                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-6544


SHERMAN A. THOMPSON,

                Plaintiff – Appellant,

          v.

LIEUTENANT   SHELTON; SERGEANT  WILFORD  FOX;           SERGEANT
ALPERSTEIN; OFFICER NATHAN MCMILLIAN; OFFICER          ANDERSON;
OFFICER ANTAIUS GRAY,

                Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan,
District Judge. (5:11-ct-03127-FL)


Submitted:   August 30, 2013             Decided:   September 23, 2013


Before GREGORY, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Sherman A. Thompson, Appellant Pro Se.     Kimberly D. Grande,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

     Sherman A. Thompson, 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 action.         The only undisputed

facts are that, on March 16, 2010, Thompson set fire to the

mattress in his cell and had to be extracted from the cell.

Beyond this, the accounts of the events detailing Thompson’s

removal from his cell and afterward diverge.

     According to Thompson, after he was taken from his cell in

full restraints, he was

     struck[] in face once and took into the sallyport to
     where I was punched by officer Mr. Nathan McMillian in
     which I was knocked to the ground. Once on the ground
     I was kicked and stomped over and over to which head
     stomped against the floor. The head stomping injuries
     consist of swelling knots on head and serious weeks of
     headaches. . . .    I was later kicked so hard up the
     buttocks that I later had hemorrhoids in which
     buttocks was bleeding and buttocks is still being
     treated for hemorrhoid pains.    And I was stomped and
     kicked unconscience [sic] and I was pent [sic] down by
     three other officers to which was in sergeant office
     out the sight of hallway camera. . . .
          Sergeant Mr. Wilford stomped and kicked me as he
     was in the sallyport area going to the hall. Sergeant
     Mr. Wilford Fox injured my left wrist seriously which
     he tore open skin to which I have a physical seen
     injury do [sic] to the handcuffs tearing open wrist.
          I was taken to the sergeant office and stomped
     and kicked unconscience [sic] as well by this officer
     and punched over and over and blood was coming out of
     ear to which it was a buzzing in my ear for a week or
     more. Officer Sergeant Mr. Wilford Fox kick plaintiff
     two times in groin to which the injury is plaintiff
     has serious trouble urine [sic] and while still on
     floor in sergeant office, I was kick up the buttocks

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        so hard that my buttock was bleeding to which I have
        hemorrhoids and still have daily pains in buttock and
        scrotum to which lady nurse refuse to look at on march
        16, 2010.

        The   Defendants       present     a    very        different     version     of   the

events that day.             According to affidavits submitted in support

of their motion for summary judgment, Thompson assaulted custody

staff when they attempted to remove him from his cell.                               Officers

McMillan and Fox “each took hold of one of [Thompson’s] arms,

but he resisted their attempts to get control of him.                                      Both

Defendants used the bent wrist come along to escort [Thompson]

off     the     cellblock.”          At   his       prison        disciplinary       hearing,

Thompson      was    found    guilty      of   setting        a   fire    that    endangered

others’ lives and assaulting prison staff.

        Thompson alleges that security cameras recorded the events

of March 16.         However, in response to the district court’s order

to produce those recordings, Defendants stated that the events

were not videotaped.

        Thompson     was     twice     seen        by   a    nurse       the   day   of    the

extraction.         According to his medical records, when Thompson was

first seen, his right eye was red and the skin on his upper back

and neck were red, though no swelling or bruising was noted.

Approximately two hours later, Thompson was seen again and his

right     eye    was    then    swollen        and      “very      red.”         Superficial

abrasions were noted on his right lower arm and under his left


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leg cuff.    The abrasions were cleaned and bandaids applied.                      He

complained   of   a   headache     and   was      prescribed   ibuprofen.         The

following day, Thompson was interviewed by a social worker who

stated in his report that Thompson “was grateful to the officers

who rescued him.”

     On March 21, Thompson submitted another sick call request,

stating that “I need to have my head looked at do [sic] to being

stomped many times in head.            I also was kicking in the growing

[sic] many times and has pains in abdominal area.”                    On March 26,

Thompson was seen by a nurse who noted that his “head pain

resolved, no problem last 2 days,” and that his “testicular pain

. . . recently resolved,” but “complained of lower right sided

. . . pain.”      In his last sick call request contained in the

record, dated April 17, Thompson sought treatment for “sores in

mouth and throat” and stated that he is “also having ongoing

headaches do [sic] to officers stomping my head into the floor

many times.”

     Thompson’s       response    to     Defendants’     motion       for   summary

judgment    states,    under     penalty     of   perjury,     that   he    did   not

refuse the Defendants’ instruction and “provoked no attack.”                       He

then repeated, under oath, the assertions made in his original

complaint regarding the use of force.

     Based on this evidence, the district court concluded that

the Defendants were entitled to summary judgment because there

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was    a     need   for     force       and    the     amount    of     force    used   was

reasonable, given the “de minimis nature of [Thompson’s] injury,

as    well    as    the    lack   of        evidentiary   support       for     plaintiff’s

allegations regarding the assault.”                    Thompson appeals.

       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.

U.S. Dep’t of Agric., 685 F.3d 411, 421 (4th Cir. 2012).                                  We

find, based on our review of the record, that Thompson presented

sufficient evidence to preclude summary judgment and, therefore,

we vacate the district court’s order.

       Although “[a]n express intent to inflict unnecessary pain

is not required” to make out an excessive force claim under the

Eighth       Amendment,      an       inmate    must     show    that     the    defendant

inflicted unnecessary and wanton pain and suffering.                            Whitley v.

Albers, 475 U.S. 312, 319 (1986).                    Both objective and subjective

considerations factor into our inquiry.                         “Specifically, Eighth

Amendment analysis necessitates inquiry as to whether [a] 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).

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       Where, as here, 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

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        quotations     omitted).       “When

evaluating         evidence       to     determine       whether    it    is     legally

sufficient     to       satisfy    the    subjective       component,    a   court    may

allow an inmate’s claim to go to the jury only if it concludes

that   the    evidence,       viewed      in   a   light    most   favorable     to   the

claimant, will support a reliable inference of wantonness in the

infliction of pain.”              Stanley v. Hejirika, 134 F.3d 629, 634

(4th Cir. 1998) (internal quotations omitted).                      Factors relevant

to this determination include “the need for the application of

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

that was used,” the extent of the injury, the threat reasonably

perceived by the responsible official, “and any efforts made to

temper the severity of a forceful response.”                       Whitley, 475 U.S.

at 320-21.

       Satisfying the objective component in the context of an

excessive force claim, on the other hand, demands only that the

force used be “nontrivial.”                Wilkins v. Gaddy, 559 U.S. 34, 39

(2010).       As    the    Supreme       Court     has   instructed,     “contemporary

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standards of decency always are violated . . . whether or not

significant injury is evident.”           Hudson, 503 U.S. at 9 (citation

omitted).     Nevertheless, a plaintiff’s failure to demonstrate a

serious     injury   is   not   irrelevant     to   the   Eighth   Amendment

inquiry.     Wilkins, 559 U.S. at 37.          Indeed, the extent of the

injury may suggest that “‘the use of force could plausibly have

been thought necessary’ in a particular situation” or “provide

some indication of the amount of force applied.” Id. (quoting

Hudson, 503 U.S. at 7).         As a result, “[a]n inmate who complains

of a [mere] ‘push or shove’ that causes no discernible injury

almost certainly fails to state a valid excessive force claim.”

Id. at 38 (quoting Hudson, 503 U.S. at 9).

     According to the version of events sworn to by Thompson and

supported at least in part by his medical records, a jury could

infer that the officers wantonly administered significant force

to Thompson 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.




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     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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