                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-7036


JEFFREY SERVIDIO,

                Plaintiff - Appellant,

          v.

SGT. PITTMAN; SGT. PRICE,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
Chief District Judge. (5:13-ct-03072-D)


Submitted:   November 30, 2015             Decided:   December 16, 2015


Before DUNCAN, AGEE, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Jeffrey Servidio, Appellant Pro Se.    Peter Andrew Regulski,
Assistant Attorney General, Donna Elizabeth Tanner, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.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

     Jeffrey    Servidio,       a    North     Carolina     inmate,     appeals      the

district    court’s     entry   of    summary        judgment   in     favor    of   the

Defendants in his 42 U.S.C. § 1983 (2012) action arising out of

an altercation that occurred on March 24, 2011.                         According to

Servidio’s     verified    complaints,          he    and   Correctional       Officer

Sharpe had a disagreement in the gym, and Sharpe was instructed

to bring Servidio back to the main building, which she did.

Servidio was then subjected to a strip search and handcuffed

behind his back.          Correctional Officer Williams told Servidio

that she needed to take him to the medical unit, and he declined

medical treatment.        Servidio alleges that Sergeant Pittman then

appeared, informed Servidio that he was going to medical and,

without provocation, pepper sprayed Servidio in the face and

then grabbed him and threw him head first into a wall.                         Servidio

alleged that Sergeant Price arrived and that Pittman and Price

continued     to    assault         him,       causing      Servidio     to     become

unconscious.       Servidio asserts that he suffered a hematoma on

the top of his head, scratches and bruises, permanent partial

vision loss in his left eye, and partial loss of the use of his

right arm.

     According     to   affidavits         submitted     with   their    motion      for

summary judgment, the Defendants assert that, as Sergeant Price

entered the area where Servidio was waiting with Correctional

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Officer Williams, Servidio attempted to exit the area.                      Pittman

reached for Servidio’s shoulder to stop him, but Servidio turned

around, lowered his head, and attempted to head butt Pittman.

At this point, Pittman sprayed the chemical agent in Servidio’s

face.    Servidio fell backward into a wall-mounted shelf and then

onto the floor.        Servidio began kicking at Pittman and Price,

but the Defendants applied no force, other than the single burst

of pepper spray.

      Servidio   was   taken    to    medical    and   allowed     to   shower   to

remove   the   chemical      agent.     He    was   then    seen   by   a   nurse.

According to his medical records, Servidio had swelling on the

back of his head and an abrasion on his left leg.                       The nurse

cleaned the abrasion and applied ice to Servidio’s injuries.

      Based on this evidence, the district court concluded that

the Defendants applied force in a good faith effort to maintain

or restore discipline after Servidio declined medical treatment

and that the single burst of pepper spray did not violate the

Eighth Amendment.      The court also determined that, even viewing

the   evidence   in    the    light    most     favorable    to    Servidio,     no

reasonable jury could find that the Defendants’ actions violated

the Eighth Amendment, and therefore granted summary judgment in

favor of the Defendants.

      “Summary judgment is appropriate where there are no genuine

issues of material fact and the moving party is entitled to

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judgment as a matter of law.”           Hoschar v. Appalachian Power Co.,

739 F.3d 163, 169 (4th Cir. 2014).                    We review a district court’s

summary    judgment      determination           de    novo,       drawing       reasonable

inferences from the evidence viewed in the light most favorable

to the nonmoving party.           Webster v. USDA, 685 F.3d 411, 421 (4th

Cir. 2012).        We find, based on our review of the record, that

Servidio     presented     sufficient           evidence      to     preclude       summary

judgment and, therefore, we vacate the district court’s order.

       The Eighth Amendment prohibits “the unnecessary and wanton

infliction    of    pain.”        Whitley       v.    Albers,      475    U.S.    312,    319

(1986).    “When prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency always

are violated.”       Hudson v. McMillian, 503 U.S. 1, 9 (1992).                           In

considering a claim of an Eighth Amendment violation, we must

determine “whether the 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).”              Williams   v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996); see Iko v. Shreve,

535 F.3d 225, 238 (4th Cir. 2008).

       In a case in which an inmate claims that a prison official

used   excessive     force    against       him,        the    subjective         component

demands that the inmate demonstrate that officials applied force

wantonly; that is, “maliciously and sadistically for the very

                                            4
purpose of causing harm,” rather than as part of “a good-faith

effort to maintain or restore discipline.”                         Hudson v. McMillian,

503   U.S.    1,    7     (1992)       (internal          quotation       marks      omitted).

Factors relevant to this determination include “the need for the

application of force, the relationship between that need and the

amount of force used, the threat ‘reasonably perceived by the

responsible       official,’       and      ‘any     efforts       made      to    temper      the

severity of a forceful response.’”                        Id. (quoting Whitley, 475

U.S. at 320-21).

      Here, Servidio admits that he declined to go to medical as

directed, but asserts that he was merely exercising his right to

refuse treatment.          He attests that he was calmly waiting to be

moved back to his cell block when Sergeant Pittman arrived, told

Servidio     he    was    going    to       medical,      and,     without        provocation,

sprayed    him     in    the    face    with       pepper    spray      and       continued     to

physically assault him.

      Satisfying the objective component in the context of an

excessive     force      claim     demands         only     that    the      force      used   be

“nontrivial.”            Wilkins       v.    Gaddy,       559    U.S.     34,      39   (2010).

According to the version of events sworn to by Servidio and

supported at least in part by his medical records, and viewing

the   evidence      in    the     light      most     favorable         to    Servidio,        see

Webster, 685 F.3d at 421, we conclude that the force used was

not trivial.        Rather, Servidio attested that Defendants applied

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sufficient force to render him unconscious and to cause partial

permanent loss of vision in one eye and limited range of motion

in his right arm.

     We conclude that the evidence, construed in the light most

favorable to Servidio, see Scott v. Harris, 550 U.S. 372, 378

(2007), could support a jury finding that the officers wantonly

administered significant force to Servidio in retaliation for

his conduct rather than for the purpose of bringing him under

control.        Therefore, we conclude that the district court erred

in granting summary judgment in favor of the Defendants, and we

vacate    its    judgment   and   remand   for   further   proceedings.      We

express no opinion on the ultimate disposition of Servidio’s

claims.     We dispense with oral argument because the facts and

legal    contentions      are   adequately   presented     in   the   materials

before    this    court   and   argument   would   not   aid    the   decisional

process.

                                                         VACATED AND REMANDED




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