                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-6521


WAYNE BOONE,

                Plaintiff - Appellant,

          v.

M. STALLINGS, Officer; J. TART, Officer; S. A.               MURRAY,
Officer; K. CORTEZ, Nurse; CALVIN JONES; FRANK               BISHOP,
Warden,

                Defendants – Appellees,

          and

BOBBY P. SHEARIN, Warden,

                Defendant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:13-cv-01135-DKC)


Submitted:   August 29, 2014             Decided:      September 11, 2014


Before WYNN and    DIAZ,     Circuit   Judges,   and    HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Wayne Boone, Appellant Pro Se.   Stephanie Judith Lane-Weber,
Assistant Attorney General, Baltimore, Maryland, Gina Marie
Smith, MEYERS, RODBELL & ROSENBAUM, PA, Riverdale, Maryland, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

               Wayne Boone, a Maryland state prisoner, appeals the

district court’s order denying relief on his 42 U.S.C. § 1983

(2012) complaint, alleging, among other claims, that Officers

Michael Stallings, Joshua Tart, and Shawn Murray subjected him

to unconstitutionally excessive force.                  For the reasons that

follow, we affirm in part, vacate in part, and remand the case

for further proceedings. *

               We review a district court’s grant of summary judgment

de   novo,     drawing    “reasonable     inferences     in   the    light    most

favorable to the non-moving party.”              Dulaney v. Packaging Corp.

of Am., 673 F.3d 323, 330 (4th Cir. 2012).                Summary judgment is

appropriate      when    “the   movant   shows   that   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).          “Only

disputes over facts that might affect the outcome of the suit

under    the    governing   law   will   properly   preclude     the   entry    of

summary judgment.”          Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).          To withstand a motion for summary judgment,

the non-moving party must produce competent evidence to reveal

     *
       We find that Boone timely filed his informal brief and
deny the motion to dismiss the appeal. See Houston v. Lack, 487
U.S. 266, 276 (1988) (holding that prisoner’s notice of appeal
deemed filed on date he delivered it to prison officials for
mailing to court).



                                         3
the existence of a genuine issue of material fact for trial.

See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th

Cir.       2002)     (“Conclusory           or     speculative          allegations         do     not

suffice, nor does a mere scintilla of evidence in support of

[the       non-moving          party’s]       case.”      (internal         quotation            marks

omitted)).

              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 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).”         Id.

              In     a     claim      for    excessive         application        of    force,      a

prisoner      must       meet    a    heavy      burden       to    satisfy   the      subjective

component—that prison officials applied force “maliciously and

sadistically for the very purpose of causing harm” rather than

“in    a    good    faith       effort      to    maintain         or   restore    discipline.”

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

quotation marks omitted), abrogated on other grounds by Wilkins

v. Gaddy, 130 S. Ct. 1175 (2010).                              In determining whether a

prison official has acted with “wantonness in the infliction of

pain,” Whitley,            475     U.S.     at    322,    courts        should    consider        the

                                                   4
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 prison

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.        Hudson      v.    McMillian,     503   U.S.    1,   7

(1992).     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[,]

whether or not significant injury is evident.”                        Wilkins, 130 S.

Ct. at 1178 (internal quotation marks omitted).

             After       reviewing     the    record,      we    conclude    that     two

material     facts       are   in   dispute.          First,    the   parties   dispute

whether Officer Murray deployed the pepper spray before or after

the application of the handcuffs.                       Our precedent establishes

that the use of pepper spray on a docile prisoner could qualify

as excessive force.             See Iko v. Shreve, 535 F.3d 225, 239-40

(4th Cir. 2008) (finding genuine issue of material fact when

prison guard deployed several bursts of pepper spray on docile

prisoner); Williams, 77 F.3d at 763 (providing that “it is a

violation of the Eighth Amendment for prison officials to use

mace, tear gas, or other chemical agents, in quantities greater

                                             5
than necessary or for the sole purpose of infliction of pain”

(internal quotation marks omitted)).                    Thus, if a jury were to

believe Boone’s allegation that he was on the ground, already

restrained in handcuffs when Officer Murray deployed the pepper

spray,    the   jury     could    conclude       that   Boone      was    subjected    to

unconstitutionally excessive force.

            Next,      the     parties      dispute     whether     Boone    assaulted

Officer Stallings and Nurse Cortez.                     We conclude that whether

Boone    committed     the    assaults      is   material     to    the    question    of

whether the amount of force used was excessive.                           A jury could

find that the amount of force used by the officers was not

justified if they accepted Boone’s allegations that he was not

acting belligerently and that the officers beat him and deployed

pepper spray for some other reason than to maintain or restore

discipline—for         example,        in    retaliation      for        using   vulgar

language.       Alternatively, if Boone pinned Officer Stallings to

the wall and punched him repeatedly, as the officers claim, then

a jury could deem the amount of force used appropriate.                          Thus,

we   conclude     that       whether    Boone     assaulted     Nurse      Cortez     and

Officer Stallings qualifies as a genuine dispute of material

fact that must be resolved at the trial court level.

            In sum, because the record does not clearly establish

whether the officers acted “maliciously and sadistically for the

very purpose of causing harm” or “in a good faith effort to

                                             6
maintain or restore discipline,” Whitley, 475 U.S. at 320-21

(internal    quotation       marks       omitted),        we   conclude       that       summary

judgment was not properly entered on Boone’s excessive force

claims against Officers Stallings, Tart, and Murray.

            In reaching this conclusion, we of course in no way

condone Boone’s use of vulgar language and refusal to submit to

handcuffs.      Although          Boone’s      transgressions          were    clear,          the

Eighth    Amendment        does    not    permit      a    correctional        officer          to

respond to a misbehaving inmate in kind.                             While the officers

were     certainly    justified          in    applying        the    amount        of    force

necessary to restrain Boone in handcuffs, Boone has marshaled

enough    evidence     that,       if    his       version     of    events    was        to    be

believed, a jury could conclude that the officers’ response to

his conduct was excessive and retaliatory rather than made in a

good faith effort to maintain discipline.                           While we express no

opinion about the ultimate merits of Boone’s contentions, we

conclude    that     the    district      court       prematurely       entered          summary

judgment on Boone’s excessive force claims against the officers.

            Accordingly,           we     vacate       and      remand        for        further

proceedings the portion of the district court’s order granting

summary judgment on Boone’s claims that the officers violated

the Eighth Amendment by subjecting him to excessive force.                                      We

affirm the district court’s judgment in all other respects.                                    We

dispense     with     oral        argument     because         the    facts     and       legal

                                               7
contentions are adequately presented in the material before this

court and argument would not aid the decisional process.



                                                AFFIRMED IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




                                8
