Anthony Mann v. C. Failey

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6446

ANTHONY L. MANN,

Plaintiff - Appellant,

v.

LT. C. FAILEY; MAJOR SHERONDA SUTTON; WARDEN ROBERT STEVENSON
III; ASST. WARDEN JOHN BARKLEY; ASST. WARDEN LARRY CARTLEDGE;
INV. DAVID HURT; VALERIE WHITAKER; CLASSIFICATION MNGR MACON;
DONALD SAMPSON, MD; E. KEITT; JAMES HARRIS, III; CAPT. PERCY
JONES; CAPT. WILSON; LT. WILLIE SIMMONS; LT. T. JOHNSON; SGT.
BELUE; SGT. YOUNG; SGT. HERMAN WRIGHT; SGT. KEITH MOORE; CPL.
OTIS DANIELS; CPL. VINCENT MANLEY; CPL. SMALLS; CPL. RAY; OFC.
MCNEAL; OFC. COX; CHRISTIAN MANGANELLI; C. COOK; ROBYN ELERBY,

Defendants - Appellees,

and

OFC. MURRAY,

Defendant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Richard M. Gergel, District
Judge. (0:11-cv-02232-RMG)

Argued: May 13, 2014 Decided: July 17, 2014

Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.

ARGUED: Adam Zurbriggen, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Janet Brooks Holmes, MCKAY,
CAUTHEN, SETTANA AND STUBLEY, P.A., Columbia, South Carolina,
for Appellees. ON BRIEF: Steven H. Goldblatt, Director, Rita K.
Lomio, Supervising Attorney, Lola A. Kingo, Supervising
Attorney, Bethany S. Hamm, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for
Appellant. Daniel R. Settana, Jr., Richard E. Marsh, III,
MCKAY, CAUTHEN, SETTANA AND STUBLEY, P.A., Columbia, South
Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Appellant Anthony Mann, a South Carolina inmate, appeals an

adverse summary judgment on his Eighth Amendment excessive force

claims asserted pursuant to 42 U.S.C. § 1983. 1 Mann’s complaint

arises out of a series of incidents involving correctional

officers and others at the Broad River Correctional Institution

(“BRCI”). He contends that the officers assaulted and battered

him and denied him means of decontamination after they used

significant quantities of pepper spray to subdue him.

Although a magistrate judge recommended that Appellees’

motion for summary judgment be granted in part and denied in

part, upon its de novo review of the magistrate judge’s report

1
Mann was self-represented in the district court and
initially on appeal. We appointed counsel to file a formal brief
and present oral argument in this Court. Although Mann
originally asserted many and varied claims, the only claims
before this Court are those claims discussed in this opinion. We
appreciate the fine efforts of counsel to assist this Court in
resolving this appeal.

Relatedly, we leave to the district court upon remand to
determine whether the interests of justice will be served
through an appointment of counsel in the district court. We also
leave to the district court determination whether further
proceedings short of trial, e.g., further discovery, is
appropriate. In this regard, we note that (as the case proceeded
below) the district court had no occasion to assess whether and
to what extent, if any, the potential individual liability of
any of the twenty-nine specifically named Appellees should be
more carefully scrutinized in light of the evidence in the
record, or whether any such party should be dismissed from the
action.

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and recommendation, the district court granted the motion in its

entirety. In doing so, the district court concluded that Mann

had forecasted insufficient evidence that the officers applied

force “maliciously and sadistically for the very purpose of

causing harm.” See Whitley v. Albers, 475 U.S. 312, 320-21

(1986). For the reasons set forth within, we vacate the judgment

in part and remand for further proceedings.

I.

This fact-intensive case arises out of correctional

officers’ use of physical force against Mann during summer 2010.

At the summary judgment stage, we view the facts in the light

most favorable to Mann, the non-moving party. Miller v.

Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc)

(observing in excessive force case that inmate was to “have the

credibility of his evidence as forecast assumed, his version of

all that is in dispute accepted, [and] all internal conflicts in

it resolved favorably to him” (citation omitted)), cert. denied,

491 U.S. 1109 (1991).

Mann, who is serving a life sentence for murder, was

incarcerated in BRCI’s Special Management Unit (“SMU”), located

in Columbia, South Carolina. It is undisputed that Mann was a

difficult inmate: his prison record contains a significant

number of disciplinary charges and convictions, including

4
attempted escape. Medical records indicate that Mann suffers

from bipolar disorder, ADHD, anxiety, and depression.

In or about June 2010, Mann began experiencing conflict

with Lt. Cathaline Failey, the SMU unit supervisor, soon after

he reported an incident of alleged neglect of an inmate in

medical distress to her superiors. According to Mann’s verified

complaint, Lt. Failey began retaliating against Mann by shouting

verbal assaults and threats, withholding food, and denying him

access to his legal material. Their conflict eventually

escalated into a series of acts of alleged excessive force by

Lt. Failey and other correctional officers; Mann’s allegations

as to these use-of-force incidents are briefly summarized below.

On June 9, 2010, officers sprayed Mann’s prison cell with

several blasts of Oleoresin Capsicum pepper spray for failing to

comply with orders to back up and be restrained. He was then

left in the closed cell for forty-five minutes. Thereafter,

despite his multiple requests to take a shower, Mann was placed

in a strip cell and was not decontaminated from the chemicals

for the next five days. As a result, he experienced burning

sensations over his body.

On the morning of June 14, Mann was checked by medical

staff and escorted back to the SMU in full body restraints. On

the way, he became lightheaded and knelt to the ground. The

escort officer called for assistance from Lt. Failey, who

5
responded by “grabb[ing Mann] by his left arm and the back of

the crotch chain between his legs” and roughly dragging him 25

yards to the medical unit. Mann states that Lt. Failey’s actions

“smashed his testicles and caused him extreme pain and agony.”

J.A. 23.

Several weeks later, Lt. Failey had a heated conversation

with the attorney involved in Mann’s post-conviction proceedings

when he contacted her to request that she return Mann’s legal

material. The next day, on July 28, Lt. Failey locked Mann in a

small holding cell for the day, stating, “Let’s see how you like

sitting in here all day. You gon’ have your attorney call me,

like you don’t know no better. Im’a fix you, white boy.” J.A.

24.

At the end of the day, as Lt. Failey was part of a team

transporting Mann from the holding cell back into his unit,

Mann’s leg restraints were removed in order for him to descend

the stairs. At some point, Lt. Failey adjusted the remaining

constraints so that they became painful. Mann, aggravated,

delivered a roundhouse kick to Failey’s neck, knocking her

against the banister and sending her down the stairs. Four other

officers wrestled Mann to the floor, and Mann stopped resisting.

Even though Mann was subdued, Failey ran up the steps to

him and began kicking and punching him in the head, striking him

numerous times, until one of the other officers holding Mann

6
interposed his body between her and Mann and told her that he

had Mann under control. Lt. Failey nevertheless continuously

struck his head and face with her fist as he was carried, “in

hogtie form,” fifty yards to the holding cell. J.A. 580-81.

Four of Mann’s fellow inmates provided sworn eyewitness

affidavits that corroborated Mann’s account of this incident.

J.A. 571; 573; 575; 576. There are no medical records related to

this incident, although Mann claims that he sought treatment for

his injuries but received no response to his requests.

The aforementioned interactions escalated further on August

23, 2010. The incident began when a disciplinary hearing for

Mann was interrupted because he produced a broken paperclip,

apparently as evidence that he had not previously stolen a

handcuff key (although he had been able to escape from

restraints). Mann was ejected from the hearing. He was

originally placed in his original cell but was to be transported

to a strip cell. When Mann refused to submit for transfer,

officers expelled several bursts of pepper spray into his cell

and left him there for an hour.

A five-officer extraction team then sought to enter the

cell. By that point, Mann had propped his mattress against the

cell door, and he began pelting the officers with approximately

13-18 bottles of fecal matter from his position on the top bunk.

This action, known as “shit-bombing,” had apparently been the

7
subject of threats made by SMU prisoners in the past, though the

record does not state if it had ever actually occurred prior to

this incident. The team of officers were hit, some in their

faces.

Mann eventually allowed himself to be thrown to the floor

and placed in restraints. Affidavits from inmates in neighboring

cells report hearing Mann repeatedly yell that he is “down . . .

and not resisting.” J.A. 617; 621; 632.

Mann was thereafter attacked by the guards. One officer

slammed his face into the concrete floor and picked up a bottle

of fecal matter and poured it over his face. Others continuously

punched, kneed, kicked, and choked him until he lost

consciousness. He was carried in a chokehold position out of the

unit for 40 to 50 yards, with the officers slamming his body on

walls and bars along the way. Officers then immediately placed

him in a restraint chair for six hours, where he sat fully

restrained at the ankles and wrists, in and out of

consciousness. Mann was denied the opportunity to decontaminate

even though he was “burning all over [his] face, body, and in

[his] facial wound.” J.A. 652-53. He was then placed in a strip

cell and was not permitted to shower for four days.

Inmate affidavits report hearing the commotion in Mann’s

cell and observing Mann being “aggressively removed” from the

cell with a “bed sheet tightly noosed” around his neck. J.A.

8
632. Medical records completed immediately after the incident

indicate that Mann received treatment for a laceration on his

head that was one-inch long, one-quarter inch deep, and a

“moderate [amount] of blood on face.” J.A. 341. Mann later

complained that one of his front teeth had been broken in the

encounter, but the prison nurse recorded that she was unable to

examine his teeth because Mann would not open his mouth.

Cell extractions in BRCI are intended to be recorded, and

at the onset of the August 23 extraction, one of the officers

carried a video recorder. At some point, however, the content of

the recorder became unavailable. Other inmates have overheard

guards suggesting that they deliberately destroyed the evidence

of the beating so “no jury [could] see that video-tape.” J.A.

627; 630.

According to Mann, he repeatedly asked both the officers

and the nurses who treated his injuries if he could be

decontaminated, but he was denied: the nurses said he would have

to talk to Security; the officers told him he would “be lucky if

[he] ever got to decontaminate after what [he’d] done.” J.A.

652. He was also told that he had to wait until his hours in the

restraint chair were up. Mann’s medical records do not mention

these requests. He has stated that he was in the chair for six

hours and was not permitted to shower for four days.

9
 II.

Mann filed suit against twenty-nine officers, medical

personnel, and others, including the Warden and Assistant

Warden, Lt. Failey, and those officers involved or observing the

August 23 cell extraction. All defendants but one are Appellees

before this Court. They filed a lengthy consolidated motion for

summary judgment, in response to which Mann filed a lengthy

opposition accompanied by more than fifty exhibits. The district

court referred the motion to a magistrate judge for a report and

recommendation.

As relevant to this appeal, the magistrate judge

recommended granting Appellees summary judgment on all excessive

force claims except Mann’s claim that the officers

unconstitutionally denied his request to decontaminate on August

23, which she recommended should proceed to trial. The

magistrate judge concluded that the circumstances were

indistinguishable from those presented in Williams v. Benjamin,

77 F.3d 756 (4th Cir. 1996). The parties filed timely exceptions

to the report and recommendation and the district court

conducted a de novo review thereof.

The district court granted Appellees’ summary judgment

motion on all counts. With respect to the officers’ use of force

on June 14, July 28, and August 23, the court concluded that no

reasonable jury could find that the officers were not acting in

10
good faith in taking action to subdue Mann. As to the June 9

decontamination denial, the court noted that Mann had not

complained during his subsequent medical visits; and as to the

August 23 decontamination denial, the court distinguished

Williams on several grounds, including that pepper spray was

used, not mace, and that Mann was examined by medical staff

before being placed in the restraint chair. Mann timely

appealed.

III.

State and federal inmates serving sentences of

incarceration are protected under the Eighth Amendment from the

“unnecessary and wanton infliction of pain” by prison guards and

supervisory officers. Whitley v. Albers, 475 U.S. 312, 327

(1986) (internal citations omitted). Eighth Amendment excessive

force claims contain an objective and a subjective component: in

order for the plaintiff to prevail, he must demonstrate that

that (1) the “deprivation suffered or injury inflicted . . . was

sufficiently serious,” and (2) the “prison official acted with a

sufficiently culpable state of mind.” Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996). Only the latter, subjective

requirement is at issue in this case.

The subjective component is satisfied when an officer’s

application of force was applied “maliciously and sadistically

for the very purpose of causing harm,” rather than as part of “a

11
good-faith effort to maintain or restore discipline.” Hudson v.

McMillian, 503 U.S. 1, 6-7 (1992) (internal citations omitted).

“[A] court may allow an inmate’s claim to go to the jury only if

it concludes that the evidence, viewed in a light most favorable

to the claimant, will support a reliable inference of wantonness

in the infliction of pain.” Stanley v. Hejirika, 134 F.3d 629,

634 (4th Cir. 1998) (internal quotation marks omitted).

In Whitley, the Supreme Court outlined several factors to

consider when evaluating the subjective component: the need for

the application of force; the relationship between the need and

the amount of force that was used; the extent of the injury

inflicted; the extent of the threat to the safety of staff and

inmates, as reasonably perceived by the responsible official;

and any efforts made to temper the severity of a forceful

response. Whitley, 475 U.S. at 320-21. Notably, a lack of injury

is not dispositive, so long as there is sufficient evidence of

maliciously-applied force. Wilkins v. Gaddy, 559 U.S. 34, 38

(2010) (per curiam) (“An 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.”).

The evidence supporting Mann’s case-in-chief is derived

from inmate affidavits, prison records, and his own statements

12
under oath. 2 Many of the facts are disputed – and vigorously so -

but Appellees argue that, even under Mann’s version of the

facts, they are entitled to judgment as a matter of law. Upon

our careful review of the summary judgment record, however, we

cannot agree. We conclude that Mann has provided sufficient

evidence to substantiate each of the excessive force claims

pressed on appeal and that the entry of summary judgment on

those counts was error.

2
Appellees have repeatedly criticized Mann’s presentation
of evidence as improper and insufficient. These protestations
are unavailing. The vast majority of the statements submitted by
inmate witnesses were either notarized or declared under the
penalty of perjury. See Fed. R. Civ. P. 56(c)(1)(A) (permitting
either “affidavits” or “declarations”); 28 U.S.C. § 1746 (a
litigant may rely on an “unsworn declaration, certificate,
verification, or statement” if it is subscribed “as true under
penalty of perjury”).

Indeed, the record could defeat summary judgment even if
the evidence consisted exclusively of so-called “self-serving”
declarations from Mann himself. Opp. Br. at 12-14. It is well
settled that we may not, at summary judgment, discount viable,
material evidence on the ground that it was offered by a
plaintiff with a troubled past. E.g., Williams v. Staples, Inc.,
372 F.3d 662, 667 (4th Cir. 2004) (the court “may not make
credibility determinations” in reviewing the record). As
Appellant’s brief observes, this rule is acutely necessary in
cases with pro se prisoner plaintiffs, where “events [take]
place with only prison guards present[, a]nd an inmate has
little control of his situation and movement, and few means of
establishing facts, other than recounting evidence himself.”
Rep. at 8-9.

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 A. Claims as to Deprivation of Decontamination

We first examine Mann’s contention that Appellees violated

the Eighth Amendment when they refused to let him shower or

otherwise decontaminate after expelling pepper spray in his cell

on June 9 and again on August 23.

We have previously held that the denial of decontamination

can give rise to an Eighth Amendment claim. Williams, 77 F.3d at

768. In Williams, an inmate threw “foul” liquids on officers,

and they responded by spraying a near-lethal dose of mace into

the plaintiff’s cell. Although the plaintiff then complied with

the officers’ orders, he was placed in four-point restraints and

chained to a bunk for eight hours. Williams was in “immense

pain” because of the mace and pleaded for water to wash off the

mace, but the officers did not permit him to decontaminate, and

no medical personnel checked on his condition. Id. at 765. This

Court applied the Whitley factors and concluded that summary

judgment was unwarranted. It held that to do otherwise would

create a “harmful precedent,” in that “whenever any inmate

causes a disturbance by throwing water or something similar at a

guard, and refuses to obey a further command, guards can —

without fear of violating the Constitution — spray an inmate in

the face with mace and then confine him in four-point restraints

for an extended period of time without permitting him to

wash[.]” Id.

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 We agree with the magistrate judge that Williams controls

in the instant case and that evidence bearing on the August 23

incident warrants a merits trial. Although Mann’s circumstances

are not on all fours with those presented in Williams, the fact

remains that, taking Mann’s sworn allegations as true, Appellees

have provided “no reason for the guards’ refusal to permit

[Mann] to wash” and “no evidence that [Mann] was not in the

[pain] he alleges.” Id. at 765. Regardless of whether pepper

spray or mace was used, and regardless of whether he was

restrained in a separate room, the record (viewed in the light

most favorable to Mann) clearly reflects a prisoner in pain for

several hours and a cadre of officers who refused to allow him

to decontaminate. With the additional submission by Mann that an

officer told him that he would “be lucky if he ever got to

decontaminate after what [he’d] done,” J.A. 652, there is ample

evidence from which a fact finder could find that Appellees

acted maliciously, sadistically, and in violation of the Eighth

Amendment.

Similarly, we hold that Appellees are not entitled to

summary judgment as to the June 9 denial of decontamination

claim. Mann has sworn that after being sprayed, he repeatedly

asked officers and medical staff for a shower, was denied, and

experienced burning pain over his body for five days; a

reasonable jury could infer from this evidence that Mann has

15
adequately established both the subjective and objective prongs

of his Eighth Amendment claim.

The district court’s holding to the contrary relies on the

absence of certain evidence, namely the fact that the official

prison records do not contain any complaints of injury, or any

evidence “suggest[ing] that Plaintiff lacked running water with

which he could have decontaminated himself.” J.A. 879. But Mann

has supplied sufficient evidence, in the form of his sworn

affidavit and those of other inmates, to rebut those inferences.

See Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979)

(summary judgment “may not be invoked where, as here, the

affidavits present conflicting versions of the facts which

require credibility determinations.”). Mann’s statements raise

genuine issues of disputed fact as to whether Appellees wantonly

denied his repeated requests to wash off the painful effects of

pepper spray before confining him with four-point restraints or

placing him into a strip cell. It was error for the district

court to grant summary judgment on this record.

B. Claims as to Use of Physical Force

Mann also contends that the district court erred in

granting summary judgment on his allegations of excessive

physical force; we agree.

With regard to the events of August 23, the version of

events sworn to by Mann (and supported by the affidavits of

16
other inmates) amply make the case that officers on the cell

extraction team wrapped a bed sheet around Mann’s neck, choked

him into unconsciousness with it, continued to beat him after he

had been wrestled to the floor and had been placed in leg and

arm restraints, and afterward slammed his face into iron doors

and bars en route to a holding cell. Inmate affidavits from

those in neighboring cells report hearing Mann yell that he was

“down” and “not resisting.” Subsequent records reflect medical

treatment to a not-insignificant laceration on Mann’s head.

Notwithstanding Mann’s egregiously offensive and abusive

behavior in spattering the extraction team with feces as they

entered his cell, it is plainly the case that a jury could find

that the officers on the extraction team continued to apply

force against Mann well after he had ceased his resistance.

Because a jury could infer from these facts that the officers

wantonly administered serious force to Mann in retaliation for

his conduct rather than for the purpose of bringing him under

control, the district court failed to apply summary judgment

principles as Fed. R. Civ. P. 56 and we prescribe. See Miller,

913 F.2d at 1087.

The district court focused on giving “wide-ranging

deference to the judgment of prison officials.” J.A. 881. Most

assuredly, as it stated, “[a] court should not retrospectively

attempt, in the calmness of a federal courthouse years after a

17
volatile incident initiated by a disobedient and violent

prisoner, to second guess the exact moment the prisoner was

under control and no further use of force was necessary.” J.A.

881-82. But while some degree of forceful officer action was

undoubtedly required to contain Mann in the instant situations,

courts may not “insulate from review [those] actions taken in

bad faith and for no legitimate purpose.” Whitley, 475 U.S. at

321. Given the affidavits, both from Mann and other inmates,

that he shouted multiple times that he was “not resisting;”

given the probative evidence of the officers’ statements before,

during, and after the incident; and given the suspect

disappearance of the official August 23 videotape, there is

ample support for an inference that “summary, informal,

unofficial and unsanctioned corporal punishment” was employed in

retaliation for Mann’s attack. Ort v. White, 813 F.2d 318, 324

(11th Cir. 1987).

Our review of the record leads us to the same conclusion

with regard to the June 14 and July 28 incidents. On both

occasions, according to Mann’s amply supported version of the

facts, Lt. Failey acted aggressively in dealing with a fully-

restrained inmate. On June 14, for example, she dragged Mann for

25 yards by a chain that was attached to his crotch because he

had felt lightheaded and knelt down to recover. And on July 28,

she continued to assault Mann to the point where another guard

18
used his own body to shield Mann’s head and neck from further

blows.

Many of the Whitley factors support a holding in favor of

Mann. The force applied by Lt. Failey occurred after Mann had

been restrained, and in that sense was unnecessary to preserve

order. It would appear that there was not a significant “need

for the application of force” and that Mann was not a serious

threat as “reasonably perceived by the responsible officials.”

Whitley, 475 U.S. at 320-21. This is especially true in light of

Lt. Failey’s statements to Mann before and during the incidents,

from which malicious intent could be readily inferred. E.g.,

J.A. 24 (“Im’a fix you, white boy.”); J.A. 25 (threatening to

“kick [his] ass”); J.A. 580 (calling Mann a “crybaby” and that

“she was going to beat [him] like [his] mama should’ve.”).

It may very well be the case that Mann is violent,

volatile, and engaged in flagrantly provocative behavior. It may

likewise be the case that, when the record is further developed,

Mann will find it difficult, and perhaps impossible, to prevail

on his claims - to prove that he was confined and assaulted in

the manner he alleges, that the force applied by Appellees was

unjustified, and that they full well knew this. But where, as

here, a prisoner has duly filed the necessary briefs,

affidavits, and corroborative evidence to support his claims,

19
such disputes of credibility are reserved for a fact finder,

here, as requested by Appellees, a jury.

IV.

For the reasons set forth, we vacate the judgment of the

district court in part and remand for further proceedings

insofar as judgment was granted in favor of Appellees as to the

claims discussed herein. See supra, n.1. In all other respects,

we affirm the judgment of the district court.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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