Allain Delont Norman v. Otis Taylor, Deputy Sergeant

K.K. HALL, Circuit Judge,

dissenting:

The majority affirms the order granting summary judgment on two independent bases: (1) Norman’s evidence is “completely devoid of any facts from which one could reasonably infer that Norman was injured, if at all, in more than a de minimis way when Sergeant Taylor swung his keys at him ...” (majority op. at 1262), and (2) the force used was justified as “a good faith effort to maintain or restore discipline.” Maj. op. at 1263 n. 5. I dissent because I believe that, under established standards of review of summary judgment orders, genuine issues of material fact exist as to both the objective and subjective prongs of Norman’s Eighth Amendment excessive force claim.

I

It might be best to begin by listing those points in the majority opinion with which I agree. We agree that we must accept as true Norman’s allegations that (1) Sergeant Taylor swung a set of keys at him and missed twice before striking him on the thumb, and (2) Taylor pushed him against the wall and threatened to stab him with the keys. See maj. op. 1261-62. I assume that the majority would agree that we must also accept as true Norman’s other allegations with regard to the attack itself — that Taylor swung the keys three times in the direction of Norman’s face, that Norman was struck on the hand while trying to protect himself, and that the keys were “large brass cell keys.”1

*1265We disagree first and foremost about what the record shows with regard to the extent of the injury received by Norman. The majority characterizes the injury evidence as follows: “At most, Norman received a sore thumb as a result of the incident, and, as the district court correctly found, there is no record evidence even to support his claim of this injury.” Maj. op. at 1264. Norman, an inmate who is proceeding pro se, is in a decidedly difficult position from which to generate “record evidence” on his behalf — -he may not, for instance, retain a specialist or make an appointment to see his personal physician. Under these circumstances, his affidavits and those of his fellow inmates are about the best that can be expected from him at this point in the proceedings. Our disagreement, however, goes beyond our respective views of the record.

“The objective component of an Eighth Amendment claim is ... contextual and responsive to contemporary standards of decency. ... When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” Hudson, — U.S. at -, 112 S.Ct. at 1000 (internal quotation omitted). The “objective component” is the amount of force used. The extent of injury is a factor to be considered on the ultimate question— did the force inflict wanton and unnecessary pain and suffering? — and I do not doubt that evidence of injury will often conclusively belie an inmate’s account of the use of force against him. If we are to focus on the “injury,” however, we must be careful to examine every aspect of it.

The majority opinion is constructed on the basis of the “negative implication” it finds in the Court’s statement that the injuries suffered by the inmate in Hudson “provide[d] no basis for dismissal of his § 1983 claim.” Maj. op. at 1262 (quoting Hudson, - U.S. at -, 112 S.Ct. at 1000). This implication is that “de minimis injury can serve as conclusive evidence that de minimis force was used.” Maj. op. at 1262. This is, standing alone, a fairly unremarkable proposition — if an inmate is complaining solely about a physical injury suffered as a result of little more than a “push or a shove,” certainly the extent of the injury could be so minor as to compel a finding that the force used to inflict it was commensurately minor. De minimis non curat lex — the law cares not for trifles— certainly applies with respect to the force used against an inmate. Norman’s alleged injuries, however, are not so trifling as to foreclose a jury finding that the force used was itself not trifling.

The majority focuses almost exclusively on the physical manifestations of injury to Norman’s thumb. Had Norman complained only of the physical damage resulting from the attack, and had the harm been limited to, say, some minor swelling, this focus might be justified. Norman’s affidavits, however, state that he suffered “great pain and swelling” when he was struck on the hand by a “large set of brass keys,” that three years later he still suffered pain, that he does not have full use of his right hand, and that he may have suffered emotional distress and psychological injury as a result of the attack and the subsequent threats.2 His “injury,” then, also comprises pain, fear, and possible psychological damage.3 I conclude that the *1266record, when viewed in the light most favorable to Norman, demonstrates at least a genuine issue about whether Norman received more than “a sore thumb.” I further conclude that the injury allegations foreclose summary judgment on the de minimis injury basis espoused by the majority.

II

The majority’s alternative basis of affir-mance is that Norman failed to rebut Taylor’s allegation that Norman was causing a disturbance. Taking this allegation as true, the majority concludes that the force allegedly used, i.e. striking at Norman’s face with a large set of brass keys, was justified “in a good faith effort to maintain or restore discipline.” 4 Maj. op. at 1263 n. 5. I take this to imply that, had Taylor been successful in striking Norman’s face with one or more of the blows, his Eighth Amendment claim would have nonetheless come up short on the subjective side of the excessive force test and would have died at the summary judgment stage, regardless of the injuries inflicted.

It is true that Norman failed to expressly deny that he had created a disturbance. The district court gave the required Roseboro notice5 inviting Norman to submit affidavits “that show that [the parties] truly disagree about one or more important facts present in this case,” but what turned out to be a pivotal question — were you creating a disturbance? — was never directly posed to him. Because Norman was not represented by counsel,6 his pleadings should be viewed with a certain degree of latitude. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (inmate’s pro se complaint held to less stringent standards); cf. Carter v. Hutto, 781 F.2d 1028 (4th Cir.1986) (where pretrial order did not inform inmate of required degree of specificity for summary of testimony from potential witnesses, the court should have informed the inmate of this deficiency and afforded him the opportunity to cure). In any event, I believe that a fair reading of Norman’s submissions supports his argument that he essentially denied creating a disturbance and that the only provocation for the attack was his cigarette.7

I would reverse the judgment of the district court and remand for further proceedings.

I am authorized to state that Chief Judge ERVIN, Judge PHILLIPS, Judge MURNAGHAN, and Judge MICHAEL join in this dissent.

. Affidavits of Allain Norman (J.A. 63), Karl Robertson (J.A. 51), and Curtis Hammonds (J.A. 52); see also affidavit of Curtis Hammonds, J.A. 70 ("those big keys”).

. Norman's statements in the record include the following:

(1) Letter attached to complaint filed on January 10, 1991 (ten months after the incident)— "By me putting my hand up to protected my face Sgt. Taylor then caught my right hand hitting me on my thumb with his cell keys causing my hand to swell[ ].... [After the threat] I became very scared of what this man may or may not do to me so I remain quiet until I was moved.... My whole time in the Norfolk jail I feared for my life thinking that Sgt. Taylor would hurt me or even kill me or have another inmate to hurt me....” J.A. 10.
(2) Affidavit signed February 9, 1992 — “I am still experiencing pain and discomfort ... [and] I’m ... seeking compensation for my personal, physical and mental and emotional suffering.” J.A. 50.
(3)Affidavit signed December 31, 1992 — “[I] placed my hands over my face to shield the keys. The keys hitting on the back part of my thumb, causing great pain and swelling.... As of today, I still suffer pain around my right thumb, which leaves me with a disadvantage not having full use of my right hand, since the persistence of pain have continued.” J.A. 64.

. The inmate in Hudson "did not allege that he feared that the beating incident would be repeated or that it had caused him anxiety and depression.... 'Pain' in its ordinary meaning *1266surely includes a notion of psychological harm.” Hudson, - U.S. at -, 112 S.Ct. at 1002 (Blackmun, J., concurring in the judgment).

. It is unclear how it was determined that the force alleged by Norman was a justifiable response to the disturbance alleged by Taylor. According to Sergeant Taylor, the alleged disturbance was not one that required the use of any force. In his affidavit, he stated that he merely “ordered Norman to quiet down and to put out his cigarette. I also closed and locked the door to the passageway....” Affidavit of Sergeant Otis Taylor, J.A. 34-35.

. Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975) (per curiam).

. Counsel was appointed only after the appeal had been filed. Although Norman may have received some assistance from a student involved in a post-conviction assistance program at a Virginia law school, he was still proceeding pro se and is entitled to the benefit of the rules established to help level the playing field in such cases.

."I was in the area I was told to be in when Sgt. Taylor saw me getting ready to smoke a cigarette, he ran up to me than began swinging his cell keys...." Complaint, J.A. 10. Taylor submitted no other affidavits corroborating his version of the events, although there were other deputies present. See Affidavit of Otis Taylor, J.A. 34 (“[Norman] began yelling.... This was disruptive to prison security as the deputies were attempting to create an accurate list of the inmates ... ”).