Altony Brooks v. Captain Jacumin

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-7261

ALTONY BROOKS,

Plaintiff - Appellant,

v.

LIEUTENANT JOHNSON; CAPTAIN JACUMIN; OFFICER FLUDD,

Defendants - Appellees,

and

HILL FINKLEA DETENTION CENTER; OFFICER JOHN DOE; NURSE JOHN DOE;
OFFICER JOHN DOE; OFFICER GREENE; OFFICER JOHNSON; BERKELEY
COUNTY SHERIFF’S OFFICE,

Defendants.

No. 17-7448

ALTONY BROOKS,

Plaintiff - Appellant,

v.

LIEUTENANT JOHNSON; CAPTAIN JACUMIN; OFFICER FLUDD,

Defendants - Appellees,

and
HILL FINKLEA DETENTION CENTER; OFFICER JOHN DOE; NURSE JOHN DOE;
OFFICER JOHN DOE; OFFICER GREENE; OFFICER JOHNSON; BERKELEY
COUNTY SHERIFF’S OFFICE,

Defendants.

Appeals from the United States District Court for the District of South Carolina, at
Beaufort. Patrick Michael Duffy, Senior District Judge. (9:15-cv-2677-PMD-BM)

Argued: December 11, 2018 Decided: May 10, 2019

Before KEENAN, WYNN, and HARRIS, Circuit Judges.

Vacated and remanded with instructions by published opinion. Judge Harris wrote the
opinion, in which Judge Keenan and Judge Wynn joined.

ARGUED: C. Daniel Lockaby, UNIVERSITY OF GEORGIA SCHOOL OF LAW,
Athens, Georgia, for Appellant. Kevin Michael DeAntonio, SENN LEGAL, LLC,
Charleston, South Carolina, for Appellees. ON BRIEF: Thomas V. Burch, Cary
Berkeley Kaye, Wade Barron, Student Counsel, Sarah Quattrocchi, Student Counsel,
Appellate Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens,
Georgia, for Appellant. Christopher T. Dorsel, SENN LEGAL, LLC, Charleston, South
Carolina, for Appellees.

2
PAMELA HARRIS, Circuit Judge:
A prison official deployed a taser three times against Altony Brooks when Brooks

refused to hold still for an identification photograph. Brooks filed an Eighth Amendment

excessive force suit, and the district court granted summary judgment against him,

finding it beyond genuine dispute that the officer had applied force in a good faith effort

to obtain Brooks’s photograph.

We disagree. The critical Eighth Amendment question in this case is one of

motive: whether the corrections officer shocked Brooks three times “in a good faith

effort to maintain or restore discipline,” or “maliciously” and “for the very purpose of

causing harm,” Whitley v. Albers, 475 U.S. 312, 320–21 (1986) (internal quotation marks

omitted). Viewing the record in the light most favorable to Brooks, as we must, we think

a reasonable jury could find that the officer used multiple shocks not to induce Brooks’s

cooperation, but to punish him for his intransigence through the “wanton infliction of

pain,” id. at 320. Accordingly, we vacate the grant of summary judgment and remand for

further proceedings consistent with this opinion.

I.

A.

Apart from the critical question of motive, the facts relevant to this appeal are

largely undisputed. Indeed, much of the key incident is captured on soundless video

footage, which we have reviewed carefully. Except where we attribute an allegation to a

particular party, the following account is not contested.

3
 The use of force in question occurred in 2013, when Altony Brooks was serving a

prison sentence with the South Carolina Department of Corrections. On September 17 of

that year, Brooks was transported to the Hill-Finklea Detention Center for a one-night

stay, so that he could attend a nearby court appearance the next morning. From the time

of his arrival, Detention Center officers reported, Brooks was “very disrespectful[] and

uncooperative,” “continuously threaten[ing] to sue the officers for anything he didn’t

like.” J.A. 681–82 (contemporaneous incident report filed by corrections officer)

(“Incident Report”).

Detention Center policy requires that an identification photograph be taken

whenever an inmate enters the facility. According to corrections officers, Brooks would

not cooperate with their efforts to photograph him when he began his stay on September

17. The officers tried a second time the following afternoon, before Brooks’s scheduled

return to his permanent correctional facility. Brooks once again refused to cooperate, and

the result was the episode at issue in this appeal.

This time, instead of forgoing the picture, Detention Center officers escorted

Brooks to the booking area that housed the photography equipment. From this point on,

Brooks was in handcuffs and held by two or more officers while additional officers

closely flanked him; the total number of officers on the scene grew from five to six as

events unfolded. According to the officers, this did not stop Brooks from using

“aggressive” language and verbally threatening at least some of those present. See J.A.

689 (affidavit of defendant Captain Jacumin) (“Jacumin Affidavit”); see also Incident

Report, J.A. 681 (describing Brooks as “making threats to the officers”). Brooks denies

4
threatening the officers, but his own account includes what could be described as

“aggressive” verbal resistance. See J.A. 28 (“I advised that I was sovereign and I’m not

taking any pictures. . . . I stated . . . that I was already false[ly] imprisoned and I’m not

giving them no picture.”). The soundless video cannot resolve inconsistencies on this

point, and so we take the view more favorable to Brooks, as the party opposing summary

judgment. See Henry v. Purnell, 652 F.3d 524, 527 (4th Cir. 2011) (en banc).

The start of the video shows a substantial period of time – roughly seven and a

half minutes – during which the officers appear to be “attempting to convince [Brooks] to

let them take his picture,” Brooks v. Jacumin, No. 9:15-cv-2677-PMD-BM, 2017 WL

3307648, at *3 (D.S.C. Aug. 3, 2017), consistent with the officers’ own account, see

Incident Report, J.A. 681 (referring to “several minutes of trying to reason with inmate

Brooks”). But as the district court explains, it is clear from the video that Brooks

continues to resist having his photograph taken, by “moving his head repeatedly to

prevent a clear picture.” Brooks, 2017 WL 3307648, at *1. This, too, is roughly

consistent with the accounts of both Brooks and the officers involved. See Complaint,

J.A. 28 (“I refused and turned my head repeatedly”); Jacumin Affidavit, J.A. 688

(“Brooks refused to allow [the officers] to take his picture by bending over out of the

camera view and hiding his face.”).

After this seven-and-a-half-minute period, the video shows one of the officers –

Sergeant Sheila Johnston – pointing a taser gun at Brooks while two other officers hold

Brooks in place. Though the record does not establish precisely what Johnston said, the

parties agree, in substance, that Johnston warned Brooks that she would deploy the taser

5
if he did not cooperate. See Complaint, J.A. 28 (“if you move again I’ll taze you”);

Jacumin Affidavit, J.A. 689 (“Johnston warned [Brooks] that she would tase him if he did

not stop.”). Approximately ten seconds later, when Brooks continued to move around,

Johnston deployed the taser for the first time, hitting Brooks in the leg. As the district

court describes, Brooks “fell to the ground, writhed and kicked for approximately five

seconds, and ultimately laid still.” Brooks, 2017 WL 3307648, at *3.

While lying on the ground, Brooks was well outside the camera’s frame, so his

photograph could not be taken. Roughly 16 seconds after the first shock, while Brooks

remained on the ground with two officers standing over him, Johnston deployed the taser

for the second time. On the video, Brooks appears to thrash in pain. Two officers then

brought Brooks to his feet, so that his head again was in camera range, and the officers

tried once more to take his photograph.

Brooks, held by the officers, continued to move instead of holding still for the

camera, though the parties dispute whether Brooks’s movements were continued

resistance, see Incident Report, J.A. 682 (Brooks “continued to . . . struggle with the

officers”), or an involuntary response to the two taser shocks already administered, see

Complaint, J.A. 29 (Brooks “tried to stay still”). Approximately 45 seconds after Brooks

was pulled upright by the officers, Johnston deployed her taser for the third time.

This time, the officers caught Brooks as he fell. The video concludes shortly thereafter,

but the parties agree that the officers then were able to take Brooks’s photograph.

6
 Brooks alleges that he has experienced knee pain ever since the incident, and an

MRI taken two years later revealed a kneecap irregularity and a possibly torn meniscus

that he attributes to the use of force against him.

B.

Brooks, proceeding pro se – that is, without the assistance of counsel – filed a

complaint under 42 U.S.C. § 1983 against Johnston and several other officers present

during the incident. As relevant here, Brooks alleged that the corrections officers used

excessive force in violation of the Eighth Amendment, which prohibits the infliction of

“cruel and unusual punishments,” U.S. Const. amend. VIII.

Two procedural issues arose in the early stages of Brooks’s case. First, several

months after Brooks filed his complaint, the district court dismissed Sergeant Johnston –

the officer who deployed the taser – as a defendant in the case because Brooks had not

properly served her during the 120-day period allowed under Federal Rule of Civil

Procedure 4(m). 1 Brooks’s complaint had misidentified Johnston, who is a sergeant, as a

lieutenant, and misspelled her name as “Johnson,” dropping the “t.” As a result, the

United States Marshals Service, which often effects service on behalf of prisoners like

Brooks, see 28 U.S.C. § 1915(d), was unable to serve process on Johnston. Brooks made

multiple efforts to advise the Marshals and the court of his initial error in identifying

Johnston, sending the Marshals a letter with a corrected name and title and advising the

1
Rule 4(m) subsequently was amended to shorten the presumptive service
window to 90 days. The district court properly applied the 120-day period that governed
when Brooks filed his complaint.

7
court that he had run out of service forms and needed its assistance. A magistrate judge

nevertheless recommended dismissing Johnston from the case, and the district court

adopted that recommendation, finding that Brooks had not shown “good cause” for his

failure to serve Johnston. J.A. 449.

Johnston’s dismissal left just two corrections officers as the defendants for

Brooks’s Eighth Amendment claim: Captain Kris Jacumin and Officer Selisa Fludd, who

were present during the incident but did not themselves deploy the taser. 2 The case

proceeded to discovery, at which point the second preliminary issue arose: a dispute over

production of the Detention Center’s use-of-force policies. When Brooks requested

copies of those policies, the defendants objected, arguing that production would raise

security concerns. The magistrate judge denied Brooks’s motion to compel, noting only

that the court “does not generally order production of restricted policies to inmates.” J.A.

379.

After discovery closed, officers Jacumin and Fludd moved for summary judgment.

Because they had not operated the taser, they could be held liable, if at all, only under a

theory of bystander liability, which permits relief against an officer who “(1) is

confronted with a fellow officer’s illegal act, (2) possesses the power to prevent it, and

(3) chooses not to act,” Randall v. Prince George’s Cty., 302 F.3d 188, 203 (4th Cir.

2002); accord Brooks, 2017 WL 3307648, at *2. The officers’ argument, however, did

2
Other defendants were dismissed by the district court on procedural and
jurisdictional grounds that Brooks does not contest on appeal.

8
not focus on their bystander status. Instead, they argued that Brooks’s claim failed under

the first prong of the bystander-liability test because Johnston – who had deployed the

taser – had not acted unlawfully in doing so. According to the officers, multiple taser

shocks were a proportionate response to Brooks’s admitted and persistent refusal to

“comply with the simple order to stand still and face the camera,” and thus administered

in a “good-faith effort to maintain or restore discipline” rather than maliciously to inflict

pain. J.A. 656–57. In the alternative, the officers invoked qualified immunity: Even if

Brooks’s Eighth Amendment rights had been violated by the malicious use of force, they

contended, the law was not so clearly established that they would have been on notice as

to that violation.

The district court granted the officers’ motion for summary judgment, finding that

the record facts, viewed in the light most favorable to Brooks, failed as a matter of law to

establish an Eighth Amendment violation. Brooks, 2017 WL 3307648, at *3–4. As the

court recognized, the critical Eighth Amendment question was why Johnston had shocked

Brooks three times using a taser: Was it in a good faith effort to secure his cooperation to

take his picture, or maliciously and for the purpose of causing pain? Id. at *2 (citing

Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). This was not a case, the court

understood, in which the officers had used force in order to protect against an immediate

threat to safety; handcuffed and surrounded by up to six officers, Brooks posed no

physical safety risk. Id. at *3. But corrections officers also are entitled to use appropriate

force to “maintain or restore discipline,” id. at *2 (quoting Whitley, 475 U.S. at 320–21),

and here, the court concluded, the record facts established beyond dispute that the reason

9
for the multiple taser shocks was simply “to acquire [Brooks’s] compliance with [the

Detention Center’s] picture policy,” id. at *4.

The court did not doubt that the taser shocks were painful to Brooks and

constituted a serious use of force. But on Brooks’s own account, the court explained, he

“was refusing to obey the . . . officers’ commands that he allow them to take his picture,”

and the video likewise shows him “refusing to comply” and instead “moving his head

repeatedly to prevent a clear picture.” Id. at *1–3. Moreover, the court emphasized, the

officers can be seen on the video attempting for over seven minutes to “convince

[Brooks] to allow his photograph to be taken,” and resorted to violent force only after that

“extended attempt to reason with him.” Id. at *4. Given those undisputed facts, the court

concluded, there was no “jury question as to excessive force” under Whitley’s subjective

standard: As a matter of law, the officers used force not maliciously but to compel

compliance with the Detention Center’s photograph policy. Id. And because no

constitutional violation had occurred, the bystander officers could not be held liable, and

there was no need to reach the question of qualified immunity. Id. at *2.

II.

Now represented by pro bono appellate counsel, Brooks advances several

arguments on appeal. First and foremost, he argues that because there is a triable issue of

fact as to whether the officers used force against him maliciously rather than in a good

faith effort to secure his cooperation, the district court erred by granting summary

judgment to the defendants. Second, Brooks contends that the district court should not

10
have dismissed Johnston from the case because he demonstrated “good cause” for his

failure to serve her within the 120-day period. And third, Brooks argues that the

magistrate judge improperly denied his motion to compel production of the Detention

Center’s use-of-force policies.

We agree with Brooks in all three respects. We begin with the main issue on

appeal – Brooks’s challenge to the grant of summary judgment – and conclude that

whether Brooks was shocked by a taser three times in order to induce his compliance or

as punishment for his continued resistance and belligerence is a jury question that was

improperly decided by the district court as a matter of law. We then turn to Brooks’s

additional arguments for relief, and direct the district court, on remand, to allow Brooks

additional time to serve Johnston and to compel the production of relevant Detention

Center use-of-force policies.

A.

We start with the district court’s summary judgment ruling. “Whether a party is

entitled to summary judgment is a question of law we review de novo using the same

standard applied by the district court.” Henry, 652 F.3d at 531. In doing so, we

“recogniz[e] that a court should grant summary judgment only if, taking the facts in the

best light for the nonmoving party, no material facts are disputed and the moving party is

entitled to judgment as a matter of law.” Ausherman v. Bank of Am. Corp., 352 F.3d 896,

899 (4th Cir. 2003). So here, we review the facts, including the video footage of the

episode, in the light most favorable to Brooks, drawing all reasonable inferences in his

11
favor. If those facts are enough to generate a genuine dispute as to why Johnston used

force against him, then summary judgment may not be granted under the first prong of

the test for bystander liability. “A dispute is genuine if a reasonable jury could return a

verdict for [Brooks as] the nonmoving party.” Jacobs v. N.C. Admin. Office of the

Courts, 780 F.3d 562, 568 (4th Cir. 2015) (internal quotation marks omitted).

The officers advance two alternative arguments for why summary judgment was

properly granted, paralleling their arguments before the district court. First, they contend,

the district court correctly held that it was beyond genuine dispute that Johnston had used

the taser in good faith, and so had not violated the Eighth Amendment. And because

there was no underlying constitutional violation by Johnston, they conclude, they may not

be held liable as bystanders. Second, the officers argue that even if the district court

erred in this assessment, they nevertheless are protected by qualified immunity because

any Eighth Amendment violation was not clearly established at the time of the incident.

We disagree with both arguments. 3

1.

3
Both those arguments, we note, go only to the first prong of the test for bystander
liability: whether Jacumin and Fludd were “confronted with a fellow officer’s illegal
act,” Randall, 302 F.3d at 203. The district court rested entirely on that prong, holding
that “fellow officer” Johnston did not commit an “illegal act” when she deployed the
taser. The court thus had no occasion to consider the second two prongs: whether,
assuming a constitutional violation by Johnston, bystanders Jacumin and Fludd “(2)
possesse[d] the power to prevent it, and (3) cho[se] not to act,” id. Nor do the parties
substantially address those questions on appeal. We express no opinion as to whether
Brooks can establish bystander liability under those prongs, leaving that matter to the
district court on remand.

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 We begin with the question at the heart of this case: whether, as the district court

held, the record indisputably shows that the use of three taser shocks against Brooks was

a “good faith effort” to induce his cooperation in having his picture taken, and thus

constitutionally permissible under the Eighth Amendment’s subjective standard; or

whether, as Brooks argues, there is a genuine dispute of fact on that point that must be

resolved by a jury. As we explain below, we agree with Brooks.

a.

An inmate’s Eighth Amendment excessive force claim involves both an objective

and a subjective component. The objective component asks whether the force applied

was sufficiently serious to establish a cause of action. This is not a high bar, requiring

only something more than “de minimis” force. Hudson v. McMillian, 503 U.S. 1, 10

(1992); see also Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (per curiam) (“nontrivial”

force is sufficient ground for Eighth Amendment excessive force claim). For obvious

reasons, the objective component is not at issue in this case. Nobody disputes that

deploying a taser – a weapon “designed to cause excruciating pain” that can “burn a

subject’s flesh” – is a “serious use of force,” Estate of Armstrong ex rel. Armstrong v.

Vill. of Pinehurst, 810 F.3d 892, 902 (4th Cir. 2016) (internal quotation marks and

alterations omitted); accord Brooks, 2017 WL 3307648, at *3.

What is at issue is the subjective component of Brooks’s excessive force claim,

which asks whether the officers “acted with a sufficiently culpable state of mind,”

Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). In contrast to the objective

component, this is a demanding standard, id.; the “state of mind required . . . is

13
‘wantonness in the infliction of pain,’” Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008)

(quoting Whitley, 475 U.S. at 322). And whether such wantonness can be established, as

the district court recognized, “ultimately turns on whether force was applied in a good

faith effort to maintain or restore discipline or maliciously and sadistically for the very

purpose of causing harm.” Whitley, 475 U.S. at 320–21 (internal quotation marks

omitted); accord Brooks, 2017 WL 3307648, at *2. As we have emphasized before, this

subjective standard is unlike the “objective reasonableness” test we apply under the

Fourth Amendment: The question is not whether a reasonable officer could have used

force to maintain discipline, but whether these particular officers did use force for that

reason. Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008) (internal quotation marks

omitted); id. at 447 (discussing importance of motive to excessive force claims under

Whitley); see also Graham v. Connor, 490 U.S. 386, 397–98 (1989) (contrasting

standards and emphasizing focus on “subjective motivations of the individual officers”

under the Eighth Amendment).

Corrections officers act in a “good faith effort to maintain or restore discipline” –

that is, with a permissible motive – not only when they confront immediate risks to

physical safety, but also when they attempt to “preserve internal order” by compelling

compliance with prison rules and procedures. See Hudson, 503 U.S. at 6–7 (internal

quotation marks omitted) (holding that Whitley standard, established in case involving

use of force to quell a prison riot, applies to all claims of excessive force against prison

officials); see also Bailey v. Turner, 736 F.2d 963, 970 (4th Cir. 1984) (rejecting rule that

use of mace against recalcitrant inmate may be justified only by threat to physical safety).

14
And we owe officers “wide-ranging deference” in their determinations that force is

required to induce compliance with policies important to institutional security. See

Hudson, 503 U.S. at 6 (internal quotation marks omitted).

But corrections officers cross the line into an impermissible motive – using force

“maliciously” and for the “very purpose of causing harm,” Whitley, 475 U.S. at 320–21

(internal quotation marks omitted) – when they inflict pain not to induce compliance, but

to punish an inmate for intransigence or to retaliate for insubordination, see Williams, 77

F.3d at 765 (summary judgment to prison officials improper where evidence “supports an

inference that the guards were acting to punish, rather than to quell the disturbance”). In

Orem, for instance, officers used a taser against an “unruly and uncooperative” detainee

who yelled, cursed, threatened (profanely) to sue, and “bang[ed] around” in a car so

intensely that the vehicle rocked. 523 F.3d at 444–46. We did not doubt that under the

circumstances, “some action was necessary.” Id. at 446. But the officers were not

entitled to summary judgment under Whitley, we held, because a jury could infer that

they did not in fact deploy the taser in a “good faith effort to restore order,” but instead

“for the very purpose of harming and embarrassing” the detainee after she continued to

curse at the officers. Id. at 446–47 (internal quotation marks omitted). Likewise, in

Sawyer v. Asbury, 537 F. App’x 283 (4th Cir. 2013), an unpublished decision arising

from facts very similar to ours, a detainee unleashed on officers a “stream of invective”

that included profanity and verbal threats, and refused to stand up so that he could be

photographed. Id. at 285–86. The use of force that followed – what the officers

described as the deployment of “pressure point control tactics,” including striking the

15
detainee in the face – was constitutionally excessive, we held, because its purpose was

not to induce the detainee to stand, but to punish him for his “verbal tirade” and

“intransigence.” Id. at 294. 4

b.

There is no dispute in this case over the governing legal standard, laid out above.

The defendants, consistent with this authority, maintain that they were on the right side of

Whitley’s subjective inquiry, and that Johnston deployed her taser three times only in a

good faith effort to compel Brooks’s obedience with the order to stand still for a

photograph. Brooks offers a different account, emphasizing the Incident Report’s

references to his “disrespectful” and “uncooperative” attitude from the time of his arrival

at the Detention Center, J.A. 681, and maintaining that the defendants used the taser to

“wantonly punish[]” him, see Williams, 77 F.3d at 764, for his belligerent resistance.

Considering the facts in the light most favorable to Brooks and drawing all reasonable

inferences in his favor, as we must, we think a reasonable jury could agree with Brooks.

4
Orem and Sawyer both involved pre-trial detainees rather than prison inmates,
with excessive force claims governed by the Fourteenth Amendment rather than the
Eighth. But at the time we decided those cases, we employed the same Whitley standard
– including its subjective component – in both contexts, and Orem and Sawyer analyzed
precisely the same Whitley question we confront here: whether force was applied “in a
good faith effort to maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Orem, 523 F.3d at 450 (internal quotation marks
omitted); Sawyer, 537 F. App’x at 290 (internal quotation marks omitted). Since then,
the Supreme Court has extended the Fourth Amendment’s objective reasonableness
standard to excessive force claims by pre-trial detainees. See Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015).

16
 First and foremost is the fact that Brooks was shocked with a taser not once but

three times, and in quick succession. We have held that even where an initial use of force

does not by itself raise questions about a corrections officer’s intent under Whitley, the

continued application of force may give rise to an inference that force was used for

malicious or punitive purposes. See Iko, 535 F.3d at 239–40, 240 n.11 (though initial use

of pepper spray to carry out cell extraction appeared warranted, four additional bursts of

pepper spray – including one when inmate was lying on floor – gave rise to reasonable

inference that force was applied maliciously). The same is true here. We may assume

for the moment that by itself, the first deployment of the taser – while Brooks was

standing and refusing to hold still for a picture – does not suggest anything other than a

“good faith effort” to restore discipline. But coupled with the next two deployments –

one 16 seconds later, while Brooks was lying on the ground; the next less than a minute

after that, after officers pulled Brooks back to his feet – the picture changes, and a

reasonable jury could begin to question whether the entire series of taser shocks in fact

was intended to punish Brooks, through the wanton infliction of pain, for his

noncompliance and verbal aggression. See Williams, 77 F.3d at 765 (finding that the

infliction of continued pain after initial use of force supports an inference of

impermissible punitive motive under Whitley).

A jury might find that the second use of the taser, in particular, is hard to square

with the officers’ account. According to the officers, that second shock – which came 16

seconds after the first, and after Brooks had fallen, “writhed and kicked,” and then “laid

still,” Brooks, 2017 WL 3307648, at *3 – was intended to induce Brooks to hold still for

17
a photograph. But at that point, Brooks was lying on the ground, making it impossible

for him to put his head into camera range. And 16 seconds, at least some portion of

which appears to have been spent in excruciating pain, does not give a recalcitrant inmate

much time to reconsider and mend his ways. See Austin v. Redford Twp. Police Dep’t,

690 F.3d 490, 497–98 (6th Cir. 2012) (holding that jury could find taser shock

unreasonable under Fourth Amendment where suspect “disoriented” from prior taser

deployment was given only 30 seconds to comply with officer’s order).

The defendants respond by contending that Brooks was struggling with the

officers who were lifting him to his feet when he was shocked for the second time. But

Brooks denies that, and the district court viewed it differently, see Brooks, 2017 WL

3307648, at *3 (describing Brooks as lying “still” on the floor when he was shocked the

second time). At a minimum, it is fair to say that the video footage does not clearly

support the officers’ account, and so, at the summary judgment stage, we take the facts in

the light more favorable to Brooks (and as described by the district court). Similarly, we

cannot assume, as the officers assert, that Brooks continued to move around after he was

brought to his feet and before the third taser shock because he had decided to maintain his

resistance. Again, Brooks offers a contrary account, denying that he was resisting at that

point and describing his shaking as an involuntary response to having sustained two taser

shocks in under a minute. And again, a jury reasonably could question whether the 45

seconds that elapsed after Brooks was pulled to his feet and before he was shocked – for

the third time in 70 seconds – gave Brooks the time and ability to collect himself and

signal a decision as to whether he would comply.

18
 In sum, whether or not the first use of the taser, standing alone, would give rise to

any inference of malice, a reasonable jury viewing the three shocks together – three uses

of an instrument designed to inflict excruciating pain in under 70 seconds – could infer

“wantonness in the infliction of pain,” intended not to restore order and induce

compliance, but to punish Brooks for his belligerence. Iko, 535 F.3d at 239 (quoting

Whitley, 475 U.S. at 322); cf. Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 547 (7th

Cir. 1988) (in employment discrimination context, evidence of improper motive for one

action can support inference that other actions close in time also were improperly

motivated).

To further support that inference, Brooks points to statements made by Detention

Center officers complaining of Brooks’s “disrespectful” attitude, continuous threats to

sue, and alleged threats of future violence, all starting when Brooks arrived at the

Detention Center. See Incident Report, J.A. 681–82 (Brooks was “very disrespectful”

since arriving at the Center, “continuously threatened to sue the officers for anything he

didn’t like,” and said “he was coming back to find us and we would be sorry”); J.A. 679

(Brooks “started making comments that we didn’t know who we were messing with and

that one call from him would make the world shake”). According to Brooks – who

denies making violent threats, but whose own account otherwise is consistent with the

officers’ complaints – a reasonable jury could infer that the officers’ use of force was

motivated at least in part by their anger at those repeated provocations. And indeed, we

held in Orem that that use of a taser against a detainee just after she “forcefully stated

‘fuck you’” to an officer could support an inference under Whitley that force was used not

19
to restore order, but “for the very purpose of harming and embarrassing” the detainee in

response. 523 F.3d at 447; see also Sawyer, 537 F. App’x at 286, 294 (finding that use of

force against detainee after “‘abrasive’ and inappropriate language” – including profanity

and threats of violence – was “provoked by the detainee’s verbal tirade and/or his

intransigence” rather than by good faith effort to compel cooperation with picture-

taking). Here, too, we think a reasonable jury could take those statements into account in

deciding whether Johnston administered multiple taser shocks to Brooks in a good faith

effort to induce his cooperation, or maliciously and in retaliation for his insubordination

and threats to sue. See Thompson v. Virginia, 878 F.3d 89, 99, 102 (4th Cir. 2017) (force

applied against inmate “in retaliation for filing grievances” is used “maliciously and

sadistically to cause harm” under Whitley (internal quotation marks omitted)).

Finally, there are the “Whitley factors,” four factors laid out by the Supreme Court

from which additional inferences may be drawn as to the officers’ motives. See 475 U.S.

at 321. Those factors are: “(1) ‘the need for the application of force’; (2) ‘the

relationship between the need and the amount of force that was used’; (3) the extent of

any reasonably perceived threat that the application of force was intended to quell; and

(4) ‘any efforts made to temper the severity of a forceful response.’” Iko, 535 F.3d at 239

(quoting Whitley, 475 U.S. at 321). The point of this analysis is to determine whether

“[p]unitive intent behind a defendant’s use of force may be inferred” because the force

“is not reasonably related to a legitimate nonpunitive governmental objective,” Williams,

77 F.3d at 765 (internal quotation marks omitted), or “could [not] plausibly have been

thought necessary” by the officers, Whitley, 475 U.S. at 321. Even without direct

20
evidence of malicious intent, that is, we may “infer the existence of th[e] subjective state

of mind” required for an Eighth Amendment violation from the Whitley factors. Hope v.

Pelzer, 536 U.S. 730, 738 (2002); see also Villegas v. Metro. Gov’t of Nashville, 709

F.3d 563, 569 (6th Cir. 2013) (explaining that “[d]irect evidence . . . is not necessary” to

prevail on the subjective element of an Eighth Amendment claim).

We think that the proper inferences to be drawn from these factors, too, is a matter

for the jury. Perhaps most important, a reasonable jury could find that the third factor –

the extent of any threat to safety – bolsters Brooks’s account and not the officers’. As the

district court recognized, at the time Johnston subjected Brooks to multiple taser shocks,

Brooks was handcuffed and surrounded by officers, and presented “no immediate

physical safety risk.” Brooks, 2017 WL 3307648, at *3. This is not a case, in other

words – unlike Whitley itself, in which corrections officers used force in response to

hostage-taking during a prison riot, see 475 U.S. at 322–26 – in which a manifest and

immediate need for the protective use of force gives rise to a powerful logical inference

that officers in fact used force for just that reason.

Nor was the need for the use of force in this degree – the subject of the first two

factors – so self-evident that no reasonable jury could infer a malicious motive. We do

not question the legitimacy of the Detention Center’s photograph policy, and we agree

with the district court that the ability to “accurately identify inmates” is “essential to

maintain security at correctional facilities.” See Brooks, 2017 WL 3307648, at *3

(internal quotation marks omitted); see also Hudson, 503 U.S. at 6 (discussing deference

courts should give prison administrators’ judgments that their policies are “needed to

21
preserve internal order and discipline and to maintain institutional security” (internal

quotation marks omitted)). At the same time, there are circumstances specific to this case

suggesting something less than an urgent need for Brooks’s photograph: Brooks was at

the facility for only one night, and already on his way out by the time the incident

occurred; and Detention Center officers already had access to Brooks’s inmate photo ID

card and other photographs of Brooks.

In any event, for reasons we already have discussed, a reasonable jury could

question the need for “the amount of force,” see Whitley, 475 U.S. at 321 (internal

quotation marks omitted), that ostensibly was used solely to induce Brooks to hold still

for a picture. The record gives no indication that the officers considered any lesser or

graduated sanctions against Brooks, jumping instead straight to three rapid-fire

deployments of a taser that left Brooks writhing in pain. Cf. Slakan v. Porter, 737 F.2d

368, 372 (4th Cir. 1984) (“Even when a prisoner’s conduct warrants some form of

response, evolving norms of decency require prison officials to use techniques and

procedures that are both humane and restrained.”). In Sawyer, we held that a belligerent

detainee’s “refusal to comply with an officer’s lawful order” to stand so that his

photograph could be taken could not justify, as a matter of law, the force used against

him, in the form of “pressure point control tactics” that included striking him in the face.

537 F. App’x at 294. Here, we hold only that it is for a jury to decide whether the degree

of force used against Brooks was disproportionate to the need for his picture in a way that

could raise an inference of impermissible “[p]unitive intent,” Williams, 77 F.3d at 765

(internal quotation marks omitted).

22
 Finally, there is Whitley’s fourth factor, which focuses on corrections officers’

efforts to avoid or temper a forceful response. The district court relied heavily on this

factor in granting summary judgment to the defendants, emphasizing that the first seven

and a half minutes of the video shows the officers “expend[ing] significant time and

effort . . . attempting to reason with [Brooks] to secure a single photograph,” and that

they resorted to violent force only after that “extended attempt” proved unsuccessful.

Brooks, 2017 WL 3307648, at *3–4. We do not doubt that the officers would have been

enormously and justifiably frustrated by Brooks’s persistent intransigence in the face of

their efforts. But we have confronted precisely this argument before, and held that

“verbal attempts” to reason with and calm an unruly detainee before resort to force do not

preclude an inference that force was applied maliciously, in order to punish this

continued intransigence. See Orem, 523 F.3d at 447 (officer’s “verbal attempts to secure

order” do not “lessen the unreasonableness of his subsequent actions”). To be clear,

under Whitley, a jury should consider the officers’ preliminary efforts to secure Brooks’s

compliance without using violent force, which may well bolster their case. But the

ultimate inferences to be drawn from this Whitley factor, like the others, are not so plain

that they may be resolved as a matter of law at this stage of the litigation.

It of course is true, as the district court reasoned, that “[i]nmates cannot be

permitted to decide which orders they will obey, and when they will obey them.” Brooks,

2017 WL 3307648, at *3 (internal quotation marks omitted). Detention Center officers

were permitted to insist on Brooks’s compliance with their photograph policy, and when

he resisted, they were permitted to take measures, including the use of appropriate force,

23
intended to secure his cooperation. Indeed, because this case arises under Whitley’s

subjective standard, we have no occasion to consider whether a hypothetical and

objectively reasonable officer could have used a taser against Brooks – once, twice, or

three times – in order to compel his compliance with the Detention Center’s photograph

policy. See Orem, 523 F.3d at 445–46 (distinguishing Fourth Amendment objective

reasonableness standard from Whitley’s subjective inquiry). 5 The only question here is

whether these officers actually did use force to induce compliance, or whether, as Brooks

alleges, they used force “wantonly” and “maliciously” for the purpose of punishing him.

Because the record contains evidence from which a reasonable jury could infer a

malicious and therefore excessive use of force, the district court erred in deciding this

question as a matter of law.

2.

Because we conclude that a reasonable jury could find that Sergeant Johnston

violated the Eighth Amendment by using force “maliciously,” we – unlike the district

court, see Brooks, 2017 WL 3307648, at *2 – must consider the officers’ alternative

argument: that they nevertheless are entitled to summary judgment on qualified

immunity grounds because the law did not clearly establish that violation. Once again,

we disagree.

5
We note, however, that under the Fourth Amendment, our court has held that
because a taser deployment is such a serious use of force, a police officer ordinarily may
use a taser against a suspect only in “a situation in which a reasonable officer would
perceive some immediate danger,” and not to compel compliance with police commands.
Armstrong, 810 F.3d at 903.

24
 Under the doctrine of qualified immunity, a corrections officer who “has violated

a prisoner’s constitutional right” is “shielded from liability . . . if an objectively

reasonable officer could have believed that his actions were lawful in light of clearly

established law.” Cox v. Quinn, 828 F.3d 227, 238 (4th Cir. 2016) (internal quotation

marks omitted). The officers contend that qualified immunity attaches because there are

no cases from the Supreme Court or our circuit finding an Eighth Amendment violation

under circumstances sufficiently analogous to those presented here and, as a result,

Brooks’s right to be free from Sergeant Johnston’s multiple uses of a taser was not

“clearly established.” See Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 (4th Cir. 2004)

(in applying the “clearly established” qualified immunity standard, we look “ordinarily to

the decisions of the Supreme Court, this court of appeals, and the highest court of the

state in which the case arose” (internal quotation marks omitted)).

We note at the outset that this is the unusual qualified immunity case in which we

are dealing with a constitutional violation that has “wrongful intent” as an element. See

Thompson, 878 F.3d at 106 (applying qualified immunity analysis to excessive force

claim under Whitley standard). If Johnston violated Brooks’s rights, that is, then she did

so because she used force in subjective bad faith, “maliciously and sadistically to cause

harm.” See id. at 99 (internal quotation marks omitted). That state of mind is relevant to

the qualified immunity analysis, as we have explained: Because “the case law is intent-

specific,” clearly establishing that the bad faith and malicious use of force violates the

Eighth Amendment rights of prison inmates, a corrections officer who acts with that

culpable state of mind reasonably should know that she is violating the law. See id. at

25
106 (“For claims where intent is an element, an official’s state of mind is a reference

point by which she can reasonably assess conformity to the law because the case law is

intent-specific.”). 6

In Thompson, we rejected an argument very similar to that advanced by the

officers here. In that case, a corrections officer invoked qualified immunity after

subjecting an inmate to a “rough ride” in a van, allegedly in retaliation for grievances

filed by the inmate, arguing that our precedent did not provide “fair warning” that a rough

ride constituted excessive force. Id. at 102. We acknowledged that only a “few” courts

had “addressed specifically an officer’s use of a vehicle to injure an inmate.” Id. at 103.

But, we held, it was clearly established that inmates have a “right to be free from” the

“malicious” infliction of pain. Id. at 102; see also id. at 97–98 (discussing Whitley’s

subjective component). If the officer acted with that wrongful intent – using force to

punish the inmate for his grievance filings – then he could use that “state of mind” as a

“reference point” to measure his conformity with the law. Id. at 106. And the fact that

this officer used force in the form of a vehicle rather than “direct punches and kicks . . .

makes no difference to the constitutional analysis”: the “intentionally erratic driving was

6
Like other circuits, we long have recognized the “special problem” raised when
the objective qualified immunity standard is applied to an Eighth Amendment violation
that requires wrongful intent in the form of “deliberate indifference” to a prisoner’s
medical needs. See Rish v. Johnson, 131 F.3d 1092, 1098 n.6 (4th Cir. 1997); see also
Cox, 828 F.3d at 238 n.4 (collecting cases). Thompson makes clear that the same issue
arises with respect to Eighth Amendment excessive force claims, which likewise require
wrongful intent. 878 F.3d at 106 (discussing deliberate indifference and excessive force
claims together).

26
simply a different means of effectuating the same constitutional violation.” Id. at 102.

Accordingly, we held, the law provides “fair notice to prison officials that they cannot, no

matter their creativity, maliciously harm a prisoner on a whim or for reasons unrelated to

the government’s interest in maintaining order.” Id. at 105.

For the same reasons, the defendants in this case cannot establish a lack of “fair

notice” that the use of a taser against Brooks – assuming, as we do for purposes of this

alternative argument, that a jury finds that Johnston acted with wrongful and malicious

motive – constituted excessive force under the Whitley standard. At the time of the

events in question, it was clearly established that a corrections officer’s use of force in

bad faith – not to preserve order or induce compliance, but to punish through the “wanton

infliction of pain” – violates an inmate’s Eighth Amendment right. See, e.g., Williams,

77 F.3d at 765 (quoting Whitley, 475 U.S. at 322). If Johnston acted with such a motive,

then she could “reasonably assess [her] conformity” to that “intent-specific” law.

Thompson, 878 F.3d at 106.

Johnston also would have had the benefit of cases from this circuit making clear,

at a high “level of specificity,” id. at 102, that her multiple uses of a taser against Brooks,

under the circumstances of this case, could give rise to an inference of “wanton[]

punish[ment],” see Williams, 77 F.3d at 764, in violation of Whitley’s subjective

component. In Iko, for instance, approximately five years before this case arose, we held

that even where a first use of pepper spray by a corrections officer appeared to be

intended only to induce compliance with a cell-extraction procedure, the fact that it was

followed almost immediately by multiple additional bursts of pepper spray – including

27
one when the inmate was lying on the ground – gave rise to a reasonable inference that

force was applied “for the sole purpose of infliction of pain” in violation of Whitley’s

subjective standard. 535 F.3d at 239–40 (internal quotation marks omitted). Here, of

course, the officer used force in the form of a taser, not pepper spray – but as we clarified

in Iko (and in Thompson, as discussed above), that is not enough to deprive an officer of

fair notice that the same principle will apply. Id. at 240 (rejecting argument that right to

be free of malicious use of pepper spray was not clearly established because prior case

law only addressed malicious use of mace).

And even if it were, there still would be Orem, also decided in 2008, in which we

held that a taser, in particular, could be found by a jury to have been used “maliciously

and sadistically” under circumstances very similar to those presented here: an unruly

(but handcuffed) arrestee who refused to cooperate in efforts to transport her, flinging her

body around so intensely that the vehicle rocked, 523 F.3d at 444; a profanity-laced

diatribe that included threats of suit, id. at 445 (“I’m suing everybody, you mother

fucker.”); an initial effort to induce cooperation verbally, id. at 446; and, ultimately, two

deployments of a taser, id. at 445. Though it was “clear that some action was necessary

to calm . . . and safely transport” the detainee, we held, a jury nevertheless could find that

the officer in fact had used force not for that purpose, but instead maliciously and “for the

28
very purpose of harming and embarrassing” the detainee, in violation of Whitley. Id. at

446–47. 7

In short, we find that Johnston was on “fair notice” of Brooks’s right not to be

subjected to excessive force in the form of the wanton infliction of pain, intended to

punish rather than to induce compliance. Accordingly, the defendants are not entitled to

summary judgment on qualified immunity grounds on this basis, as they argue in the

alternative on appeal. We therefore vacate the district court’s grant of summary

judgment for the defendants.

B.

We turn now to Brooks’s other arguments on appeal, starting with his contention

that he demonstrated good cause for his failure to timely effect service on Johnston. We

agree, and therefore vacate the dismissal of Johnston from the case.

Federal Rule of Civil Procedure 4(m) allows the court to dismiss any defendant

who is not served within the applicable timeframe. Generally, “[a]s with other

procedural dismissals, we review a dismissal under Rule 4(m) for abuse of discretion.”

Attkisson v. Holder, 919 F.3d 789, 809 (4th Cir. 2019). But importantly, the rule makes

clear that “if the plaintiff shows good cause for the failure, the court must extend the time

for service for an appropriate period.” Fed. R. Civ. P. 4(m) (emphasis added).

7
Because Sawyer, which we discuss in connection with the merits of Brooks’s
claim, is not a published decision, we do not rely on it for our qualified immunity
analysis. See Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (en banc).

29
Accordingly, a court abuses its discretion if the plaintiff makes a clear showing of good

cause and the court nonetheless declines to grant an extension.

That is what happened here. As many of our sister circuits have held, when a

plaintiff in an in forma pauperis action, like Brooks, provides the Marshals with the

correct information to serve the defendant, a subsequent failure to effect service upon that

defendant constitutes “good cause” for an extension. See Rance v. Rocksolid Granit

USA, Inc., 583 F.3d 1284, 1287 (11th Cir. 2009) (collecting cases). The defendants here

do not dispute that Brooks ultimately provided the Marshals with the information

required to serve Johnston. Instead, they argue that Brooks’s efforts were inadequate

because the information was belated and not on the proper form. Under the

circumstances of this case, we conclude that those facts do not negate the establishment

of “good cause” for an extension under Rule 4(m).

First, Brooks made multiple attempts during the 120-day service window to advise

the Marshals and the district court of Johnston’s service information, including her

correct name and title. He also informed the district court that he had run out of the

proper forms, and asked for the court’s assistance. We think those efforts to comply with

the service rules are consistent with a finding of “good cause.” See Himmelreich v.

United States, 285 F. App’x 5, 7 (3d Cir. 2008) (finding that plaintiff demonstrated “good

cause” under Rule 4(m), despite failing to submit the proper form to the Marshals, when

he did not receive Service of Process forms and made substantial attempts to comply with

the service rules).

30
 Second, we note that Johnston does not point to any prejudice from a delay in

effecting service on her. Nor does it seem that she could. Johnston was represented by

the same attorneys as her co-defendants, who filed a notice of appearance on her behalf;

she presumably was fully aware of the case as it proceeded. Indeed, through counsel,

Johnston was able to advise the district court, during the service window, that Brooks’s

complaint misspelled her name and misidentified her title.

Accordingly, we find that Brooks has established good cause for his failure to

effect timely service and that the district court abused its discretion by dismissing

Johnston under Rule 4(m). We therefore vacate Johnston’s dismissal from the case and

instruct the district court, on remand, to allow Brooks additional time in which to serve

Johnston. 8

C.

Finally, and for the purpose of clarifying what evidence will enter the record as

this case proceeds, we address Brooks’s third argument: that the magistrate judge erred

by failing to compel production in discovery of the Detention Center’s use-of-force

policies. We agree that Brooks was entitled to those documents, and therefore instruct

the that their production be compelled on remand.

8
Brooks also argues, in the alternative, that the magistrate judge committed
reversible error by denying a motion he filed to amend his complaint by correcting
Johnston’s name in the caption. Because we vacate Johnston’s dismissal on other
grounds, we do not reach this argument.

31
 We recognize, of course, that this court “affords a district court substantial

discretion in managing discovery and reviews the denial or granting of a motion to

compel discovery for abuse of discretion.” Lone Star Steakhouse & Saloon, Inc. v. Alpha

of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995). But that discretion is not boundless, and a

district court or magistrate judge may abuse its discretion when it denies a motion to

compel production of non-privileged materials whose relevance greatly exceeds the

burden or expense of production. See Fed. R. Civ. P. 26(b).

That high standard is met here. As detailed above, Brooks’s Eighth Amendment

claim turns on a question of subjective intent: Johnston violated the Eighth Amendment

if she intended to cause harm maliciously, but not if she acted in good faith. See Whitley,

475 U.S. at 320–21. As our cases make clear, whether an officer has complied with or,

alternatively, violated a relevant use-of-force policy, while not dispositive, is highly

relevant to that inquiry. Adherence to a policy, we have explained, “provide[s] powerful

evidence that the application of force was tempered and that the officers acted in good

faith.” Williams, 77 F.3d at 766. So if Detention Center policy calls for the use of a taser

to induce inmates to cooperate in efforts to take their pictures, or in similar circumstances

more broadly defined, then that would support the officers’ contention that Johnston

acted in a good faith effort to enforce discipline. See id. If, on the other hand, Johnston

was acting in contravention of an applicable use-of-force policy when Brooks was

subjected to three taser shocks, then that would tend to suggest the opposite: that she

applied force in bad faith and with punitive intent. See Iko, 535 F.3d at 240 (relying in

part on violation of “Use of Force Directive” to support inference that pepper spray was

32
administered for improper and malicious purpose); Orem, 523 F.3d at 447 (relying in part

on violation of taser policy to support inference that taser was deployed maliciously).

Nor are we persuaded by the magistrate judge’s apparent rationale that requests for

use-of-force policies typically are denied for security reasons. As demonstrated by

Williams, Iko, and Orem – along with numerous other cases cited by Brooks – relevant

use-of-force policies routinely are considered in excessive-force litigation, including

litigation that arises in the prison context. Accordingly, the magistrate judge erred by

denying Brooks’s motion to compel production of relevant policies concerning the use of

force against inmates in similar circumstances. Of course, reasonable mechanisms – such

as redaction of text that is not relevant to the case – may be permitted in order to limit

any purported security concerns. 9

III.

For the foregoing reasons, we vacate the grant of summary judgment to the

defendants on Brooks’s Eighth Amendment claim and the dismissal of Johnston from the

case, and remand for further proceedings consistent with this opinion.

9
Brooks also argues on appeal that the magistrate judge committed reversible
error by denying his several motions for the appointment of counsel. Because we grant
the relief that Brooks is seeking on his other three claims, the denial of Brooks’s motions
for counsel did not cause any prejudice, and therefore this argument is moot. On remand,
however, we suggest that the court consider appointing counsel for Brooks to assist in
litigating the case, consistent with applicable local rules and procedures. See Williams v.
Collier, 357 F. App’x 532, 536 (4th Cir. 2009) (per curiam) (citing McEachin v.
McGuinnis, 357 F.3d 197, 205 (2d Cir. 2004)).

33
VACATED AND REMANDED WITH INSTRUCTIONS

34