concurring in part and dissenting in part.
I write in dissent because, in contrast to the majority, I believe that a genuine issue of material fact exists regarding whether Joe Suardini (“Suardini”) and Harry Irvine (“Irvine”) used excessive force against James A. Lockett (“Lockett”) in violation of the Eighth Amendment. I concur in the sections of the opinion upholding the district court’s grant of summary judgment to the defendants on Lockett’s First Amendment claim and on Lockett’s claim that he was denied medical treatment in violation of the Eighth Amendment. I believe, however, that we should reverse the district court’s grant of summary judgment on Lockett’s excessive-force claim and remand for further proceedings.
The majority opinion fails to view the facts alleged in Lockett’s complaint and in Lockett’s and Palmer’s affidavits in the light most favorable to Lockett. The majority first concludes that Lockett’s aggressive behavior justified the use of some amount of force by Irvine and Suardini. Lockett’s affidavit, however, states that while he had verbally insulted the hearing officer, he had not physically threatened her: “At no time did I ‘ever attempt’ to move towards this hearings officer, being approximately six (6) to eight (8) feet away from me and my hands were cuffed behind my back.” Joint Appendix (“J.A.”) at 183 (Lockett Aff. at 3). Likewise, Palmer’s affidavit states that, before the physical altercation between Lockett and the officers, Lockett had not “made any aggressive motions towards staff’ and posed no threat to the officers because he was handcuffed. J.A. at 179 (Palmer Aff. at ¶¶ 12, 14). Whether Lockett posed a physical threat to the hearing officer, Irvine, or Suardini is critical to the inquiry “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). Consequently, the significant difference between the factual accounts presented by the defendants and by Lockett creates a genuine issue of material fact regarding “ ‘whether the use of force could plausibly have been thought necessary.’ ” Id. (quoting Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).
*879Second, the majority opinion concludes that Suardini used only minimal and not excessive force against Lockett. The majority’s characterization of the force as minimal distorts Lockett’s factual narrative by exaggerating the importance of the word “attempt.” Lockett’s affidavit alleged that Suardini “proceeded to shove (throw) [Lockett] out of the hearings office room and towards the stairs”; “attempted to ‘literally’ throw [Lockett] down the flight of stairs”; “ ‘attempted,]’ to run (drag) [Lockett’s] head into and alongside the wall, causing cuts and lacerations in the center of [his] forehead”; “attempted” to “choke” Lockett; and “tr[ied] to ‘break’ [Lockett’s] fingers.” J.A. at 183-85 (Lockett Aff. at 3-5). The majority concludes that the fact that Suardini did not succeed in these attempts to throw Lockett down the stairs, drag his head into a wall, choke him, and break his fingers means that Suardini could not have used excessive force against Lockett. By contrast, I think these attempts themselves involved the use of force that, if the facts are viewed in the light most favorable to Lockett, meets the Supreme Court’s standard for excessive force: “punishments, which although not physically barbarous, ‘involve the unnecessary and wanton infliction of pain,’ ... [including] inflictions of pain ... that are ‘totally without penological justification.’” Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Lockett’s verified complaint states that he “was brutally assaulted” by Irvine and Suardini, and, at the summary-judgment stage, the allegations in Lockett’s affidavit should be seen as substantiating that claim. J.A. at 25 (Verified Compl. at 2). Finally, the two decisions to which the majority opinion analogizes in support of its conclusion that Suardini did not use excessive fore are unpublished and therefore nonbinding opinions that, in addition, are readily distinguishable.1
In conclusion, I believe that Lockett has created a genuine issue of material fact regarding whether the degree of force that Irvine and Suardini used against him exceeded that which was reasonably necessary and thus constituted a malicious effort to cause harm rather than a good-faith effort to restore discipline. I would therefore reverse the district court’s grant of summary judgment to the defendants on Lockett’s excessive-force claim and remand for further factfinding.
. The majority cites two unpublished Sixth Circuit decisions in support of its conclusion. See Johnson v. Coolman, 102 Fed.Appx. 460, 460-61 (6th Cir.) (unpublished) (holding that the defendant security guards did not use excessive force when they "pushed [the plaintiff prisoner] into his cell, pulled hard on the security strap attached to his handcuffs, and ... attempted to bend his thumb back”), cert. denied, 543 U.S. 1006, 125 S.Ct. 612, 160 L.Ed.2d 469 (2004); Williams v. Johnson, 55 Fed.Appx. 736, 736-37 (6th Cir.2003) (holding that the amount of force used in shoving the plaintiff prisoner into a closed door was "reasonably related” to the need for force when a food-service manager felt threatened). When we take the facts in the light most favorable to Lockett, the amount of force used against him — involving attempts to throw him down the stairs, push his head into a wall, choke him, and break his fingers — far exceeded the force at issue in these cases.