                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-1576


ERIC M. MCMILLIAN,

                Plaintiff - Appellant,

          v.

WAKE COUNTY SHERIFF’S DEPARTMENT; S. HARRIS; S. BALDWIN; E.
BARRERA,

                Defendants - Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.  Louise W. Flanagan,
Chief District Judge. (5:08-cv-00342-FL)


Submitted:   September 17, 2010           Decided:   October 28, 2010


Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


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instructions by unpublished per curiam opinion.


Eric M. McMillian, Appellant Pro Se.     John Albert Maxfield,
COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF WAKE, Raleigh, North
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

              This   appeal    stems    from    the    district     court’s    order

granting Wake County Correctional Officers Harris, Baldwin, and

Barrera    (collectively,       “Defendants”)         summary    judgment     on    the

basis    of    qualified      immunity,   and     dismissing       Plaintiff       Eric

McMillian’s civil rights action, filed pursuant to 42 U.S.C.

§ 1983 (2006). 1      Taken in the light most favorable to the injured

party, see Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled

on other grounds by Pearson v. Callahan, __ U.S. __, 129 S. Ct.

808 (2009), the record establishes the following facts.

              In July 2008, McMillian was arrested and transported

to   the      Wake   County    Jail.      After       being     processed   without

incident, McMillian was placed in a single-person cell.                        After

he was unsuccessful in his attempts to utilize the pay phone,

McMillian became agitated.             However, he eventually calmed down

and rested in his cell.




     1
       Although McMillian also named the Wake County Sheriff’s
Department as a defendant, the district court dismissed the
complaint as to this defendant and further denied McMillian’s
request to amend his complaint to add the proper legal entity.
McMillian does not contest either of these rulings on appeal.
Nor does McMillian challenge the district court’s disposition of
his    Eighth    Amendment   deliberate   indifference    claim.
Accordingly, we conclude McMillian has forfeited appellate
review of those aspects of the district court’s order. See 4th
Cir. R. 34(b) (limiting review to issues raised in the informal
brief on appeal).



                                          2
              Defendant       Harris       later        informed      McMillian      that     he

would be transferred to a different cell.                             To effectuate this

transfer, Harris handcuffed McMillian and began to remove him

from    the     cell.         At     this    point,          according       to    McMillian,

Defendants placed him in a choke hold, forced him to the ground,

and repeatedly struck him in the head.                          McMillian specifically

alleged that, while he was handcuffed, Baldwin kneed him in the

right    eye,    causing      his     eye    to      bleed.          Although      the    record

reveals some inconsistencies with regard to the particulars of

the    assault,       McMillian      has    consistently             maintained      that    the

assaultive contact occurred after he was handcuffed.

              McMillian filed the instant civil action several days

later, alleging Defendants employed excessive force during the

cell transfer.          Defendants denied the allegations and claimed

they were entitled to qualified immunity.                             Shortly thereafter,

McMillian filed the first of several discovery requests, asking

the    district   court       to    order    Defendants          to    produce      any    video

recordings       and     photographs             from     the    night        in    question.

Defendants      did    not    deny    the    existence          of    such    evidence,      but

instead       asked     the    court        to       defer    all      discovery         pending

resolution of the qualified immunity issue.

              The magistrate judge directed that discovery would be

limited,      initially,      to     that    evidence         relevant       to    Defendants’

assertion of qualified immunity, and found that the materials

                                                 3
McMillian sought were not relevant to that issue.                               The district

court upheld this ruling.

              Defendants filed a motion for summary judgment, which

was supported by affidavits from jail officials.                                According to

these affidavits, McMillian was belligerent and disruptive from

the time he arrived at the jail.                         When removed from his cell,

McMillian      began     to     rip     folders         from       the    walls,    triggering

Harris’       decision    to        place     him       in   handcuffs.            Instead          of

complying      with     their       order     to     turn      for       cuffing,       McMillian

attacked      Harris,    knocking        him       to    the   floor.          Several        other

officers      pried    McMillian        off    of       Harris,      handcuffed         him,       and

proceeded to move him to a new cell.                                The officers averred

McMillian was not kicked or punched.                           McMillian, in response,

denied these assertions, and reiterated that the video-recording

from    the     jail     would        corroborate            his     version       of    events.

McMillian      submitted        a     sworn    declaration            in    which       he    again

averred that the assault occurred after he was handcuffed.

              The      magistrate           judge       concluded           Defendants         were

entitled      to    qualified       immunity        because        the     officers’         use    of

force was justified by the need to restore order.                                  In reaching

this conclusion, however, the magistrate judge did not address

McMillian’s contention that the officers assaulted him after he

had    been    handcuffed.             The    magistrate            judge    further         denied

McMillian’s request for the appointment of counsel.

                                               4
            In his objections to the magistrate judge’s report,

McMillian again emphasized that he had in fact complied with

Harris’ request that he turn around to be handcuffed; that he

placed his hands behind his back, as ordered; and that he was

assaulted by the officers after he was handcuffed.                                 McMillian

argued the use of force, after he was immobilized and subdued,

was   not   employed      in    a    good    faith      effort       to    restore    order.

McMillian again reiterated his request for the production of the

video surveillance footage.

            The     district        court    adopted      the       magistrate       judge’s

recommendation and found the officers were entitled to qualified

immunity.        The district court found McMillian’s agitation and

aggression       during    his       transfer      to     a        new     cell     justified

handcuffing       him,    and    that       the   level       of    force       employed   to

accomplish that objective was appropriate.

            McMillian subsequently filed another motion to compel

discovery and a motion, pursuant to Fed. R. Civ. P. 59(e), to

alter or amend the court’s judgment.                    The district court denied

both motions.

            On     appeal,       McMillian        reiterates             that     Defendants’

actions constituted excessive force in light of the fact that he

was already handcuffed.             McMillian further asserts error in the

district court’s refusal to authorize the requested discovery.



                                              5
Finally, McMillian challenges the district court’s denial of his

motion for the appointment of counsel.



                                          I.

            This court reviews a district court’s order granting

summary judgment de novo, drawing all reasonable inferences in

the light most favorable to the nonmoving party.                          See Robinson

v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).                   Summary judgment

may be granted only when “there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a

matter     of     law.”      Fed.    R.    Civ.     P.    56(c)(2).           However,

“[c]onclusory       or    speculative     allegations     do   not    suffice,       nor

does   a   mere    scintilla    of   evidence      in    support     of    his    case.”

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

2002) (internal quotation marks omitted).                 Summary judgment will

be granted unless a reasonable jury could return a verdict for

the nonmoving party on the evidence presented.                      See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

            “[Q]ualified       immunity        protects    government        officials

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.”                           Pearson

v. Callahan, ___ U.S. ___, ___, 129 S. Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).                            The

                                          6
Supreme    Court       has    outlined      a   two-prong        test   for    determining

whether an officer is entitled to qualified immunity.                                 Id. at

815-16.        First, a court should decide whether the facts alleged

by the plaintiff demonstrate a violation of a constitutional

right.     Id.     If so, the court must determine “whether the right

at     issue     was    clearly       established           at   the    time     of        [the]

defendant’s alleged misconduct.”                     Id. at 816.          Courts are no

longer required to rigidly adhere to this sequence, however, and

may    exercise       their   discretion        in    determining       which     prong       to

address first.         See id. at 818-22.

               Excessive      force        claims     of     arrestees     and    pretrial

detainees       are    governed       by     the     Due     Process     Clause       of     the

Fourteenth Amendment.             See Orem v. Rephann, 523 F.3d 442, 446

(4th Cir. 2008); Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir.

1997) (en banc), abrogated on other grounds by Wilkins v. Gaddy,

__ U.S. __, __, 130 S. Ct. 1175, 1178-79 (2010) (per curiam).

In analyzing such a claim, “[t]he proper inquiry is whether the

force applied was in a good faith effort to maintain or restore

discipline or maliciously and sadistically for the very purpose

of causing harm.”             Taylor v. McDuffie, 155 F.3d 479, 483 (4th

Cir.    1998)     (internal      quotation          marks    omitted),     abrogated          on

other grounds by Wilkins, 130 S. Ct. at 1178-79.                           This analysis

requires consideration of whether the given situation required



                                                7
the use of force and “the relationship between the need and the

amount of force used.”            Orem, 523 F.3d at 446.

              McMillian has consistently asserted that, after he was

handcuffed and subdued, Defendants knocked him to the ground,

repeatedly struck him, and kneed him in the head, causing his

eye    to   bleed    and    injury      to    his    neck.      In   granting       summary

judgment to Defendants, the district court accepted Defendants’

assertions that they handcuffed McMillian due to his disruptive

conduct,      and      that      their       use     of     force    was     limited       to

accomplishing that objective.                 Neither the magistrate judge nor

the    district     court     squarely        addressed      McMillian’s         allegation

that    the   complained-of        use       of     force    occurred      after    he     was

handcuffed.

              Accepting       McMillian’s           allegations      and    evidence       as

true,   as    we    must    at   this    procedural         juncture,      see     Jones    v.

Buchanan, 325 F.3d 520, 524 n.1 (4th Cir. 2003), we conclude the

district court erred in finding there was no issue of material

fact as to the need for the use of force and the extent of force

Defendants used.           Crediting McMillian’s version of the events,

we cannot say, as a matter of law, that knocking down, punching,

and kicking an arrestee while he is in handcuffs are actions

taken in good faith to restore order.                          See Young v. Prince

George’s      Cnty.,    Md.,     355     F.3d       751,    756-58   (4th    Cir.     2004)

(vacating      order       granting      defendant          police    officer       summary

                                              8
judgment on plaintiff’s Fourth Amendment excessive force claim,

in which plaintiff alleged officer assaulted him after he was

placed in handcuffs); Jones, 325 F.3d at 529 (noting factual

dispute over whether plaintiff was handcuffed and that plaintiff

might be unable to prove that he was in fact handcuffed, but

suggesting       that   whether       plaintiff       was    handcuffed    was    highly

relevant to assessment of the reasonableness of the officer’s

conduct); see also Orem, 523 F.3d at 446-47 (upholding denial of

qualified immunity defense asserted by police officer who used a

taser on a suspect after she was handcuffed and restrained).

             Adjudication of this issue is complicated by the fact

that the district court denied McMillian’s repeated requests for

discovery of any videotapes and photographs from the night in

question.        We review the denial of a request for discovery for

an abuse of discretion.               Conner v. United States, 434 F.3d 676,

680 (4th Cir. 2006).             “An abuse of discretion may be found where

denial of discovery has caused substantial prejudice.”                       Nicholas

v.   Wyndham      Int’l,    Inc.,      373   F.3d     537,    542   (4th   Cir.    2004)

(internal quotation marks omitted).

             McMillian has steadfastly maintained that the jail’s

surveillance cameras captured the events at issue.                          The court

denied McMillian’s request for discovery of any such evidence,

finding     it    was      not    relevant       to    Defendants’     assertion      of

qualified    immunity.           We    disagree.        In    evaluating    whether    a

                                             9
police officer is entitled to qualified immunity, the district

court must assess whether there was a constitutional violation.

See Pearson, 129 S. Ct. at 815.               Certainly, evidence that would

have confirmed (or dispelled) McMillian’s allegations pertaining

to the events that form the subject of this lawsuit is highly

probative of that issue. 2          See Ingle ex rel. Estate of Ingle v.

Yelton, 439 F.3d 191, 196 (4th Cir. 2006) (“Because there was a

sufficient basis to believe such videos existed, and because

this evidence represented [plaintiff’s] principal opportunity to

contradict     the   assertion         that     the   district         court   found

dispositive, the court should have allowed discovery as to the

videos.”).      Because     we      conclude    the   denial      of    McMillian’s

discovery    requests   substantially          prejudiced   him,       we   hold   the

district court abused its discretion in denying these requests.

      For these reasons, we conclude the district court’s grant

of   summary   judgment   on     the    basis    of   qualified        immunity    was

premature, particularly in light of the erroneous evidentiary

ruling.      Accordingly,      we    vacate     the   district     court’s     order

granting Defendants summary judgment on the basis of qualified

immunity.




      2
       It bears repeating            that     Defendants    did    not      deny   the
existence of such evidence.



                                        10
                                         II.

             McMillian also argues the magistrate judge erred in

denying his motion for appointment of counsel.                      While a § 1983

litigant has no right to appointed counsel, see Bowman v. White,

388 F.2d 756, 761 (4th Cir. 1968), a district court’s refusal to

appoint counsel may be an abuse of discretion when “a pro se

litigant has a colorable claim but lacks the capacity to present

it.”     Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984)

(holding     that    28   U.S.C.    §    1915     (2006)    does    not    authorize

compulsory appointment of counsel), abrogated on other grounds

by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989).                        In a

civil case, orders denying appointment of counsel are reviewed

for an abuse of discretion.               See Miller v. Simmons, 814 F.2d

962, 966 (4th Cir. 1987).

             As    discussed    above,     McMillian’s       complaint      arguably

raises   a   colorable     claim;     however,      the    record   reflects    that

McMillian     ably    pursued      his    claim     in     the   district     court.

Accordingly, we conclude the district court did not abuse its

discretion in denying McMillian’s request for the appointment of

counsel, and affirm that aspect of the district court’s order.



                                         III.

             For    the   foregoing      reasons,    we    vacate    the    district

court’s order granting Defendants summary judgment and remand

                                          11
this case to the district court for further proceedings.                   We

direct the district court to order Defendants to produce any and

all relevant videotape and photographic evidence from the night

in question.     Further, although we affirm the district court’s

denial   of   McMillian’s   motion   for    appointment    of   counsel,   we

conclude it would be prudent for McMillian to be represented by

counsel for the remainder of this litigation.             Accordingly, upon

remand, the district court should take the necessary steps to

appoint counsel for McMillian.            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 WITH INSTRUCTIONS




                                     12
