UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6643
ROBERT CAMPBELL,
Plaintiff – Appellant,
v.
JEAN SMITH; SHAMYRA MCREA; JOHN BRITT; SGT. MCCLINEN,
Defendants – Appellees.
No. 10-6737
ROBERT CAMPBELL,
Plaintiff – Appellee,
v.
JEAN SMITH; SGT. MCCLINEN,
Defendants – Appellants,
and
SHAMYRA MCREA; JOHN BRITT,
Defendants.
Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. Patrick Michael Duffy, Senior
District Judge. (0:08-cv-03668-PMD)
Submitted: October 14, 2010 Decided: October 21, 2010
Before MOTZ, KING, and DAVIS, Circuit Judges.
No. 10-6643 dismissed; No. 10-6737 dismissed in part and
affirmed in part by unpublished per curiam opinion.
Robert Campbell, Appellant/Cross-Appellee Pro Se. Christopher
R. Antley, DEVLIN & PARKINSON, PA, Greenville, South Carolina,
for Appellees/Cross-Appellants.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Pursuant to 42 U.S.C. § 1983 (2006), Robert Campbell,
a South Carolina inmate, filed an action seeking damages for
alleged civil rights violations in connection with an incident
that occurred at the Evans Correctional Institution on June 25,
2008. Campbell claims that Defendants Jean Smith and Sgt.
McClinen used excessive force against him when Smith sprayed him
with tear gas following a verbal altercation and later hit him
in the face while McClinen restrained him, even though he was
handcuffed at the time. Campbell received a prison disciplinary
conviction for assaulting Smith and claims further that
Defendants Shamyra McRae and John Britt conspired against him on
Smith’s behalf to charge him with the disciplinary infraction.
Defendants moved for summary judgment, asserting,
among other arguments, a defense of qualified immunity to suit.
The magistrate judge recommended that Defendants’ summary
judgment motion be granted as to Campbell’s excessive force
claim challenging Smith’s use of tear gas and his claim
challenging his disciplinary conviction and denied as to
Campbell’s excessive force claim challenging Smith and
McClinen’s actions while Campbell was handcuffed. The district
court adopted the magistrate judge’s recommendation, granted
Defendants’ summary judgment motion on Campbell’s claims
challenging Smith’s use of tear gas and his disciplinary
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conviction, dismissed McRae and Britt from the suit, and denied
Defendants’ summary judgment motion on Campbell’s excessive
force claim challenging Smith and McClinen’s actions following
Smith’s use of the tear gas, implicitly rejecting their request
for qualified immunity. Campbell noted an interlocutory appeal
(No. 10-6643), and Smith and McClinen noted an interlocutory
cross-appeal (No. 10-6737).
This court may exercise jurisdiction only over final
orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and
collateral orders, 28 U.S.C. § 1292 (2006); Fed. R. Civ. P.
54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-
47 (1949). As to Campbell, the district court’s order is
neither a final order nor an appealable interlocutory or
collateral order. Accordingly, in No. 10-6643, we dismiss the
appeal for lack of jurisdiction.
With respect to Smith and McClinen’s cross-appeal,
although the Supreme Court has recognized that an order
rejecting a claim of qualified immunity is an appealable order
at the summary judgment stage, Mitchell v. Forsyth, 472 U.S.
511, 530 (1985), immediate appealability of an order rejecting a
government official’s qualified immunity defense is appropriate
only if the rejection rests on a purely legal determination that
the facts do not establish a violation of a clearly established
right, Johnson v. Jones, 515 U.S. 304, 319-20 (1995). Thus, “if
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the appeal seeks to argue the insufficiency of the evidence to
raise a genuine issue of material fact, this Court does not
possess jurisdiction under [28 U.S.C.] § 1291 to consider the
claim.” Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir.
2009).
Relying on the parties’ conflicting accounts of the
events following Smith’s use of the tear gas, the district court
concluded that there existed in the record evidence from which a
reasonable trier of fact could conclude that Smith and McClinen
acted maliciously and sadistically to cause Campbell harm while
he was handcuffed and restrained. Although Smith and McClinen
claim that their application of force did not amount to
excessive force violating the Eighth Amendment because Smith
only slapped Campbell, we lack jurisdiction to consider this
claim, as it asserts the “insufficiency of the evidence to raise
a genuine issue of material fact.” Id.
Although we have jurisdiction to consider Smith and
McClinen’s claim that they were entitled to qualified immunity
because a prison officer’s singular attack on an inmate does not
qualify as punishment, we nonetheless conclude it fails because,
in June 2008, it was clearly established that the Eighth
Amendment forbade the “unnecessary and wanton infliction of
pain” against inmates. Whitley v. Albers, 475 U.S. 312, 319
(1986) (internal quotation marks omitted). Not every infliction
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of pain is forbidden, however, and prison officials may apply
force to an inmate “in a good faith effort to maintain or
restore [prison] discipline.” Id. at 320 (internal quotation
marks omitted). However, where prison officials use force
“maliciously and sadistically for the very purpose of causing
harm,” an Eighth Amendment violation has occurred. Id. at 320-
21 (internal quotation marks omitted). Based on Campbell’s
version of events giving rise to this litigation, he was in
handcuffs and restrained by McClinen when Smith hit him. If
this version of events is accepted, a trier of fact could easily
conclude that an Eighth Amendment violation occurred.
Accordingly, in No. 10-6737, we dismiss in part and
affirm in part. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
No. 10-6643 DISMISSED
No. 10-6737 DISMISSED IN PART
AND AFFIRMED IN PART
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