John R. Taylor, Jr. v. Ernest McDuffie Ronnie Lovick

MURNAGHAN, Circuit Judge,

dissenting:

Four years ago, in Norman v. Taylor, 25 F.3d 1259 (4th Cir.1994) (en banc), a majority of this Court held that a plaintiff cannot sustain a § 1983 action for the use of excessive force where the plaintiffs injuries are de minimis. I dissented from that holding, along with three other judges, because I believed it was based on a patent misreading of the Supreme Court’s decision in Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), and because it represented an unacceptable curtailment of an inmate’s right to be free from the use of excessive force by police officers. Today, I remain convinced that Norman was wrongly decided, and I am compelled to dissent once again on that basis. I also dissent because, even accepting Norman as the established law of our circuit, I cannot agree that summary judgment was proper on the facts presented in this case.

I.

In Hudson, the Supreme Court held that the Eighth Amendment “excludes from constitutional recognition de minimis uses of physical force...” 503 U.S. at 9-10, 112 S.Ct. 995. The Fourth Circuit later held that the de minimis force rule applies equally to claims of excessive force brought by pretrial detainees under the Fourteenth Amendment. See Riley v. Dorton, 115 F.3d 1159, 1166-67 (4th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 631, 139 L.Ed.2d 611 (1997).

In Norman, this Court embarked upon an unjustified extension of the Hudson de min-imis force rule to exclude from constitutional protection all claims of excessive force that do not result in more than de minimis injury. See 25 F.3d at 1262. The majority held that “[w]hile [Hudson ] ... excepted from the Eighth Amendment only de minimis uses of force, it seemed to affirm by negative implication one sentence later that de min-imis injury can serve as conclusive evidence that de minimis force was used-” * Id. (emphasis added). I believed then, as I do now, that the majority’s “negative implication” was drawn in direct conflict with the express language oí Hudson.

The Court in Hudson recognized that the ultimate issue to be decided in the excessive force inquiry is whether the degree of force employed by the officers was justified under the circumstances. See 503 U.S. at 6-7, 112 S.Ct. 995. With that in mind, the Court explained in no uncertain terms that the degree of injury suffered by the plaintiff is only- one of many relevant factors:

*486[T]he extent of injury suffered by an inmate is one factor that may suggest “whether the use of force could plausibly have been thought necessary” in a particular situation, “or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat “reasonably perceived by the responsible officials,” and “any efforts made to temper the severity of a forceful response.” The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it.

Id. at 7, 112 S.Ct. 995 (internal citations omitted) (emphasis added). In light of this admonishment, the majority’s “negative implication” in Norman was clearly unjustified, for nothing in Hudson can be remotely interpreted to imply that the extent of injury is ever “conclusive” on the question of whether excessive force was used.

Given the error of our holding in Norman, it is not surprising that our circuit stands alone among all other courts of appeal in holding that de minimis injury, without more, is dispositive of an excessive force claim. Vigilantly adhering to Hudson, other courts of appeal have consistently held that the degree of injury is but one of many relevant factors. See, e.g., Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir.1996) (holding that although “some injury” is required, “the extent of injury suffered by a [plaintiff] is one factor that may suggest whether the use of force” was excessive under the circumstances) (emphasis added) (quoting Hudson, 503 U.S. at 7, 112 S.Ct. 995); Harris v. Chapman, 97 F.3d 499, 505 (11th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997) (“[A]nalysis of an ... excessive force claim is contextual and requires that many factors be considered: ‘the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response ....’”) (emphasis added) (quoting Hudson, 503 U.S. at 7, 112 S.Ct. 995); Davidson v. Flynn, 32 F.3d 27, 29 n. 1 (2d Cir.1994) (“[T]he seriousness of the injury is ‘relevant to the [excessive force] inquiry, but does not end it.’ ”) (emphasis added) (quoting Hudson, 503 U.S. at 7, 112 S.Ct. 995); White v. Holmes, 21 F.3d 277, 281 (8th Cir.1994) (“The extent of injury ‘is a relevant factor as to whether or not the punishment inflicted was [excessive].’ ”) (emphasis added) (quoting Cummings v. Malone, 995 F.2d 817, 822-23 (8th Cir.1993)); Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th Cir.1994) (“[T]he degree of injury is relevant to determining ‘whether the use of force could plausibly have been thought necessary’ in a particular situation ....”) (emphasis added) (quoting Hudson, 503 U.S. at 7, 112 S.Ct. 995).

The present case is indicative of the unacceptable results achieved when a finding of de minimis injury is considered dispositive of the excessive force inquiry. Relying on Norman, the majority holds that a claim of excessive force cannot survive summary judgment where the plaintiffs injuries are de minimis, regardless of whether excessive force was actually employed by the officers. With full faith in the fiction that de minimis injury means de minimis force, the majority’s analysis does not even address the possibility that excessive force may have been used against Taylor despite the lack of any outward signs of serious injury. Yet, it is certainly not difficult to imagine circumstances where the excessive use of force might result in no serious, visible injury to the plaintiff. For example, imagine an inmate who, although thrown from a prison balcony, is fortunate to incur only minor scrapes and bruises. Or imagine an inmate who, although beaten intensely in the stomach, back, chest, or groin, displays no greater outward signs of physical injury than that which the majority terms “temporary swelling.” While the extent of the plaintiffs injuries in such cases is obviously relevant to damages, the fact that such injuries are less than severe does not answer the ultimate question of whether the force used was justified under the circumstances.

*487Hudson, of course, recognized as much. In rejecting the Fifth Circuit’s attempt to impose a “significant injury” requirement on excessive force claims, the Court put to rest any notion that an excessive force claim should rise or fall with the severity of the plaintiffs injuries:

When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today.

Hudson, 503 U.S. at 9, 112 S.Ct. 995 (internal citations omitted) (emphasis added). Yet, the law in this circuit is clearly to the contrary. As the majority’s opinion makes clear, officers in our circuit are free to use excessive or unjustified force against inmates, so long as they are careful or fortunate enough to leave only minor traces of their blows.

I expect that soon the Supreme Court will place the Fourth Circuit back on the course intended by Hudson. Until that day, I fear the injustice that awaits pretrial detainees in our nation’s jails.

II.

Despite my belief that Norman was wrongly decided, I recognize that, in the absence of a contrary en banc decision or Supreme Court clarification, I am bound to apply the law as it has been articulated in this circuit. Even applying that law, however, I disagree with the majority’s conclusion that summary judgment is appropriate.

As an initial matter, the record reveals that Taylor’s injuries were more than de minimis. As his medical records demonstrate, Taylor suffered abrasions of the ankles, wrists, and inner mouth, swelling of the tricep, face, and lower jaw. The examining doctor observed that Taylor limped visibly from pain in his left thigh. In addition, Taylor’s medical reports confirm that he complained of nausea, diffuse pain over his entire neck area, soreness of the ribs, as well as pain in his head, jaw, thorax, wrists, and ankles. Although Taylor’s injuries were certainly not severe or permanently debilitating, we have held that such injuries are not required. See Riley, 115 F.3d at 1167 (“An injury need not be severe or permanent to be actionable_”). Moreover, Taylor’s injuries are at least comparable to those the Supreme Court held not to be de minimis in Hudson. See 503 U.S. at 4, 112 S.Ct. 995 (reversing summary judgment where plaintiff suffered “minor bruises and swelling of [the] face, mouth and lip,” as well as several loosened teeth and a cracked partial denture).

In light of the medical evidence submitted by Taylor, I believe a genuine issue of material fact remains with respect to the severity of Taylor’s injuries. While a jury might ultimately conclude that Taylor’s injuries were de minimis, I cannot agree that such a conclusion is compelled as a matter of law on the record presented in this case. To hold otherwise is to revert back to the “significant injury” requirement explicitly rejected by Hudson. See id. at 9,112 S.Ct. 995.

Finally, even assuming for the sake of argument that Taylor’s injuries were de min-imis, we have previously held that the de minimis rule does not apply to conduct “repugnant to the conscience of mankind.... ” Norman, 25 F.3d at 1263 n. 4 (quoting Hudson, 503 U.S. at 10, 112 S.Ct. 995); see also Hudson, 503 U.S. at 9, 112 S.Ct. 995 (“[I]t is safe to affirm that punishments of torture ... and all others in the same line of unnecessary cruelty, are forbidden by [the Eighth Amendment].”) (quoting Wilkerson v. Utah, 99 U.S. 130, 136, 25 L.Ed. 345 (1878)). Here, while I agree that the use of force was justified to the extent necessary to retrieve the identification card and bring Taylor under the officers’ control, I believe Nelson Bryant’s affidavit creates a genuine issue of material fact with respect to whether the officers behaved maliciously or sadistically after the need for force had subsided. According to Bryant, even after Taylor relinquished the identification card, “the officer with the [kubaton] continued to jab it into Taylor’s mouth repeatedly, eight to ten more times,” at which point Bryant could see blood on Taylor’s swollen face and “could hear Taylor say the officers were hurting him.”

*488The majority offers no analysis to support its conclusion, stated in a footnote, that the continued use of a kubaton against Taylor— who was by then handcuffed face-down on the floor, had relinquished the identification card, and was no longer resisting the officers — was not “diabolic” or “inhuman.” Yet a jury, when faced with Nelson Bryant’s testimony, could certainly conclude otherwise. See King v. Blankenship, 636 F.2d 70, 73 (4th Cir.1980) (holding use of force excessive on similar facts) (“We can only infer pure malice or personal antipathy because aside from them we can conceive of no motivation for the blows that fell after [the plaintiff] was pinned to the floor.”). The existence of that factual dispute makes summary judgment improper. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[Sjummary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”).

I dissent.

The sentences from which the majority drew the alleged “negative implication” state as follows: "[T]he blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes. The extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983 claim." Hudson, 503 U.S. at 10, 112 S.Ct. 995.