United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3178
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Kendrick C. Story, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
David Norwood, Captain, Ouachita *
County Sheriff’s Office, *
*
Appellee. *
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Submitted: April 12, 2011
Filed: October 17, 2011
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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Kendrick Story, an Arkansas inmate, brought a 42 U.S.C. § 1983 action against
several defendants, including David Norwood, a jail administrator at Ouachita County
Detention Center. After granting summary judgment to all defendants except
Norwood, the district court1 addressed Story’s claim against Norwood on the merits
and concluded Norwood’s use of force was necessary to ensure his own safety, the
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas, adopting the report and recommendation of the Honorable Barry
A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
safety of others, and to regain control of the facility. The district court therefore
dismissed Story’s claim with prejudice. Story appeals, and we affirm.
I
On May 22, 2007, Story was incarcerated at Ouachita County Detention
Center, and resided in the 3-Front area of B-Pod. Due to a misunderstanding, the
inmates of B-Pod were denied their scheduled yard time and became disruptive. One
inmate stuffed his jumpsuit into a toilet causing it to overflow and flood the pod.
Several other inmates, joining this mischief, started breaking lights in the pod. Story
and Norwood gave different accounts of how the subsequent events transpired.
According to Norwood, dispatch notified him the lights were out in B-Pod and
there was flooding. After retrieving his flashlight from his car, Norwood proceeded
to B-Pod, where he observed Story throwing a milk crate toward a light trying to
break it. Norwood said Story dropped the milk crate when he saw Norwood, and
started cursing. When the gate opened, Norwood ordered the inmates to “catch the
wall,” but Story did not move. Norwood repeated the command, but Story still would
not budge. With his flashlight in hand, Norwood pushed Story two steps forward.
Norwood claimed Story started walking toward the wall, but then stopped, turned
around, and began grumbling about Norwood touching him. This time, Norwood
said, he forcefully pushed Story against the wall. To ensure Story stayed there while
he retrieved the jumpsuit from the toilet, Norwood threatened Story with a taser.
Norwood testified he never swung his flashlight or hit Story with it. Officer Chris
Gill, who was standing nearby, noted he witnessed Story trying to break a light with
the water jug. Gill confirmed Story had refused to comply with Norwood’s command
to get on the wall. Gill observed Norwood push Story twice, but never saw Norwood
hit Story.
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Story provided a different version of events, which he supported with the
testimony of three fellow inmates. According to Story, when Gill and Norwood
arrived, he was trying to put the water cooler back onto a milk crate so the water
would not get sullied. Story denied breaking any lights in B-Pod and claimed he was
actually telling the other inmates to “chill out” so they would not lose their television
privileges. Upon seeing Norwood, Story dropped the crate and began to turn away.
According to Story, Norwood entered and struck him four times with a heavy metal
flashlight. When the assault began, Story said he raised his hands to protect his face,
and as a result was hit on his left elbow. He tried to evade the subsequent blows, but
Norwood struck him on his left shoulder, and the middle and upper part of his back.
Story claimed Norwood never pushed him, but just hit him with a flashlight and then
threatened him with a taser. Three inmates located in A-Pod, Gregory Tooks, Roy
Malcolm, Jr., and Ray Brewer, corroborated Story’s version of events. Tooks and
Malcolm, Jr., testified they witnessed Norwood strike Story two to three times with
a metal flashlight without provocation. Varying slightly from this account, Brewer
said he witnessed Norwood pushing Story against the bars, but only saw Norwood hit
Story with the flashlight one time.
Following the incident, at his own request, Story was taken to the hospital for
examination. The officer who transported Story to the hospital did not observe any
visible injuries on Story such as cuts, bleeding, bruises, or swelling. At the hospital,
Story saw Dr. Stephen Tabe, an emergency room doctor at Ouachita County Medical
Center. Dr. Tabe conducted a physical examination and although he, too, did not
observe any visual signs of injury to Story, when he palpated Story’s left elbow Story
experienced pain. Dr. Tabe then ordered X-rays of Story’s left elbow and shoulder.
The x-rays did not reveal any fractures. Consequently, Dr. Tabe diagnosed Story with
a left elbow contusion, gave him a prescription for Advil, and suggested he follow up
with his regular doctor. After Story returned to the jail, Tooks, Malcolm, Jr., and
Brewer each saw Story and none observed any injuries, but they did indicate Story
appeared to be in pain.
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Starting several weeks after the incident, Story regularly visited the hospital.
He saw Dr. Tabe twice who did not find evidence of a back injury. Dr. Tabe did
ultimately determine, based on Story’s claim of ongoing back pain, it would be best
for Story to see an orthopedic specialist to get an MRI and determine whether Story
was suffering from a disc problem. Story was next seen on several occasions by
Nurse Connie Hubbard, who could not determine the cause of Story’s pain in part
because X-rays did not show any fractures or displacements. Nurse Hubbard referred
Story to Dr. Robert Scott, who after performed an MRI and concluded Story was
suffering from sciatica caused by degenerative disc disease and early bilateral facet
joint arthropathy. According to Dr. Scott, these diagnoses were inconsistent with
acute trauma because both are chronic ongoing conditions but acute trauma could
have aggravated the symptoms of degenerative disc disease.
Following these events, Story filed a 42 U.S.C. § 1983 action against Ouachita
County Sheriff Paul Lucas, Chief Deputy Joe Strickland, Norwood, and Gill. After
discovery, all of the defendants moved for summary judgment. Based on a report and
recommendation from the magistrate judge, the district court granted summary
judgment in favor of Lucas, Strickland, and Gill. The district court referred the claim
against Norwood to the magistrate judge for an evidentiary hearing under 28 U.S.C.
§ 636(b)(1).
After hearing the above-described evidence, the magistrate judge determined
that on May 22, 2007, “the inmates were flooding the pod, breaking lights, and being
noisy.” Report and Recommendation at 23. Upon arriving to the pod, Norwood
instructed the inmates to get on the wall, but Story did not. Given the emergent
events, which were described as a “riot,” the magistrate judge concluded “it was
reasonable for Norwood to utilize some amount of force in an effort to ensure his own
safety, the safety of others, and to regain control of the facility.” Id. The magistrate
judge further found the actual force used by Norwood consisted of him twice pushing
Story with both hands while holding a large metal flashlight, first pushing Story a few
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steps and the second time pushing Story much harder. The magistrate judge
determined this use of force was minimal. In supporting this finding, the magistrate
judge reasoned if it were to believe Story’s version as to being struck with a large
metal flashlight four times, Story would have sustained some visible injuries. The
magistrate judge pointed to the medical records which contradicted this version, as
did the testimony of the other inmates who did not observe any injuries on Story
when he returned from the hospital. Based on its findings as to Norwood being
entitled to use some level of force because of the emergent conditions, and as to the
force used being minimal, the magistrate judge concluded Norwood’s force was
objectively reasonable and used in good faith to protect himself, others, and restore
order to B-Pod. The magistrate judge recommended judgment be entered in
Norwood’s favor and Story’s claim be dismissed with prejudice.
Story timely objected to the magistrate judge’s factual findings and
recommendation. After a de novo review of the record, the district court adopted the
magistrate judge’s report and recommendation, and dismissed Story’s claim with
prejudice. Story appeals.
II
Story first takes issue with several of the district court’s findings of fact as
adopted from the magistrate judge’s report and recommendation. In particular, Story
contends the district court erred in finding Norwood pushed Story twice because the
evidence establishes Norwood struck Story four times with a flashlight. He further
contends that regardless of what force was used, “the record shows that there was no
issue of safety to [Norwood], other inmates or to regain control of the facility,”
because he “did not refuse to obey a lawful command[,] did not make any threatening
remarks[,] nor did he make any physical movement toward [Norwood] but turned
away from him moving toward the wall.” Appellant Br. at 11, 22. Story essentially
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contends the district court erred in rejecting his version of events and in adopting
Norwood’s and Gill’s versions.
The district court made its findings of fact based on the record from an
evidentiary hearing held under 28 U.S.C. § 636(b)(1). This hearing “is the equivalent
of a bench trial” and thus “we review the district court’s findings of fact for clear
error.” Hartsfield v. Colburn, 491 F.3d 394, 396 (8th Cir. 2007). A district court
clearly errs if its findings are “not supported by substantial evidence in the record, if
the finding[s are] based on an erroneous view of the law, or if we are left with the
definite and firm conviction that an error has been made.” Onstenfeld ex rel. Estate
of Davis v. Delo, 115 F.3d 1388, 1393 (8th Cir. 1997); accord Fed. R. Civ. P. 52(a);
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “If the district court's
account of the evidence is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.” Anderson v. City
of Bessemer City, NC, 470 U.S. 564, 573-74 (1985). Even more, “[w]hen findings
are based on determinations regarding the credibility of witnesses, [Federal Rule of
Civil Procedure 52(a)] demands even greater deference to the trial court’s findings.
Id. at 575. Thus, a district court’s credibility determinations are virtually
unreviewable on appeal. Gill v. Maciejewski, 546 F.3d 557, 563 (8th Cir. 2008)
(citing States v. McCarthy, 97 F.3d 1562, 1579 (8th Cir. 1996)); see also Hicks v.
Norwood, 640 F.3d 839, 842 n.7 (8th Cir. 2011) (“We note, however, that the
decision to credit testimony of witnesses who tell coherent and facially plausible
stories that are not contradicted by extrinsic evidence can virtually never be clear
error.”) (internal quotation marks and citation omitted).
Each of the district court’s findings was supported by ample evidence in the
record. First, the district court rejected Story’s version of events as incredible
because it was inconsistent with other evidence in the record. With regard to the
amount of force used by Norwood, the district court determined Norwood and Gill’s
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version was more plausible because Story’s version as to Norwood hitting him on his
left elbow, left shoulder, and the upper and lower part of his back in a “brutal
beating” was contrary to the objective medical evidence.
The statements provided by the physicians who examined Story, as well as
Story’s fellow inmates, indicate no visible injuries were observed on Story beyond
a left elbow contusion. Dr. Tabe, who examined Story within hours of the incident,
did not find redness or swelling consistent with a savage beating. The only
identifiable injury was a left elbow contusion. But, it is plausible to conclude this
injury was sustained when Norwood pushed Story into the wall. Later examinations
revealed Story suffers from degenerative disc disease and early bilateral arthopathy,
diagnoses Story attempts to relate back to Norwood’s use of force. However, these
injuries are inconsistent with acute trauma. The symptoms of degenerative disc
disease could be aggravated by acute trauma, but the examining doctor was doubtful
acute trauma was the cause here. In particular, Story’s symptoms could have been
aggravated by various causes other than trauma, such as sleeping on the wrong side
of the bed. Given the testimonial and medical evidence supporting Norwood’s and
Gill’s version of the amount of force used and the district court’s decision to credit
this version in light of the lack of supporting evidence for Story’s version, we do not
find the district court erred in finding Norwood’s use of force consisted of him twice
pushing Story toward the wall while holding a flashlight, but never striking him.
Second, the district court found the conditions in B-Pod were sufficiently
emergent as to make it reasonable for Norwood to use some level of force to ensure
his safety, the safety of others, and to restore control over B-Pod. We conclude this
finding is also supported by substantial evidence. Gill testified that when he arrived,
the pod was flooding and he observed inmates attempting to break the lights.
Norwood testified to similar conditions, including observing Story participating in
breaking lights. Even Story conceded there was flooding in B-Pod and inmates were
breaking lights. Both Tooks and Brewer testified that in addition to the flooding, the
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inmates were being noisy. Malcolm, Jr., described the situation as riotous. Gill,
Norwood, and Brewer each testified that upon his arrival, Norwood gave an order to
the inmates to grab the wall. All three indicated Story was not against the wall when
Norwood entered B-Pod and he continued to refuse to grab the wall despite
Norwood’s repeated direction. Based on this evidence, the district court found the
inmates were flooding the pod, breaking lights, and being noisy. Further, even after
Norwood ordered the inmates to get on the wall, Story did not. Because we conclude
these findings are supported by substantial evidence, we will not overturn them.
Having rejected Story’s challenges to the district court’s factual findings, we
turn next to his legal challenge. Story contends the district court erred in finding
Norwood’s use of force was reasonable under the circumstances. Whether facts
establish excessive force by a preponderance of the evidence is a legal question which
we review de novo. Hicks, 640 F.3d at 842 (citing Moody v. Proctor, 986 F.2d 239,
241 (8th Cir. 1993)). “[O]fficers may reasonably use force in a good-faith effort to
maintain or restore discipline but may not use it maliciously or sadistically to cause
harm.” Walker v. Bowersox, 526 F.3d 1186, 1188 (8th Cir. 2008) (per curiam).
Whether the force used was reasonable is “judged from the perspective of a
reasonable officer on the scene” and in light of the particular circumstances. Graham
v. Connor, 490 U.S. 386, 396-97 (1989). In determining whether the force was
reasonable and used in good faith, the court may consider several factors, including
“the need for applying force, the relationship between that need and the amount of
force utilized, the threat the responsible officials reasonably perceived, any efforts
used to diminish the severity of a forceful response, and the extent of the injury
inflicted.” Walker, 526 F.3d at 1188 (8th Cir. 1994) (citing Hudson v. McMillian,
503 U.S. 1, 9 (1992)).
We conclude Story failed to show by a preponderance of the evidence that he
was a victim of an unconstitutional excessive use of force. The facts as found by the
district court establish that when Norwood arrived, the pod was flooding, the inmates
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were breaking lights, and the situation was riotous. With the toilet still overflowing,
Norwood had to enter quickly and unplug the toilet before the water spread. To do
so safely, Norwood needed the inmates to get on the wall, and stay there. He thus
instructed Story, among others, to stand against the wall, but Story refused.
Consequently Norwood twice pushed Story to the wall with the flashlight in his hand,
making some contact with Story but not striking him. Norwood then threatened the
use of a taser to keep Story against the wall. These facts do not suggest Norwood was
acting with malice or sadistic intent rather than using reasonable force in good faith
to restore discipline. The evidence shows Norwood’s use of force was minimal and
brief, ending when Norwood was certain Story would stay on the wall. It was
reasonable for Norwood to use some force to get Story on the wall. We conclude the
district court correctly determined Norwood’s twice shoving Story toward the wall
was reasonable in light of these emergent and unsafe circumstances, and therefore
does not amount to an excessive use of force.
III
On a final note, Story also argues the district court legally erred in requiring
him to show some threshold level of injury to succeed on his excessive force claim.
Story is correct in noting excessive force claims do not necessarily fail merely
because the injury may be de minimus. See Hudson, 503 U.S. at 9 (discussing
whether the de minimus nature of injury would undermine an excessive force claim
and concluding “[w]hen prison officials maliciously and sadistically use force to
cause harm, contemporary standards of decency always are violated . . . whether or
not significant injury is evident”). However, Story’s argument mischaracterizes the
district court’s decision. To the extent the district court considered the severity of
Story’s injuries, it was in the context of weighing the credibility of Story’s version
of events. A thorough reading of the district court’s decision assures us the district
court did not enforce a minimum level of injury as a legal threshold barring Story’s
claim. Consequently, we conclude Story’s claim of legal error to be without merit.
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IV
Accordingly, we affirm the judgment of the district court.
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