                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-7933


JESUS ADAN CRUZ RIOS,

                 Plaintiff - Appellant,

          v.

TREMONT VEALE,

                 Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:13-ct-03143-BO)


Submitted:   April 18, 2016                 Decided:   May 18, 2016


Before DUNCAN and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Jesus Adan Cruz Rios, Appellant Pro Se.     Judith Maria Estevez,
Assistant  Attorney  General,  Raleigh,     North  Carolina,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Jesus Adan Cruz Rios appeals the district court’s order

granting Defendant’s Fed. R. Civ. P. 12(b)(6) motion to dismiss

for failure to state a claim and dismissing with prejudice Rios’

42 U.S.C.      § 1983    (2012)   complaint      in    which   Rios    asserted   an

Eighth Amendment excessive force claim.                  For the reasons that

follow,   we    vacate    the   district      court’s    order   and    remand    for

further proceedings.

     We review de novo the district court’s ruling on a motion

to dismiss pursuant to Rule 12(b)(6).                 Kensington Volunteer Fire

Dep’t, Inc. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir.

2012).    “The purpose of a Rule 12(b)(6) motion is to test the

sufficiency of a complaint.”             Edwards v. City of Goldsboro, 178

F.3d 231, 243 (4th Cir. 1999).                   To survive a Rule 12(b)(6)

motion, a complaint must “give the defendant fair notice of what

the claim is and the grounds upon which it rests.”                      Erickson v.

Pardus,   551     U.S.    89,     93    (2007)    (alteration         and   internal

quotation marks omitted).              While a pro se litigant’s pleadings

are “to be liberally construed,” id. at 94 (internal quotation

marks omitted), the facts alleged must “raise a right to relief

above the speculative level,” and the complaint must contain

“enough facts to state a claim to relief that is plausible on

its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007).

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      Where, as here, the motion to dismiss involves “a civil

rights complaint, we must be especially solicitous of the wrongs

alleged and must not dismiss the complaint unless it appears to

a certainty that the plaintiff would not be entitled to relief

under any legal theory which might plausibly be suggested by the

facts alleged.”        Edwards, 178 F.3d at 244 (emphasis and internal

quotation     marks     omitted).         “In    assessing        the   complaint’s

plausibility,     we    accept    as    true    all   the    factual    allegations

contained therein.”       De’lonta v. Johnson, 708 F.3d 520, 524 (4th

Cir. 2013).      A complaint thus may proceed “even if it strikes a

savvy    judge   that    actual        proof    of    [the   alleged]    facts    is

improbable, and that a recovery is very remote and unlikely.”

Twombly, 550 U.S. at 556 (internal quotation marks omitted).

      “[T]he Eighth Amendment forbids ‘the unnecessary and wanton

infliction of pain’” on prisoners by prison officials.                       Hill v.

Crum, 727 F.3d 312, 317 (4th Cir. 2013) (quoting Whitley v.

Albers, 475 U.S. 312, 319 (1986)).                    The core inquiry in an

excessive force case is “whether force was applied in a good

faith effort to maintain or restore discipline or maliciously

and     sadistically     for     the    very    purpose      of    causing    harm.”

Whitley, 475 U.S. at 320-21 (internal quotation marks omitted).

Thus, a plaintiff states an Eighth Amendment excessive force

claim when he alleges that there was an unnecessary application



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of force, regardless of whether a significant injury resulted

therefrom.    Wilkins v. Gaddy, 559 U.S. 34, 37-40 (2010).

       On this record, we conclude that Rios adequately pled an

Eighth Amendment excessive force claim.                    We accept as true the

facts pled in Rios’ complaint, see De’lonta, 708 F.3d at 524,

and construe them in the light most favorable to Rios, see U.S.

ex rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d

131,   136   (4th    Cir.    2014).     With       the   stage   thus    set,    Rios’

complaint alleged as follows.                On or about December 8, 2012,

Defendant Veale approached Rios’ cell to retrieve his meal tray.

Veale saw that Rios’ arm was in the trap located on his cell

door, which is used to receive and return meal trays.                      While his

arm was in the trap, Rios asked to speak with one of Veale’s

superior officers about the prison’s lockdown status.                            Then,

with Rios’ arm still in the trap, Veale forcefully closed the

trap with his leg, causing Rios to seek medical attention.                            In

our view, these allegations, although brief, are sufficient to

state an Eighth Amendment excessive force claim in that they

reflect that Veale utilized more than de minimis force in a

situation    that    does    not   appear     to    have    required    any     use   of

force.    See Whitley, 475 U.S. at 321.                  Thus, dismissal of this

claim at the pleading stage was premature.

       Accordingly,     we    vacate     the       district      court’s      judgment

dismissing    with    prejudice       Rios’    excessive      force     claim.        We

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remand this case for further proceedings consistent with this

opinion but express no opinion about the merits of Rios’ claim.

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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