Leary v. Livingston County

CLAY, Circuit Judge,

dissenting.

Shaun Leary was repeatedly brutalized while a pretrial detainee at the Livingston County Jail at the hands of guards and inmates alike. On appeal, the two guards that played a central role in this brutalization, Defendants Scott Stone and Denis McGuekin, challenge the district court’s denial of qualified immunity with respect to Plaintiffs claims of deliberate indifference and excessive use of force. Each of the challenges raised by Defendants should be rejected by this Court. With respect to Defendant Stone, it is clear from the briefs filed in the instant appeal that he has not presented a legal question over which this Court has jurisdiction and therefore his appeal must be dismissed. With respect to Defendant McGuekin, this Court should find that the district court properly denied qualified immunity inasmuch as McGuekin sought to intentionally inflict both physical and psychological harm upon Plaintiff through the arbitrary use of force, which was more than de njbinimis, in violation of the Fourteenth Amendment. Because the majority reaches conclusions to the contrary, I respectfully dissent.

BACKGROUND

. The lawsuit at issue stems from an assault on Plaintiff, Shaun Leary, while he was a pretrial detainee at the Livingston County Jail. When reviewing a denial of qualified immunity, this Court must view the facts in the light most favorable to Plaintiff, and therefore I will present them accordingly.

On February 11, 2000, Plaintiff was arrested on charges of criminal sexual conduct in the first and second degree. The complainant and alleged victim of the criminal charge was a nine year-old-girl. After his arrest, Plaintiff was transported to the Livingston County Jail.

At approximately 1:30 a.m. on Saturday, February 12, 2000, Plaintiff was processed into the jail by two officers, Scott Stone and Denis McGuekin. While being processed for intake, Officer McGuekin allegedly harassed Plaintiff, calling him a “sick bastard” and throwing arraignment paperwork in his face. (J.A. at 385, 652) During this process, Officer Stone warned Plaintiff that other inmates would express similar disapproval of his charges and that he would likely be a target of physical assault given the allegations of child molestation. Indeed, Stone admitted in a written statement that he told Plaintiff that “once other inmates found out what he did that there would be no protection from anyone here *446 at the jail.” (J.A. at 391, 848) Officer McGuckin also admonished Plaintiff to “keep his mouth shut about his charges ... for his own safety.” (J.A. at 696, 431, 448)

Another inmate, Richard Kimmel, was also “deloused” for intake purposes at the same time as Plaintiff. While escorting inmate Kimmel to a minimum security cell after processing, Officer Stone told him that “the guy he was deloused with was in for raping a nine year old girl.” (J.A. at 847)

Upon completion of Plaintiffs processing, Stone and McGuckin escorted Plaintiff to cell 127 N in the medium security wing of the jail. Prior to reaching the cell, McGuckin instructed Plaintiff to retrieve a bin containing his bedding materials, a towel and a laundry bag. As Plaintiff picked up his materials, he alleges that McGuckin struck him on the back of the neck, causing him to drop his bin. Plaintiff described the blow as a “karate chop.” (J.A. at 640) Although it is unclear how much force was used, Plaintiff analogized the amount of force to “the way a woman hits a man,” (J.A. at 654), and alleges that he suffered as a result of the strike.

After escorting Plaintiff to his cell, Officer Stone was charged with monitoring the medium and maximum security wings of the jail. Thereafter, one inmate, Eric Riley, initiated contact with Officer Stone via intercom to request permission to leave his cell to obtain medication. While the intercom was still active, Officer Stone communicated with Ross Hinchey, the other inmate occupying the cell. Hinchey was known as the “Rock Boss” 1 of the medium security area. Officer Stone told Hinchey that the “new guy in N” was “in for raping a nine year old girl.” (J.A. at 850) This statement was corroborated by a number of inmates including Eric Riley and Sandy Glover, both of whom describe overhearing Officer Stone’s disclosure of Plaintiffs charges.

On Saturday, while all inmates were on “lock down,” Glover and other inmates began verbally harassing Plaintiff. By Sunday, February 12, 2000, the harassment by inmates intensified as Plaintiff was called a “baby raper” and a “bitch.” (J.A. at 403) At approximately 6:15 p.m., Plaintiff left his cell to call home, seeking his family’s help in getting transferred out of the jail because “the other inmates were out to get him and they were going to kill him.” (J.A. at 636) While standing by the phone, Plaintiff was pulled over a nearby rail from behind by Glover and choked, punched and kicked by several inmates until unconscious. He lay battered and bloody on the jailhouse floor until another inmate came to his aid and escorted him to officers for medical attention. Following the assault, Plaintiff was transported to McPherson Hospital Emergency Room and admitted to St. Joseph’s Hospital for treatment. As a result of the assault, Plaintiff suffered a facial fracture and a fractured nose, which required corrective surgery.

Following the assault, the Livingston County Sheriffs Department launched an internal criminal investigation. Several inmates were interviewed as part of the investigation. While the investigation centered on ascertaining the criminal culpability of inmates involved in the assault, Officers McGuckin and Stone were implicated due to allegations of McGuckin’s use of force as well as Stone’s role in informing the inmate population of Plaintiffs charges. No charges, however, were filed against either officer.

Plaintiff later brought suit under 42 U.S.C. § 1983 against Livingston County, *447 the Livingston County Sheriff and a number of individual officers including Stone and McGuckin. Leary v. Livingston County, No. 03-60021, 2006 WL 2865213 , at *1 (E.D.Mich.2006). With respect to Officer McGuckin, Plaintiff alleged deliberate indifference and excessive use of force in violation of the Fourth, Fifth, Eighth and Fourteenth Amendments. Id. With respect to Officer Stone, Plaintiff alleged that his conduct constituted deliberate indifference in violation of the Eighth and Fourteenth Amendments. Id. All Defendants moved for summary judgment. Id. In particular, Defendants McGuckin and Stone argued that they were entitled to qualified immunity. The district court granted Officer McGuckin’s motion for summary judgment with respect to deliberate indifference but denied summary judgment with respect to Plaintiffs allegation of excessive force. Id. at *6 . The district court found that there was a genuine dispute of material fact as to whether McGuckin used force maliciously and sadistically for the purpose of causing harm in violation of the Fourteenth Amendment as analogized to the standards of the Eighth Amendment. In addition, the district court concluded that Officer Stone was not entitled to qualified immunity with respect to Plaintiffs deliberate indifference claim. Id. at *7 . In particular, the district court determined that there was a triable issue of material fact with respect to whether Stone recklessly disregarded a substantial risk of harm to Plaintiff when he told other inmates about Plaintiffs charges. Defendants Stone and McGuckin now timely appeal.

DISCUSSION

I. Jurisdiction to Hear Defendant Stone’s Qualified Immunity Appeal

Although the majority understandably wants to reach the merits of Stone’s qualified immunity appeal given the unpleasant factual circumstances of this case, unfortunately the issues raised by Stone fall outside of the narrow jurisdictional authority of this Court. Throughout Stone’s brief to this Court, he repeatedly challenges the factual findings made by the district court in its denial of qualified immunity. On review of the district court’s qualified immunity determination, we are bound by the jurisdictional confines of the “collateral order” doctrine and may reach only those appeals that present pure questions of law. In short, this Court cannot reach the factual disputes that Stone invites this Court to resolve on appeal. Thus, contrary to the majority’s determination, Stone’s appeal should be dismissed for lack of jurisdiction.

While most denials of summary judgment are nonfinal orders which cannot be appealed under 28 U.S.C. § 1291 , it is well established that an order denying qualified immunity is immediately appealable. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 525-27 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985). In Mitchell v. Forsyth, the Supreme Court held that this Court has jurisdiction to hear an interlocutory appeal taken from a denial of qualified immunity pursuant to the “collateral order” doctrine under § 1291. Id. at 525-27, 105 S.Ct. 2806 . Under this doctrine, the immediate review of a qualified immunity determination is based on the fact that “the qualified immunity defense exists partly to protect officials from having to stand trial; a defendant wrongly forced to go to trial loses the benefit of the immunity even if he or she is exonerated after trial; therefore, the order cannot effectively be reviewed after trial and is considered final.” Phelps v. Coy, 286 F.3d 295, 298 (6th Cir.2002).

This Court’s jurisdiction regarding orders denying qualified immunity, however, *448 is narrow. This Court may exercise jurisdiction “only to the extent that a summary judgment order denies qualified immunity based on a pure issue of law.” Gregory v. City of Louisville, 444 F.3d 725, 742 (6th Cir.2006). Indeed, “[a] defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of material fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995). Rather, “the defendant must be prepared to overlook any factual dispute and to concede an interpretation of the facts in the light most favorable to the plaintiffs case.” Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir.1998); see also Booker v. Northern Kentucky Univ. Bd. of Regents, 163 F.3d 395, 396-97 (6th Cir.1999). Thus, to the extent that the denial of qualified immunity is based on a factual dispute, such a denial falls outside of the narrow jurisdiction of this Court. Berryman, 150 F.3d at 563 ; Gregory, 444 F.3d at 742 (“To be clear, an appellant’s contention that the district court erred in finding a genuine issue of fact for trial is not the type of legal question which we may entertain on an interlocutory basis.”).

As the majority correctly notes, a § 1983 claimant alleging deliberate indifference must meet objective and subjective requirements in order to establish a constitutional violation. See Farmer v. Brennan, 511 U.S. 825, 833 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994). First, the failure to protect from risk of harm must be objectively, “sufficiently serious.” Id. To meet this requirement, Plaintiff must show that “he is incarcerated under conditions posing a substantial risk of serious harm.” Id. Second, to satisfy the subjective requirement, Plaintiff must show “more than ordinary lack of due care for the prisoner’s interests or safety.” Id. at 835 , 114 S.Ct. 1970 . Instead, the subjective requirement is met where a plaintiff demonstrates that prison officials acted with “deliberate indifference” to a substantial risk of harm. An official is deliberately indifferent where “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Id. at 837 , 114 S.Ct. 1970 .

In his briefing to this Court, instead of contesting whether the facts as alleged by Plaintiff constitute a constitutional violation, Defendant Stone factually disputes Plaintiffs proof regarding the subjective prong of the deliberate indifference inquiry — that is, whether he was aware of and disregarded a substantial risk of harm to Plaintiff. For example, Defendant Stone argues that he was not aware that other inmates would pose a threat to Plaintiff because of the nature of his charges. Rather, he asserts that he mentioned Plaintiffs charges to one inmate out of a sense of “wonderment.” (Stone Br. at 24) However, in denying summary judgment, the district court found a genuine issue of material fact regarding Defendant Stone’s knowledge of the risk of harm to Plaintiff. Indeed, the district court noted that Stone’s awareness of a substantial risk of harm was “evidenced by Stone’s admission that ‘once the other inmates found out what he did that there would be no protection from anyone here at the jail.’ ” Leary, 2006 WL 2865213 , at *9. In short, Stone impermissibly disputes the facts that, if credited, support a finding that he was aware of a substantial risk of harm to Plaintiff.

Moreover, Stone suggests that there was no evidence that he facilitated or encouraged an attack on Plaintiff — that is, whether he disregarded a substantial risk *449 of harm to Plaintiff. Instead, Defendant Stone maintains that he did not mention Plaintiffs charges to more than one person housed at the jail. Rather, Stone argues that another inmate, Ross Hinchey, did not hear his comments over the intercom regarding Plaintiffs rape charges because the inmate was sleeping.

Again, the evidence presented to and considered by the district court at summary judgment contradicts Stone’s assertions. The district court considered an interview with Hinchey where he stated that he did in fact hear Stone’s comment regarding Plaintiffs charges over the intercom. Based on this evidence, the district court found that there was a genuine dispute of material fact regarding the number of people who learned of Plaintiffs charges from Stone. Taking all inferences in favor of Plaintiff, the district court found sufficient evidence that Stone recklessly disregarded a risk of harm to Plaintiff when he told at least two inmates of Plaintiffs charges.

Additionally, this Court is also without jurisdiction to review Defendant Stone’s assertion that Plaintiffs right to be free from a substantial risk of harm was not clearly established. In his appellate brief, Stone does not present a developed legal argument, but instead merely sets forth, the legal standard for qualified immunity. He does not suggest how such a standard is applicable to him and has thus waived the argument. “It is a ‘settled appellate rule that issues averred to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ” Spirko v. Mitchell, 368 F.3d 603, 612 (6th Cir.2004) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996)).

In essence, Defendant Stone does not dispute the deliberate indifference theory advanced by Plaintiff. Although he states that Plaintiff has not .proven a violation of a clearly established right, in substance what Stone actually presents is a factual argument regarding his awareness and disregard of a substantial risk of harm to Plaintiff. This sort of argument, based upon disputes of fact, is inappropriate for review on appeal of a denial of qualified immunity.

II. Defendant McGuckin and Plaintiffs Excessive Force Claim

Although Defendant Stone’s appeal should be dismissed, the majority properly reaches, the merits of Defendant McGuc-kin’s appeal regarding the denial of qualified immunity with respect to Plaintiffs excessive force claim. As discussed below, however, the majority erroneously concludes that McGuckin is entitled to qualified immunity despite the fact that McGuc-kin, through his use of force, intended to terrorize, punish and harass Plaintiff because of his charges. Contrary to the majority’s determination, McGuckin’s actions were more than de minimis and constituted excessive force in violation of Plaintiffs Fourteenth Amendment rights. Therefore, McGuckin is not entitled to qualified immunity and the district court should be. affirmed.

“Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official.” Harlow v. Fitzgerald, 457 U.S. 800, 814 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). This defense allows a government official to invoke “an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194 , 200, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). To determine whether qualified immunity was properly denied, this Court must examine: (1) whether, considering the evidence in the light most favorable to the party injured, a constitutional right has been violated, and (2) *450 whether that right was clearly established. Estate of Carter v. City of Detroit, 408 F.3d 305, 310-11 (6th Cir.2005) (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151 ); Comstock v. McCrary, 273 F.3d 693, 701 (6th Cir.2001).

A. Source of Plaintiff s Constitutional Right to Be Free from Excessive Force

In evaluating whether qualified immunity was properly denied, the constitutional right alleged to have been infringed upon must first be ascertained. Graham v. Connor, 490 U.S. 386 , 109 S.Ct. 1865, 1870 , 104 L.Ed.2d 443 (1989). In Graham v. Connor, the Supreme Court noted that there is no generic standard for excessive force claims brought under § 1983. Instead, courts were directed to begin the analysis of § 1983 excessive force claims by “identifying the specific constitutional right allegedly infringed by the challenged application of force.” Id. The specific constitutional provision to be applied to the challenged application of force turns largely on the status of the plaintiff at the time of the alleged use of excessive force. “In most instances, that will be either the Fourth Amendment’s prohibition against unreasonable seizures of the person, or the Eighth Amendment’s ban on cruel and unusual punishments, which are the two primary sources of constitutional protection against physically abusive governmental conduct.” Id. at 1870-71. The determination of the proper application of one amendment or another “is not merely academic, for the standards of liability vary significantly according to which amendment applies.” Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002).

At the time of the alleged assault, Plaintiff was a pretrial detainee at the Livingston County Jail. A pretrial detainee is a person who has been “lawfully committed to pretrial detention [and] has not been adjudged guilty of any crime. He has only, a judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest.” Bell v. Wolfish, 441 U.S. 520, 536 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979) (internal citations and quotations omitted). As the Supreme Court noted in Bell v. Wolfish, pretrial detainees “legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence.” 441 U.S. at 523 , 99 S.Ct. 1861 .

Notwithstanding the government’s legitimate incarceration of pretrial detainees, the Supreme Court has held that “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. at 535 , 99 S.Ct. 1861 . Thus, because a pretrial detainee has not yet been convicted, the source of a pretrial detainee’s right to be free from excessive force stems from the Fourteenth Amendment rather than the Eighth Amendment. Under the Fourteenth Amendment’s Due Process Clause, the proper inquiry is whether the challenged action “amounts to punishment of the detainee.” Id. As the Court noted in Wolfish , “[a] sentenced inmate, on the other hand, may be punished, although that punishment may not be ‘cruel and unusual’ under the Eighth Amendment.” 441 U.S. at 536 n. 16, 99 S.Ct. 1861 ; see also Whitley v. Albers, 475 U.S. 312, 318 , 106 S.Ct. 1078 , 89 L.Ed.2d 251 (1986) (noting that the Eighth Amendment’s Cruel and Unusual Punishments Clause “was designed to protect those convicted of crimes, and consequently, the Clause applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions”). In other words, unlike the post-conviction context, substantive due process prohibits government action that *451 seeks to bestow retribution or punishment upon pretrial detainees. Wolfish, 441 U.S. at 540 n. 20, 99 S.Ct. 1861 .

Although the rule announced in Bell v. Wolfish concerned conditions of confinement, the Court has made clear that substantive due process extends not only to such conditions but also to claims of excessive force made by pretrial detainees. As the Supreme Court noted in Graham , “[i]t is clear ... that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment.” 109 S.Ct. at 1871 n. 10 (citing Wolfish, 441 U.S. at 535-539 , 99 S.Ct. 1861 ); see also Block v. Rutherford, 468 U.S. 576, 584 , 104 S.Ct. 3227 , 82 L.Ed.2d 438 (1984).

In evaluating excessive force claims made by pretrial detainees, this Court has adopted the due process rationale announced in Bell v. Wolfish. See Gantt v. Akron Corrections Facility, No. 95-3147, 1996 WL 6530 (6th Cir.1996) (unpublished); Phelps, 286 F.3d at 301 ; United States v. Budd, 496 F.3d 517, 529 (6th Cir.2007). Thus, in the instant case, Plaintiffs excessive force claim is governed by the Fourteenth Amendment, which presents an inquiry distinct from the heightened showing required to establish a violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment.

B. Fourteenth Amendment As Applied to Plaintiff’s Excessive Force Claim

As noted above, the Due Process Clause of the Fourteenth Amendment “protects a pretrial detainee from the use of excessive force that amounts to punishment.” Graham, 109 S.Ct. at 1871 n. 10 (citing Wolfish, 441 U.S. at 535-36 , 99 S.Ct. 1861 ). To determine whether a constitutional violation has occurred, “[a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538 , 99 S.Ct. 1861 . Because jails are often dangerous and the “maintenance of prison security and discipline may often require that prisoners be subjected to physical contact which at common law would be actionable as an assault or battery and which, in retrospect, may have been excessive,” Parrish v. Johnson, 800 F.2d 600, 604 (6th Cir.1986), courts must examine the totality of the circumstances to determine whether a particular governmental action was viola-tive of a detainee’s Fourteenth Amendment rights while giving due deference to the judgments of correctional officers. Wolfish, 441 U.S. at 538-39 , 99 S.Ct. 1861 .

The examination of the totality of the circumstances includes an inquiry into the alleged perpetrator’s state of mind. Graham, 109 S.Ct. at 1873 (noting that the term “punishment” “clearly suggests] some inquiry into subjective state of mind.... ”). The absence of a clear intent to punish, however, is not fatal' to a detainee’s § 1983 excessive force claim. Rather, “[ajbsent a showing of an express intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which [the use of force] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it.” Wolfish, 441 U.S. at 538-39 , 99 S.Ct. 1861 . An intent to punish a pretrial detainee may be inferred from the use of force in the absence of any penological justification. See Wolfish, 441 U.S. at 539 , 99 S.Ct. 1861 (“[I]f a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon *452 detainees qua detainees.”). When examining claims of excessive force, however, courts must be mindful that “[tjhere is, of course, a de minimis level of imposition with which the Constitution is not concerned.” Wolfish, 441 U.S. at 539 n. 21, 99 S.Ct. 1861 (quoting Ingraham v. Wright, 430 U.S. 651, 674 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977)).

When viewing the facts in the light most favorable to the Plaintiff, as the majority seems unwilling to do, it is clear that there is a genuine issue of material fact regarding whether McGuckin’s actions were intended to punish Plaintiff because of the nature of the charge for which he was detained. The “karate chop” at issue was preceded by McGuckin’s initial harassment of Plaintiff wherein he called Plaintiff a “sick bastard.” Moreover, the “karate chop” served no legitimate penological objective inasmuch as Plaintiff was compliant with the orders given to him. Indeed, Plaintiff was not resisting the orders of either McGuckin or Stone, and in fact was bending down to comply with McGuckin’s order that he retrieve his bedding materials. Clearly, Plaintiff posed no threat to the safety of McGuckin or others. Taken together, Defendant McGuckin’s harassment and the fact that Plaintiff posed no threat to officers or other detainees demonstrates that McGuckin’s conduct was not designed to advance penological objectives but rather to punish Plaintiff.

The majority, however, finds that Plaintiff cannot establish a constitutional violation. Although the majority does not dispute that McGuckin intended to punish Plaintiff, apparently it believes that the use of force was not excessive enough for recovery under § 1983. The majority concludes that McGuckin’s use of force was de minimis, and therefore not violative of the Fourteenth Amendment, because Plaintiff suffered no ascertainable physical injury. Although the use of force must be more than de minimis to establish a cognizable claim of excessive force, whether a plaintiff suffered significant pain or injury is not dispositive. Hardy v. Vieta, 174 Fed.Appx. 923, 926 (6th Cir.2006) (unpublished) (“[Wjhether force is de minimis does not depend on the extent of the prisoner’s injury.”). Indeed, the question of injury may be probative of the amount of force used but is not itself required to sustain a constitutional claim. As the Supreme Court noted in Hudson v. McMillian, 503 U.S. 1, 7 , 112 S.Ct. 995 , 117 L.Ed.2d 156 (1992), “the extent of an 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.... ” See also id. (“The absence of serious injury is ... relevant to the Eighth Amendment inquiry, but does not end it.”). Even in the context of the Eighth Amendment, as noted by the Hudson court, “[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated. This is true whether or not significant injury is evident.” Id. at 8 , 112 S.Ct. 995 .

Relying on Hudson , this Court has found uses of force to be more than de minimis, despite the fact that the plaintiff suffered no physical injuries, where such force exacts psychological harm and produces an environment of fear of arbitrary violence at the hands of guards. See Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir.1995); Hardy, 174 Fed.Appx. at 926 . For example, in Pelfrey v. Chambers, an excessive force case arising under the Eighth Amendment, an officer allegedly assaulted a plaintiff-inmate by pulling out a knife, and cutting the plaintiffs hair, while another officer held the plaintiffs hands behind his back. 43 F.3d at 1035 . After the assault, the officers “stood there grinning and smiling.” Id. The plaintiff *453 stated that “these officers had me scared, intimidated, and threatened.” Id. In examining the circumstances surrounding the alleged constitutional violation, we found that the officer’s actions “were designed to frighten and degrade [the plaintiff] by reinforcing the fact that his continued well being was entirely dependent on the good humor of his armed guards.” Id. at 1037 . Based on this psychological harm, the Pelfrey court found that the plaintiff stated a cognizable constitutional claim of excessive force which was more than de minimis, notwithstanding the fact that he suffered no physical injury or pain.

In Pelfrey , we cited Parrish v. Johnson, 800 F.2d 600 (6th Cir.1986), with approval to support' the conclusion that a plaintiff may establish a cognizable constitutional claim of excessive force where the aim of such force was to harass, intimidate or terrorize. In Parrish , this Court found qualified immunity to be inappropriate where a prison guard repeatedly taunted a paraplegic prisoner with a knife and failed to communicate the prisoner’s requests for medical care to nurses. The Parrish court noted that the defendant’s actions were “devoid of logic or reason,” and absent any “legitimate penological or institutional objective.” Id. at 605 . The defendant, we noted, “acted to strip [the plaintiff] of his dignity.” Id. Based on this conduct and its psychological effects on the plaintiff, we found that the plaintiff presented sufficient evidence of an Eighth Amendment violation. Id.

Similarly, in Hardy v. Vieta, 174 Fed.Appx. 923 (6th Cir.2006), the plaintiff alleged that a prison guard assaulted him in violation of the Eighth Amendment. There, the plaintiff alleged that the defendant entered his cell and told another inmate that he intended to harm the plaintiff. Id. at 924 . The plaintiff alleged that the defendant pushed a steel door onto him, smashing him between the steel door and a brick wall. The plaintiff alleged that he suffered injuries to his arm and lower back as a result of the assault. Id. Despite the fact that the plaintiff had “no recorded objective injuries,” we found that summary judgment was inappropriate. Id. at 925 . We rejected the defendant’s contention that the use of force was^ de minimis, noting that “whether the use of force is de minimis does not depend on the extent of the prisoner’s injury.” Id. (citing Hudson, 503 U.S. at 9-10 , 112 S.Ct. 995 ). Instead, this Court found that the use of force was more than de minimis. Id. at 926. We reached this conclusion, in part, based on the intentional and premeditated nature of the force and the “unreasonable threat of injury” produced by such force. Id.

Although the aforementioned cases were based on the Eighth Amendment,- their wisdom with respect to what constitutes more than a de minimis use of force is equally -applicable in the Fourteenth Amendment context. Indeed, it would be quite incongruous for an individual convicted of a crime to have greater protections than one who is merely being held pending a determination of guilt or innocence. Thus, Pelfrey, Parrish and Hardy support the proposition that non-physical injuries and the effects of intentional use of force are sufficient to establish a cognizable claim of excessive use of force that is more than de minimis.

The majority, however, reads Pelfrey and Hardy far too narrowly to reach the opposite conclusion. For example, the majority suggests that the use of force in Pelfrey was of a different “degree and nature” because the defendant grabbed the plaintiff, held him down while cutting his hair and grinned and laughed. Based on these factual differences, the majority concludes that Pelfrey does not support *454 Plaintiffs claim. The attempt to distinguish Pelfrey , however, is disingenuous and lacks a principled basis. In both this ease and in Pelfrey , neither claimant alleged serious injury or even suggested that the use of force resulted in any physical pain. In both this case and in Pelfrey , the constitutional violation was based on the psychological effects of the use of force.

Moreover, the majority suggests that Hardy is inapposite because the level of force used by the defendant was greater than the “karate chop” at issue here. Once again, the majority misrepresents the holding of that case in an attempt to limit the protections available under the Fourteenth Amendment. Contrary to the majority’s characterization of the ease, the Hardy court was clear in finding that the “unreasonable threat of injury” could support a constitutional claim. Thus, both Pelfrey and Hardy support the district court’s finding that McGuckin’s use of force was more than de minimis.

Under the majority’s reading of the caselaw outlining the boundaries of permissible uses of force in institutional settings, however, the government and its officials are permitted to. engage in uses of force designed to psychologically harm a detainee so long as they do not impose some arbitrary quantum of physical pain. Such a rule is particularly disturbing given the current climate of detainee abuse as well as the evolving techniques of punishment and interrogation that will easily pass this test, while inflicting untold damage upon detainees and prisoners alike. Such a rule cannot stand. Cf. Estelle v. Gamble, 429 U.S. 97, 102 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976) (noting that torture and barbarous punishment was the “primary concern of the drafters” of the Eighth Amendment). Rather, the better rule, as announced in Pelfrey, Parrish and Hardy , wherein psychological injury due to intentional use of force designed to punish a detainee may support a claim of excessive use of force, adequately protects detainees while preserving • the prerogatives of correctional institutions.

Applying this rule to the instant case, it is clear that McGuckin’s use of force was more than de minimis. McGuckin took it upon himself to determine that Plaintiff should be “punished” for his alleged crime and “karate chopped” him while he was essentially defenseless. That Plaintiff was not injured was merely fortuitous inasmuch as McGuckin intentionally and maliciously struck him on the neck. The effect of the use of force, however, hit the mark, as in Pelfrey , because the force “frighten[ed] and degrade[d] [Plaintiff] by reinforcing the fact that his continued well being was entirely dependent on the good humor of his armed guards.” 43 F.3d at 1037 ; see also Hardy, 174 Fed.Appx. at 926 . Indeed, Plaintiff alleges in his complaint that he suffered as a result of McGuckin’s use of force. Whether he was physically hurt is inapposite. Consequently, when viewing the facts in the light most favorable to Plaintiff, like Pelfrey, Parrish and Hardy , it cannot be said that McGuc-kin’s flagrant assault on Plaintiff was de minimis or constitutionally insignificant. Plaintiff, therefore, is entitled to have his excessive force claim heard by a jury and to have the ability to make his case for damages, even if nominal. See Carey v. Piphus, 435 U.S. 247, 264 , 98 S.Ct. 1042 , 55 L.Ed.2d 252 (1978) (approving nominal damages for the “mental and emotion distress caused by the denial of due process,” although no actual injury was proven); see also Pembaur v. City of Cincinnati, 882 F.2d 1101, 1104 (6th Cir.1989) (noting that nominal damages are appropriate for claims where the only proof of emotional injury was plaintiffs claim that he was “highly upset”). To hold otherwise “would *455 permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9 , 112 S.Ct. 995 . Indeed, the majority’s rationale may have the untoward consequence of encouraging the use of psychological torture in some instances where physical injury may be de minimis.

CONCLUSION

For the reasons set forth above, I would dismiss Defendant Stone’s qualified immunity appeal regarding Plaintiffs claim of deliberate indifference under 42 U.S.C. § 1983 , and deny qualified immunity to Defendant McGuckin regarding Plaintiffs excessive force claim.

. According to deposition transcripts, a "Rock Boss” is an inmate who is "in charge” of his area within the jail. (J.A. at 754)