Demetrius Hill v. C.O. Crum

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-6705

DEMETRIUS HILL,

Plaintiff − Appellee,

v.

C.O. CRUM,

Defendant – Appellant,

and

TERRY O’BRIEN, Warden; MR. STRICKLAND, Associate Warden; MR.
WILSON, Captain; LT. STIGER; PULIVAR, Counselor; COUNSELOR
MULLINS; MS. HALL, Case Manager; NURSE MEADE; DR. ALLRED;
DR. ROFF, Health Administrator; C.O. T. TAYLOR; C.O. TAYLOR;
C.O. MARTIN,

Defendants.

Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:08-cv-00283-JCT-RSB)

Argued: March 22, 2013 Decided: August 14, 2013

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Agee wrote
the majority opinion, in which Judge Niemeyer joined. Judge
Thacker wrote a dissenting opinion.
James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke,
Virginia, for Appellant. Arlene Sokolowski, SOKOLOWSKI LAW
OFFICE, North Royalton, Ohio, for Appellee.

2
AGEE, Circuit Judge:

Plaintiff Demetrius Hill (“Hill”) sued Correctional Officer

William Crum (“Crum”) pursuant to Bivens v. Six Unnamed Agents,

403 U.S. 388 (1971), alleging that Crum used excessive force

against him in violation of Hill’s Eighth Amendment rights.

Claiming he was entitled to qualified immunity, Crum appeals the

district court’s denial of his Rule 50(b) motion for judgment as

a matter of law. For the reasons that follow, we reverse the

district court’s order denying Crum’s motion for judgment as a

matter of law, and remand with instructions to enter judgment in

favor of Crum.

I. Factual Background

At all times relevant to this appeal, Hill was an inmate in

the U.S. Penitentiary Lee (“USP Lee”) in Jonesville, Virginia.

Hill shared a cell with Delmont Logan (“Logan”). 1 On November 1,

2007, Logan broke a fire sprinkler in their cell, which caused

the cell to flood. Hill and Logan submitted to hand restraints

in order to be moved to a new cell so the damage could be

repaired. Logan was first escorted by a correctional officer to

1
Crum disputes Hill’s version of events. However, because
the district court denied Crum’s Rule 50(b) motion for judgment
as a matter of law, we review the facts in the light most
favorable to Hill, the non-movant. Konkel v. Bob Evans Farms,
Inc., 165 F.3d. 275, 279 (4th Cir. 1999).

3
a different cell, which left Crum alone in the flooded cell with

Hill.

After Logan was removed, Crum shoved Hill and required him

to leave his legal material in the flooded cell. Without

provocation, Crum then assaulted Hill, punching him in the

abdomen and ribs, and elbowing the side of his head. During the

assault, Crum shouted at Hill, “break another sprinkler, I’ll

break your neck.” (J.A. 219). The assault lasted about two

minutes before Crum moved Hill to a holding cell, knocking his

head against a gate on the way out. The prison staff kept Hill

in ambulatory restraints for seventeen hours following the

assault. 2 Hill alleged that as a result of Crum’s assault, he

suffered a bruised rib, temporary dizziness, and a “vicious,

vicious headache.” (J.A. 150-51, 223).

About an hour after the assault, prison officials recorded

two videos of Hill and Logan in their new cell. The videos

depict Hill standing in his cell. While he does not seem to be

2
The captain and the warden, not Officer Crum, decide how
long an inmate remains in ambulatory restraints. Hill does not
contend the ambulatory restraint confinement is part of his
cause of action against Crum.

4
in visible distress, he alleged he had a swollen eye, although

that is not apparent in any of the videos. 3

Theresa Meade (“Meade”), a registered nurse, examined Hill

after he was moved to the holding cell. Meade found that Hill

had “[n]o injuries,” (J.A. 192), and documented her assessment

in a contemporaneous report, “Inmate Injury Assessment and

Followup,” (J.A. 201). Meade testified that while her

examination focused on injuries caused by the ambulatory

restraints, it would have included notes regarding Hill’s

dizziness, feelings of pain, inability to stand or understand

had she noticed any problems, or if he had complained of any

injuries. Hill’s medical records did not indicate any

complaints of injuries resulting from his alleged assault by

Crum.

On April 9, 2008, Hill brought a pro se Bivens suit in the

United States District Court for the Western District of

Virginia against eleven USP Lee prison officials alleging

various deprivations of his rights. Hill’s complaint did not

name Crum as a defendant or claim any injuries arising out of

the November 1, 2007 assault; however, he did complain about the

length of time during which he was subjected to ambulatory

3
The video does not show the alleged assault and begins
running more than an hour after the assault occurred. Hill
stands for much of the video and does not appear to be in pain.

5
restraints that day. On April 18, 2008, Hill, still proceeding

pro se, amended his pleading to include a separate excessive

force claim against Crum based on the alleged assault in the

flooded cell on November 1, 2007. 4

Initially, the district court sua sponte dismissed Hill’s

excessive force claim against Crum for failure to state a claim,

pursuant to 28 U.S.C. § 1915A(b)(1). 5 In doing so, the court

relied on Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en

banc), 6 which held, “absent the most extraordinary circumstances,

a plaintiff cannot prevail on an Eighth Amendment excessive

force claim if his injury is de minimis.” Id. at 1263. Finding

that Hill did not allege that Crum’s assault had caused more

than a de minimis injury, the district court dismissed his

claim. Hill, still without counsel, appealed.

While Hill’s case was pending on appeal to this Court, the

Supreme Court decided Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct.

1175 (2010), holding that there is no de minimis injury
4
Although Hill and other plaintiffs brought multiple claims
against multiple defendants in the district court, Hill’s
excessive force claim against Crum is the only claim pertinent
to this appeal.
5
Section 1915A(b)(1) directs a district court to identify
and dismiss a civil action filed by a prisoner that is
“frivolous, malicious, or fails to state a claim upon which
relief may be granted.”
6
Abrogated by Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct.
1175 (2010).

6
threshold for an excessive force claim, specifically rejecting

the Fourth Circuit’s approach in Norman. In light of Wilkins,

this Court vacated the district court’s dismissal of Hill’s

excessive force claims and remanded the case to the district

court. See Hill v. O’Brien, 387 F. App’x 396 (4th Cir. 2010)

(unpublished); (J.A. 86-87).

On remand, Crum filed motions to dismiss and for summary

judgment on several grounds, including that he was entitled to

qualified immunity. The district court ruled that Crum was not

entitled to qualified immunity because a trier of fact could

conclude that Hill’s Eighth Amendment rights had been violated.

Crum answered Hill’s complaint, denied liability, and again

moved for summary judgment based on qualified immunity, which

was again denied based on the same rationale that it “cannot

credibly be claimed that Defendants were not on notice that

unnecessarily inflicting pain on the Plaintiff violated his

constitutional rights.” (J.A. 136). Hill obtained counsel and

the case proceeded to trial by jury.

At trial, Crum moved pursuant to Federal Rule of Civil

Procedure 50(b) for judgment as a matter of law at the close of

Hill’s case and again at the close of all the evidence on the

basis of qualified immunity. The district court denied both

motions, and the jury returned a verdict in Hill’s favor,

finding Crum liable and awarding $25,000 in damages. (J.A.

7
207). After trial, Crum moved for a new trial under Rule 59(a)

and again for judgment as a matter of law under Rule 50(b) on

the ground of qualified immunity, arguing that his conduct did

not violate a clearly established constitutional right under

Norman at the time of the alleged assault.

The district court granted Crum’s motion for a new trial on

all issues, stating that “$25,000 in compensatory damages for a

bruised rib and an impermanent headache simply shocks the

conscience of the Court. It is a miscarriage of justice that

cannot stand.” 7 (J.A. 227, 233).

7
Hill did not file a cross-appeal of the district court’s
grant of Crum’s motion for a new trial. As a consequence, we
must treat that trial as a nullity. See United States ex rel.
Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 405
n.18 (4th Cir. 2012) (“Where a motion for new trial has been
sustained, the issues stand as though they had never been tried.
The cause is to be tried de novo. The whole case, including the
issues of fact at the former trial, is open for hearing and
determination.”) (quoting 66 C.J.S. New Trial § 331 (2011)
(footnotes omitted).

Despite the fact that the district court set aside the
verdict and ordered a new trial, Hill’s counsel stated on brief
that “[t]he jury found that the injuries were not de minimis,”
(Br. of Appellee at 18), and “a jury has already determined that
Defendant Crum used an amount of force that was repugnant to
their conscience,” (Br. of Appellee at 18-19). The jury did not
return a special verdict on either point, and we have identified
no support in the record for counsel’s statements regarding the
jury’s “findings.” Notwithstanding the dubious veracity of
counsel’s claims, however, any findings that were made by the
jury are now void by the grant of a new trial.

8
 Although granting the new trial motion, the district court

denied Crum’s motion for judgment as a matter of law on the

issue of qualified immunity, again stating that “[i]t is

apparent—and cannot be credibly denied—that a reasonable officer

in Crum’s position in 2007 would have known that repeatedly

punching a restrained prisoner in the stomach, ribs, and head

for a sustained period, for no other reason but to punish him

for a behavioral issue, was unlawful in light of pre-existing

law.” (J.A. 225). As with its earlier rulings, the district

court cited no authority for its decision. Crum timely appealed

the denial of his Rule 50(b) motion. 8

28 U.S.C. § 1291 affords this Court jurisdiction over final

orders of the district court. Pursuant to § 1291, the Court has

jurisdiction to hear the appeal of the denial of a qualified

immunity defense, before there is a final order, if the denial

rests on a legal issue. Valladares v. Cordero, 552 F.3d 384,

387-88 (4th Cir. 2009). If, however, the appeal presents an

issue of the insufficiency of the evidence to raise a genuine

issue of material fact, this Court does not have jurisdiction

under § 1291 to consider such a claim. Bailey v. Kennedy, 349

F.3d 731, 738 (4th Cir. 2003); see Johnson v. Jones, 515 U.S.

8
The district court has stayed further proceedings pending
this appeal.

9
304, 319-20 (1995) (“[A] defendant, entitled to invoke a

qualified immunity defense, may not appeal a district court’s

summary judgment order insofar as that order determines whether

or not the pre-trial record sets forth a ‘genuine’ issue of fact

for trial.”). We do possess jurisdiction to consider this

appeal from the denial of qualified immunity to the extent that

Crum claims that his conduct did not violate clearly established

law. See Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997)

(en banc) (“[W]e have jurisdiction over a claim that there was

no violation of clearly established law accepting the facts as

the district court viewed them.”). Because the district court’s

rejection of Crum’s qualified immunity defense turns only on a

question of law, it is subject to immediate appeal. Valladares,

552 F.3d at 387-88.

II. Legal Background

The Supreme Court has extended the application of the

Eighth Amendment’s prohibition against “cruel and unusual

punishments” to the treatment of prisoners by prison officials.

In this context, the Court has stated that the Eighth Amendment

forbids “the unnecessary and wanton infliction of pain.”

Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v.

Wright, 430 U.S. 651 (1977)). “When prison officials

maliciously and sadistically use force to cause harm,

10
contemporary standards of decency always are violated.” Hudson

v. McMillian, 503 U.S. 1, 9 (1992) (quoting Whitley, 475 U.S. at

327). “This is true whether or not significant injury is

evident. Otherwise, the Eighth Amendment would permit any

physical punishment, no matter how diabolic or inhuman,

inflicting less than some arbitrary quantity of injury.” Id. at

9.

The Hudson Court further stated

[t]hat is not to say that every malevolent touch by a
prison guard gives rise to a federal cause of action.
The Eighth Amendment’s prohibition of cruel and
unusual punishments necessarily excludes from
constitutional recognition de minimis uses of physical
force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.

Id. at 9-10 (citations and quotation marks omitted).

Referencing this statement in Hudson as its basis, the Fourth

Circuit in Norman focused on the extent of the plaintiff’s

injury rather than the nature of the defendant’s force as the

threshold a plaintiff must cross to state an Eighth Amendment

claim. 9 The Norman court reasoned that “Hudson does not suggest,

much less hold, that the extent of injury is irrelevant to

whether excessive force has been employed and therefore that an

9
The inmate, Norman, alleged that the defendant swung his
keys at him and “caught his right hand, hitting him on his thumb
with the cell keys causing his hand to swell[].” Norman, 25
F.3d at 1260-61 (brackets omitted).

11
excessive force claim cannot be defeated by evidence that the

plaintiff's injury was de minimis.” Norman, 25 F.3d at 1262-63.

We held in Norman that “absent the most extraordinary

circumstances, a plaintiff cannot prevail on an Eighth Amendment

excessive force claim if his injury is de minimis.” Id. at

1263.

Following the Norman decision, until abrogated by the

Supreme Court in Wilkins in 2010, the Fourth Circuit

consistently held that a plaintiff could not prevail on an

excessive force claim, “absent the most extraordinary

circumstances,” if he had not suffered more than de minimis

injury. “Extraordinary circumstances” were defined as those

situations in which the force used is “repugnant to the

conscience of mankind,” or the pain suffered is so significant

that it constitutes more than de minimis injury. Id. at 1263

n.4.

In Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), we

observed the continuing validity of the Norman holding,

extending that holding to pre-trial detainees. Riley, a pre-

trial detainee, alleged that the defendant used excessive force

against him while he was handcuffed and awaiting booking at the

police station. 115 F.3d at 1161. Specifically, Riley alleged

that the defendant inserted the tip of his pen a quarter of an

inch into Riley’s nose and threatened to rip his nose open. Id.

12
He further alleged that the defendant slapped him in the face

with “medium” force. Id. In determining that the defendant’s

conduct was not actionable, we applied the holding in Norman

that “a plaintiff cannot prevail on an Eighth Amendment

excessive force claim if his injury is de minimis” to Fourteenth

Amendment excessive force claims of pre-trial detainees. Id. at

1166 (quoting Norman, 25 F.3d at 1263). We thus reiterated

“[a]n injury need not be severe or permanent to be actionable

under the Eighth Amendment, but it must be more than de minimis.

We think this same rule applies to excessive force claims

brought by pre-trial detainees.” Id. at 1167 (citation

omitted).

In Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998), a pre-

trial detainee, Taylor, in “handcuffs and leg irons,” id. at

481, alleged that officers shoved a small wooden object into his

nose with such force that it caused a nose hemorrhage, shoved

the same wooden object into his mouth, which cracked his tooth,

hit him in the back of his head, and punched him in the ribs.

155 F.3d at 481. Applying Norman and Riley, we affirmed summary

judgment for defendants on the basis that plaintiff suffered

only de minimis injury. Id. at 484.

Judge Murnaghan dissented in Taylor, contending that under

the Court’s holding in Norman, “officers in our circuit are free

to use excessive or unjustified force against inmates, so long

13
as they are careful or fortunate enough to leave only minor

traces of their blows.” 155 F.3d at 487 (Murnaghan, J.,

dissenting). This was one of the “unacceptable results achieved

when a finding of de minimis injury is considered dispositive of

the excessive force inquiry.” Id. at 486 (Murnaghan, J.,

dissenting). Despite Judge Murnaghan’s objections, Norman and

Taylor remained the settled law in the Fourth Circuit.

Consistent with Norman, Riley, and Taylor, we have

consistently applied the rule that a plaintiff cannot prevail on

an excessive force claim if his injuries were de minimis. See,

e.g., Stanley v. Hejirika, 134 F.3d. 629, 634-36 (4th Cir. 1998)

(reversing the district court and finding as a matter of law

that plaintiff’s bruising, swelling, and a loosened tooth were

de minimis); Hines v. Young, 142 F. App’x 780, 781 (4th Cir.

2005) (unpublished) (per curiam) (affirming district court’s

grant of summary judgment for defendants where plaintiff’s

hairline fracture to his finger required little medical

treatment and no pain medication and was thus de minimis);

Germain v. Ruzicka, No. 99-6979, 2000 WL 139255, at *3 (4th Cir.

Feb. 8, 2000) (unpublished) (per curiam) (summary judgment in

favor of defendants was proper where plaintiff’s only alleged

injury, a severe headache, was clearly de minimis); Williams v.

Dehay, Nos. 94-7114, 94-7115, 1996 WL 128422, at *3 (4th Cir.

March 21, 1996) (unpublished) (per curiam) (affirming that

14
plaintiff’s “[t]ransitory back and shoulder aches of limited

duration” caused by the defendant were de minimis). 10

The dissent correctly observes that Stanley involved the

use of force that was at least arguably justified by a prison

security interest. See post at [37] n.3. Stanley, however,

like the myriad other cases from this Circuit decided in the

Norman line, recognized that the proper inquiry, pre-Wilkins,

was “whether the injury of which [the plaintiff] complains is

significant enough, when viewed in its factual context, to

amount to a violation of his right to be free from cruel and

10
District courts within our circuit have routinely applied
the Norman holding to excessive force claims. See e.g., Martin
v. Mathena, No. 7:08-cv-00573, 2009 U.S. Dist. LEXIS 3856, at
*5-6 (W.D. Va. Jan. 21, 2009) (dismissing excessive force claim
for failure to state more than a de minimis injury in which
inmate received a scratch with a small amount of blood as a
result of a dog bite); Lewis v. Green, No. RWT-08-2649, 2009 WL
2969584, at *4-5 (D. Md. Sept. 14, 2009) (scratches left by
alleged assault by prison guards constituted de minimis injury);
Smalls v. S.C. Dep’t of Corr., No. 6:09-2654-TLW-WMC, 2009 WL
5062393, *4 (D. S.C. Dec. 16, 2009) (injuries to eyes from
alleged mace use de minimis where plaintiff failed to seek
medical attention); Brown v. Spencer, No. 3:07-CV-61, 2008 WL
4763317, at *4 (N.D.W. Va. Oct. 29, 2008) (summary judgment
appropriate where plaintiff suffered only de minimis injuries
resulting from use of pepper spray); Chatman v. Anderson, No.
7:05 cv 0047, 2005 U.S. Dist. LEXIS 36560, *7-8 (W.D. Va. Aug.
26, 2005) (finding de minimis plaintiff’s neck pain and bruising
due to alleged choking incident); Garrett v. Bliley, No. 7:05 cv
00497, 2005 U.S. Dist. LEXIS 37610, *7-8 (W.D. Va. Sept. 23,
2005) (finding de minimis plaintiff’s “superficial scratch”
caused by correctional officer firing live round at another
inmate).

15
unusual punishment[.]” Stanley, 134 F.3d at 636 (emphasis

added).

More to the point, however, the distinction referenced in

Stanley, and relied upon by the dissent, between excessive force

in the context of restoring prison order versus inflicting

punishment on a nonviolent inmate, was not recognized under

Norman or its following cases in the de minimis injury analysis.

For example, Norman, Riley, and Wilkins involved cooperating

prisoners. While there was some allegation in Taylor that the

plaintiff was not cooperating with police, there was no

suggestion that the plaintiff was involved in any disturbance

that justified the assault alleged in that case.

The Norman court specifically declined to base its de

minimis injury rule on a prison security distinction because it

did “not base [its] conclusion on a separate conclusion that the

force used by Sergeant Taylor was in response to the disturbance

that Taylor alleges Norman was creating by yelling during the

prison role call.” Norman, 25 F.3d at 1263 n.5. Thus, the fact

that Hill alleged that he was not causing a disturbance is not

dispositive of the issue of qualified immunity. Moreover, the

dissent’s distinction for a “restrained and cooperative” inmate

cannot be found in the Norman line of cases. In fact, the

plaintiff in Riley was “handcuffed,” Riley, 115 F.3d at 1161,

16
and in “handcuffs and leg irons” in Taylor, 155 F.3d at 481,

when the alleged assaults took place.

The threshold requirement that a plaintiff suffer more than

a de minimis injury to state an excessive force claim was thus

settled law in this circuit until 2010, when the Supreme Court

in Wilkins abrogated Norman, Riley, and Taylor. In Wilkins, the

prisoner alleged that a corrections officer, Gaddy, “maliciously

and sadistically” assaulted him “without any provocation.”

Wilkins, 130 S. Ct. at 1177. Gaddy allegedly slammed Wilkins

onto the floor and “proceeded to punch, kick, knee and choke

[Wilkins] until another officer had to physically remove him

from [Wilkins].” Id. (citations in original). As a result of

Gaddy’s force, Wilkins sustained “a bruised heel, lower back

pain, increased blood pressure, as well as migraine headaches

and dizziness” and “psychological trauma and mental anguish

including depression, panic attacks and nightmares of the

assault.” Id.

Wilkins’ complaint was filed in the district court for the

Western District of North Carolina, which dismissed the

complaint for failure to state a claim pursuant to Norman. “In

order to state an excessive force claim under the Eighth

Amendment, a plaintiff must establish that he received more than

a de minimis injury.” Wilkins v. Gaddy No. 3:08CV138-01-MU,

2008 WL 1782372, at *1 (W.D. N.C., Apr. 16, 2008). The district

17
court, which found Wilkins’ injuries no more severe than those

deemed de minimis in Taylor and Riley, also noted that Wilkins

failed to assert that his injuries had required medical

attention. Id. We summarily affirmed that conclusion on appeal

based on the district court’s rationale under Norman and its

progeny. See Wilkins v. Gaddy, 308 F. App’x 696 (4th Cir. 2009)

(unpublished) (per curiam).

Reversing the holding of this Court and abrogating Norman,

Taylor, and Riley, the Supreme Court stated “[a]n inmate who is

gratuitously beaten by guards does not lose his ability to

pursue an excessive force claim merely because he has the good

fortune to escape without serious injury.” Wilkins, 130 S.Ct.

at 1178-79. The Court also concluded that the

Fourth Circuit’s strained reading of Hudson is not
defensible. This Court’s decision did not, as the
Fourth Circuit would have it, merely serve to lower
the injury threshold for excessive force claims from
‘significant’ to ‘non-de minimis’—whatever those ill-
defined terms might mean. Instead, the Court aimed to
shift the ‘core judicial inquiry’ from the extent of
the injury to the nature of the force—specifically,
whether it was nontrivial and ‘was applied . . .
maliciously and sadistically to cause harm.’

Id. at 1179 (quoting Hudson, 503 U.S. at 7). The Wilkins Court

clarified that the nature of the force, rather than the extent

of the injury, is the relevant inquiry. “Injury and force,

however, are only imperfectly correlated, and it is the latter

that ultimately counts. ” Id. at 1178. Thus, it is clear that

18
the de minimis injury threshold that this Court (and the

district courts within this circuit) had relied upon in

considering excessive force claims is no longer the appropriate

test. The question , however, is whether Crum’s alleged conduct

which took place prior to the Supreme Court’s Wilkins decision,

is covered by qualified immunity.

III. Analysis

A. Standard of Review

We review the district court’s denial of Crum’s Rule 50(b)

motion de novo. Sloas v. CSX Transp., Inc., 616 F.3d 380, 392

(4th Cir. 2010). We view the facts in the light most favorable

to Hill. Id.

B. Analysis

“Qualified immunity shields government officials from civil

liability insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Trulock v. Freeh, 275 F.3d

391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). Qualified immunity protects law enforcements

officers from liability for “bad guesses in gray areas” and

ensures that they will be held liable only for violating bright-

line rules. Braun v. Maynard, 652 F.3d 557, 560 (4th Cir.

2011). It “operates to ensure that before they are subjected to

19
suit, officers are on notice that their conduct is unlawful.”

Hope v. Pelzer, 536 U.S. 730, 731 (2002).

In deciding whether a defendant is entitled to qualified

immunity, we examine (1) whether the facts illustrate that Crum

violated Hill’s constitutional right to be free from excessive

force; and, (2) if so, whether Crum’s conduct was objectively

reasonable in view of the clearly established law at the time of

the alleged event. See Orem v. Rephann, 523 F.3d 442, 445 (4th

Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)). 11

Crum does not dispute the first prong, that there is a

constitutional right to be free of excessive force. His

argument is that he is entitled to qualified immunity because

Hill’s claimed constitutional violation was not clearly

established at the time of the assault. Under the clearly

established law of the Fourth Circuit on November 1, 2007, we

must agree with Crum.

11
Pearson v. Callahan, 555 U.S. 223 (2009), clarified that
we are not required to look first at prong one:

[w]hile the sequence set forth [in Saucier] is often
appropriate, it should no longer be regarded as
mandatory. The judges of the district courts and the
courts of appeals should be permitted to exercise
their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the
particular case at hand.

555 U.S. at 236.

20
 For a right to be “clearly established,” in a qualified

immunity case, “the contours of the right must be sufficiently

clear that a reasonable officer would understand that what he is

doing violates that right.” Wilson v. Layne, 526 U.S. 603, 615

(1999). Therefore, in deciding whether the right was clearly

established, we must determine whether an official in the

defendant’s position knew or reasonably should have known that

the action he took violated the constitutional rights of the

plaintiff. See id. at 614-15. However, “[t]his is not to say

that an official action is protected by qualified immunity

unless the very action in question has previously been held

unlawful, but it is to say that in the light of pre-existing law

the unlawfulness must be apparent.” Id. at 615.

“[W]e have long held that it is case law from this Circuit

and the Supreme Court that provide notice of whether a right is

clearly established.” Lefemine v. Wideman, 672 F.3d 292, 298

(4th Cir. 2012), vacated on other grounds, 133 S. Ct. 9 (2012).

In determining whether a right was clearly established
at the time of the claimed violation, courts in this
circuit ordinarily need not look beyond the decisions
of the Supreme Court, this court of appeals, and the
highest court of the state in which the cases arose.
. . . If a right is recognized in some other circuit,
but not in this one, an official will ordinarily
retain the immunity defense.

Id. at 298-99 (quoting Edwards v. City of Goldsboro, 178 F.3d

21
231, 251 (4th Cir. 1999) (internal quotation marks, alterations,

and citation omitted).

As the Supreme Court made clear in Wilkins, Norman was an

incorrect reading of Hudson. Regardless of how we view Norman

in retrospect, however, we evaluate whether the right at issue,

for qualified immunity purposes, was clearly established at the

time of Crum’s conduct on November 1, 2007, three years before

the Supreme Court decided Wilkins. See Meyers v. Baltimore

Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013) (“[A] court . . .

must determine whether the right at issue was ‘clearly

established’ at the time of the officer’s conduct.”). At the

time of the alleged assault on Hill, Norman and its progeny were

controlling in the Fourth Circuit and had been since 1994.

Although Wilkins abrogated Norman in 2010, Wilkins can only be

applied prospectively in the context of a qualified immunity

analysis. See Fields v. Prater, 566 F.3d 381, 390 (4th Cir.

2009) (qualified immunity protects defendants from being

“retroactively subject to significant penalties at law for which

they did not have proper notice”). In other words, the 2010

holding in Wilkins cannot be imputed retroactively to an officer

in this circuit whose allegedly tortious conduct predated the

Wilkins decision. The applicable law for qualified immunity

purposes would be that in existence in 2007, the time of the

alleged assault.

22
 In 2007 under Norman, a reasonable correctional officer

would have objectively believed that the law in this circuit was

what the Fourth Circuit said it was; that is, a plaintiff could

not prevail on an excessive force claim “absent the most

extraordinary circumstances,” if he had suffered only de minimis

injury. Norman, 25 F.3d at 1263. Although Wilkins established

that the Fourth Circuit had been applying the incorrect

standard, the inquiry—for qualified immunity purposes—is not

whether the officer correctly interpreted the law as it would be

changed in later years, but rather, whether the conduct at issue

was reasonable based on the officer’s imputed knowledge of the

law at the time. Crum’s reliance on Norman satisfies this

standard.

Crum’s alleged conduct was no more egregious than the

conduct of other officers in a multitude of cases in which those

officers were found not to have used excessive force under the

Norman rule, including the Wilkins decision in our court. See,

e.g., Riley, 115 F.3d at 1161 (inserting tip of his pen into

pre-trial detainee’s nose, threatening to rip nose open, and

slapping him with “medium” force); Taylor, 155 F.3d at 484

(shoving a small wooden object into pre-trial detainee’s nose,

cracking his tooth, hitting him in the back of his head, and

punching him in the ribs). The similarity of these cases to the

case at bar demonstrates that, under the law of our circuit

23
prior to Wilkins, Crum’s conduct would have been settled by the

Norman analysis.

Our decision in Wilkins provides a representative decision

that supports Crum’s qualified immunity argument. Over two

years after the events at issue here, we affirmed the grant of

qualified immunity for failure to establish more than de minimis

injury where Wilkins alleged injury from a prison guard beating

based on “multiple physical injuries including ‘a bruised heel,

low back pain, increased blood pressure, as well as migraine

headaches and dizziness’” and “psychological injuries such as

anxiety, depression, and panic attacks.” Wilkins, 2008 WL

1782372 at *1. Viewing Hill’s evidence in the light most

favorable to him, his claim of injury is no greater (and would

objectively appear less) than those found to be no more than de

minimis in Wilkins for qualified immunity purposes.

Under Norman, the key inquiry in determining whether a

prisoner stated an excessive force claim is whether the

plaintiff’s injuries were more than de minimis. We may

determine whether Hill’s injuries were de minimis as a matter of

law. See Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir.

1999) (finding that the plaintiff’s claimed injury was “so

insubstantial that it cannot as a matter of law support her

claim”).

24
 Hill contends on appeal that his injuries were more than de

minimis because he “received more injuries than just a sore

thumb or a stretched leg.” )Br. of Appellee at 18.) However,

Hill offered no proof that he suffered any injuries as a result

of the assault. Nurse Meade, a registered nurse, who examined

Hill after the assault, found that Hill had “[n]o injuries,”

(J.A. 192) and documented this in a contemporaneous report,

“Inmate Injury Assessment and Followup” (J.A. 201). Meade

testified that her report would have included notes regarding

his dizziness, feelings of pain, inability to stand or

understand had she noticed any problems, or if he had complained

of any injuries. Hill’s medical records do not indicate any

complaints of injuries stemming from the assault. And when Hill

first filed his pro se lawsuit against eleven prison officials

at USP Lee alleging various deprivations of rights, he did not

name Crum as a defendant or claim any injuries arising out of

the November 1, 2007 assault in his complaint. Hill simply

cannot rise above the allegations in his complaint or the

evidence tendered to the district court for resolution of the

Rule 50(b) motion. While we must construe the evidence in the

light most favorable to Hill, we cannot construe that which does

not exist. Hill’s injuries were clearly de minimis.

Under Norman, however, a plaintiff with only de minimis

injuries may still bring an excessive force claim under the

25
Eighth Amendment when certain “extraordinary circumstances” are

present. Such “extraordinary circumstances” are either that the

force used was “repugnant to the conscience of mankind” or the

pain suffered was “such that it can properly be said to

constitute more than de minimis injury.” Norman, 25 F.3d at

1263 n.4.

The types of actions that have been classified as

“repugnant to the conscience of mankind” are torture,

humiliation, or degradation. See, e.g., Riley, 115 F.3d at 1168

n.4 (citing Rochin v. California, 342 U.S. 165 (1952) for the

proposition that forcibly pumping a suspect’s stomach for

information after illegally entering his house shocks the

conscience); Jordan v. Gardner, 986 F.2d 1521, 1523, 1526 (9th

Cir. 1993) (en banc) (prison policy of subjecting female inmates

to random, non-emergency pat-downs by male prison guards is

cruel and unusual punishment). But see Jackson v. Morgan, 19 F.

App’x 97, 101 (4th Cir. 2001) (unpublished) (placing inmate in

isolation cell for three days wearing only underwear and in a

three-point restraint did not constitute force repugnant to the

conscience of mankind).

District courts within our circuit have similarly found

only egregious conduct “repugnant to the conscience of mankind.”

See, e.g., Davis v. Lester, 156 F. Supp. 2d 588, 594 (W.D. Va.

2001) (finding that forcing a prisoner to be “restrained for 48

26
hours with all four of his limbs and his chest immobilized,

lying on his back in his own urine in a cold cell” to be

repugnant to the conscience of mankind); Peoples v. S.C. Dep’t

of Corr., No. 8:07-1203-CMC-BHH, 2008 WL 4442583, at *4-10 (D.

S.C. Sept. 25, 2008) (plaintiffs allegations that prison

officials flooded his cell with unknown “chemical munition,”

after which he was not allowed to seek medical attention,

shower, or clean his cell, rose to the level of alleging conduct

repugnant to the conscience of mankind); Acevedo v. Warner, No.

7:03CV00526, 2005 U.S. Dist. LEXIS 32332, *11-12, 15-*16 (W.D.

Va. Mar. 29, 2005) (finding that beating a restrained prisoner,

making racial slurs to him, and smearing feces and urine on his

face was repugnant to the conscience of mankind).

On the other hand, breaking a prisoner’s finger by slamming

his hand in a mail slot, Hines, 142 F. App’x at 781, and hitting

a prisoner with twelve blasts of pepper spray while confined in

a cell, Jackson 19 F. App’x at 101, were not “repugnant to the

conscience of mankind.” Moreover, we have previously found in

favor of defendants who assaulted a restrained inmate in

circumstances similar to those alleged by Hill. See Germain,

2000 WL 139255, at *2-3 (affirming summary judgment for

defendants who sprayed mace at and struck with a baton a

prisoner who was restrained, locked in his cell, compliant, and

was not involved in the disturbance). We have not classified

27
mere brute force, therefore, as “repugnant to the conscience of

mankind.” Hill has cited to no case, and we have found none,

where the injury pled or proved was “repugnant to the conscience

of mankind” in circumstances even remotely close to those of the

case at bar.

Crum’s alleged conduct, which is undoubtedly reprehensible,

nevertheless is more akin to brute force, rather than

humiliation, degradation, or torture as we have described

“extraordinary circumstances” in other cases. It is, therefore,

clear that his conduct does not rise to the level of conduct

“repugnant to the conscience of mankind.” In no sense do we

suggest that Crum’s alleged conduct was appropriate for a

correctional officer, but it fails to cross the very high

threshold for extraordinary circumstances that permit an

excessive force claim to advance in the absence of more than de

minimis injury for purposes of a pre-Wilkins qualified immunity

analysis.

Furthermore, Hill’s injuries do not suggest that they were

so painful that they constituted “more than de minimis injury,”

the second of Norman’s two extraordinary circumstances. 25 F.3d

at 1263 n.4. Nurse Meade found no injuries and documented this

in her report, and Hill did not complain of any injuries during

this examination. In the videotape taken a few hours after the

assault, Hill shows no visible distress and does not appear to

28
have any injuries. Hill never pled more than de minimis injury

and introduced no evidence of any injury, de minimis or

otherwise.

Because no extraordinary circumstances are applicable to

Hill’s injuries, and Hill suffered no more than de minimis

injury, he could not, at the time the assault took place, state

a claim upon which relief could be granted under the Eighth

Amendment. Therefore, the right he seeks to avail himself of

was not clearly established in the Fourth Circuit at the time of

the alleged assault. Consequently, Crum is entitled to

qualified immunity.

IV. Conclusion

For the foregoing reasons, the district court’s order

denying Crum’s Rule 50(b) motion is reversed and the case is

remanded to the district court for the entry of judgment in

favor of Crum on the basis of qualified immunity.

REVERSED AND REMANDED

29
THACKER, Circuit Judge, dissenting:

With all due respect to the majority, I must dissent.

Under prevailing Supreme Court precedent available at the time

of the assault in this case, it was clearly established that an

officer could not maliciously or sadistically impose harm on a

custodial, handcuffed, and completely non-resistant inmate

without violating the inmate’s Eighth Amendment right to be free

from cruel and unusual punishment –– and any reasonable officer

would have known as much.

As the district court correctly concluded, Appellant

Crum is not entitled to qualified immunity in as much as “[i]t

cannot credibly be claimed that [Appellant Crum] w[as] not on

notice that unnecessarily inflicting pain on [Hill] violated

[Hill’s] constitutional rights.” Hill v. O’Brien, No. 7:08-cv-

00283, 2011 WL 4566442, at *4 (W.D. Va. Sept. 30, 2011); see

also Hill v. O’Brien, No. 7:08-cv-00283, 2012 WL 517544, at *4

(W.D. Va. Feb. 16, 2012) (“It is apparent –– and cannot be

credibly denied –– that a reasonable officer in Crum’s position

in 2007 would have known that repeatedly punching a restrained

prisoner in the stomach, ribs, and head for a sustained period,

for no other reason but to punish him for a behavioral issue,

was unlawful in light of pre-existing law.”). Therefore, I

would affirm the ruling of the district court.
 I.

This case involves the intersection of two judicial

doctrines: qualified immunity and the use of excessive force in

violation of the Eighth Amendment’s prohibition on cruel and

unusual punishment.

Whether Appellant Crum is entitled to qualified

immunity for his alleged assault on inmate Hill requires a

familiar two-pronged inquiry. That inquiry requires a court to

determine (1) “whether the facts that a plaintiff has

alleged . . . or shown . . . make out a violation of a

constitutional right,” Pearson v. Callahan, 555 U.S. 223, 232

(2009) (internal citations omitted) (citing Saucier v. Katz, 533

U.S. 194, 201 (2001)); and (2) “whether the right at issue was

‘clearly established’ at the time of defendant’s alleged

misconduct,” id. (quoting Saucier, 533 U.S. at 201) (holding

that the sequence of the Saucier inquiry is not mandatory).

A.

Here, Appellant Crum has conceded that the first prong

of the qualified immunity analysis –– the alleged violation of a

constitutional right –– is satisfied. Appellant’s Br. 15

(“[T]he evidence would allow a reasonable jury to conclude that

he had violated Hill’s constitutional rights.”). More

specifically, Crum’s repeated blows allegedly levied against

31
Hill for “a good solid two minutes,” J.A. 142, 1 while Hill was

restrained, cooperative, and “attempt[ing] to hunch over [a]

desk,” id., in an effort to protect himself, even if they may

have caused only minor injuries, clearly constituted excessive

force in violation of his Eighth Amendment right.

B.

This case then turns on the second prong of the

qualified immunity analysis: whether the aforementioned right

was clearly established. See Pearson, 555 U.S. at 232. When

available, we consider “decisions of the Supreme Court, this

court of appeals, and the highest court of the state in which

the case arose” to discern whether a right was clearly

established. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279

(4th Cir. 2004) (internal quotation marks omitted). To be

“clearly established,”

[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what
he is doing violates that right. This is not to say
that an official action is protected by qualified
immunity unless the very action in question has
previously been held unlawful, but it is to say that
in the light of pre-existing law the unlawfulness must
be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal

citations omitted).

1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

32
 Thus, we must inquire whether on November 1, 2007, a

reasonable officer could have believed that repeatedly striking

a restrained, cooperative, hunched-over inmate, so long as only

de minimis injury resulted, “was lawful[] in light of clearly

established law and the information the officer[] possessed.”

Wilson v. Layne, 526 U.S. 603, 615 (1999). Appellant Crum

claims that he was entitled to assault Mr. Hill unabated for

over two minutes so long as any resulting injury was de minimis.

Indeed, at oral argument, Appellant Crum argued, in essence,

that there were no limits to excessive force as long as there

were no marks left on the victim, or in other words, “as long as

he didn’t hurt him, as long as he didn’t cause more than de

minimis injury.” Oral Argument at 2:17, Hill v. Crum, (No. 12-

6705), available at http://www.ca4.uscourts.gov/OAaudiotop.htm.

Not so. Under controlling Supreme Court precedent at the time –

– not to mention applying pure common sense –- no reasonable

officer could have believed such abuse was lawful.

1.

Controlling Precedent

On November 1, 2007, the controlling Supreme Court

authority for excessive force cases in the Eighth Amendment

context was Hudson v. McMillian, 503 U.S. 1 (1992). One need

only read the first paragraph of Hudson to realize the right at

issue was clearly established:

33
 This case requires us to decide whether the use
of excessive physical force against a prisoner may
constitute cruel and unusual punishment when the
inmate does not suffer serious injury. We answer that
question in the affirmative.

503 U.S. at 4. The Supreme Court went on to emphasize as

follows:

When prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency
always are violated. This is true whether or not
significant injury is evident. Otherwise, the Eighth
Amendment would permit any physical punishment, no
matter how diabolic or inhuman, inflicting less than
some arbitrary quantity of injury.

Id. at 9 (emphasis supplied) (citation omitted).

At the time of the incident in this case, Hudson had

been controlling Supreme Court precedent for 15 years. In fact,

this was the controlling law even before Hudson. The Hudson

Court merely extended its prior holding in Whitley v. Albers,

475 U.S. 312 (1986) (regarding the legal standard for an Eighth

Amendment excessive force claim arising out of a prison riot),

to standard claims by inmates against prison officials for the

use of excessive force. Hudson, 503 U.S. at 6–7. Under Whitley

and Hudson, “‘the unnecessary and wanton infliction of

pain . . . constitutes cruel and unusual punishment forbidden by

the Eighth Amendment.’” Id. at 5 (quoting Whitley, 475 U.S. at

319). The Court explained that “the core judicial inquiry” in

excessive force cases is not whether a certain quantum of injury

was sustained, but rather “whether force was applied in a good-

34
faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Id. at 7; see also Wilkins v.

Gaddy, 559 U.S. 34, 36 (2010) (“In requiring what amounts to a

showing of significant injury in order to state an excessive

force claim, the Fourth Circuit has strayed from the clear

holding of this Court in Hudson.” (emphasis supplied)). Thus,

although this circuit misinterpreted Hudson in Norman v. Taylor,

25 F.3d 1259 (4th Cir. 1994), the fact remains that Hudson and

Whitley set forth the long standing and clearly established

controlling precedent at the time of this incident.

2.

Use of Force

The law was, and is, clear; the proper focus is on the

force used, not on the resulting injury. In determining whether

force is permissibly applied, the Supreme Court has held that

“the extent of injury suffered by an inmate is one factor” of

many that should be considered. Hudson, 503 U.S. at 7 (emphasis

supplied); see also Williams v. Benjamin, 77 F.3d 756, 762 (4th

Cir. 1996) (“The absence of serious injury is a relevant, but

not dispositive, additional factor to be considered in the

subjective analysis [of an Eighth Amendment excessive force

claim].”). Other factors include “[1] the need for application

of force, [2] the relationship between that need and the amount

of force used, [3] the threat reasonably perceived by the

35
responsible officials, and [4] any efforts made to temper the

severity of a forceful response.” Hudson, 503 U.S. at 7

(internal quotation marks omitted).

Even if we assume Hill’s injuries were minor –– which

he does not concede –– analysis of the other factors make clear

Crum’s alleged use of force could be deemed excessive. Although

there had been a prior disturbance in Hill’s cell that resulted

in a broken sprinkler, there was no reason to exercise force to

restore order –– order had already been restored. Indeed, the

source of the disturbance –- Hill’s cellmate –- had been removed

from the cell at the time of the incident at issue. Hill

remained restrained, compliant, and cooperative when the prison

guards arrived on the scene. See J.A. 141–42 (“Officer Crum

came over to the cell and requested that we submit to hand

restraints. I submitted to hand restraints. He placed

handcuffs on us. . . . [Officer Crum] began to tell me I

couldn’t take my legal work out of the cell which was soaked

with water. During that time I put my legal work down, I put

the legal work down.”). Appellant Crum does not refute Hill’s

testimony. A lone cooperative inmate, handcuffed and hunched

over a desk could not pose a reasonable threat to a prison

officer sufficient to justify the use of force. Moreover,

Appellant Crum did not temper the severity of the force

employed, but, rather, allegedly continued beating Hill for a

36
total of two minutes. These factors indicate that Crum

exercised force, not in a good-faith effort to restore order,

but, rather, maliciously and sadistically simply to cause harm. 2

3.

Norman v. Taylor

Critically, as the district court correctly pointed

out, the facts of Hudson –– where a restrained, cooperative

inmate in the course of being transported to another cell, was

physically beaten by prison officials –- are far more analogous

to the present case than the facts of Norman. Indeed, Norman is

distinguishable from this case.

Unlike the present case, the inmate in Norman had

himself created a disturbance by yelling to other inmates which

disrupted prison security and justified at least some response.

Norman, 25 F.3d at 1263 n.5 (“On this understanding of the

incident, there can be no question that the district court

properly held that the force used was justified in a good faith

effort to maintain or restore discipline.” (internal quotation

marks omitted)). Here, as the majority notes, it was Hill’s

2
According to Hill, Crum threatened him saying “break
another sprinkler, I’ll break your neck.” J.A. 52. Hill’s
testimony further revealed that Crum’s use of force may have had
another malevolent purpose –- retribution. Hill testified that
in the month leading up to the incident at issue, he filed a
grievance with the prison against Officer Crum. Id. at 145 (“I
had Officer Crum written up previously.”).

37
cellmate, not Hill, who had broken the sprinkler and created the

initial disturbance. Ante at 3–4. And, in any event, the

disturbance had been quelled at the time of this incident. 3 As a

result, a reasonable officer could not have relied on Norman to

justify the sustained beating of a restrained and cooperative

inmate.

II.

Ultimately, whatever erroneous interpretive gloss

Norman placed on Hudson, see Wilkins v. Gaddy, 559 U.S. 34

(2010) (abrogating Norman), on November 1, 2007, it would have

been readily apparent to a reasonable officer that where a

disturbance had already been abated, he could not assault a

restrained, compliant, and cooperative inmate for “a good solid

two minutes,” J.A. 142, punching and elbowing him repeatedly in

the abdomen and head, without applying excessive force in

violation of the inmate’s Eighth Amendment right to be free from

3
It should come as no surprise that this distinction ––
that is, the distinction between instances where force is
applied to restore order and instances where it is applied
without justification –– is of significance. In fact, we
recognized this exact distinction and its constitutional
consequences in Stanley v. Hejirika, 134 F.3d 629 (4th Cir.
1998). In Stanley, we found that “bruises, swelling, and a
loosened tooth sustained in a fracas that occurred while prison
guards were trying to quell a disturbance are constitutionally
insignificant and distinct from a loosened tooth and a cracked
dental plate sustained in the context of punishment deliberately
inflicted by guards because of a verbal argument.” Id. at 638.

38
cruel and unusual punishment. Accordingly, I would hold

Appellant Crum is not entitled to qualified immunity, and affirm

the decision of the district court.

39