UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-6843
WALLY BOONE,
Plaintiff - Appellant,
v.
C.D. EVERETT, K-9 Officer; RODRIGUEZ, Sergeant,
Defendants - Appellees,
and
CORIZON, contractors in the employment of Virginia
Department of Corrections Medical Department; MS. SIDI; MS.
JACKSON; MS. M. WOODRUFF,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:14-cv-01619-AJT-TCB)
Submitted: September 28, 2016 Decided: October 21, 2016
Before TRAXLER, KEENAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Wally Boone, Appellant Pro Se. John Michael Parsons, Assistant
Attorney General, Richmond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Wally Boone appeals the district court’s order granting
Officer C.D. Everett and Sergeant L. Rodriguez’s motion for
summary judgment and denying relief on his 42 U.S.C. § 1983
(2012) complaint. Boone’s complaint raises Eighth Amendment
excessive force claims. In his complaint, Boone alleges that:
(1) Everett slammed Boone’s head into a wall, threw him on the
floor, jumped on top of him, and choked him until he became
unconscious, and (2) Rodriguez dragged Boone to the medical
department while threatening to drop him and allowing Boone’s
genitals to remain exposed. *
The district court granted Defendants’ motion for summary
judgment. We affirm in part, vacate in part, and remand for
further proceedings.
We review a district court’s award of summary judgment de
novo, viewing the facts and inferences reasonably drawn from
those facts in the light most favorable to the nonmoving party.
Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320 (4th
* Boone also appeals the district court’s dismissal of his
deliberate indifference claim against Nurse Sidi. But Boone
does not challenge the district court’s sole dispositive ruling
on the claim against Sidi—that Boone failed to exhaust his
administrative remedies against Sidi. Thus, Boone has waived
appellate review of that ruling. See 4th Cir. R. 34(b) (“The
Court will limit its review to the issues raised in the informal
brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir.
2014).
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Cir. 2014). A court can only award summary judgment when no
genuine dispute of material fact remains and the record shows
that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). When the moving party makes an
initial showing that there is no genuine issue of material fact,
the nonmoving party must “go beyond the pleadings” and rely on
some form of evidence, including affidavits, to demonstrate that
a genuine issue of material fact exists. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Thus, to withstand summary
judgment, the nonmoving party must produce competent evidence
that goes beyond “[c]onclusory or speculative allegations” and
relies on more than “a mere scintilla of evidence.” Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(internal quotations omitted).
When reviewing the evidence submitted, a court cannot
“credit[ ] the evidence of the party seeking summary judgment
and fail[ ] properly to acknowledge key evidence offered by the
party opposing that motion.” Tolan v. Cotton, 134 S. Ct. 1861,
1867 (2014). Such conduct would improperly weigh the evidence
and resolve disputed issues in the moving party’s favor. Id.
But when the record “blatantly contradict[s]” the nonmoving
party’s version of events, a court can adopt the moving party’s
version. Scott v. Harris, 550 U.S. 372, 380 (2007) (relying on
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unaltered videotape evidence that contradicted nonmoving party’s
claim to adopt moving party’s version of facts).
Here, the issue for summary judgment implicates the Eighth
Amendment, which protects prisoners from “unnecessary and wanton
infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319
(1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S.
34 (2010). An Eighth Amendment claim for excessive force, like
Boone’s claim, requires the prisoner to prove the official
possessed a culpable state of mind (subjective component) and
caused the prisoner a sufficiently serious deprivation or injury
(objective component). Williams v. Benjamin, 77 F.3d 756, 761
(4th Cir. 1996).
The subjective component requires a prisoner to prove the
official acted “maliciously and sadistically for the very
purpose of causing harm” rather than “in a good faith effort to
maintain or restore discipline.” Whitley, 475 U.S. at 320-21
(internal quotation marks omitted). Not every malevolent touch
by a prison guard gives rise to an excessive force claim.
Hudson v. McMillian, 503 U.S. 1, 9 (1992). Factors showing
malicious or sadistic intent include:
(1) the need for force,
(2) the degree of force used in relation to the need
for force,
(3) the existence of a threat reasonably perceived by
the official,
(4) any efforts made to lessen the severity of a
forceful response, and
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(5) the extent of the prisoner’s injury.
Id. at 7.
The objective component measures the force used against
“contemporary standards of decency.” Hudson, 503 U.S. at 8
(internal quotations omitted). When a prisoner satisfies the
subjective standard, “contemporary standards of decency always
are violated.” Id. at 9.
Turning first to the excessive force claim against Everett,
we hold that the district court’s opinion contains flaws
necessitating remand. First, the opinion does not mention the
evidence Boone proffered to support his claim, which included:
(1) his affidavit attesting to his account of the incident,
(2) his prison grievances detailing injuries consistent with his
allegations, and (3) affidavits from three other inmates who
attested they observed Everett slam Boone’s head into a wall and
choke him. A court may only reject the nonmoving party’s
evidence, such as Boone’s affidavits and grievances, when
uncontroverted evidence in the record “blatantly contradict[s]”
it. Scott, 550 U.S. at 378. No such blatant contradiction
exists here.
By overlooking Boone’s evidence, the district court’s
opinion offers a version of the facts that almost exclusively
relies on Defendants’ account. Boone relied on evidence he
submitted to allege that Everett slammed Boone’s head against a
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wall and choked him. Everett denied those allegations. Despite
this direct contradiction, the opinion adopts Everett’s
allegations without crediting Boone’s allegations. See Tolan,
134 S. Ct. at 1867 (finding that the court erred in its review
of a summary judgment motion when it “did not credit directly
contradictory evidence” to the nonmoving party). The court
therefore did not view the facts in the light most favorable to
the nonmoving party as required for summary judgment review.
Id. at 1866; Core Commc’ns, Inc., 744 F.3d at 320.
Thus, the district court did not apply the correct standard
when viewing the record, and our review shows a genuine dispute
of material fact exists as to the need for and amount of force
Everett used. Accordingly, we vacate the award of judgment for
Everett and remand for further proceedings.
We next turn to Boone’s excessive force claim against
Sergeant Rodriguez. Rodriguez made an initial showing to
support summary judgment through his affidavit. In response,
Boone offered nothing more than his conclusory allegations that
Rodriguez dragged him, threatened to drop him, and allowed his
genitals to remain exposed. In one of the affidavits Boone
submitted, the witness attested to watching officers drag Boone
with his genitals exposed, but the witness did not identify the
officer or explain why the officer dragged Boone. Without more
than “a mere scintilla of evidence,” Boone has not raised a
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genuine dispute of material fact for whether Rodriguez acted
maliciously or sadistically. Thompson, 312 F.3d at 649. Nor
has Boone offered any evidence to make the objective showing.
Thus, although we vacate the district court’s grant of summary
judgment to Everett, we affirm the district court’s grant of
summary judgment to Rodriguez.
We further deny Boone’s motion to appoint counsel at this
stage. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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