UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: WILLIAM ARTHUR BEETON, JR.,
Appellant,

WILLIAM DEFOE, III,
Plaintiff-Appellant,

v.

CARL R. PEED, in his official
capacity as Sheriff of Fairfax
County; LIEUTENANT WHITLEY,
individually and in his official
capacity as an employee of Fairfax
County Jail; DEPUTY WOODS,
individually and in his official
                                     No. 95-1734
capacity as an employee of Fairfax
County Jail; DEPUTY CAMARCA,
individually and in his official
capacity as an employee of Fairfax
County Jail; DEPUTY WRIGHT,
individually and in his official
capacity as an employee of Fairfax
County Jail; DEPUTY ELBERT,
individually and in his official
capacity as an employee of Fairfax
County Jail; DEPUTY SCOTT,
individually and in his official
capacity as an employee of Fairfax
County Jail;
DEPUTY STEINBECK, individually and
in his official capacity as an
employee of Fairfax County Jail;
DEPUTY PFIESTER, individually and in
his official capacity as an employee
of Fairfax County Jail; DEPUTY
BYRONE, individually and in his
official capacity as an employee of
Fairfax County Jail; DEPUTY
FAIRFAX, individually and in his
official capacity as an employee of
Fairfax County Jail; JOHN DOE,
deputy, individually and in his
official capacity as an employee of
Fairfax County Jail; JOHN DOE,
Sergeant, individually and in his
official capacity as an employee of
Fairfax County Jail,
Defendants-Appellees,

and

LIEUTENANT CARROLL, individually
and in his official capacity as an
employee of Fairfax County Jail;
LIEUTENANT BLAIN, individually and
in his official capacity as an
employee of Fairfax County Jail;
SERGEANT JEAN, individually and in
his official capacity as an employee
of Fairfax County Jail; DEPUTY
QUARTO, individually and in his
official capacity as an employee of
Fairfax County Jail;

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DEPUTY PARRISH, individually and in
his official capacity as an employee
of Fairfax County Jail; DEPUTY
HAYWOOD, individually and in his
official capacity as an employee of
Fairfax County Jail; DEPUTY BROWN,
individually and in his official
capacity as an employee of Fairfax
County Jail; JOHN DOE, Sergeant,
individually and in his official
capacity as an employee of Fairfax
County Jail,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-94-799-A)

Argued: March 4, 1996

Decided: June 6, 1996

Before MURNAGHAN and ERVIN, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed in part and vacated and remanded in part by unpublished
opinion. Judge Ervin wrote the opinion, in which Judge Murnaghan
and Senior Judge Young joined.

_________________________________________________________________

COUNSEL

ARGUED: William Arthur Beeton, Jr., Fairfax, Virginia, for Appel-
lants. Robert S. Corish, SLENKER, BRANDT, JENNINGS & JOHN-

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STON, Merrifield, Virginia, for Appellees. ON BRIEF: John J.
Brandt, SLENKER, BRANDT, JENNINGS & JOHNSTON, Merri-
field, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

On June 14, 1994, Defoe sued the Fairfax County, Virginia, Sheriff
and seventeen of his deputies for alleged mistreatment in the Fairfax
Adult Detention Center. He alleged violations of his constitutional
rights to freedom: (1) "from cruel and unusual punishment," (2) "from
the use of excessive and unreasonable force," (3)"from the depriva-
tion of liberty and property without due process of law," (4) "from
summary punishment," and (5) to exercise his religion. The district
court granted four defendants' motions to dismiss on August 5, 1994,
and granted summary judgment in favor of the remaining defendants
on November 4, 1994. On December 22, 1994, the district court
awarded the defendants attorneys' fees and costs from both Defoe and
his counsel, William Beeton--from Defoe under§ 1988 and from
Beeton under Fed. R. Civ. Pro. 11--for continuing to oppose sum-
mary judgment after receiving "definitive" discovery from the defen-
dants. Defoe did not appeal the district court's summary judgment on
the merits; he and Beeton challenge only the sanctions.

We find that the district court acted within its discretion in deter-
mining that sanctions were appropriate against both Defoe and Bee-
ton. But it abused its discretion by failing to consider, in setting the
amount of the Rule 11 sanction, the factors we enumerated in
Brubaker v. City of Richmond, 943 F.2d 1363, 1374 (4th Cir. 1991).
Thus we affirm both the sanction against Defoe and the decision to
sanction Beeton, but we remand Beeton's sanction for recalculation.

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I.

Federal subject matter jurisdiction is appropriate in this case under
28 U.S.C. §§ 1331, 1343(a)(3)-(4), 42 U.S.C.§§ 1983, 1988, and the
First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitu-
tion. Pendent state-law claims are included by supplemental jurisdic-
tion. Appellate jurisdiction over the district court's final judgment is
appropriate under 28 U.S.C. § 1291. The district court's decision to
impose sanctions is reviewable only for abuse of discretion. Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) (addressing Rule
11), cited in In re Kunstler, 914 F.2d 505, 513 (4th Cir. 1990), cert.
denied sub nom., Kunstler v. Britt, 499 U.S. 969 (1991); see
Hutchinson v. Staton, 994 F.2d 1076, 1080-81 (4th Cir. 1993)
(addressing § 1988).

II.

Defoe alleged in his complaint a lengthy series of abuses by the
defendants, including:

* confiscating and tearing up a map that was on his wall;

* charging him with breaking a window when he banged on the
 door to report the destruction of the map;

* confining him to a cell without a mattress, toilet, or personal prop-
 erty;

* confining him for six days to a rubber cell without a toilet, while
 feeding him only bologna sandwiches;

* charging him with destruction of property;

* restraining him by four-point restraints;

* forcing him to shower in handcuffs and leg restraints;

* confiscating and destroying his personal property;

* female deputies stripping him and making fun of him;

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* confining him to a cell without running water for two days;

* charging him with an infraction for knocking on his cell door to
 request a shower, phone call, and visit to the commissary;

* confining him to disciplinary segregation for 15 days, with his
 mattress removed for most of each day, for knocking on his cell
 door;

* Deputy Steinbeck confiscating and destroying as contraband a
 cardboard shoe box that another deputy had given him;

* Deputy Steinbeck replacing the box with a box top only when
 ordered to replace the box by Lt. Blain;

* confiscating Defoe's property again and placing him in another
 empty cell without a mattress or running water, and hog-tying and
 beating him when he banged on the cell door to request his prop-
 erty;

* restraining him face-down with only his underwear on;

* slamming their knees on the back of his head while changing
 restraints, and leaving him in restraints for over 20 hours at a time;

* throwing away his commissary request slip and, when he refused
 to return his breakfast tray in retaliation, macing, beating, and
 moving him to another cell where they placed him face-down on
 a steel plate in four-point restraints and threatened him;

* threatening his life physically and verbally on multiple occasions;

* denying him the right to have a Bible because of its potential use
 as a weapon;

* failing to provide medical care;

* detaining him in an overcrowded county jail even though he was
 sentenced to the state penitentiary.

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Defoe offered no evidence to support his allegations. In response to
the defendants' motion for summary judgment, he simply verified his
complaint and his answers to defendant Peed's interrogatories.

Defoe's interrogatory answers were uniformly vague and arguably
evasive. For example, he suggested in response to the second inter-
rogatory that some of his allegations were based in part on informa-
tion he received from other prisoners:

          2. State with specificity and detail all facts which sup-
          port your allegation in paragraph (1) of the Introduction to
          your complaint that "the Sheriff has tolerated and permitted
          a pattern of illegal beatings and deprivations of prisoners."

          Answer to Interrogatory No. 2:

          Plaintiff was subjected to more than one beating and
          deprivation and therefore it was a pattern that had been
          allowed to continue. Plaintiff had heard that other prisoners
          had suffered bad treatment.

Yet when asked to provide names of potential witnesses, lay or
expert, or of anyone else who might have relevant information, Defoe
identified no one other than himself and the defendants. Beeton never
sought to depose the defendants or anyone else.

To support their motion for summary judgment, the defendants
offered evidence from a multitude of sources including a housing log,
thirteen affidavits, three "Forensic Interview" reports, an incident
report, the Fairfax ADC's "Special Operation Procedures" for use of
restraints and inmate housing, and Defoe's medical records. The
defendants' evidence contradicts very few of the facts alleged by
Defoe, but it shows clearly that incidents which Defoe characterized
as abusive actually were measured responses to Defoe's extreme
behavioral problems. For instance, Defoe complains of being con-
fined to a cell without a toilet, but the evidence shows that the defen-
dants took that step only after Defoe intentionally stopped up the
toilet and flooded his cell. Similarly, the citation for breaking the
glass in his cell door was issued only after Defoe broke the glass, cut

                    7
himself in the process, and used blood from his wound to write his
name on the door. The district court accurately described the evidence
as a

          litany of consistent horrors conducted by [Defoe] showing
          that he was completely out of control at numerous times.
          These officers, there are log entries showing that they were
          giving him his bedding, taking the bedding from him. I
          mean, they were going back and forth. I got a clear picture
          of them trying to work with him. They would note when he
          was calmer for a day or two; and as soon as he got calmed
          down, he got more of his privileges back.

          Then he would, you know, he would roar up again.

J.A. at 58-59.

III.

A.

We first address the district court's decision to sanction Beeton.
The court ruled that Beeton violated Rule 11 by filing a motion in
opposition to defendants' Motion for Summary Judgment:

          [T]here may have initially been justification for filing the
          lawsuit, although I think I'm giving you every benefit of the
          doubt in that respect, given the kind of discovery that was
          conducted and the final receipt on the 14th of what, I think,
          is definitive information that should have led a wise attorney
          to cut the losses at that point. I think it was wrong to con-
          tinue at that point and put the county to the additional
          expenses of having to continue litigating this case. As you
          know, Rule 11 isn't just the initial filing. It's the continuing
          of the lawsuit when the evidence and sound judgment would
          lead one to evaluate it differently.

Beeton argues that the court abused its discretion by concluding that
the complaint and answers to interrogatories, both of which Defoe

                    8
verified, were insufficient to support a reasonable attorney's decision
to contest summary judgment.

Summary judgment is appropriate when the evidence before the
court reveals "that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. Pro. 56(c). A genuine issue of material fact exists if the
evidence could lead reasonable people to different conclusions.
Phoenix Savings & Loan, Inc. v. Aetna Casualty & Surety Co., 381
F.2d 245 (4th Cir. 1967). In determining whether a genuine issue
exists, the court must draw all inferences in favor of the nonmoving
party. Cole v. Cole, 633 F.2d 1083, 1090 (4th Cir. 1980). Summary
judgment is inappropriate when resolution of the factual issue
requires judgment of the credibility of witnesses, but a "mere scin-
tilla" of evidence in favor of the nonmovant is insufficient to defeat
a motion for summary judgment. Russell v. Microdyne Corp., 65 F.3d
1229, 1239 (4th Cir. 1995).

We need not examine the merits of the summary judgment to deter-
mine whether a sanction was appropriate. That a plaintiff presents
insufficient evidence for a reasonable jury to rule in his favor does not
indicate inexorably that his claim is frivolous. See Miltier v. Downes,
935 F.2d 660, 664 (4th Cir. 1991) ("The danger here is that the sum-
mary judgment analysis becomes the Rule 11 analysis.. . . [C]ounsel
do not have to be right on their legal position to avoid sanctions, only
reasonable."). However, neither is the ability to withstand a summary
judgment motion sufficient to defeat a Rule 11 claim. Calloway v.
Marvel Entertainment Group, 854 F.2d 1452, 1473 (2d Cir. 1988)
("Where baseless allegations are used to prevent summary judgment,
sanctions are mandatory if the attorney did not make a reasonable pre-
filing inquiry when he or she originally put forward the claim."),
rev'd in part on unrelated ground sub nom., Pavelic & LeFlore v.
Marvel Entertainment Group, 493 U.S. 120 (1989); Mann v. G & G
Mfg., 900 F.2d 953, 960 (6th Cir. 1990) ("[A] denial of a motion for
summary judgment does not preclude a grant of a motion for sanc-
tions against the prevailing party."), cert. denied sub nom., Sloan v.
G & G Mfg., 498 U.S. 959 (1990). Beeton may have believed reason-
ably that the verified complaint and interrogatory answers created a
genuine issue of material fact. But Rule 11 imposes a duty on attor-
neys to investigate beyond the mere allegations of their clients, Blue

                     9
v. United States Dep't of the Army, 914 F.2d 525, 542 (4th Cir. 1990)
("Undoubtedly there are instances in which an attorney acts irrespon-
sibly by failing to investigate the facts behind his client's claim and
by instead relying solely on the client's testimony to support his
case."), cert. denied sum nom., Chambers v. United States Dep't of
the Army, 499 U.S. 959 (1991), and there is no indication that Beeton
conducted a thorough investigation even after he received substantial
evidence that appeared to undermine his client's story. Had he inves-
tigated and determined that there were no witnesses to the alleged
events other than Defoe and the defendants, it might not have been
improper for him to file suit and seek a jury determination of the par-
ties' credibility. But the district court did not abuse its discretion by
sanctioning him for relying on his client's naked assertions.

B.

Beeton also argues that the district court improperly determined the
sanction's amount. The court abused its discretion, he contends, by
failing to address four factors that we previously have mandated: (1)
the reasonableness of the defendants' attorneys' fees, (2) the mini-
mum sanction needed to deter the conduct, (3) the ability of Beeton
to pay, and (4) the severity of the Rule 11 violation. See Brubaker v.
City of Richmond, 943 F.2d 1363, 1374 (4th Cir. 1991) (following In
re Kunstler, 914 F.2d 505, 523 (4th Cir. 1990)). We agree. The dis-
trict court did not expressly consider any of the four factors, and even
ignored an affidavit which stated that Beeton was bankrupt. Thus we
remand the sanction for recalculation in accordance with our decision
in Brubaker.

IV.

Defoe contends that the district court abused its discretion by sanc-
tioning him under § 1988. He cites our holding in Hutchinson v.
Staton that, under section 1988, "prevailing defendants should receive
attorneys' fees only when the plaintiff's claim was`frivolous, unrea-
sonable, or groundless,' or when `the plaintiff continued to litigate
after it clearly became so.'" 994 F.2d at 1080 (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 422 (1978)). Whether a claim
is frivolous is to be determined by the district court, and is reviewable

                     10
only for abuse of discretion. Christiansburg Garment Co., 434 U.S.
at 421; accord Hutchinson, 994 F.2d at 1079-81.

Defoe focuses on the merits of his allegations, maintaining his
position that they were well-grounded. But the defendants' evidence
appears to undermine those allegations, and Defoe offered no evi-
dence other than the bare allegations in documents that he verified
only after the defendants had moved for summary judgment. In light
of the defendants' ample evidence and Defoe's "mere scintilla," the
district court's conclusion that the suit was frivolous was not an abuse
of discretion.

V.

In light of the foregoing, we affirm the sanction against Defoe in
its entirety, and affirm the finding that Beeton is liable for a sanction,
but we vacate and remand the sanction against Beeton for a redeter-
mination of its amount in accordance with Brubaker.

AFFIRMED IN PART
AND VACATED AND REMANDED IN PART

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