Surrell Duff v. Chris Potter

UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished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Unpublished opinions are not binding precedent in this circuit.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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