93 F.3d 113
Charles Richard RILEY, Plaintiff-Appellant,v.James M. DORTON, Defendant-Appellee.
No. 94-7120.
United States Court of Appeals,Fourth Circuit.
Argued May 9, 1996.Decided Aug. 16, 1996.

1
Opinion Vacated on Oct. 10, 1996.


2
There are instances when police officers clearly overstep their bounds and must be brought to account.  This is not one.  There are cases, on the other hand, when an action for damages against police officers will seriously interfere with the integrity of the law enforcement function.  This is such a case.  The district court recognized as much, finding appropriately that under our recent en banc decision in Norman v. Taylor, 25 F.3d 1259 (4th Cir.1994) (en banc), cert. denied, 513 U.S. 1114, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995), the sheer absence of evidence of any real injury required the entry of summary judgment against the plaintiff.  I would affirm its judgment.

I.

3
The rules of summary judgment do not call for the degree of credulity embodied in the majority opinion, lest Fed.R.Civ.P. 56 forfeit entirely its gatekeeping function.  This case is made for summary judgment.  The record simply fails to bear out appellant Riley's allegation that he suffered any injury as a consequence of his interrogation.  In fact, the opposite conclusion emerges--that Riley at one time or another has perceived injury from every aspect of his post-arrest detention except his interrogation.  In no sense, then, can he be said to have carried his burden of demonstrating a constitutional violation.


4
Appellant, by any account, is an incessant complainer;  the record is replete with evidence of his unbridled resolve to report any physical or psychological discomfort, no matter how trifling, to medical personnel.  In the months following his arrest, he requested medical attention for a stream of physical ailments, including a hangnail, an ingrown toenail, a runny nose, a chill, dizzy spells, a "knot" in his groin, broken skin between his toes, and soreness in his back, neck, ear, throat, and left thumb.  He complained that he needed to soak his foot after losing a toenail, that his cellmate kept him awake, and that his back pain prevented him from relinquishing his bottom bunk to a fellow inmate who had "only" suffered a leg injury.  He even sought medical authorization to receive boxer underwear instead of briefs because of a mole on his thigh (which medical staff, after examination, deemed unaffected by his choice of undergarments).


5
Appellant's list of psychological difficulties is no less extensive.  In his dozens of mental health sessions, he complained of being depressed for several years and of having crying spells once or twice a day.  He expressed fear of harassment by other inmates and found it difficult to deal with their teasing and taunting.  He frequently reported being discouraged by the course of his legal defense, the potential sentence he faced, the societal reaction to his offenses, and the possible outcome of his eventual trial.  He grew angry after hearing the testimony of certain witnesses, and he worried about conflicts between his girlfriend and his family.  More than once, he related suicidal urges.  His many emotional complaints and psychological troubles led examiners to report that "Mr. Riley can turn on tears at will," and to suggest that he "rather enjoys making manipulative gestures and threats to get attention," an assessment "he did not deny."


6
Given all of this, one would expect Riley to have complained at least once about any physical or psychological discomfort suffered as a result of his interrogation.  But the Health Services Administrator at Henrico County Jail, where appellant was detained, "found no record of any complaints by Mr. Riley to either medical or mental health staff of injury to, or discomfort in, [his] nose or shoulders which relates to his allegations."   She also "found no record of any concerns related to the alleged threats" by Detective Dorton among Riley's scores of mental health sessions.  Riley's own testimony, in fact, is that he never specifically complained of any injury from the incidents he now identifies in this suit (the handcuffing, the threats, the slap to his face, and the pen in his nose).  In short, Riley has compiled a singular record as a chronic, uninhibited complainer, yet he never once complained about the interrogation which he now asserts caused him substantial injury.


7
The summary judgment rule was developed precisely to deal with claims arising in such a context.  Other than appellant's own bald allegations, the record contains no evidence indicating that he suffered any injury of any sort from the interrogation.  If anything, Riley's penchant for bringing the slightest physical or psychological discomfort to the attention of medical staff, and the conspicuous absence of any such complaints regarding the interrogation, suggests that any injury he now asserts could not possibly have been caused by Detective Dorton's actions during the interrogation.  Since appellant has failed to come forward with sufficient evidence of an essential element of his claim, summary judgment was properly entered against him.  See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986);  White v. Holmes, 21 F.3d 277, 280-81 (8th Cir.1994) (requiring entry of summary judgment in excessive force action where no evidence connected injury to incident complained of).


8
Even assuming that Riley did suffer some form of physical or psychological injury from the interrogation, the injury was unquestionably de minimis, and thus insufficient under Norman v. Taylor, 25 F.3d at 1259, to give rise to an excessive force action.  By his own account, any physical contact lasted less than thirty seconds and caused him primarily "mental" discomfort.  And that he did not seek treatment or counseling after the interrogation indicates that, even by his own extreme standards, any psychological discomfort was negligible.  Riley's constitutional claim, as a result, should be barred by Norman, which holds that "an excessive force claim generally should not lie where any injury sustained by the plaintiff is de minimis."  Id. at 1263.1


9
Norman is not, as the majority contends, limited to claims of excessive force brought by convicted prisoners under the Eighth Amendment.  While the decision undoubtedly involved an Eighth Amendment claim, and its language thus refers primarily to that provision, I read its requirement that plaintiffs demonstrate more than de minimis injury to apply to all excessive force actions.  Other courts have applied a de minimis standard to excessive force actions outside of the Eighth Amendment, including claims--like Riley's--asserted by pretrial detainees under the due process clause.  See Jackson v. Culbertson, 984 F.2d 699 (5th Cir.1993) (per curiam).  The Supreme Court, moreover, has supported such a requirement in due process cases, commenting that while "the state cannot hold and physically punish an individual except in accordance with due process of law," "[t]here is, of course, a de minimis level of imposition with which the Constitution is not concerned."  Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977).


10
Any suggestion to the contrary in Gray v. Spillman, 925 F.2d 90 (4th Cir.1991), cannot apply to the circumstances of this case, where the facts and record indisputably demonstrate that any injury suffered and any force used was no more than de minimis .  Otherwise, the barest allegation of excessive force in an interrogation, even if producing no confession and resulting only in some form of psychological discomfort (and even that wholly unsupported by the factual record), would automatically survive summary judgment and proceed to trial.  Rule 56 is not so easily eluded.  "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and ... it should be interpreted in a way that allows it to accomplish this purpose."  Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2553.   Appellant's claim, as the district court understood, falls squarely within this category.


11
Finally, the majority's response to this claim is instructive.  The majority never informs us how a jury might conceivably find this plaintiff worthy of belief.  It simply says we must go to trial over any bald assertion.  The majority never disputes the endless record of plaintiff's trivial complaints.  It never suggests that plaintiff sought medical attention of any sort for any harm arising from the interrogation.  It never even contends that plaintiff suffered more than de minimis physical or psychological injury.  It only wheels out stock rhetoric of police brutality in support of its position.  See supra p. 117 (discussing a suspect's "being smacked around");  supra n. 8 (such a rule "would give police a license to hit interrogees, so long as the police leave no marks").  Such general rhetoric is sometimes applicable and sometimes not.  In all events, it is a poor substitute for a discerning look at whether a particular case is deserving of a trial.2

II.

12
Allowing suits of this sort to proceed to trial, despite Norman and despite Rule 56, will visit harmful effects on the interrogation process and on law enforcement in general.  To be sure, due process requires the government to produce evidence against a defendant "by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips."  Culombe v. Connecticut, 367 U.S. 568, 582, 81 S.Ct. 1860, 1867, 6 L.Ed.2d 1037 (1961) (opinion of Frankfurter, J.).  Yet offsetting this important concern is an equally significant one, "the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws."  Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973).  There is a balance to be struck between these two interests, Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986), one that "cannot be resolved simply by wholly subordinating one set of opposing considerations to the other."  Culombe, 367 U.S. at 587, 81 S.Ct. at 1870.   The majority opinion does just that, however, unnecessarily ushering appellant's meritless claim to trial at the expense of effective law enforcement.


13
There are already two important checks in place to prevent the balance from tipping too far on the side of government in the interrogation setting.  The first is the well-established rule that due process prohibits any use of confessions obtained through coercion.  See, e.g., Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978);  Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).  The second is the availability of a damages action where there is some concrete evidence, more than just unsupported allegations, of unjustified injury at the hands of law enforcement officials.  Both of these--an extracted confession and evidence of injury--provide objective indication of police excess.  Neither, however, is present here.  Appellant Riley made no statement against his interest during his interrogation.  And, as discussed above, there is no evidence he suffered injury from the interrogation;  if anything, the record refutes any such claim.


14
By dispensing with any requirement of physical injury and relying only on bald assertions of psychological injury, the majority subjects every instance of police interrogation to a section 1983 suit.  Every instance of police questioning entails some psychological discomfort for its subject.  That is the very nature of an interrogation, and also to some extent its purpose.  Consequently, if plaintiffs can survive summary judgment based only on flimsy allegations of psychological trauma of the type presented here, Rule 56 will be a completely empty vessel in this context.  At the least, some other evidence of psychological injury, such as a documented complaint to medical staff, should be required.  Otherwise, the prospect of attorney's fees in excessive force actions will produce a lawyer's field day, fueling a proliferation of frivolous lawsuits alleging some indistinct form of injury from police questioning.


15
The result will be that effective interrogation, a vital tool in the arsenal of law enforcement, see Moran, 475 U.S. at 426, 106 S.Ct. at 1143, will be substantially compromised as police officers struggle to avoid the prospect of a damages action.  The Constitution, moreover, will become nothing more than a vehicle for filing dignitary tort actions against state law enforcement officials.  The due process clause is not a code of good manners, however;  nor is it a substitute for state tort law.  After all, "[a]lthough 'the least touching of another in anger is a battery,' it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983."  Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.)  (Friendly, J.)  (citation omitted), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).  The Constitution, instead, exists to remedy real abuses by law enforcement officials, documented by the sort of evidence of injury that is sorely lacking here.  This was the central message of our opinion in Norman v. Taylor, 25 F.3d at 1259, the reason for its requirement that plaintiffs alleging excessive force show more than de minimis injury.  This is a message that is lost on my fine colleagues in the majority.3  I would affirm the judgment of the district court.



1
 Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.


2
 The videotaped arrest of Rodney King in 1991 by Los Angeles police received much national attention.  The degree of force used during the arrest led two officers to be convicted under 18 U.S.C. § 242 for violating King's constitutional rights under color of law.  See Jim Newton, 2 Officers Guilty, 2 Acquitted;  Guarded Calm Follows Verdicts in King Case, L.A. Times, Apr. 18, 1993, at A1;  Koon v. United States, --- U.S. ----, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)


3
 Riley described his encounter with the detectives as an interrogation.  According to Riley the detectives were trying to get him to "breakdown" and were using a "good cop/bad cop" interrogation technique.  Police activity may be interrogation even if the police never ask the suspect a question.  Rhode Island v. Innis, 446 U.S. 291, 301-02, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980).  The test of whether police conduct amounted to interrogation is an objective one:  were the "words or actions on the part of the police" reasonably likely to elicit some incriminating response.  Id.  An important factor in applying the test, however, is "the perceptions of the suspect."  Id


4
 Riley appeared pro se in the district court and neither he nor Dorton's counsel cited Gray v. Spillman to the district judge.  See Model Rules of Professional Conduct Rule 3.3(a)(3) (lawyer must "disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel");  Model Code of Professional Conduct EC 7-23;  Va.Code of Professional Responsibility DR 7-102(3) & EC 7-20


5
 Norman recognized that even with only de minimis physical injury a prisoner could recover if the challenged conduct resulted "in an impermissible infliction of pain" or was otherwise "of a sort repugnant to the conscience of mankind."  Norman, 25 F.3d at 1263 n. 4 (quoting Hudson v. McMillian, 503 U.S. 1, 10, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992) (internal quotation marks omitted));  see also Williams v. Benjamin, 77 F.3d 756, 762 n. 2 (4th Cir.1996) ("courts should be wary of finding uses of force that inflict 'merely' pain but not injury to be de minimis ");  Wilson v. Chicago, 6 F.3d 1233, 1236 (7th Cir.1993) ("even a murderer has a right to be free from torture") (Posner, J.), cert. denied, 511 U.S. 1088, 114 S.Ct. 1844, 128 L.Ed.2d 470 (1994)


6
 The cases relied upon by the dissent all present facts similar to those presented in Norman v. Taylor.   In Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (per curiam), for example, a pretrial detainee had started a fire in the jail and had been sprayed with a fire extinguisher by the guard who had come to put out the fire.  Obviously, the court found no constitutional violation there.  None of the cases relied upon by the dissent present facts even remotely similar to those presented here, that is, none involve a pretrial detainee intentionally struck by an officer who lost his temper during the course of a custodial interrogation


7
 Riley's deposition testimony and affidavits put into issue whether Detective Dorton in fact stuck a pen in Riley's nose, threatened to rip it open, and then slapped him.  In support of its argument that summary judgment was proper, the dissent says that we "never [say] how a jury might conceivably find plaintiff worthy of belief."  Post at 121.  "Whether or not [Riley's] testimony should be believed is a credibility determination that is not for us to make."  Gray v. Spillman, 925 F.2d at 95.   That is for the trier of fact


8
 Contrary to the dissent's suggestion, see post at 122, our decision today will not "fuel[ ] a proliferation of frivolous lawsuits."   We are simply reaffirming a longstanding rule that up to now has not thwarted legitimate law enforcement activities.  Indeed, "no unjustified force during interrogation" has been the unquestioned rule in every one of the five other circuits that have had occasion to consider cases like this one.  There is a good reason why the standard urged by the dissent is unacceptable for custodial interrogation:  it would give police a license to hit interrogees, so long as the police leave no marks


1
 The majority contends that the dissenting position "would give police a license to hit interrogees, so long as the police leave no marks."   This is incorrect.  Nowhere do I insist on physical as opposed to psychological injury.  I would simply apply a de minimis threshold to any type of injury, whether physical or psychological


2
 The majority's reliance on five cases in other circuits that are "like this one," supra n. 8, is misplaced--those cases are not at all "like this one."   None involved a factual record that so manifestly calls into doubt the plaintiff's allegations and exposes the insubstantiality of his claims.  In one case, Rex v. Teeples, 753 F.2d 840 (10th Cir.), cert. denied, 474 U.S. 967, 106 S.Ct. 332, 88 L.Ed.2d 316 (1985), taped transcripts of the interrogation divulged that the suspect had repeatedly asked for an attorney.  In another, Wilkins v. May, 872 F.2d 190 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990), the district judge suppressed the defendant's statements, believing his claim that the police had pointed a gun at his head during his interrogation.  The three other cases are inapposite.  Two simply reaffirm the noncontroversial proposition that use of unlawful coercion in attempting to obtain a confession is violative of due process.  Weaver v. Brenner, 40 F.3d 527, 536 (2d Cir.1994);  Cooper v. Dupnik, 963 F.2d 1220, 1244-45 (9th Cir.), cert. denied, 506 U.S. 953, 113 S.Ct. 407, 121 L.Ed.2d 332 (1992).  The third involved the legal validity of jury instructions, not the factual showing necessary to survive summary judgment.  Ware v. Reed, 709 F.2d 345 (5th Cir.1983)


3
 This is also the message of a case cited by the majority supposedly in support of its position, Wilkins v. May, 872 F.2d 190 (7th Cir.1989), cert. denied, 493 U.S. 1026, 110 S.Ct. 733, 107 L.Ed.2d 752 (1990).  In that case, the Seventh Circuit observed that the "relevant inquiry is not freedom from unlawful interrogations but freedom from severe bodily or mental harm inflicted in the course of an interrogation."  Id. at 195 (emphasis added).  Plaintiffs thus must cross "a high threshold," one that requires showing "misconduct that a reasonable person would find so beyond the norm of proper police procedure as to shock the conscience, and that is calculated to induce not merely momentary fear or anxiety, but severe mental suffering."  Id. (emphasis added).  This, plainly, is not at all the view of the majority.  If it were, appellant's claim could not possibly survive summary judgment


