Nathan Miller v. Emery Leathers, Officer

WILKINSON, Circuit Judge:

Here we must determine if the district court erred in granting summary judgment to a defendant prison guard whom the plaintiff inmate alleged had used excessive force against him in violation of his constitutional rights. We find that the grant of summary judgment was proper and affirm.

I.

Appellant Nathan Miller is incarcerated at Central Prison in Raleigh, North Carolina, for armed robbery. On January 3, 1987, Miller filed a grievance against Officer Emery Leathers to resolve various ongoing difficulties with him. On January 7, 1987, the prison superintendent, after reviewing the grievance, decided in Leathers’ favor, finding that Leathers had conducted himself “in a professional manner” when dealing with Miller and other inmates.

Later that day, Leathers was instructed to deliver a grievance form to appellant, on which the superintendent had noted his decision. Appellant had demonstrated a proclivity for violence and assaultive behavior. Between March 1, 1978 and November 22, 1986, he had committed some twenty-seven disciplinary infractions, involving, among other things, possession of weapons, physical assaults, and threats of physical harm against numerous prison officials. Appellant was thus in close custody and administrative segregation when Leathers left the form with him and instructed him to sign it.

Miller claimed Leathers delivered the form “with a very nasty attitude.” Miller refused to sign the form, and a brief verbal confrontation ensued between the parties. During this time, Miller, who is white, referred to Leathers as a “slush-headed nigger” and threatened him with physical harm. Finally, Miller signed the form and returned it to Leathers. Leathers then left the cellblock and proceeded to the cellblock control station where he obtained a pair of handcuffs. He then reentered appellant’s cellblock and returned to appellant’s cell.

Upon returning to appellant’s cell, Leathers claimed he told Miller to get dressed because he was taking him to see the Sergeant or the Lieutenant. Leathers handcuffed Miller and directed the officer in the control booth to open his cell door. When the door opened, the parties moved toward one another so that they were face to face, virtually touching. At this point, Miller concedes he again threatened Leathers with physical harm and repeated his racial taunts. Leathers contends Miller also refused orders, kicked him in the ankle, and spit in his beard, but this is a matter of dispute. Leathers then instructed appellant to proceed toward the cellblock exit. After proceeding downstairs, Leathers directed Miller toward the exit. Appellant moved forward several steps and then re*153fused to proceed any further. At that point, Miller contends that Leathers said he was a “punk and wanted some dick.” Miller concedes he then turned to face Leathers, responding “yes, just like your mama.” A brief scuffle ensued and Leathers struck appellant with his baton three times. Appellant caught and blocked the first blow between his handcuffs, but the other blows struck him on the arms. Appellant then armed himself with a broomstick from a nearby mop closet and charged Leathers. Leathers and other officers subdued him and he was escorted to the Emergency Room of Central Prison Hospital.

At the infirmary, Miller was examined by Physicians’ Assistant Ray Drewry. X-rays revealed that appellant’s right forearm had suffered a minor fracture approximately two centimeters long. A short arm cast was applied on January 12, 1987, and removed on March 16, 1987. X-rays showed satisfactory healing.

On February 9, 1987, appellant filed a complaint pursuant to 42 U.S.C. § 1983, alleging that on January 7,1987, defendant had used excessive force against him in violation of his constitutional rights. On March 17, 1988, Leathers filed motions to dismiss and for summary judgment. On May 6, 1987, the district court granted Leathers’ motion for summary judgment concluding that appellant failed to allege sufficient evidence to meet the test for excessive force. Specifically, the court found that there “was a need for application of force, that the amount of force employed was not disproportional to the need, and that the injury inflicted upon plaintiff was de minimis.” The district court concluded that “the force was applied in a good faith effort to discipline” Miller. This appeal followed.

Miller argues that the question of whether Officer Leathers used excessive force against him presents an issue of triable fact. We believe, however, that the applicable Supreme Court precedents reflect a recognition that confrontations between guards and inmates in the prison setting are legion, and that every altercation with two sides to it does not render judgment inappropriate as a matter of law.

It is clear that “the unjustified striking, beating, or infliction of bodily harm upon a prisoner by the police or a correctional officer gives rise to liability under 42 U.S.C. § 1983.” King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980). Section 1983, however, “is not itself a source of substantive rights.” Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979). Rather, it provides “a method of vindicating federal rights elsewhere conferred.” Id. Thus, “[i]n addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.” Graham v. Connor, — U.S. -, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). In most cases, either the Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth Amendment’s ban on cruel and unusual punishments is implicated. Id. Here, since the incident took place after appellant’s conviction, the Eighth Amendment “serves as the ... source of substantive protection.” Whitley v. Albers, 475 U.S. 312, 318, 327, 106 S.Ct. 1078, 1083, 1088, 89 L.Ed.2d 251 (1986). While the particular setting of Whitley involved a prison riot, the standard announced in that case is not limited to the quelling of institutional disturbances. The Whitley standard applies to any “claim of excessive force to subdue [a] convicted prisoner,” Graham, 109 S.Ct. at 1871, or to “prophylactic or preventive measures intended to reduce the incidence of ... any other breaches of prison discipline.” Whitley, 475 U.S. at 322, 106 S.Ct. at 1085. See also Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979).

Recognizing that a plethora of lawsuits against prison authorities might itself be inimical to prison discipline, the Supreme Court made the Eighth Amendment standard a difficult one to satisfy. For conduct to be a violation of Eighth Amendment rights, it “must involve more than ordinary lack of due care for the *154prisoner’s interests or safety.” Whitley, 475 U.S. at 319, 106 S.Ct. at 1084. The infliction of pain is not cruel and unusual punishment “simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable.” Id. “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Id. In determining whether force was used merely to inflict unnecessary and wanton pain, “ ‘such factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted’ ” must be considered. Id. at 321, 106 S.Ct. at 1085, quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973).

Here, Leathers’ use of force did not transgress Eighth Amendment standards. Leathers knew that appellant had a proclivity for violence. Moreover, moments prior to the incident, Miller had directed a racial insult at Leathers, calling him a “slush-headed nigger,” and had threatened Leathers with physical harm. Miller concedes in his own deposition testimony that he made a deliberate decision to provoke Leathers so that Leathers would write him up for a disciplinary infraction. When appellant refused to obey Leathers’ instruction to proceed through the cellblock exit, and turned around to confront him, while sexually insulting Leathers’ mother, Officer Leathers “reasonably perceived” that he was being threatened with bodily harm. Whitley, 475 U.S. at 321, 106 S.Ct. at 1085. To have reacted by striking appellant three times was not wanton or unnecessary in this context.

Miller’s contention that Leathers used force maliciously and wantonly because appellant had filed a grievance against him is without merit. The grievance proceeding was one in which Leathers had prevailed. Absent from the incident also are the more obvious indicia of a retaliatory beating. Leathers did not strike Miller in the head, groin, or from behind, nor while he was prostrate. He struck a defiant and disobedient inmate who had previously threatened him and who had turned on him in a manner indicative of an intent to carry out those threats. He struck appellant in the obvious area of the body he would use in an attack upon Leathers, his handcuffed arms and fists. It is true Leathers struck Miller three times. The three blows were necessary, however, because Miller caught and blocked the first blow between his handcuffs, and then laughed and taunted Leathers, telling him “his mama could hit harder than he was doing” — an indication that the first blow was not harmful and had not deterred appellant.

Miller contends in his brief that Leathers acted in violation of prison regulations by removing Miller from his cell outside the supervision of a higher authority. If such is the case, it is a matter between Leathers and his supervisors. It is not dispositive, however, of the present action. Indeed, if violations of internal prison regulations were conclusive of § 1983 liability, prison authorities might either be reluctant to promulgate strict rules of conduct for prison guards or be prone to cover up infractions.

We do not adopt a rule that sufficient verbal provocation will permit a prison guard to avoid § 1983 liability for the use of wanton and malicious force. We recognize, moreover, that prison vernacular is often coarse and that this quarrel, like any other, has two sides. The ill feeling between guard and inmate was considerable; their dealings were never marked by courtesy on either side. Every disputed fact between altercants is not a material fact for purposes of summary judgment, however. In the summary judgment context, it is not the judge’s function “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Ballinger v. North Carolina Agricultural Extension Service, 815 F.2d 1001, 1004-05 (4th Cir.1987). Thus, appellant could have survived summary judgment here “only if the evidence viewed in the light most favor*155able to him [went] beyond a mere dispute over the reasonableness of the force used and ... supported] a reliable inference of the wantonness in the infliction of pain.” Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir.1987).

Here the evidence did not. Section 1983 does not displace all adjudicative authority on the part of prison officials or compel courts to umpire every altercation behind prison walls. “[Management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force.” Johnson, 481 F.2d at 1033. The threat to prison authority here was apparent. Not content with the outcome of the grievance process, Miller admits, both in his complaint and in his brief before this court, that he threatened Leathers with physical harm, directed racial insults at him, and cast sexual aspersions on his mother. By his own admission, he embarked on a deliberate course of conduct designed to provoke Leathers into writing him up, or, perhaps, into an incident for which legal action might lie. Further, he turned on Leathers at the exit to the cell-block in direct defiance of an order to proceed. In such circumstances, some deference must be accorded prison guards forced to choose between the risks of becoming defendants in a § 1983 action and of sustaining bodily injury themselves. While restraint in the face of provocation may still have remained the course of wisdom, we cannot say that the measured force employed on Miller’s handcuffed wrists was of a wanton and obdurate kind.

The judgment of the district court is

AFFIRMED.