “[w]hen prison officials maliciously

and sadistically use force to cause harm, contemporary standards

of decency always are violated[,] whether or not significant

injury is evident.”               Wilkins v. Gaddy, 130 S. Ct. 1175, 1178

(2010) (internal quotation marks and ellipsis omitted).

            To satisfy the subjective component, a claimant must

show that a prison official acted with a “sufficiently culpable

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state of mind.”             Wilson v. Seiter, 501 U.S. 294, 297 (1991).                        In

a claim for excessive force, that state of mind is “wantonness

in the infliction of pain.”                  Whitley v. Seiter, 475 U.S. at 322.

In    determining           whether     a     prison       official      has     acted       with

“wantonness,” we consider: the necessity for the application of

force;    the       relationship        between      the    need    for      force     and    the

amount of force used; the extent of the injury inflicted; the

extent    of    the     threat     to    the    safety      of   the     staff    and     other

prisoners, as reasonably perceived by the responsible officials

based on the facts known to them at the time; and the efforts,

if any, taken by the officials to temper the severity of the

force applied.         See Hudson v. McMillian, 503 U.S. 1, 7 (1992).

               Here,        Bacchus’        claim     of    excessive          force     levies

allegations         solely     against        Lieutenant       June.         After      careful

evaluation of the record, we conclude that material issues of

fact exist regarding the nature of the force June used during

the    altercation          with   Bacchus.           Construed        in    a   light       most

favorable to Bacchus, the evidence permits a finding that June,

while verbally taunting Bacchus, repeatedly used his knee to

apply    force         to     Bacchus’        head     after       other       officers       had

incapacitated the inmate.                The district court, however, premised

its findings on the defendants’ assertion that any application

of    force    by    June     occurred       during    efforts      to      subdue     Bacchus.

Because the version of the incident proffered by Bacchus could

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be credited by a reasonable factfinder, we conclude that the

district court erred by resolving the differing descriptions of

the role played by June in June’s favor.                       We further conclude

this       error    undermines      the    propriety   of     the   district      court’s

analysis       regarding           the    subjective     component      of        Bacchus’

excessive          force   claim.         We   accordingly    vacate    the       district

court’s grant of summary judgment on this claim as to Lieutenant

June, and remand for further proceedings. 1



                     II. Deliberate indifference to safety.

               Bacchus’       deliberate       indifference    claim    turns      on   his

allegation         that    prison    officials      failed    to    protect    him      from

Lieutenant June.            To establish a claim for failure to protect,

an inmate must show: (1) “serious or significant physical or

emotional          injury,”    and       (2) that   prison     officials      exhibited

deliberate indifference to inmate health or safety.                        De’Lonta v.

Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation

marks       omitted).         To    be    deliberately      indifferent,      a    prison

official must “know of and disregard an objectively serious . .

       1
       By this disposition, we do not suggest that Bacchus’ claim
is meritorious. Rather, on this record, we conclude that it is
sufficiently plausible that summary judgment was inappropriate.
We do not foreclose the possibility that further proceedings may
allow for summary judgment,    either on the merits or based on
qualified immunity.   These determinations, however, are left in
the first instance for the district court.



                                               6
. risk of harm.”          Id.     A showing of mere negligence does not

qualify as deliberate indifference.             Davidson v. Canon, 474 U.S.

344, 347 (1986); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir.

1999).

            Here, neither Bacchus nor the record indicates that

any prison official knew of a meaningful risk to Bacchus’ safety

prior to his attack on Lieutenant June.                 Bacchus’ complaints to

prison officials regarding his verbal conflicts with Lieutenant

June failed to offer a credible indication that June posed a

physical threat to Bacchus.             Furthermore, the record indicates

that the other officers involved in restraining Bacchus after he

attacked     June   acted       appropriately      to   separate   the   men   and

provide medical treatment to Bacchus.                   Accordingly, we affirm

the district court’s grant of summary judgment on Bacchus’ claim

of deliberate indifference to his safety.



                    III. Medical indifference claim.

            Bacchus failed to raise any objection to the portion

of   the   magistrate      judge’s     report   that     recommended     granting

summary    judgment       on     his    claim   of      medical    indifference.

Therefore,    he    has    waived      appellate     review   of   the   district

court’s disposition of this claim.                 United States v. Midgette,

478 F.3d 616, 621-22 (4th Cir. 2007).



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            Based on the foregoing, we affirm the district court’s

order    granting     summary      judgment       on   each   of    Bacchus’     claims

except for his claim against Lieutenant June of excessive use of

force.     As    to    that     claim,    we    vacate    the      grant   of   summary

judgment and remand for further proceedings.                       We dispense with

oral    argument      because      the    facts    and   legal      contentions     are

adequately      presented     in    the    materials      before     the   court    and

argument would not aid the decisional process.



                                                                   AFFIRMED IN PART;
                                                                    VACATED IN PART;
                                                                        AND REMANDED




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