UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6783
SURRELL MONTIA DUFF,
Plaintiff – Appellant,
v.
CHRIS POTTER, Correctional Officer at Buncombe County
Detention Facility; ROBERT MANGUM, Correctional Officer at
Buncombe County Detention Facility; WILLIAM BAXTER,
Correctional Officer at Buncombe County Detention Facility;
THOMAS SCHINDLER, Correctional Officer at Buncombe County
Detention Facility,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Frank D. Whitney,
Chief District Judge. (1:15-cv-00026-FDW)
Submitted: October 31, 2016 Decided: November 3, 2016
Before DUNCAN and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Surrell Montia Duff, Appellant Pro Se. Thomas Joseph Doughton,
DOUGHTON RICH BLANCATO, PLLC, Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Surrell Duff appeals from the district court’s order
granting summary judgment to Defendants in Duff’s 42 U.S.C.
§ 1983 (2012) complaint alleging the use of excessive force in
violation of the Eighth Amendment and deliberate indifference to
serious medical needs. On appeal, Duff solely challenges the
district court’s grant of summary judgment to Defendants Potter,
Mangum, and Baxter on the excessive force claim. He argues
primarily that the court erred in determining that there were no
genuine dispute of material fact because he did not provide an
affidavit or other supporting material opposing the motion to
dismiss.
Duff, now a federal inmate housed in Florida, filed a 42
U.S.C. § 1983 action against four Buncombe County, North
Carolina, correctional officers related to an incident at the
county detention facility where Duff had been a pretrial
detainee. Defendants filed a motion for summary judgment.
Duff received Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
notice. Duff filed a brief in response opposing summary
judgment and also filed a motion to dismiss the motion for
summary judgment. The court granted the Defendants’ motion for
summary judgment, noting that Duff’s brief “was not accompanied
by any sworn affidavits, or any other type of evidence that
would be admissible on summary judgment.”
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“We review de novo a district court’s award of summary
judgment, viewing the facts and inferences reasonably drawn
therefrom in the light most favorable to the nonmoving party.”
Woollard v. Gallagher, 712 F.3d 865, 873 (4th Cir. 2013).
“Summary judgment is appropriate only if the record shows ‘that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.’”
Id. (quoting Fed. R. Civ. P. 56(a)). The relevant inquiry on
summary judgment is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
We will uphold the district court’s grant of summary judgment
unless we find that a reasonable jury could return a verdict for
the non-moving party on the evidence presented. See EEOC v.
Cent. Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).
Summary judgment “should be granted only when it is
perfectly clear that no issue of material fact exists.”
Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).
A “verified complaint” is the equivalent of an opposing
affidavit for summary judgment purposes. World Fuel Servs.
Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516
(4th Cir. 2015); see also Davis v. Zahradnick, 600 F.2d 458,
459-60 (4th Cir. 1979) (holding that factual allegations
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contained in a verified complaint that conflict with affidavits
supporting motion for summary judgment established a prima facie
case under § 1983, so as to preclude summary judgment). Duff’s
complaint included a statement under 28 U.S.C. § 1746 (2012)
that the contents were true and correct. “[W]here affidavits
present conflicting versions of the facts which require
credibility determinations, summary judgment cannot lie.”
Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016) (internal
quotation and citation omitted). Thus, Duff’s statements in his
complaint should have been considered by the court as admissible
evidence rebutting the Defendants’ evidence. It is clear that
the district court did not do so, and to the extent that it may
have, it resolved the factual disputes in favor of the moving
party.
Turning to what Duff must prove to succeed on his excessive
force claim, it is well established that the Due Process Clause
of the Fourteenth Amendment “protects a pretrial detainee from
the use of excessive force that amounts to punishment,”
Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), and is not “an
incident of some other legitimate governmental purpose.”
Bell v. Wolfish, 441 U.S. 520, 538 (1979). In Kingsley v.
Hendrickson, 135 S. Ct. 2466 (2015), however, the Supreme Court
held that a plaintiff must demonstrate “only that the force
purposely or knowingly used against him was objectively
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unreasonable.” 135 S. Ct. at 2473. In determining whether the
force was objectively unreasonable, a court considers the
evidence “from the perspective of a reasonable officer on the
scene, including what the officer knew at the time, not with the
20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at
396).
Considerations such as the following may bear on the
reasonableness or unreasonableness of the force used: the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting. Kingsley, 135 S. Ct. at 2473. Because
the standard is an objective one, the court is not concerned
with the officers’ motivation or intent. See, e.g., Clay v.
Emmi, 797 F.3d 364, 370 (6th Cir. 2015). Moreover, it is
appropriate to determine whether the force used was objectively
reasonable in “full context,” as a segmented view of the events
“misses the forest for the trees.” Smith v. Ray, 781 F.3d 95,
101 (4th Cir. 2015) (brackets and internal quotation marks
omitted).
Viewed from this legal lens, in the light most favorable to
Duff, and to the extent supported by the record, we conclude
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that the district court erred in determining that a genuine
dispute of material fact did not exist as to the excessive force
claim. Because Duff’s verified complaint acts as an opposing
affidavit, there are several factual disputes: whether Duff
refused to remove his hands from his jumpsuit; whether Duff made
an aggressive move towards the officers; whether Duff’s head was
accidentally pushed into the wall while resisting, causing
injury, or whether the officers carried out a more directed and
significant physical altercation; whether Duff resisted officers
when they attempted to secure him; and the severity of Duff’s
injuries. These factual disputes must be resolved to assess the
Kingsley factors of need for the use of force and how much force
was used, extent of Duff’s injuries, any effort made by an
officer to limit the amount of force used, the threat reasonably
perceived by the officers, and whether Duff was actively
resisting. See Kingsley, 135 S. Ct. at 2473.
Duff’s version of events in his verified complaint is
significantly different from the Defendants’ version. Although
the Defendants submitted affidavits and support for the motion
for summary judgment, the court may not consider these materials
in a vacuum. The court must view the facts and inferences drawn
from the facts in Duff’s favor. The record before this court
does not conclusively establish that the district court complied
with these mandates. Accordingly, we vacate and remand the
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order as to the excessive force claims against Defendants
Potter, Mangum, and Baxter for further proceedings.
We affirm the portion of the district court order granting
summary judgment to Defendant Schindler on the deliberate
indifference to a serious medical need claim. Duff did not
address this claim in his informal brief. Even affording Duff’s
informal brief liberal construction, Duff has failed to
challenge this district court ruling. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (instructing courts to construe pro se
documents liberally). Accordingly, we conclude that Duff has
forfeited appellate review of the court’s order as to deliberate
indifference to a serious medical need. See 4th Cir. R. 34(b)
(“The Court will limit its review to the issues raised in the
informal brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th
Cir. 2014) (noting importance of Rule 34(b)).
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.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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