Petition for Writ of Certiorari — Jackson v. Morgan

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oupreme Lounr, U.S.

011086 yan 1 8 2002

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

QUINTEN X. JACKSON, PETITIONER

LAMONT A. MORGAN, et al., RESPONDENTS.

On Petition For A Writ Of Certiorari

To The United States Court

Of Appeals For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Brian A. Zemil

Counsel of Record

Mitchell Y. Mirviss

VENABLE, BAETJER AND HOWARD, LLP

210 Allegheny Avenue

Towson, land 21204

(410) 494-6200

Counsel for Petitioner

QUESTION PRESENTED —

Where an inmate establishes that correction officers used

force maliciously and sadistically for the purpose of causing

him harm, does the Eighth Amendment impose an additional

burden on the inmate to prove a threshold level of injury in

order to establish a claim for excessive force under 42 U.S.C.

§ 1983?

LIST OF PARTIES

The Petitioner before this Court is Quinten X.

Jackson, a resident of the State of Maryland. Mr. Jackson no

longer is incarcerated. The Respondents are Lieutenant

Stanley Locklear, Lieutenant Maarufu Aulu, Sergeant

Gregory Maddox, Sergeant Robert Hicks, Officer Lamont

Morgan, Officer Kevin Fenton, and Officer Erik Nelson (the

“Officers”), all of whom are correction officers at the

Maryland Correctional Adjustment Center located in

Baltimore, Maryland.

TABLE OF CONTENTS

QUESTION PRESENTED ..........c:ssssesesseesereneneneenenenseensnenes i

LIST OF PARTIES .........:cssccsscssssesscesseeressssecssseeeserseeesenseenes il

TABLE OF CONTENTS ........:c:cccesscesseeeesssennenserseeeeeeeneeneees ill

TABLE OF AUTHORITIES ..........:c::ccsssssesseseersseeseneesaeens vi

PETITION FOR WRIT OF CERTIORARI...........:::::eeeseeeee l

OPINIONS BELOW..........:ccssscssseesseseseeeeseeeteenenseeeneeeneenneenees 1

JURISDICTION. ........-:cssscsscesccesseeccecseeencesssecsesrecenseeeerenseesees 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. .........::cccseeseesseeeesessteesetensenseenees 1

STATEMENT OF THE CASE.........:csscseesseeseeseereseeneeenennnees 2

REASONS FOR GRANTING THE PETITION. ..........-.-+-++ 9

1. THIS COURT SHOULD RESOLVE THE

LONGSTANDING CONFLICT AMONG

THE CIRCUITS OVER THE

APPROPRIATE TEST TO APPLY TO AN

EXCESSIVE FORCE CLAIM BROUGHT

ST 10

A. i iceetoune 10

B. Conflict Between the Fourth and

+ Circuits in Accord with the Fourth

Circuit’s Requirement that a Party

Prove “More Than De Minimis Pain

or Injury” to Sustain an Excessive

Force Claim Brought

RE Se Fe iaiiiecipnrcadeidsecsincsiiincie 16

D. Circuits in Accord with the Third

Circuit’s Holding that the Extent of

‘ Injury is Not Dispositive of an

Excessive Force Claim Brought

i 17

E. The Fourth Circuit’s Approach

F. The Fourth Circuit’s De Facto

Abrogation of Its “Repugnancy”

Standard Further Conflicts with

OU ai itaihacelcieia i ia 23

eo 8) RR RERREnrr inNoorlaeeee mNT oe 26

TABLE OF AUTHORITIES

Cases

Archuleta v. Marshall, No. 00-2033, 2000 WL 100524

(10 Cir. July 20, 2000) ......ss-sssssssssssseccecsesssssescssssssoees 13, 18

Baumer v. Hampton, No. 00-55250, 2000 WL 1335565

(9™ Cir. July 28, 2000) .....ccssssssssccccssssssssnseecenscensnseeessssssneess 18

Blyden v. Mancusi, 186 F.3d 252 (2d Cir. 1999).......... 17, 18

Brooks v. Kyler, 204 F.3d 102

Oe ST 11, 14, 21, 22

Calabria v. Dubois, No. 93-1742, 1994 WL 209938

(1% Cir, May 24, 1994).....ccssssssssscssssssssssnsessecceccensnesessessssness 17

Campbell v. Sikes, 169 F.3d 1353 (11 Cir. 1999)... 18

Concepcion v. Morton, 125 F. Supp. 2d 111 (D. NJ 2000) 14

Davidson v. Flynn, 32 F.3d 27 (2d Cir. 1994) ......-0:00++ 17, 18

Dean v. City of Worcester, 924 F.2d 364 (Ist Cir. 1991) ...17

Dewalt v. Carter, 224 F.3d 607 (7th Cir. 1999)......ssssssessee 18

Easley v. Pinnell, No. 98-16536, 1999 WL 311390 (9th Cir.

Site TOI ees stn esnielecetvomienocarneecigoren 18

Easton v. Holt, 73 F.3d 600 (5th a ee 16

Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001).......... 11, 18

Gibeau v. Nellis, 18 F.3d 107 (2d Cir. 1993)........sssssssssseee 17

Gomez v. Chandler, 163 F.3d 921 (Sth Cir. 1999).............. 16

Griffen v. Crippen, 193 F.3d 89 (2d Cir. 1999)............ 17, 18

Hudson v. McMillian, 503 U.S. 1 (1992).......ccccceseeseeee passim

Hudson v. McMillian, 962 F.2d 522 (Sth Cir. 1993)....passim

Tkerd v. Blair, 101 F.3d 430 (Sth Cir. 1996) ...........ccceseees 16

Jackson v. Morgan, No. 00-6129, slip op.

Ee MI PI, IIE Dicscscuccenetansressacevnancerevecnssenconsesey passim

Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973)..............0.. 12

Jones v. Shields, 207 F.3d 491 (8th Cir. 2000)................. 18

Lunsford v. Bennett, 17 F.3d 1574 (7th Cir. 1994)............. 18

Marshall v. Odom, 156 F. Supp. 2d 525 (D. Md. 2001).....13

Moore v. Holbrook, 2 F.3d 697 (6th Cir. 1993)............ 17, 18

Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994)......... passim

Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992) ...18

Outlaw v. Newkirk, 259 F.3d 833 (7th Cir. 2001)............... 18

Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997)... 13

Romano v. Howarth, 998 F.2d 101 (2d Cir. 1993) ............. 17

Ruffin v. Taylor, 166 F. Supp. 2d 999

Re TIT ian ciis hicinevidaeseesinesnnneneiasabnesvieniancennesen 14, 16, 23

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000).......... 18

Siglar v. Hightower, 112 F.3d 191 (Sth Cir. 1997)....... 13, 16

_—

Skirth v. Thornton, 267 F.3d 1251 (11th Cir. 2001) .....--++- 18

Stanley v. Herjirika, 134 F.3d 629 (4th Cir. 1998) ........-+++. 13

Taylor v. McDuffie, 155 F.3d 479

(4th Cir. 1998)......ssecsescssssessssseensensenennesncsnsensnnenscena 13, 19, 22

Valencia v. Wiggins, 981 F.2d 1440 (Sth Cir. 1993)........... 17

~ Watford v. Bruce, 126 F. Supp. 2d 425 (E.D. Va. 2001)13, 20

Whitley v. Albers, 475 U.S. 312 (1986)......sceceereessesereneseeees 12

Williams v. Benjamin, 77 F.3d 756 (4" Cir. 1996) ....-------- 13

Wilson v. Sieter, 501 U.S. 294 (1991)....---ssssseesseeseseeessenenes 20

Constitutional Provisions and Statutes

U.S. Const., Amend. |

42 U.S.C. § 1983 ......ececererecsrsrssenseesenenencnssrerenensnenensereets passim

2B U.S.C. § 1254(1) ..esessesececsssssesenersenenensessssneneenennsnsensesseees 1

Other Authorities

Troy J. Aramburung, The Role of De Minimis Injury in the

Excessive Force Determination: Taylor v. McDuffie

and the Fourth Circuit Stand Alone, 14 BYU J. Pub.

L. 313 (2000)........:sceccssereseereeeseesnenenaseesees 14, 20, 22

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals

for the Fourth Circuit.

OPINIONS BELOW

The unreported opinion of the Fourth Circuit was

entered on September 24, 2001. It is printed in the appendix

to this petition (“App.”) at la-30a.

The memorandum of decision of the United States

District Court for the District of Maryland, Grimm, J. dated

December 20, 2000 is unreported but is printed at App. 35a.

JURISDICTION

The Fourth Circuit entered judgment on September

24, 2001. App. 3la. On October 23, 2001, the Court of

Appeals denied Petitioner’s timely Petition for Panel

Rehearing and for Rehearing En Banc. Sila. This Petition

for a Writ of Certiorari is filed within ninety days of the

Court of Appeals’ ruling denying the Petition for Rehearing.

The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

United States Constitution, Amendment VIII

United States Constitution, Amendment XIV

42 U.S.C. 1983 (1982)

STATEMENT OF THE CASE

This case presents the Court with the opportunity to

resolve a decade-long conflict among the circuits over

whether a malicious and sadistic attack by prison guards

upon an inmate may be deemed constitutionally insignificant

if the attack does not inflict serious injury.

In 1994, Quinten Jackson was incarcerated in the

Maryland Correctional Adjustment Center (““MCAC”) for

minor drug offenses, none of which involved violence. App.

3a. On January 11, 1994, while securely locked in his cell at

the MCAC, Mr. Jackson was sprayed with twelve bursts of

mace by the Respondent officers (the “Officers”) donning

riot gear and gas masks. App. 14a-15a, 35a. Mr. Jackson

was subsequently shackled and taken to a sink in a medical

office, where he was inadequately decontaminated from the

mace (which covered one hundred percent of his body).

App. 16a, 36a. While en route to the sink, Mr. Jackson, fully

secured in chains and surrounded by eight officers, was

assaulted by an officer from behind. App. 16a, 36a.

Ultimately, the officers stripped Mr. Jackson down to his

underwear and locked him in an isolation cell, in painfully

tight shackles,’ for forty-four hours. App. 16a-17a. The

isolation cell was a barren and cold chamber with metal

walls and a concrete floor. It had no toilet, bed, bedding or

running water. App. 17a. The walls were encrusted with

feces, as was a grate in the center of the chamber. App. 16a.

It had no heat, and Mr. Jackson spent two days on the floor

exposed to the January cold without clothing. App. 16a-17a.

' The shackles were three-piece mechanical restraints consisting of leg

irons, a waist chain, handcuffs, that go through the waist chain, and a

black box that covers the locking mechanism of the cuffs.

The Officers withheld food from Mr. Jackson for

sixteen hours. App. 17a. Moreover, Mr. Jackson could not

eat and was forced to urinate on himself because the shackles

were applied so tightly that he could not sufficiently

maneuver his arms. App. 17a. He was confined like this for

two days.

On March 16, 1995, Mr. Jackson filed a § 1983

action in the United States District Court for the Jistrict of

Maryland alleging that his Eighth Amendment right to be

free from cruel and unusual punishment was violated when

he was subjected to excessive force by the Officers at

MCAC on January 11-13, 1994. The parties consented to a

jury trial before a magistrate judge.

In the district court, Mr. Jackson presented evidence

that he suffered significant pain and injury. Such evidence

included:

* Expert opinion testimony that the

decontamination of Mr. Jackson from twelve

bursts of mace was wholly inadequate and

resulted in an unnecessary extension of the

duration of his pain and suffering (App. 17a,

21a-22a);

® Testimony by Mr. Jackson regarding the effect

of mace on him while shackled in the isolation

cell including: burning pain, swollen and

running eyes, groin pain, burning sensations in

his throat and difficulty breathing (App. 21a-

22a);

* Testimony by Mr. Jackson that the restraints

placed on him while in -isolation were painfully

tight, hurting every time he moved, for forty-

four hours (App. 21a-22a);

Testimony by Mr. Jackson that he was forced to

urinate on himself because the restraints had

been applied so tightly after he was moved to

the isolation chamber that he could not move his

arms (App. 21a-22a);

Testimony by Mr. Jackson that he was unable

to eat or drink for the forty-four hours because

of the restraints of his arm and instead had to try

to open a bag of potato chips with his mouth and

teeth, as if he were a captive animal (App. 21a-

22a);

Prison records confirming that no food or drink

was offered to Mr. Jackson for over sixteen

hours after he entered the isolation confinement

(App. 21a-22a);

An isolation cell record which established the

absence of any in-cell medical treatment for the

forty-four hour period (App. 21a-22a);

Testimony by Mr. Jackson that he was forced to

lay on the floor to try to keep warm,

corroborated by a videotape of Officers

stripping him down to his underwear and

leaving him in the concrete chamber without

blankets on a winter date (App. 21a-22a);

A videotape of the barren isolation chamber

without a bed, toilet, toilet paper, pillow,

mattress, coupled with Mr. Jackson’s testimony

regarding the presence of the feces-covered

grate, the apparent purpose of which was to

in eT Oe Ee ee eS Ta ee BT

substitute for a toilet (App. 21a-22a);

« Expert testimony that Mr. Jackson’s in-cell

injury was greatly exacerbated by the conditions

which existed in the isolation cell (App. 22a);

After receipt of this evidence, the Court instructed the

jury that it could award nominal damages, such as one dollar,

but only if it found “that the plaintiff is entitled to a verdict

in accordance with these instructions, but [did] not find that

the plaintiff has suffered substantial actual damages.” App.

22a.

On September 29, 1999, the jury returned a verdict in

favor of Mr. Jackson with regard to his incarceration in the

isolation cell in full shackles from January 11 to January 13,

1994. The jury specifically found that Mr. Jackson’s

constitutional rights were violated by the use of excessive

force by the Officers._Mr. Jackson was awarded one dollar

in compensatory damages and $9,500 in punitive damages.

On its own initiative, the jury requested permission from the

Court and parties to read a statement they had unanimously

prepared in conjunction with the verdict. The parties and the

Court consented to the jury’s request. After announcing the

verdict, the foreperson addressed the Officers in open-court

with the following statement:

We the jury in the matter of Quinten X. Jackson

v. CO III Harlee, et al.[.,] wish to enter the

following statement into the record.

We find that the conditions existing at the

Maryland Correctional Adjustment Center, in

particular, the isolation cell known as the “pink

room” violates the [E]ighth [A]mendment rights

of prisoner [sic] occupants. Specifically, we

regard the conditions inflicted upon the

prisoners [sic] of “a sort repugnant to the

conscience of mankind.” Although we find that

some of the responsibility for the use of the pink

room, to inflict cruel and unusual punishment,

lays with the Officers, the higher levels of

management including Cptn. Peguese, the

Assistant Warden, the Warden and _ the

Department of Corrections bare [sic] the major

responsibility.

We urge the cessation of the use of the ‘pink

room’ while its conditions violate the [E]ighth

[A]mendment.

In the course of this trial, a gratuitous battery

inflicted by Cpl. Fenton upon Quinten Jackson

was revealed to this jury & the court. Although

we do not find that it rises to a level that

deprived Mr. Jackson of his constitutional

rights, we as citizens find it abhorrent [sic]. We

urge that appropriate disciplinary action should

be taken against Cpl. Fenton & to those other

officers who did not report and covered up for

his egregious [sic] actions.

App. 37a-38a.

The Officers filed a post-trial motion for judgment as

a matter of law on October 6, 1999, arguing that there was

insufficient evidence to support the jury’s conclusion that the

confinement of Mr. Jackson in an isolation cell in three-piece

restraints, after having been sprayed with pepper mace

twelve times, was cruel and unusual punishment. On

December 20, 1999, the trial judge, in a thorough opinion,

affirmed the jury verdict, concluding that Mr. Jackson

established sufficient evidence that the Officers acted

maliciously and sadistically. App. 42a. The court reasoned

that the duration of Mr. Jackson’s confinement in a barren

isolation cell in three-piece restraints in only his underwear,

during the winter, “was excessive and purposely punitive.”

App. 41a. The Court found this especially so when “coupled

with the disabling effect of the 12 bursts of pepper spray, as

well as the assault by one of the corrections officers on Mr.

Jackson as he was being escorted to the medical facility, and

the indifferent and obviously ineffective measures used to

decontaminate Mr. Jackson from the effects of the pepper

spray.” App. 41a.

The trial judge also found that Mr. Jackson

introduced “more than sufficient evidence to support a

reasonable conclusion that Mr. Jackson suffered more than

constitutionally negligible pain.” App. 42a. Finally, the

court upheld the jury verdict concluding that Mr. Jackson

established an alternative basis for maintaining his Eighth

Amendment excessive force claim by establishing, as the

jury so concluded, that the force used was the type

“repugnant to the conscience of mankind.” App. 43a (citing

Norman v. Taylor, 245 F.3d 1259, 1263 (4 Cir. 1994);

Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)).

The Officers appealed to the Fourth Circuit, arguing

that, inter alia, the trial court erred in finding that there was

sufficient evidence to support the jury’s conclusion that the

Officers’ use of force upon Mr. Jackson constituted cruel and

unusual punishment. A three-judge panel of the Fourth

Circuit, in a 2-1 decision, reversed the jury’s verdict. The

majority’s decision to reverse the jury verdict was based on

the ground that Mr. Jackson failed to offer sufficient

evidence that he suffered more than de minimis pain or

injury in his excessive force claim. App. lla-12a. In

reaching its decision, the majority relied exclusively on its

earlier decision of Norman v. Taylor, 25 F.3d at 1262-63, for

the proposition that de minimis injury is evidence of de

minimis use of force. In that case, the Fourth Circuit had

held, contrary to other circuits, that de minimis injury defeats

a plaintiff's excessive force claim. Jd. at 1263. The Norman

court nonetheless recognized that a plaintiff need not show

repugnant to the conscience of mankind.” Jd. at 1263n.4. In

this case, the majority failed to apply the “repugnancy” test

established by Norman and instead determined as a matter of

law that the Officers’ misconduct could not be found

“repugnant” — notwithstanding the jury’s written finding.

App. 8a (dismissing the jury’s “comments” as “gratuitous”).

The majority concluded that “given the firmly established

law in Norman, we believe no reasonable jury could have

found for Jackson” because his injuries were de minimis.

App. 1 la.

Unlike the majority, the dissent found that ample

evidence supported the jury’s conclusion that the Officers

applied force maliciously and sadistically for the very

purpose of causing harm (subjective component), that Mr.

Jackson suffered more than de minimis injury (first test for

the objective component), and that the force used was a sort

repugnant to the conscience of mankind (second test of

objective component). The dissent emphasized that the

objective component of an excessive force claim is not

nearly as demanding as the subjective component because

“(wjhen 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.” App. 20a (citing Hudson, 503 U.S. at 7).

Applying these principles, the dissent identified no

less than eight examples of evidence which “undoubtedly

constitutes ample proof of an imposition of pain sufficient to

support the jury’s verdict.” App. 21a-22a, 24a. The dissent

concluded that “despite the majority’s efforts to recast the

evidence, a reasonable jury could certainly have found that

the evidence offered of forty-four hours of pain and inhuman

treatment demonstrated an impermissible infliction of pain

resulting in greater than de minimis injury.” App. 24a.

Finally, the dissent found that even if [it] agreed with the

majority’s conclusion that Jackson’s prolonged confinement

in the isolation cell did not cause him to suffer more than de

minimis injury, the court would be “obligated to sustain the

jury’s verdict because the force used on Jackson was of a

sort repugnant to the conscience of mankind.” App. 24a. 7

REASONS FOR GRANTING THE PETITION

The Court of Appeals’ decision in this case highlights

a serious and significant split in the circuit courts regarding

the amount of injury needed to claim excessive force under

the Eighth Amendment. This Court should grant certiorari to

determine the appropriate standard for determining whether

an inmate has made an excessive force claim — an issue that

will affect pending and future cases. Without further

guidance from the Court, lower courts across the country

will continue to struggle over whether an inmate must plead

and prove more than de minimis pain or injury or may

convince a jury that defendant’s misconduct was repugnant

to the conscience of mankind.

The conflict among the circuits has been widely

recognized. Numerous decisions since Hudson have

attempted to resolve the question, but neither consistency nor

clarity has emerged. Without a clear and uniform test for

federal courts to use in protecting Eighth Amendment rights,

the scope of that protection will continue to vary from

jurisdiction to jurisdiction. Such inconsistency surely is not

proper under the Constitution and is not efficient for the

administration of justice. Thus, Petitioner respectfully asks

the Court to close the loop left open by the lower courts and

resolve their longstanding conflict over the proper test to

protect the rights of inmates to be free from excessive force.

I. THIS COURT SHOULD RESOLVE THE

LONGSTANDING CONFLICT AMONG THE

CIRCUITS OVER THE APPROPRIATE TEST

TO APPLY TO AN EXCESSIVE FORCE

CLAIM BROUGHT UNDER § 1983.

A. Introduction.

Over the last decade, the circuit courts of appeal have

sharply divided over the amount of injury needed to establish

an Eighth Amendment claim of excessive force.

The First, Fourth and Fifth Circuits require an inmate

to plead and prove a discrete threshold level of injury in

order to prevail on an Eighth Amendment excessive force

claim brought under 42 U.S.C. § 1983. In these circuits, the

extent of an inmate’s injury alone may be dispositive of an

Eighth Amendment claim irrespective of whether a

correction officer maliciously intended to harm an inmate.

The Second, Third, Sixth, Seventh, Ninth, Tenth and

Eleventh Circuits, on the other hand, consider the extent of

_an inmate’s injury as but one of several factors in the

excessive force determination. In these circuits, the extent of

injury is not dispositive of an Eighth Amendment claim but

is evaluated as part of the determination of whether

correction officers’ use of force was in good-faith or

maliciously intended to cause harm.

The Third and Fourth Circuits have expressly

acknowledged their conflict over the proper interpretation of

this Court’s decision in Hudson v. McMillian, 503 U.S. 1

(1992). See Brooks v. Kyler, 204 F.3d 102, 108 (3d Cir.

2000), disagreeing with Norman v. Taylor, 25 F. 3d 1259 (4"

Cir. 1994). Petitioner, having already shown that the

Officers used force maliciously and sadistically to cause

harm and presented evidence of injury, clearly would satisfy

the Third Circuit test. ?

In Hudson, this Court reviewed a Fifth Circuit

decision which had held that an inmate could not prevail on

his Eighth Amendment claim, despite an affirmative finding

of excessive force, because his injuries were not significant.

503 U.S. at 5. In reversing the Fifth Circuit’s decision, this

Court held that the use of excessive physical force against a

prisoner constitutes cruel and unusual punishment under the

Eighth Amendment even though an inmate does not suffer

any “serious” or “significant” injury. Jd. at 9. The Court

reasoned that in an Eighth Amendment excessive force case

“the core judicial inquiry . . . [is] whether force was applied

in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.” Jd. at 6. That

2 The Fourth Circuit panel majority disposed of this case based solely on

the extent of the Petitioner’s injuries and without any consideration of

Respondents’ conduct. App. ]la-12a. As the dissent pointed out, the

evidence was clear that the Officers used force without any penalogical

justification. See App. 25a-28a (Motz, J. dissenting) (discussing the

evidence relating to the need to use force, the amount of force used, the

threat reasonably perceived and efforts to temper the severity of a

forceful response and concluding that the Respondents acted maliciously

to cause harm). That evidence could sustain the jury verdict under the

Second, Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuit

standards and probably the Eighth Circuit as well. See Foulk v. Charrier,

262 F.3d 687, 700-02 (8" Cir. 2001) (upholding nominal damage award

for an inmate who had been maced and rejecting argument that the award

of nominal damages signified de minimis injury and therefore de minimis

use of force).

inquiry entails an examination of several relevant factors,”

including, but not limited to, the extent of an inmate’s injury.

Id. at 7-9 (citing Whitley v. Albers, 475 U.S. 312, 321

(1986)).

Hudson made clear that the absence of serious or

significant injury does not end the excessive force inquiry.

Id. Instead, the Court recognized that de minimis uses of

force were not protected by the Eighth Amendment. Jd. at 9-

10 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973) (“not every push or shove, even if it may later seem

unnecessary in the peace of the judge’s chambers, violates a

prisoner’s constitutional rights.”)). Only the unnecessary

and wanton infliction of pain constitutes cruel and unusual

punishment forbidden by the Eighth Amendment. Jd. at 10.

Applying these principles, the Hudson Court

concluded that the force used against the inmate was not de

minimis and that the extent of the inmate’s injuries did not

provide a basis for dismissal of his §1983 claim. /d. at 10.

B. Conflict e d Thi rcuits

The Fourth and Third Circuit decisions exemplify

this conflict among the circuits.’

> The factors include: 1) the need for the application of force; 2) the

relationship between that need and the amount of force used; 3) the threat

reasonably perceived by the responsible officials; 4) any efforts made to

temper the severity of a forceful response, and; 5) the extent of the injury

suffered by the inmate. Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S.

at 321).

* The disagreement has also been marked by the Tenth Circuit, which

has expressly rejected the Fifth Circuit’s approach. Compare Siglar v.

Hightower, 112 F.3d 191, 922-24 (5™ Cir. 1997) (inmate must prove

more than de minimis injury) with Archuleta v. Marshall, No. 00-2033,

In Norman and progeny, the Fourth Circuit has

repeatedly interpreted Hudson to require an inmate to plead

and prove more than de minimis pain or injury. Norman, 25

F.3d at 1262-64; App. lla; Taylor v. McDuffie, 155 F.3d

479, 483-84 (4" Cir. 1998); Riley v. Dorton, 115 F.3d 1159,

1166-1167 (4" Cir. 1997); Williams v. Benjamin, 77 F.3d

756, 761 (4" Cir. 1996).° See also Marshall v. Odom, 156 F.

Supp. 2d 525, 530 (D. Md. 2001). The failure to do so

mandates a conclusive presumption that de minimis force

was used and warrants dismissal of the action. Norman, 25

F.3d at 1262-63; App. 6a-7a; Taylor, 155 F.3d at 483-84;

Marshall, 156 F. Supp. 2d at 530.

The Fourth Circuit’s decision rested on what it

termed the “negative implications” of the following single

passage in Hudson:

The blows directed at Hudson .. . are not de

minimis for Eighth Amendment purposes.

The extent of Hudson’s injuries thus provides

no basis for dismissal|.]

Hudson, 503 U.S. at 10, quoted by Norman, 25 F.3d at

1262. According to Norman, these two sentences

2000 WL 100524 (10" Cir. July 20, 2000) (expressly declining to follow

Siglar’s requirement of more than de minimis injury).

* One Fourth Circuit decision has applied the broader balancing test. See

Stanley v. Hejirika, 134 F.3d 629, 637 (4™ Cir. 1998) (considering extent

of inmate’s injuries as one factor in determination of whether excessive

force used). A district court opinion in the Fourth Circuit, Watford v.

Bruce, 126 F. Supp. 2d 425, 426-27 (E.D. Va. 2001) has commented that

Norman’s requirement of a threshold level of injury to state an Eighth

Amendment claim is seemingly in conflict with Hudson).

negatively implied that de minimis injuries warrant

dismissal as they are “conclusive evidence” of the use of de

minimis force. Id. at 1262-3. The Norman court reasoned

that “Hudson did not suggest, nor much less hold, that an

excessive force claim cannot be defeated by evidence that

the plaintiff's injury was de minimis.” Id. See Troy J.

Aramburung, Zhe Role of De Minimis Injury in the

Excessive Force Determination: Taylor v. McDuffie and the

Fourth Circuit Stand Alone, 14 BYU J. Pub. L. 313, 317

(2000) (discussing the conflicting positions of the Circuits).

In Brooks, the Third Circuit adopted a contrary

interpretation of Hudson. That is, there is no fixed quantum

of injury necessary to establish an Eighth Amendment

excessive force claim, and the extent of an inmate’s injury is

just one of several factors to consider in determining whether

force was used in good-faith or maliciously. Brooks, 204 at

107-08. Accord, Ruffin v. Taylor, 166 F. Supp. 2d 999, 1005

(D. Del. 2001); Concepcion v. Morton, 125 F. Supp. 2d 111,

121-22 (D.N.J. 2000). According to the Third Circuit, the

extent of an inmate’s injuries alone is no basis for dismissal

of an excessive force claim. Brooks, 204 F.3d at 108.

In Brooks, the district court had relied on the Fourth

Circuit’s decision in Norman to award correction officers

summary judgment based solely on a finding of de minimis

injuries. See id. at 105. On appeal, the Third Circuit

rejected Norman’s interpretation of Hudson:

We disagree. Although the Norman reading

[of the Hudson passage] is plausible, drawing

~ instruction from Supreme Court passages

through the use of the negative pregnant is

risky and unsatisfactory. We find the better

reading of these sentences to be the more

straightforward one, drawn from the general

teaching of Hudson: i.e., the absence of

significant resulting injury is not a per se

reason for dismissing a claim based . . . [on

excessive force]. Although the extent of an

inmate’s injury provides a means for assessing

the legitimacy and scope of the force, the focus

always remains on the force used (the blows). .

; As we read the [Hudson] opinion, the

Supreme Court is committed to an Eighth

Amendment which protects against cruel and

unusual force, not merely cruel and unusual

force that results in sufficient injury.

Id. at 108 (emphasis in original). To hold otherwise, the

Third Circuit stated, could result in a prisoner being

constitutionally beaten for the sole purpose of causing pain

as long as the blows were inflicted in a manner that resulted

in de minimis injuries. Jd. Thus, the Third Circuit rule is

that there is no arbitrary quantum of injury’ necessary to

maintain an excessive force action. Instead, the extent of an

inmate’s injury is merely one of several relevant factors in

the ultimate Eighth Amendment issue of whether force was

® The Brooks court rejected any rigid classification or characterization of

injury for the Eighth Amendment excessive force analysis:

We have, throughout the opinion, used the language of

de minimis, minor, and significant injury as if there

were such categories, because the problem presented to

us by the District Court, the Fourth Circuit’s opinion in

Norman, and defendants, required us to respond to their

effort to make such delineations. However, we do not

deem these differences constitutionally significant;

rather, an essential aspect of our holding is that

plaintiff's claim does not turn on these definitions.

Brooks, 204 F.3d at 109.

used in a good-faith effort to maintain or restore discipline or

maliciously and sadistically to cause harm.’

& Circuits _in Accord with the Fourth Circuit’s

Requirement that an Inmate Prove “More Than

De _ Minim r Injury” to Sustain an

Excessive Fo laim Brought Under § 1983.

The Fifth and First Circuits are generally in accord

with the Fourth Circuit’s interpretation and application of

Hudson v. McMillian. The Fifth Circuit imposes a burden on

an inmate to plead and prove that he or she suffered more

than de minimis injury, and the failure of an inmate to satisfy

that threshold level of injury is dispositive of the excessive

force action. Gomez v. Chandler, 163 F.3d 921, 922-24 (5"

Cir. 1999); Siglar v. Hightower, 112 F.3d 191, 193 (5" Cir.

1997). * Similarly, the First Circuit, although stopping short -

of the conclusive presumption applied by the Fourth Circuit,

has ruled that “merely superficial injury” permits a reliable

inference that the accompanying force was not harmful

” See, e.g., Concepcion, 125 F. Supp. 2d at 122-23 (extent of injury is one

of several factors in determining whether force was used in good-faith or

maliciously); Ruffin, 166 F. Supp. 2d at 105-06 (denying summary

judgment even though injuries were de minimis).

* Earlier Fifth Circuit decisions had declined to adopt Norman and used

the broader test. See Easton v. Holt, 73 F.3d 600, 604 n.24 (5™ Cir.

1996) (contrasting Hudson and Norman but declining to resolve the

issue: “we express no opinion whether the objective component of an

excessive force claim now requires, in addition to more than de minimis

use of force, a threshold showing of some quantity of injury.”); /kerd v.

Blair, 101 F.3d 430, 434 (5® Cir. 1996) (although some injury is

required, the extent of the injury is one factor that may suggest whether

the use of force was excessive); Valencia v. Wiggins, 981 F.2d 1440,

1446-47 (5™ Cir. 1993) (same); Hudson v. McMillian, 962 F.2d 522, 523

(5™ Cir. 1993) (same).

under the Eighth Amendment, warranting dismissal of an

inmate’s claim as constitutionally de minimis. Calabria v.

Dubois, No. 93-1742, 1994 WL 209938 *2 (1% Cir. May 24,

1994) (dismissing an inmate’s excessive force claim for a

bloody lip caused by a thrown object); see generally, Dean v.

City of Worcester, 924 F.2d 364, 368-69 (1% Cir. 1991)

(arrestee’s minor physical injuries insufficient to support a

finding that officer used excessive force under the Fourth

Amendment).

D. Circuits in Accord with the Third Circuit’s

Holding that the Extent of Injury Is Not Dispositive

of an Excessive Force Claim Brought Under §

1983.

Conversely, the Second, Sixth, Seventh, Ninth, Tenth

and Eleventh Circuits are in general agreement with the

Third Circuit’s interpretation and application of Hudson.

Each of these circuits consider the extent of an inmate’s

injuries as but one of several factors in the determination of

whether force was used in good faith or maliciously for the

purpose of causing harm. For the Second Circuit, see Griffin

v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999); Blyden v.

Mancusi, 186 F.3d 252, 263 (2d Cir. 1999); Davidson v.

Flynn, 32 F.3d 27, 29 n.1 (2d Cir. 1994); Romano v.

Howarth, 998 F.2d 101, 106 (2d Cir. 1993); Gibeau v. Nellis,

18 F.3d 107, 110 (2d Cir. 1993). For the Sixth Circuit, see

Moore v. Holbrook, 2 F.3d 697, 701-02 (6" Cir. 1993). For

the Seventh Circuit, see Outlaw v. Newkirk, 259 F.3d 833,

837 (7" Cir. 2001); Dewalt v. Carter, 224 F.3d 607, 619 (7"

Cir. 1999); Lunsford v. Bennett, 17 F.3d 1574, 1582 (7" Cir.

1994). For the Ninth Circuit, see Baumer v. Hampton, No.

00-55250, 2000 WL 1335565 * 1 (9" Cir. July 28, 2000);

Easely v. Pinnell, No. 98-16536, 1999 WL 311390 *1 (9"

Cir. May 10, 1999). For the Tenth Circuit, see Northington

v. Jackson, 973 F.2d 1518, 1523-24 (10™ Cir. 1992). For the

RR acai

Eleventh Circuit, see Skirth v. Thornton, 267 F.3d 1251,

1260 qi" Cir. 2001); Campbell v. Sikes, 169 F.3d 1353,

1375 (11™ Cir. 1999). °

In these circuits, the extent of an inmate’s injury is

not dispositive of an inmate’s excessive force claim under

the Eighth Amendment. See, e.g., Moore, 2 F.3d at 701-02

(district court properly dismissed inmate’s action only after

considering all excessive force factors and not just whether

inmate’s injury was de minimis); Schwenk v. Hartford, 204

F.3d 1187, 1196 n.6 (9" Cir. 2000) (no requirement that

inmate show serious injury where assault lacked penalogical

justification); see also Archuleta v. Marshall, No. 00-2033,

2000 WL 1005245 *1 (10 Cir. July 20, 2000) (extent of

inmate’s injuries not determinative of Eighth Amendment

claim); Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999)

(reversing dismissal of excessive force action where

dismissal was based solely on extent of injuries); Blyden v.

Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (malicious use of

force to cause harm is a per se violation of the Eighth

Amendment whether or not significant injury is evident);

Davidson v. Flynn, 32 F.3d 27, 29 n.1 (2d Cir. 1994) (extent

of injury relevant to Eighth Amendment inquiry, but does

not end it).

In sum, the need for guidance from this Court is

*® The Eighth Circuit’s approach is more closely aligned with the Third

Circuit’s reasoning but does not fit neatly into either the Fourth or Third

Circuit line of cases. In the Eighth Circuit, an inmate must prove an

actual physical injury, but the extent of the pain is considered only in the

context of whether force was used in good faith or maliciously. Foulk,

262 F.3d at 700-02; Jones v. Shields, 207 F.3d 491, 495 (8" Cir. 2000).

Thus, like the Third Circuit, the Eighth Circuit does not consider de

minimis injury conclusive evidence of de minimis force. See Foulk, 262

F.3d at 700-01.

evident. The circuits are evaluating similar claims using

fundamentally different tests, which inevitably results in

vastly different outcomes. This Court should clarify the law

so that the constitutional right to be free from excessive force

is uniformly protected throughout the nation.

E. The Fourth Circuit’s Approach Conflicts with this

Court’s Decision in Hudson.

The Fourth Circuit’s decision in this case is in direct

conflict with this Court’s decision in Hudson. It rests

squarely on the extent of the injuries sustained by the

Petitioner, which it found were de minimis as a matter of

law. Relying on Norman, the court ignored the district court

and the jury’s determination that the Officers used force

maliciously and sadistically for the very purpose of causing

Petitioner harm. App. 7a (“Given the firmly established law

in Norman, we believe that no reasonable jury could have

found for Jackson.”).

The Fourth Circuit’s requirement that inmates prove

more than de minimis injury to satisfy the objective

component of the Eighth Amendment has been criticized by

many, both within that circuit and outside, as a clear

misreading of this Court’s ruling in Hudson. See Norman,

25 F.3d 1264-66 (Hall, J., dissenting); Taylor v. McDuffie,

155 F.3d 479, 485 (4" Cir. 1998) (Murnaghan, J., dissenting)

(Norman was “based on a patent misreading of Hudson” and

represents “an unacceptable curtailment of an inmate’s right

to be free from the use of excessive force”); Watford v.

Bruce, 126 F. Supp. 2d 425, 427 (E.D. Va. 2001) (Norman

decision “seemingly in conflict with the Supreme Court’s

holding in Hudson”); Aramburung, 14 BYU J. Pub. L. at

314-18 (discussing Norman conflict with Hudson).

Hudson recognized that, regardless of the type of claim

brought under it, the Eighth Amendment generally contains

both subjective (whether the officials acted with a culpable

state of mind) and objective (whether the alleged

wrongdoing was sufficiently harmful enough to establish a

constitutional deprivation) components. Hudson, 503 U.S. at

7-8; Wilson v. Seiter, 501 U.S. 294, 298-303 (1991). In

analyzing the objective component, Hudson distinguished

between prisoner conditions of confinement and medical

deprivation claims, on the one hand, and excessive force

claims on the other. The former claims require evidence that

the deprivation was “harmful enough,” but the latter type of

claim, which is at issue here, has no such requirement:

In the excessive force context, society’s

expectations are different. When 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.

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 (citation omitted) (emphasis added).

See Brooks, 204 F.3d at 108. As a consequence, the majority

unequivocally mandated that the Eighth Amendment

excessive force inquiry focus on the prison official’s use of

force and not the extent of injuries to the inmate:

[W]e hold that whenever prison officials stand

accused of using excessive physical force in

violation of the Cruel and Unusual Punishments

Clause, the core judicial inquiry .. . [is]

whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously

and sadistically to cause harm.

Hudson, 503 U.S. at 6-7.'°

The Fourth Circuit’s rule that de minimis injuries are

“conclusive evidence” of de minimis force and therefore

beyond Eighth Amendment recognition, Norman, 25 F.3d at

1262-63, contradicts Hudson, which recognized that the

ultimate issue in an Eighth Amendment excessive force

inquiry is whether the degree of force employed was justified

under the circumstances. The Court explained in no

uncertain terms that the degree of injury suffered by an

inmate is but one of many relevant factors:

[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 a 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

'° Other opinions in Hudson clearly understood this interpretation. See

503 U.S. at 17 (Brennan, J., concurring) (“I have no doubt that to read a

‘physical pain’ or ‘physical injury’ requirement into the Eighth

Amendment would be no less pernicious and without foundation than the

‘significant injury’ requirement that we reject today”); id. at 18 (Thomas,

J., dissenting) (“The extent to which a prisoner is injured by the force —

indeed whether he is injured at all — is in the Court’s view irrelevant.”).

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.

Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321)

(emphasis added). The Fourth Circuit rule thus directly

contradicts Hudson by authorizing judicial disposal of an

excessive force claim solely on the basis of the extent of an

inmate’s injuries. Nothing in Hudson intimates that the

extent of injury is ever conclusive of whether excessive

force was used. To the contrary, Hudson left open a clear

avenue of relief for victims of diabolic or inhuman acts

leaving de minimis injury. See — 14 BYU J.

Pub. L. at 324-25.

The Fourth Circuit’s seninaals contradicts Hudson’s

“core” Eighth Amendment inquiry by placing the focus

upon the injury, rather than upon the unjustified use of

force. See Brooks, 204 F.3d at 108. As a consequence of

this misguided interpretation of Hudson, correction officers

have carte blanche constitutional authority to dispense

excessive or unjustified force on inmates so long as they are

careful or fortunate enough to only leave behind minor

traces of their force. See Taylor, 155 F.3d at 487

(Murnaghan, J., dissenting). The case at bar provides a

textbook example of such a situation, epitomizing the type

of egregious and disgraceful misconduct this Court sought

to stifle i in Hudson — — protecting against diabolic or inhuman

treatment.'!

'' See Hudson, 503 U.S. at 13-14 (Brennan, J., concurring) (giving

examples of excessive force inflicting something less than significant or

serious injury); Taylor, 155 F.3d at 486-87 (same).

Without guidance from this Court, courts applying

the “more than de minimis pain or injury” standard will

continue to err. Review by this Court is therefore warranted

to provide clear guidance to resolve an gngoing circuit

conflict regarding the fundamental constitutional protection

against excessive force.

F. The Fourth Circuit’s De Facto Abrogation of Its

“Repugnancy” Standard Further Conflicts With

Hudson.

Perhaps the most distressing aspect of the majority’s

erroneous opinion is that it summarily dismissed, without

any analysis or articulation of a new standard, the trial court

and jury’s determination that the pain inflicted on Jackson

was “repugnant to the conscience of mankind.” The

“repugnancy” standard was adopted by the Fourth Circuit

following this Court’s recognition in Hudson that “there may

be highly unusual circumstances in which a particular

application of force will cause relatively little, or perhaps no,

enduring injury, but nonetheless will result in an

impermissible infliction of pain.” Hudson, 503 U.S. at 9.

Norman adopted this second test of the objective

component of the Eighth Amendment as a means of adhering

to Hudson’s admonition that “contemporary standards of

decency are always violated” when “prison officials

maliciously and sadistically use force to cause harm” and its

express ruling that the Eighth Amendment prohibits

“diabolic or inhuman” physical punishment that inflicts “less

than some arbitrary quantity of injury.” Jd. Following this

teaching, the Fourth Circuit held in Norman that when the

amount of force used is “of a sort repugnant to the

conscience of mankind,” the plaintiff need not show even de

As the dissent noted, the majority abrogated this test

by engaging in its own factfinding and determining that the

conduct in question was not reprehensible.’ Thus, the

majority opinion effectively overrides Hudson, standing for

the proposition that, as a matter of law, it is consitutionally

permissible to spray an inmate with 12 bursts of pepper

spray, assault him while he was restrained, fail to cleanse the

spray from his body, and confine him for 44 hours in a cold,

barren, feces-incrusted room, without clothes, bedding, or

toilet, shackled in painful three-point restraints applied so

tightly that the inmate could neither feed himself nor urinate

in human fashion. These facts readily justified the jury’s

finding of repugnancy. As the district court stated, the jury’s

analysis was well-reasoned and differentiated between

wrongful and constitutionally impermissible conduct:

The Jury did conclude that the force used

against the Plaintiff was repugnant to

mankind, as evidenced by the fact that after

delivering their verdict, they took the

extraordinary measure of reading a public

statement regarding their feelings about the

Defendants’ conduct...

This statement demonstrates that the Jury

understood the type of action required to find

that excessive force was used against the

'2 The dissent properly castigated the majority for rejecting Petitioner’s

evidence, including his testimony that the three-point shackles were

applied so tightly and painfully that he could neither eat nor humanely

relieve himself and instead had to urinate in his underwear. See App.

23a-24a. As the dissent points out, the majority brushed aside this

evidence by mistakenly confusing the initial application of shackles

(which, as shown on the videotape, was not excessively tight) with a

further reshackling after Petitioner was placed in the isolation cell. See

App. 23a, n3.

Plaintiff. The Jury’s statement also revealed

that they concluded that Corporal Fenton

purposefully hit the Plaintiff in the head

during this incident. The Jury’s comments

about this incident indicated that they

concluded that this action met the subjective

component of an excessive force claim but

failed to meet the objective component

because there was no evidence to establish

that this unprovoked assault caused more than

a “de minimis” injury. The Jury’s statement

establishes that they clearly understood and

properly applied the two-part analysis for

determining whether excessive force was

used. They condemned the gratuitous and

malicious application of force by Corporal

Fenton against a then disorientated,

incoherent, and completely restrained inmate,

even as they recognized that it did not rise to

the level of cruel and unusual punishment.

Having dutifully discharged their

responsibilities as jurors, they then spoke out

as ordinary citizens, simply and sincerely.

Against this backdrop, to suggest that the Jury

did not properly weigh the evidence and

follow the instruction of law is untenable.

As the dissent recognized:

[T]he jury stated unequivocally that it

‘regard[ed] the conditions inflicted upon the

prisoners [in the Pink Room] of a sort

repugnant to the conscience of mankind.’

Although the majority dismisses the jurors’

Statement as ‘gratuitous,’ ante at 7, surely

these words, in conjunction with the jurors’

modest damages award, signal that they

carefully assessed the evidence presented and

concluded, as they expressly stated, that the

guards acted in a manner ‘repugnant to the

conscience of mankind.’ I fear that, in its

dismissal of the jury’s words, the majority

forgets that it is juries, and not courts, who are

charged with expressing the conscience of the

community.

By failing to apply the “repugnancy” standard to the

shocking facts in this case, the Fourth Circuit has effectively

gutted Hudson’s admonition that certain “diabolic” or

“inhuman” physical punishment shall be considered

unconstitutional, regardless of injury. Perhaps, therefore,

this Court’s greatest fear in Hudson has been met. The

Fourth Circuit has established a “null set” for its

“repugnancy” standard. Accordingly, review by this Court is

warranted to ensure that Constitutional protection against

extreme force in any form is not lost.

CONCLUSION

The decision of the Fourth Circuit presents direct

conflicts with other circuits and with decisions of this Court

on an issue of grave and fundamental importance. For the

stated above, the Court should grant a Wnit of Certiorari.

Respectfully submitted,

Brian A. Zemil

Counsel of Record

Mitchell Y. Mirviss

Venable, Baetjer and Howard, LLP

210 Allegheny Avenue

Towson, Maryland 21204

(410) 494-6200

Counsel for Petitioner

APPENDIX TO PETITION FOR CERTIORARI

PAGE

Opinions Below

MEMORANDUM (September 24, 2001).........csccsseseeeseees la

ORDER (September 24, 2001) ............cescssssssscersercersereeees 3la

Amended ORDER (September 27, 2001).........:-sseseeseeees 33a

MEMORANDUM (December 20, 2000) .........:cccsseeseseeee 35a

ORDER. (October 23, 2001 )....-cccccoccccvscorsesersevescocceocescessee Sla

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional Provisions

United States Constitution, Amendment VIII.................. 53a

United States Constitution, Amendment XIV................... 53a

Statutes

Fe EELS ALOT 53a

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

QUINTEN X. JACKSON,

Plaintiff-Appellee,

¥;

LAMONT A. MORGAN, Correctional

Officer; STANLEY LOCKLEAR,

Lieutenant, GREGORY MADDOX, No. 00-6129

Sergeant; KEVEN FENTON, Corporal;

ROBERT HICKS; MAARUFU AULU;

ERIK NELSON,

Defendants-Appellants,

and

STEVEN HARLEE; HOWARD GRANT;

RICHARD LANHAM; EUGENE NUTH; T. CARTER,

Sergeant; R. PARKER, Corporal,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Paul W. Grimm, Magistrate Judge.

(CA-95-271-WMN)

Argued: April 5, 2001

Decided: September 24, 2001

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,

and Patrick Michael DUFFY, United States District Judge

for the District of South Carolina, sitting by designation.

Reversed and remanded by unpublished opinion. Judge

Duffy wrote the opinion, in which Chief Judge Wilkinson

joined. Judge Motz wrote a dissenting opinion.

COUNSEL

ARGUED: Glenn William Bell, Assistant Attorney

General, Baltimore, Maryland, for Appellants. Brian Alain

Zemil, VENABLE, BAETJER & HOWARD, L.L-P.,

Towson, Maryland, for Appellee.

ON BRIEF: J. Joseph Curran, Jr., Attomey General of

Maryland, Baltimore, Maryland, for Appellants. Mitchell Y.

Mirviss, VENABLE, BAETJER & HOWARD, L.L-P.,

Towson, Maryland; Theodore F. Roberts, DANAHER,

TEDFORD, LAGNESE & NEAL, P.C., for Appellee.

Unpublished opinions are not binding precedent in this

circuit. See Local Rule 36(c).

OPINION

DUFFY, District Judge:

Appellants Locklear, Maddox, Fenton, Hicks, Aulu,

Morgan, and Nelson appeal from a jury verdict in the amount

of $1 actual damages and a total award of $9,500 punitive

damages. Appellants argue, inter alia, the district court erred

in denying their motion for judgment as a matter of law. For

the reasons set forth below, we reverse.

Jackson brought claims under 42 U.S.C. § 1983 against

Appellants for excessive force violating his Eighth

Amendment rights. Appellants worked at the Maryland

Correctional Adjustment Center, where Jackson was

incarcerated during the relevant times in this case.

Appellants were the response team sent to Jackson's cell by

the duty officer who had already decided to remove Jackson

from his cell for an earlier disturbance and to place him in

the isolation cell. Jackson alleged Appellants used excessive

force January 11-13, 1994, in two instances: (1) Appellants’

use of pepper spray inside Jackson's cell, and (2) Appellants’

placement of Jackson into an isolation cell known as "the

pink room" for two days wearing only underwear and in

three-point mechanical restraints and after spraying him with

Pepper spray.

On January 11, 1994, Lieutenant Locklear responded to

Jackson's cell as the Duty Lieutenant in charge of all housing

on that particular shift. The shift commander had ordered

Jackson removed from his cell and placed in an isolation cell

because he had been causing a disturbance. Lieutenant

Locklear attempted to carry out that order with authorization

to use pepper spray if necessary.

Jackson refused to comply with removal procedures and

the orders of Lieutenant Locklear. Pursuant to regulations,

Lieutenant Locklear ordered Jackson to remove and deliver

his clothing for inspection prior to opening Jackson's cell.

Also according to regulations, Appellants then began to

videotape their actions. Jackson still failed to comply, and

Lieutenant Locklear sprayed pepper gas into Jackson's cell.

The pepper spray hit Jackson in his face and groin. After

twelve bursts of pepper spray at three different times and

after repeated orders to comply, Jackson complied with

removal procedures.

After removal, Jackson was taken to the medical

department for treatment. The registered nurse on duty

washed his head under running water and allowed him to

wipe his groin with wet paper towels. Jackson was in three-

point restraints during his flushing of the pepper spray. The

response team then escorted Jackson to the isolation cell.

Jackson was provided clean underwear and left in three-point

mechanical restraints.

The district court allowed two of Jackson's claims to be

submitted to the jury. Those two claims were for the amount

of pepper spray used by Lieutenant Locklear and for

Jackson's placement in the isolation cell for two days. The

district court gave the jury a verdict form containing eleven

pages of special interrogatories to assist its determination.

The jury returned a verdict for Appellants on Jackson's claim

for the use of pepper spray on January 11, 1994, but the jury

found against Appellants for Jackson's claim of excessive

force for his stay in the isolation cell. The jury also found

Jackson proved by a preponderance of the evidence, but not

by clear and convincing evidence, Appellants acted with

malice. The jury then awarded $1 actual damages and

punitive damages against specific Appellants totaling

$9,500. The district court denied Appellants’ motion for

judgment as a matter of law in a post-trial order.

Il.

We review de novo a district court's legal

determinations under a Rule 50(b) motion for judgment and

determine questions of the sufficiency of the evidence on

whether a reasonable jury, based upon the evidence

presented, could have reached their verdict. Zrimed, Inc. v.

Sherwood Medical Co., 977 F.2d 885, 888 (4th Cir. 1992).

The evidence is viewed in the light most favorable to the

party against whom the motion is made, and that party given

the benefit of all reasonable inferences. We will not reweigh

the evidence or judge credibility. GSM Dealer Servs. Inc. v.

Chrysler Corp., 32 F.3d 139, 142 (4th Cir. 1994).

Appellants argue the district court erred in denying their

motion for judgment as a matter of law because Jackson

failed to establish the objective and subjective requirements

of an excessive force claim. Specifically, Appellants argue

that Jackson failed to establish they "acted with a sufficiently

culpable state of mind and the deprivation suffered was not

sufficiently serious." We agree.

The Eighth Amendment expressly prohibits the infliction

of "cruel and unusual punishments." U.S. Const. amend.

Vill. "It not only outlaws excessive sentences but also

protects inmates from inhumane treatment and conditions

while.imprisoned." Williams v. Benjamin, 77 F.3d 756, 761

(4th Cir. 1996); see Wilson v. Seiter, 501 U.S. 294, 298

(1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). To

succeed on any Eighth Amendment claim for cruel and

unusual punishment, a prisoner must prove: (1) objectively

the deprivation of a basic human need was sufficiently

serious, and (2) subjectively the prison officials acted with a

"sufficiently culpable state of mind." Wilson, 501 U.S. at

298; Williams, 77 F.3d at 761.

enti nbepemneEm Sep e NPAT

We are mindful that prison officials should be allowed

latitude in taking preventive measures to maintain safety of

the officers and medical workers. The Supreme Court has

clearly recognized the danger of overstepping the boundaries

of judicial review in this area:

"Prison administrators . . . should be accorded wide-

ranging deference in the adoption and execution of

policies and practices that in their judgment are

needed to preserve internal order and discipline and to

maintain institutional security." That deference

extends to a prison security measure taken in response

to an actual confrontation with riotous inmates, just as

it does to prophylactic or preventive measures

intended to reduce the incidence of these or any other

breaches of prison discipline. It does not insulate

from review actions taken in bad faith and for no

legitimate purpose, but it requires that neither judge

nor jury freely substitute their judgment for that of

officials who have made a considered choice.

Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (quoting Bell

v. Wolfish, 441 U.S. 520, 547 (1979)).

Il.

The objective element of an excessive force claim

requires more than a de minimis use of force. The Supreme

Court has proscribed recovery based on de minimis force,

unless that use of force is "repugnant to the conscience of

mankind." Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)

(internal quotation marks omitted). De minimis injury is

evidence of de minimis force. Norman v. Taylor, 25 F.3d

1259, 1262-63 (4th Cir. 1994). This Court en banc has

recognized a bright-line rule in the Supreme Court's

jurisprudence that de minimis injury defeats a plaintiff's

excessive force claim "absent the most extraordinary

circumstances,” i.e., unless the force used was "repugnant to

the conscience of mankind." Jd. at 1263.

In Norman the district court granted summary judgment

against the plaintiff. Although this case presents a different

procedural posture, we must also look at the facts in the light

most favorable to the plaintiff and make all reasonable

inferences in his favor. Given the firmly established law in

Norman, we believe no reasonable jury could have found for

Jackson.

The district court's order denying Appellants’ motion for

judgment as a matter of law gave several justifications for

the decision. The district court relied on testimony about the

pain and disability caused by the pepper spray from Jackson.

The district court found the medical treatment to relieve the

effects of the pepper spray was insufficient given the amount

of pepper spray used and the length of his confinement in the

isolation room.' The district court also found that Jackson's

claim was supported by evidence that the force used by

appellants was "repugnant to mankind” and _ therefore

satisfied Jackson's burden of proof even if his injury was de

minimis. However, the court pointed only to the jury's

"statement regarding their feelings about the Defendants’

conduct."

effects of the pepper spray. In fact, Jackson limited his decontamination

and can be heard on the video tape telling the nurse, "That's alright.”

Jackson was then provided wet paper towels with which to wash his

groin, and he cleaned his groin several times.

The jury added to the verdict form two handwritten pages

admonishing Appellants and Maryland Department of

Corrections for conditions of the isolation room and urging

punishment for Appellant Fenton who they thought had

struck Jackson without provocation during the transfer of

Jackson from his cell to the isolation cell.? Most of the jury's

statement was directed at the conditions in the isolation cell.

We recognize that this court has condemned cell conditions

similar, though admittedly more severe, than those of the

isolation cell used in this case. See Kirby v. Blackledge, 530

F.2d 583, 586-87 (4th Cir. 1976) (identifying conditions that

"taken alone reath the level of cruel and unusual

punishment” and describing a strip cell that has "no bedding,

no light, and no toilet, save a hole in the floor"). The jury in

this case came to the same conclusion about the conditions

of the isolation cell, but their comments were gratuitous.

This appeal involves a claim for excessive force and

facts, such as the use of pepper spray and placement in an

isolation cell in three-point restraints, that are not being

reviewed for the first time. Taking the evidence in the light

most favorable to Jackson, no reasonable jury could find the

force used in this case was "repugnant to the conscience of

mankind." Therefore, the propriety of sending this case to

the jury depends on a showing of sufficient evidence for a

This apparent act by Officer Fenton has been described as a blow. A

blow is a sudden hard hit, as with a fist; an unexpected shock. The tape

does not disclose any blow. During Jackson's transfer to the medical

department, Officer Fenton can be seen making a gesture or swipe in the

air when Jackson was turned around toward Officer Fenton and chanting

in his face. No contact can be seen on the video tape. If there was any

contact at all, then Jackson did not so much as blink. He did not flinch,

recoil, react, or cry out. Jackson continued unabated shouting over his

shoulder in Officer Fenton's face. Forceful contact, if any, must be

assumed from the video tape. In any event, any possible injury to

Jackson was de minimis.

reasonable jury to find Jackson suffered more than de

minimis injury. See Norman v. Taylor, 25 F.2d at 1263.

The jury's verdict included $1 actual damages which

could be construed as a finding of de minimis injury to

Jackson. However, the jury instructions, provided upon

request of the Court after oral arguments, reveal the jury was

instructed: "If you find that the plaintiff is entitled to a

verdict in accordance with these instructions, but do not find

that the plaintiff has suffered substantial actual damages,

then you may return a verdict for the plaintiff in some

nominal sum such as one dollar." (J.I. 30, emphasis added.)

The instructions also provided: "You may not, however,

compensate a plaintiff who has not suffered any actual pain

or injury which is more than de minimis as a result of the

unconstitutional conduct." (J.I. 26, emphasis added.) We

recognize the jury's verdict of $1 actual damages reflects

their view that Jackson suffered more than de minimus injury

but less than substantial injury. However, in reviewing a

district court's denial of a motion for judgment as a matter of

law, we do not defer to the jury's verdict. Rather, we must

review the district court's decision on the motion.

The district court erred in relying on this court's decision

in Williams to support the denial of Appellants’ motion for

judgment as a matter of law. Williams does not control

disposition of this case. Several material facts distinguish

this case and warrant reversal. First, Williams discussed only

the subjective element of the excessive force claim and did

not address the objective element because the officers

conceded Williams had met his burden on that issue.

Second, the chemical spray in Williams was CS tear gas, the

type used by military and discontinued prior to 1994 by

Maryland Department of Corrections. See Williams, 77 F.3d

at 764 (recognizing CS tear gas as potentially lethal).

Appellants used OC pepper spray on Jackson. The experts in

this case testified to the differences between CS tear gas and

OC pepper spray, not the least of which was the timing and

appropriateness of using the two different sprays as a use of

force. Pepper spray is a milder irritant and is employed to

avoid physical confrontation among inmates and guards;

whereas CS tear gas was used primarily as a weapon with

greater comsequences and required more thorough

decontamination.

Third, the greater effects and severity of damage caused

by CS tear gas than by OC pepper spray directly affects the

necessary medical treatment after exposure and prior to

being placed in isolation. Appellants’ expert in this case

testified that the effects of OC pepper spray did not last more

than an hour and had no known permanent effects. Williams

received no medical treatment following the use of the more

potent CS tear gas against him. Jackson's treatment and

decontamination was documented on the videotape and

included flushing his face and head with running water and

wiping his groin with wet paper towels. Jackson's

decontamination was adequate, and Jackson did not

complain to the nurse or the officers.

The notes of the registered nurse who treated Jackson on

January 11, 1994, showed Jackson had no complaints that

day. In addition, the videotape showed Jackson's recovery

from the effects of the pepper spray. Jackson submitted no

medical testimony that the OC pepper spray had any lasting

effect or aggravated an existing condition. Jackson's own

testimony revealed his allegations were not supported by any

complaints to the medical department. Jackson made no

complaints of any kind until January 27, more than two

weeks after he was sprayed with pepper spray, and even then

none of his complaints referenced the January 11-13, 1994,

incident.

10a

Fourth, the type of restraints and effect on the inmate in

those restraints was substantially more severe in Williams

even though Williams stayed in the restraints only eight

hours. The four-point mechanical restraints prevented

Williams from eating and required him to urinate on himself.

Jackson argues his three-point restraints were too tight and

caused him constant pain during the time he was in the

isolation cell. Jackson also claims the restraints prevented

him from eating and properly urinating in the isolation cell.

The three-point restraints did not totally prevent either

activity for Jackson though his movement was restricted.

The videotape showed Jackson used his hands to wipe his

face and groin area wearing the same restraints in which he

was placed in the isolation cell. The record of isolation

confinement shows all meals were at least offered to Jackson

during confinement in the isolation cell and that Jackson

refused breakfast and lunch on January 12, 1994. Jackson's

testimony does not dispute this. Jackson made no

complaints of these allegations even though he knew how to

make complaints and had done so before, and the record of

confinement reveals no complaints or discussion with

Jackson while he was in the isolation cell.

Jackson has not shown more than de minimis injury.

Taking the evidence in the light most favorable to Jackson

and making all reasonable inferences in his favor, we believe

no reasonable jury could find excessive force was used.

Therefore, the district court should have granted Appellants’

motion for judgment as a matter of law, and we reverse.

lla

IV.

Because this Court reverses the district court's ruling on

Appellants’ motion for judgment, we do not reach the

questions presented on the subjective element of an

excessive force claim, qualified immunity, and punitive

damages.

CONCLUSION

For the reasons stated herein, we reverse Jackson's jury

verdict against Appellants and remand to the district court

with direction to enter judgment for the Appellants in

accordance with Rule 50(b) of the Federal Rules of Civil

Procedure and this opinion. See Mutual Life Ins. Co. of N.Y.

v. Asbell, 163 F.2d 121, 123 (4th Cir. 1947).

REVERSED AND REMANDED

DIANA GRIBBON MOTZ, Circuit Judge, dissenting:

The Eighth Amendment outlaws the unnecessary

infliction of pain, even on convicted felons. Quentin [sic]

Jackson presented ample evidence from which the jury could

conclude, as it did, that correctional officers maliciously and

sadistically used excessive force to inflict unnecessary and

wanton pain on him, in clear violation of the Eighth

Amendment. The jury's award to Jackson of one dollar in

actual damages and $9,500 in punitive damages is a

measured and entirely appropriate response to the evidence

presented at trial. Accordingly, I would affirm the jury

verdict and must respectfully dissent from the majority's

refusal to de so.

12a

The facts giving rise to this lawsuit occurred on January

11, 1994, during a routine "shakedown," (body and cell

search) at the Maryland Correctional Adjustment Center

(MCAC). At trial, the parties offered conflicting testimony

as to what transpired during this search. In light of the jury

verdict in favor of Jackson, we are required to view the facts

in the light most favorable to him. See Fed. R. Civ. P. 50(a).

Nevertheless, in order to set forth all of the legal issues

involved, I also include the officers' version of the facts.

Jackson testified that, while he was unclothed, Officer

Morgan ordered him to turn in circles repeatedly, not just

once or twice as is normal in a shakedown. Jackson objected

to this perceived harassment, calling Officer Morgan a

homosexual. Jackson stated that, despite this harassment, he

permitted the officers to continue the search, and then, when

they were finished, he asked to see the officers’ superior so

that he could voice his concerns and obtain the appropriate

form to make a written complaint to the Warden. A few

minutes later, according to Jackson's testimony, instead of

the officers’ superior, a Response Team arrived wearing riot

gear and gas masks to extract Jackson from his cell.

The officers testified, to the contrary, that Jackson

refused to leave his cell during the shakedown, thereby

preventing them from searching it. Although the officers

acknowledged that they ultimately persuaded Jackson to

vacate his cell so that it could be searched, they maintained

that Jackson created a disturbance in the cell block by yelling

obscenities and banging on the walls. According to the

officers, when they informed Jackson that he would be

placed in an isolation cell for creating a disturbance, he

refused to comply with the ordinary removal procedures.

For this reason, they assembled a six-person Response Team

13a

to transport Jackson to the isolation cell known as the Pink

Room to "cool down."

Jackson maintains that he created no disturbance

necessitating removal from his cell to "cool down." When

the Response Team arrived at his cell, Jackson testified that

he, was sitting quietly on his bunk reading. Jackson's

account, rather than the officers' was apparently credited at a

subsequent prison disciplinary hearing, in which Jackson

was found not guilty of creating a cellblock disturbance.

Many of the remaining relevant facts are clearly

documented in the Response Team's videotape, which begins

with the Team's arrival at Jackson's cell. The tape starts at

1:54 p.m. with an introduction and identification of the

Response Team. The tape shows only the outside of

Jackson's cell, from which point Jackson cannot be seen, but

no disturbance can be heard.

The videotape reveals that, at 1:56 p.m., Officer Locklear

orders Jackson to pass his clothes out and to place his hands

in the feed slot to be cuffed. Jackson responds by stating that

he had just been searched, and asks the purpose ~ the

officers’ request. Locklear then sprays two bursts“ pepper

spray into Jackson's cell.' Jackson testifie , without

contradiction, that the first burst of pepper spray struck him

‘Jackson introduced the following uncontroverted evidence as to the

pepper spray the officers used against him. The spray consisted of ninety

Freon-based chemical, which acted as a propellant, and ten

percent Oleo Resin Capsicum, which is derived from the hot oil and

waxes of the cayenne pepper. This chemical takes effect upon contact

with skin and mucous membranes and causes a painful, burning

sensation, inflammation of the mucous membranes in the eyes, nose and

throat, skin inflammation, coughing or gagging if inhaled and an

involuntary closing of the eyes. The physical effects of the spray are

accompanied by psychological effects, including fear, disorientation,

l4a

in the groin, causing a painful burning sensation, and the

second burst struck him in the face, causing him to cry out in

pain. Jackson stated that he felt like his body was burning

and he began to choke and gag from inhalation of the pepper

spray. His eyes swelled shut and he was unable to breathe.

Due to the pain he was experiencing, Jackson maintains that

he became confused and disoriented, and was unable to

understand the orders the Response Team directed to him.

At 1:58 p.m., two minutes after the first bursts of pepper

spray, Jackson has still not complied with the Response

Team's orders; Locklear sprays four additional bursts of

pepper spray into Jackson's cell. At 1:59 p.m., Jackson

passes his jumpsuit through the feed slot to the officers.

Locklear then orders Jackson to send out the rest of his

clothes as well. At 2:00 p.m., Locklear sprays an additional

burst of pepper spray, this one lasting a full six seconds. The

videotape reveals that this burst of pepper spray causes

Jackson to cough and gag. At 2:01 p.m., Jackson passes his

underwear and shoes through the feed slot. Nevertheless, at

2:02 p.m., the administration of five additional bursts of

pepper spray can be heard. At trial, Officer Maddox

acknowledged that, at that point, he had gone around to the

back of Jackson's cell and sprayed into Jackson's cell through

' the window, which was covered by a mesh screen.

At 2:03 p.m., Jackson places his hands in the feed slot to

be hand-cuffed, and exits his cell wearing a jumpsuit. The

tape reveals that Jackson is in obvious pain; he gasps for air

and rubs his teary eyes. At 2:04 p.m., the Response Team

leads Jackson to the infirmary. Jackson has difficulty

walking and, at one point, falls down. At 2:05 p.m., while

walking to the infirmary, Jackson begins babbling

incoherently. (Jackson testified that at this time he was

“speaking in tongues" and praying to God.) At 2:06 p.m.,

shortly after going through a doorway, Jackson testified that

15a

a ee ee ce ee

Officer Fenton struck him in the back of the head. Although

Officer Fenton denied striking Jackson, the blow can be seen

on the videotape.

At 2:07 p.m., the officers take Jackson to the nurse. The

officers permit him to rinse his head in a sink for several

minutes and to rub his genitals with a wet paper towel. In

| addition, the nurse rubs Jackson's face with a paper towel.

This is the only medical treatment that the officers provided

Jackson before confining him to the Pink Room isolation

cell.

From 2:12 p.m. to 2:19 p.m., the Response Team

prepares Jackson for placement in the Pink Room. During

this period the Team removes Jackson's shackles and orders

Jackson to remove his jumpsuit and underwear. After

several minutes, during which time Jackson is naked, the

officers provide him with clean underpants, but nothing else.

The officers then re-shackle Jackson and place him in the

isolation cell, clothed only in his underwear. The videotape

record of the entire preparation period shows Jackson

remaining calm throughout. Department of Corrections

(DOC) regulations state that prison officials can place in-cell

shackles on an inmate only when he presents a serious threat

of violence.

Although it is no longer in use, at the time of this

incident, the Pink Room was a bare cell approximately ten

feet by ten feet with metal walls, a concrete floor and no

furniture. It lacked a toilet, and instead had a hole in the

floor, covered by a grate, which, during Jackson's

confinement, was encrusted with feces and blood.

Jackson testified that the shackles placed on him

throughout his confinement in the Pink Room were so tight

that he could not move his hands, and so he could not even

16a

een nme eee rane am

remove his underwear to urinate. Although it was very cold

in the Pink Room and Jackson was clad only in underwear,

the officers provided him with no bedding or clothes. In

addition to the cold and the painful shackles, Jackson

testified that he was in continual pain due to the effects of

the pepper spray during the entire period of his confinement

in the Pink Room.

According to the logs of Jackson's confinement, although

he was awake and alert, the officers did not provide him with

any food for sixteen hours. When he was finally provided

with food, during the seventeenth hour of his confinement,

Jackson testified that the shackles prevented him from

eating. The logs record that Jackson remained calm for the

first seventeen hours he was imprisoned in the Pink Room.

Nevertheless, his confinement there continued for nearly

forty-five hours.

Captain Jeffrey Wells, a DOC employee, testified at trial

as an expert witness for the officers. Wells stated his

opinion that this case presented a need to use force and to

remove Jackson from his cell. He also opined that the use of

twelve bursts of pepper spray was an appropriate amount of

force. He agreed that in-cell restraints should never be used

as a form of punishment but only as a "management tool” to

control an inmate while the inmate was in an isolation cell.

Vincent Nathan, a lawyer specializing in prison law,

testified as an expert for Jackson. Nathan noted that Jackson

was not creating a disturbance or threatening anyone at the

time the Response Team forcibly extracted him from his cell,

and so there was no need to relocate him. Nathan also noted

that the correctional officers made no attempt to use

non-forceful means to resolve the situation. Nathan further

testified that the prison officials did not sufficiently

decontaminate Jackson from the pepper spray. All of the

17a

exposed areas of Jackson's body should have been flushed

with water and washed with soap after the incident.

(Although the prison's protocol also required that all exposed

areas of an inmate's body be flushed with water, the officers

only permitted Jackson to rinse his head and genitals with

water for a short time.) Given these facts, Nathan opined

that the Pink Room confinement of Jackson constituted a

grossly excessive use of force.

Il.

In March 1995, Jackson initiated this action, alleging that

the MCAC officers’ use of excessive force on January 11-13,

1994, violated his Eighth Amendment right to be free from

cruel and unusual punishment. With the parties’ consent,

Magistrate Judge Paul W. Grimm presided over a jury tnal

on Jackson's claims. The jury found for the correctional

officers on Jackson's claim that use of the pepper spray in

itself constituted excessive force, but found for Jackson on

his claim that the officers used excessive force in confining

him in three-point restraints in the manner they did for

almost two days.’ The jury awarded Jackson one dollar in

compensatory damages and $9,500 in punitive damages.

The jurors also requested that the one statement be

read into the record:

We find that the conditions existing at the

Maryland Correctional Adjustment Center, in

? Jackson also alleged that he was placed in an isolation cell without due

process of law. Judge Grimm granted the officers’ motion for judgment

as a matter of law on Jackson's Fourteenth Amendment due process

claim on qualified immunity grounds, concluding that there was no

clearly established constitutional right to a pre-deprivation hearing prior

to placement of an inmate in the isolation cell. Jackson does not appeal

that ruling

18a

particular, the isolation cell known as the

"pink room" violate the eighth amendment

rights of prison occupants. Specifically we

regard the conditions inflicted upon the

prisoners of "a sort repugnant to the

conscience of mankind.". . . We urge the

cessation of the use of the "pink room" while

its conditions violate the eighth amendment.

Judge Grimm denied the officers’ post-trial motion for

judgment as a matter of law, and the officers appealed to this

court.

As the majority recognizes, although we review de novo

a district court's legal determinations, a jury's factual finding

must be affirmed unless there is "no legally sufficient

evidentiary basis for a reasonable jury” to so find. Fed. R.

Civ. P. 50(b). Indeed, reviewing courts "owe great deference

to the jury's view of the evidence.” Newman v. Holmes,122

F.3d 650, 653 (8th Cir. 1997) (affirming jury verdict for

prisoner where question of whether guard was deliberately

indifferent was "very close"). Moreover, we, as an appellate

court, cannot reweigh the evidence or judge credibility, but

rather must view the evidence in the light most favorable to

Jackson as the prevailing party.

Il.

The Eighth Amendment prohibits the infliction of "cruel

and unusual punishments." U.S. Const. amend. VIII.

Undeniably, the "unnecessary and wanton infliction of pain,"

constitutes cruel and unusual punishment forbidden by the

Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5

(1992); Whitley v. Albers, 475 U.S. 312, 319 (1986);

Ingraham v. Wright, 430 U.S. 651, 670 (1977).

19a

To determine whether a prison official has violated the

Eighth Amendment, courts must analyze both subjective and

objective components. See Wilson v. Seiter, 501 U.S. 294,

298 (1991). Specifically, this analysis requires "inquiry as to

whether the prison official acted with a sufficiently culpable

state of mind (subjective component) and whether the

deprivation suffered or injury inflicted on the inmate was

sufficiently serious (objective component)." Williams v.

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). "What is

necessary to establish an unnecessary and wanton infliction

of pain” with regard to each component "varies according to

the nature of the alleged constitutional violation." Hudson,

503 U.S. at 5 (internal quotation marks omitted).

In an excessive force case, a claimant must meet a heavy

burden to satisfy the subjective component of the claim;

specifically, he must prove that correctional officers applied

force "maliciously and sadistically for the very purpose of

causing harm." Whitley, 475 U.S. at 320-21. The objective

component of an excessive force claim is not nearly as

demanding, however, because "[w]hen 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.” Hudson,

503 U.S. at 9. With these principles in mind, I tum to the

facts of this case.

IV.

The majority rests its decision to reverse the jury verdict

solely on the ground that Jackson failed to offer sufficient

evidence to satisfy the objective component of his excessive

force claim. Accordingly, I begin with an analysis of that

component.

20a

To establish the objective component of an excessive

force claim, generally a plaintiff must simply prove that he

suffered more than de minimis injury. Jd. at 9-10. However,

if "a particular application of force . . . cause[s] relatively

little, or perhaps no, enduring injury, but nonetheless . . .

result(s] in an impermissible infliction of pain," the pain

itself "will be such that it can properly be said to constitute

more than de minimis injury." Norman v. Taylor, 25 F. 3d

1259, 1263 n.4 (4th Cir. 1994). Moreover, when the amount

of force used is "of a sort repugnant to the conscience of

mankind,” the plaintiff need not show even de minimis

injury to satisfy the objective component. Jd. In such a case,

even if the plaintiff suffered no lasting injury, he can prevail

on the objective component of an excessive force claim.

Jackson offered the following evidence in support of the

objective component of his claim:

e The officers sprayed his cell with pepper spray twelve

times.

e Pepper spray causes pain, burning, inflammation of the

mucous membranes in the eyes, nose and throat, skin

inflammation, induces coughing or gagging and causes

the eyes to close involuntarily. The spray also produces

psychological effects, such as fear, disorientation,

anxiety and panic.

e Jackson did not receive any medical treatment after being

exposed to the pepper spray. Satisfactory

decontamination from the effects of pepper spray

requires one to flush all affected areas with water and

wash them with soap. The officers’ only attempt at

decontamination was limited to giving Jackson a few

minutes to rinse his face and groin area with water.

e After removing him from his cell, the officers locked

2la

Jackson in an isolation cell, known as the Pink Room, for

forty-four hours.

e The Pink Room was a bare cell approximately ten feet by

ten feet with metal walls, a concrete floor and no

furniture. It lacked a toilet, and instead had a grate in the

floor encrusted with feces and blood.

e Although it was January, Jackson was not provided with

any bedding, clothing -- save a single pair of underpants -

- or other means of staying warm.

e The officers withheld food from Jackson for sixteen

hours.

e During his confinement, Jackson was forced to wear

excessively tight three-point restraints which caused him

pain when he moved and prevented him from eating and

removing his clothes to urinate.

After receipt of this evidence, Judge Grimm instructed

the jury that it could award nominal damages, such as one

dollar, but only if it found “that the plaintiff is entitled to a

verdict in accordance with these instructions, but [did] not

find that the plaintiff has suffered substantial actual

damages." See ante at 7 (quoting jury instructions). The

officers do not offer any objection to the jury instructions,

nor could they since the instructions are clearly proper.

Thus, a properly instructed jury awarded Jackson one dollar

in nominal damages and $9,500 in punitive damages. Even

the majority acknowledges that this award reflects the jury's

clear finding that Jackson had suffered more than de minimis

injury. See ante at 7.

In rejecting this finding, the majority relies on the

distinctions between this case and Williams v. Benjamin, 77

22a

F.3d 756 (4th Cir. 1996). See ante at 7-9. The majority

contends that Jackson did not suffer more than de minimis

injury in the form of an impermissible infliction of pain

because (i) pepper spray is a milder irritant than the tear gas

used in Williams, (ii) exposure to pepper spray does not

necessitate medical treatment as does tear gas, nor does it

have any permanent effect and (iii) the four-point restraints

used in Williams were more restrictive than the three-point

restraints used here. See ante at 7-9.

Cases seldom present identical facts, and the facts in this

case obviously are not identical to those in Williams;

however, I believe that in significant respects the facts here

evidence a more, not less, egregious infliction of

unnecessary pain. Although pepper spray may be a milder

irritant than tear gas, Vincent Nathan, Jackson's expert,

testified that exposure to pepper spray causes painful burning

in the eyes, nose, and throat, swelling, skin irritation and

coughing or gagging, as well as psychological trauma,

including fear, disorientation, anxiety and panic. Jackson's

testimony confirmed that he experienced all of these effects,

and that he was not properly decontaminated after his

exposure to pepper spray -- a fact which MCAC's own

regulations confirm. Moreover, while Jackson was bound in

three-point restraints, as opposed to the four-point type used

on Williams, Jackson was confined in the painfully tight

restraints and prevented from using his hands to feed himself

or assist in urination for forty-four hours -- almost six times

as long as Williams's confinement.’

>The majority concludes that the three-point restraints could not have

totally prevented Jackson from using his hands because he was wearing

three-point restraints when he used his hands to flush his face and groin

with water in the infirmary. See ante at 9. However, between Jackson's

visit to the infirmary and his confinement in the Pink Room, Jackson's

shackles were removed to permit him to change his underwear and he

was then re-shackled before being placed in the Pink Room. Thus, the

23a

Even if this were not a stronger case than Williams, the

evidence summarized above undoubtedly constitutes ample

proof of an imposition of pain sufficient to support the jury's

verdict. Despite the majority's efforts to recast the evidence,

a reasonable jury could certainly have found that the

evidence offered of forty-four hours of pain and inhumane

treatment demonstrated "an impermissible infliction of pain"

resulting in greater than de minimis injury. Norman, 25 F.3d

at 1263 n.4.

Moreover, even if I agreed with the majority's conclusion

that Jackson's prolonged confinement in the Pink Room did

not cause him to suffer an impermissible amount of pain

constituting more than de minimis injury, we would

nonetheless be obligated to sustain the jury's verdict because

the record reveals abundant evidence that the force used on

Jackson was of the sort "repugnant to the conscience of

mankind." Jd. Where the amount of force used rises to this

level, a claimant need not show even de minimis injury to

satisfy the objective element of an excessive force claim.

— See ld.

In the instant case, the jury not only found for Jackson on

his excessive force claim arising from his confinement in the

Pink Room, it also took the "extraordinary measure” of

requesting that a statement be read into the record expressing

its disapproval of the guards’ treatment of Jackson. In this

statement, the jury stated unequivocally that it "regard[ed]

the conditions inflicted upon the prisoners [in the Pink

fact that he could move his hands while in the infirmary does not mean

that he could move them equally well when confined in the Pink Room

because the shackles could have been placed on Jackson more tightly the

second time. In any event, we are required to credit Jackson's testimony

that, during his time in isolation confinement, he could not move his

hands to remove his underwear or to eat.

24a

Room] of a sort repugnant to the conscience of mankind."

Although the majority dismisses the jurors’ statement as

"gratuitous," ante at 7, surely these words, in conjunction

with the jurors’ modest damages award, signal that they

carefully assessed the evidence presented and concluded, as

they expressly stated, that the guards acted in a manner

"repugnant to the conscience of mankind." I fear that, in its

dismissal of the jury's words, the majority forgets that it is

juries, and not courts, who are charged with expressing the

conscience of the community. See Jones v. United States,

527 U.S. 373, 382 (1999) ("[I]n a capital sentencing

proceeding, the Government has ‘a strong interest in having

the jury express the conscience of the community on the

ultimate question of life or death."") (quoting Lowenfield v.

Phelps, 484 U.S. 231, 238 (1988); see also BMW of North

America, Inc. v. Gore, 517 U.S. 559, 600 (1996) (Scalia, J.

dissenting) ("[P]unitive damages represent the assessment by

the jury, as the voice of the community, of the measure of

punishment the defendant deserved.").

In sum, Jackson offered more than sufficient evidence to

satisfy the objective component of his excessive force claim.

The evidence is equally clear that Jackson satisfied the

subjective component; i.e., he offered abundant evidence that

the correctional officers applied force "maliciously and

sadistically for the very purpose of causing harm.” Whitley,

473 U.S. at 320-21.

In determining whether prison officials have acted

"maliciously and sadistically” a court should balance: (i) the

need for the application of force, (ii) the relationship

between that need and the amount of force used, (iii) the

threat reasonably perceived by the responsible officials, and

25a

(iv) any efforts made to temper the severity of a forceful

response. See Hudson, 503 U.S. at 7 (citing Whitley, 475

U.S. at 321-22). The absence of serious injury is also a

relevant, but not dispositive, factor to be considered in the

subjective analysis. Jd.

With respect to the first Whitley factor, the need to use

force, the jury unquestionably could have concluded that the

officers did not need to confine Jackson to the Pink Room in

unduly tight three-point restraints, without clothing, bedding,

a toilet or even the opportunity to properly clean off the

pepper spray, for nearly two days. No doubt, in certain

situations, pepper spray, isolation confinement, and three-

point restraints can serve valid penological purposes. But the

officers have not even offered a justification for the

prolonged use of all three of these tools in this case, or for

the manner in which they were used.

The record evidence reveals that when the Response

Team arrived at Jackson's cell, he was calm; any disturbance

caused by Jackson's earlier disruptive behavior had clearly

ceased. Even if Jackson initially disobeyed orders to submit

to a search (and we are bound to credit Jackson's testimony

that he did not), it is undisputed that Jackson complied with

tiiese orders as quickly as he could after being sprayed, given

the disorienting effects of the pepper spray. By the time

Jackson was placed in the Pink Room, he was not a danger to

himself or the officers. He did not possess any weapons or

contraband -- the officers knew this because Jackson had just

submitted to two body searches -- and he was rendered

helpless by the pepper spray. Given this, a reasonable jury

could easily have found that extended isolation confinement

without the opportunity to wash off the pepper spray was

unnecessary. But, even assuming that it was necessary to

transfer Jackson to the Pink Room, the officers have offered

no justification for the prolonged use of the painfully tight

26a

restraints. Thus, a reasonable jury could certainly have

concluded that the prolonged use of in-cell shackles were

unnecessary.

The second Whitley factor, the relationship between the

need for the force and the amount of force used, is closely

related to the first factor. As stated above, while Jackson's

intransigence might have justified the use of some force, the

evidence supports a finding that the amount of force used in

this case was grossly disproportionate to the need. By the

time the Response Team arrived at Jackson's cell, he was

calm and had ceased to cause a disturbance. Nonetheless,

the officers sprayed him with twelve bursts of pepper spray.

After that, Jackson was nearly helpless and complied with all

of the officers’ orders. Nonetheless, the officers painfully

restrained him and placed him in the Pink Room for an

extended period of time, without clothing or an opportunity

to wash off the pepper spray. Given that the Pink Room is

designed to allow an inmate creating a disturbance an

opportunity to "cool off," and Jackson was calm for the first

seventeen hours of his forty-four hour confinement, there

was no justification for keeping Jackson in the Pink Room

for such an extended period.

With respect to the third Whitley factor, the jury certainly

could have found that the officers did not "reasonably

perceive” that Jackson posed any threat to their safety that

would require them to use this amount of force. As stated

above, at the time of the incident, the officers knew that

Jackson did not possess any contraband, or anything that

could be used as a weapon, because they had just subjected

him to a cell and body search. Even if the officers needed to

place Jackson in restraints while transporting him to the Pink

Room for a limited cooling-off period, there was no evidence

of any threat justifying the officers’ excessive response. In

fact, the prison's own policy states that in-cell restraints are

27a

only to be used when an inmate poses a threat to himself or

others, and the officers offered no evidence that Jackson

posed any such danger here.

As to the fourth Whitley factor -- the officers’ effort to temper

the severity of their response -- it appears that no such effort

was made in this case. The officers persisted in using force

against Jackson -- including Officer Fenton's unwarranted

blow to Jackson's head -- even after he was incapacitated by

the pepper spray and had complied with all orders.

Moreover, even though Jackson was calm during his

confinement in the Pink Room, the officers kept him there,

in restraints, for nearly two days. Both of these facts indicate

that the officers failed to temper their response to accord

with the situation.

In short, reviewing the evidence, as we must, with the

appropriate deference to the jury's factual findings, each of

the four Whitley factors weighs in favor of Jackson.* Given

the officers’ unjustifiable use of force and excessively

punitive measures, it was certainly reasonable for the jury to

conclude that they acted both maliciously and sadistically in

confining Jackson to the Pink Room in these conditions for a

period of nearly two days.

— VI.

For the reasons set forth above, I believe that there was a

"legally sufficient evidentiary basis for a reasonable jury" to

“Although it is true, as the majority notes, that courts should afford

deference to prison officials, see ante at 5, particularly where the initial

application of force is a "good faith effort to maintain discipline," it is

equally true that courts must not allow such deference to “insulate from

review actions taken in bad faith for no legitimate purpose." Whitley, 475

U.S. at 322. Where, as here, prison officials’ actions lack a legitimate

purpose, it is reasonable to infer, that those actions constitute wanton

punishment.

| 28a

decide that the officers’ actions constituted excessive force in

violation of the Eighth Amendment. Fed. R. Civ. P. 50(a)(1);

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

149-50 (2000). Accordingly, I respectfully dissent from the

majority's holding to the contrary.°

“The officers assert that even if they used excessive force in confining

Jackson to the Pink Room, they are entitled to qualified immunity

because, at that time, it was not clearly established that the level of force

used in this case was excessive. "[GJovernment officials performing

discretionary functions generally are granted a qualified immunity and

are ‘shielded from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Wilson v. Layne, 526 U.S. 603,

29a

609 (1999). “Clearly established for the purposes of qualified immunity

means that the ‘contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that

right." Jd. at 614-15. At the time of the events at issue in this case, it

was "clearly established” that the wanton infliction of pain on an inmate

without peological justification constitutes cruel and unusual

punishmest. Sue Whitley, 475 U.S. at 319°("[T]he unnecessary and

wanton inflicties of pain constitutes cruel and unusual punishment

forbidde=: i»y the Eighth Amendment... .”"). Abundant and virtually

decontaitii#iate Jackson properly from the effects of the pepper spray, the

officers confined him to the Pink Room for a period of two days —

shackled the entire time in painful three-point restraints — and that they

took these actions even though Jackson posed no danger to himself or

others and was calm for the first seventeen hours of his confinement. In

doing so, the officers "unnecessar{ily] and wanton[ly] inflict{ed] . . .

pain," an act which the Supreme Court held more than a dozen years ago

is "forbidden by the Eighth Amendment." /d. Qualified immunity offers

no escape for those who engage in such conduct.

30a

JUDGMENT

FILED: September 24, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 00-6129

_CA-95-271-WMN

QUINTEN X. JACKSON

Plaintiff - Appellee

LAMONT A. MORGAN, Correctional Officer; STANLEY

LOCKLEAR, Lieutenant, GREGORY MADDOX, Sergeant;

KEVIN FENTON, Corporal; ROBERT HICKS;

MAARUFU AULU; ERIK NELSON

Defendants - Appellants

and

STEVEN HARLEE; HOWARD GRANT; RICHARD

LANHAM; EUGENE NUTH; T. CARTER, Sergeant;

R. PARKER, Corporal

Defendants

3la

Appeal from the United States District Court

for the District of Maryland at Baltimore

In accordance with the written opinion of this Court filed this

day, the Court reverses the judgment of the District Court.

The case is hereby remanded to the United States District

Court for the District of Maryland, at Baltimore, for further

proceedings consistent with the opinion of this court.

/s/ Patricia §. Connor

CLERK

Filed: September 27, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 00-6129

(CA-95-271-WMN)

Quinten X. Jackson,

Plaintiff - Appellee,

versus

Lamont A. Morgan, etc., et al.,

Defendants - Appellants.

ORDER

The court amends its opinion filed September 24,

2001, as follows:

On page 2, section 1 -- the section is corrected to

begin: "Reversed and remanded by unpublished opinion.

Judge Duffy wrote the opinion, in which Chief Judge

Wilkinson joined. . . .”

33a

On page 2 -- the opinion is corrected to begin

"DUFFY, District Judge.”

For the Court - By Direction

/s/ Patricia S. Connor

Clerk

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

QUINTEN JACKSON, .

Plaintiff *

Civil Action No.

Vv. . WMN-95-271

(Magistrate Judge

Grimm)

co III HARLEE, et al., *

Defendant a

am - 7 * *

MEMORANDUM

The videotape seen by the Jury showed Seven

correctional officers, dressed in riot gear, approach the door

of an inmate at Maryland's "Supermax" correctional facility.

The inmate, the Plaintiff in this lawsuit, was ordered by the

. lieutenant in charge to back up to the door of his cell and to

place his hands through the food-tray door so that he could

be handcuffed. He refused. Within minutes, 12 bursts of

pepper spray were fired into the Plaintiff's cell, from the

food-tray door, as well as the ventilation screen in the rear.

The pepper spray achieved its intended result almost

immediately. Coughing and choking, the Plaintiff removed

his clothing and passed it out the food-tray door to the

correctional officers, then submitted to being handcuffed.

His cell door was opened, and he emerged--disoriented,

incoherent, talking in "tongues", his face contorted by the

burning of the pepper in his eyes, nose, lungs and on his

35a

skin, his eyes tearing copiously. Immediately he was placed

in "three piece” restraints--handcuffs around his wrists which

were then chained to his waist, to prevent him from raising

his hands, and leg irons. He then was escorted by the seven

correctional officers away from his cell to the medical area,

adjacent to the "pink room”, an isolation confinement cell

used for disruptive inmates.

| While being escorted to the medical facility,

| completely restrained and still disoriented and incoherent,

the videotape showed’ that one of the correctional officers,

Corporal Kevin Fenton, reached forward from behind the

Plaintiff, where he could not be seen, and, without

provocation, struck the Plaintiff on the head. At the medical

facility, the Plaintiff was escorted to a sink, where a nurse

briefly wiped at his face and head with wet paper towels, and

he was allowed to rinse his head with water, but not shower.

After this short stop, he was taken by the correctional

| officers to the "pink room", an isolation cell containing no

| mattress, no toilet, and no sink. Wearing only his underwear

shorts, despite the fact that it was January, and three piece

restraints, and still visibly suffering from the effects of the

pepper spray which persisted despite the nurse's momentary

toweling, the Plaintiff was placed in the pink room, where he

remained for nearly 44 hours.

At the conclusion of the case, the Jury returned its

| verdict against the seven correctional officers, the

| Defendants, and in favor of the Plaintiff on one of his Eighth

Amendment claims. It awarded him $1.00 in compensatory

| damages, and a total of $9,500.00 in punitive damages.

After announcing the verdict, the foreperson asked to read

aloud a statement that the Jury had unanimously prepared.

Addressing the Defendants, she read the following statement,

'This segment, difficult to see in “real time” speed, is clear when the tape

is played in slow motion, as was done several times during trial.

36a

quoted in its entirety, in a quiet but clear voice, which

deserves to be heard beyond the confines of that courtroom:

We the jury in the matter of Quinten X Jackson

v. CO III Harlee, et al[.,] wish to enter the

following statement into the record.

‘ We find that the conditions existing at the

Maryland Correctional Adjustment Center, in

particular, the isolation cell known as the ‘pink

room’, violate the [E]ighth. [A]mendment rights

of prisiner [sic] occupants. Specifically we

regard the conditions inflicted upon the prisiners

[sic] of "a sort repugnant to the conscience of

mankind." Although we find that some of the

responsibility for the use of the pink room, to

inflict cruel & unusual punishment lays with the

defendants, the higher levels of management

including Cptn Pugese, the assistant warden, the

warden & the Department of Correction bare

[sic] the major responsibility.

We urge the cessation of the use of the ‘pink

room’ while its conditions violate the [E}ighth

[A]}mendment.

In the course of this trial, a gratuitous battery

inflicted by Cpl Fenton upon Quinten Jackson

was revealed to this jury & the court. Although

we do not find that it rises to a level that

deprived Mr. Jackson of his constitutional rights,

we as citizens find it abhorrent [sic].

We urge that appropriate disciplinary action

should be taken against Cpl Fenton & to those

other offices [sic] who did not report and

covered up for his agregious [sic] actions.

37a

(See Ex. 1 to this Memorandum and Order.) From that jury

verdict Rule 50(b) motions have been filed.”

Before the Court is Defendants’ Motion for Judgment

(Paper No. 85); Plaintiff's Opposition to Defendants’ Motion

for Judgment (Paper No. 89); and Plaintiffs Motion for

Judgment and in the Alternative, Motion for New Trial

(Paper No. 88). No hearing is necessary. Local Rule 105.6.

For the reasons discussed below, both Motions are denied

and the Jury's verdict is upheld.

BACKGROUND

This action focused on three issues: was the

Defendants, use of pepper spray against the Plaintiff, then an

inmate at Maryland's Supermax correctional facility, on

January 11, 1994, excessive force in violation of the Eighth

Amendment; was the placing of the Plaintiff in full restraints

in isolation (in the "pink room" and the "cadre cell") in

January, May and October of 1994 excessive force in

violation of the Eighth Amendment; and was the Plaintiff

denied his due process rights in connection with being placed

in isolation in January, May and October of 1994. During

the trial, the Court granted the Defendants’ Motion for

Judgment regarding the Eighth Amendment claims for being

placed in isolation in full restraints in May and October,

1994. The Court also granted the Defendants’ Motion for

Judgment regarding all the due process claims. Additionally,

the Court granted the Defendants’ Motion for Judgment for

all Defendants sued on the basis of supervisor liability

[Commissioner Richard Lanham, Warden Sewalll Smith,

Warden Eugene Nuth and Assistant Warden Joseph Wilson].

Therefore, only two issues regarding seven defendants

[Lt. Stanley Locklear, Sgt. Gregory Maddox, Cpl. Kevin

? This case was tried by me before a jury by consent of the parties,

pursuant to 28 U.S.C. § 636(c) and Local Rule 301.

38a

Fenton, Officer Robert Hicks, Lt. Maarufu Aulu, Officer

Lamont Morgan and Officer Erik Nelson] went to the jury:

was the January 11, 1994 use of pepper spray excessive force

in violation of the Eighth Amendment and was the January

11 through 13, 1994, confinement to isolation (the pink

room) in three-piece restraints following exposure to pepper

spray excessive force in violation of the Eighth Amendment.

On October 4, 1999, the Jury found that the

January 11 through 13, 1994, confinement in three piece

restraints to the pink room was excessive force and therefore

violated the Eighth Amendment. The Jury, however, found

that the January 11, 1994, use of pepper spray was not

excessive force, and therefore concluded that this incident

did not violate the Eighth Amendment. As noted, the Jury

awarded the Plaintiff $1.00 in compensatory damages and a

total of $9,500.00 in punitive damages.

DISCUSSION

In ruling on a motion for judgment as a matter of law

(JAML) pursuant to Fed. R. Civ. P. 50(b), a court must

consider the record as a whole, viewing the evidence

presented in the light most favorable to the party against

whom the motion is made. See PPM Am., Inc. v. Marriott

Corp., 875 F. Supp 289, 293 (D. Md. 1995). A JAML

should be entered if insufficient evidence was presented to

support a verdict for the non-moving party. Id. The tral

court must determine whether the evidence produced at trial

was sufficient to permit a Jury reasonably to return a verdict

for the non-moving party, giving the benefit of every

reasonable inference to the non-moving party. Sales v.

Grant, 158 F.3d 768, 775 (4™ Cir. 1998). However, the court

may not weigh the evidence or judge the credibility of the

witnesses, but must grant the Rule 50(b) motion if the only

conclusion a reasonable jury could drew favors the moving

39a

party. Id.; see also De Jarnette v. Corning, 133 F.3d 293,

297 (4th Cir. 1998);

Business Dev. Corp. of North Carolina

v. United States, 428 F.2d 451, 453 (4th Cir. 1970) (even

though resolution of inferences must be left to the jury, it is

the duty of the court to withdraw the case from the jury when

the necessary inference is so tenuous that it rests upon mere

speculation and conjecture).

The Defendants in the present case argue that as a

matter of law there is insufficient evidence to support the

Jury's conclusion that the placing of the Plaintiff in the pink

room in three-piece restraints after being sprayed with

pepper mace was cruel and unusual punishment. "Eighth

Amendment analysis necessitates inquiry as to whether the

prison officials acted with a sufficiently culpable state of

mind (subjective component) and whether the deprivation

suffered or injury inflicted on the inmate was sufficiently

serious (objective component)." Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996). The Defendants contend that

the evidence presented by the Plaintiff was insufficient to

support either component of this analysis.

When an inmate claims that prison officials have used

excessive force, he or she must establish that the officials

applied the force "maliciously and sadistically for the very

purpose of causing harm" to satisfy the subjective

component of the analysis. Williams, 77 F.3d at 761

(quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986)).

The Supreme Court has established four factors to determine

whether prison officials have acted maliciously and

sadistically: (1) "the need for application of force,” (2) "the

relationship between that need and the amount of force

used," (3) "the threat ‘reasonably perceived by the

responsible officials,"" and (4) ™ any efforts made to temper

the roe of a forceful response.” Hudson v. McMillian,

503 U.S. 1, 7 (1992) (quoting Whitley v. Albers, 475 U.S.

40a

312, 321 (1986)). Considering these factors in conjunction

with the evidence presented at trial, the Plaintiff established

sufficient evidence that the Defendants acted maliciously and

sadistically. The Plaintiff provided sufficient evidence upon

which a reasonable jury could rely to support the conclusion

that he did not pose a reasonable threat ai the time he was

placed in the pink room. This incident began when the

Plaintiff resisted the search of his cell. By the time he was

placed in isolation, his cell had been searched and no

contraband was found. Also, the videotape showed that,

while his demeanor at the time he was placed in the pink

room was agitated and incoherent following the application

of 12 bursts of disabling pepper spray, the prison guards

were in complete control the entire time. Warden Smith's

statement on cross-examination that there was no property in

the pink room that needed to be protected from the Plaintiff

supported the Plaintiff's contention that three-piece restraints

were not necessary. Further, the notations regarding the

periodic observations of the Plaintiff while he was in the

pink room contained in a record maintained by the

Defendants were sufficient to support a conclusion by the

Jury that the duration of the Plaintiffs confinement in the

pink room in three-piece restraints in only his underwear,

during the winter, was excessive and purposefully punitive.

This evidence, coupled with the videotape, which graphically

depicted the disabling effect of the pepper spray, as well as

the assault by one of the correction officers (Cpl. Fenton) on

the Plaintiff as he was being escorted to the medical facility,

and the indifferent and obviously ineffective measures used

to decontaminate the Plaintiff from the effects of the pepper

spray, were sufficient to support the Jury's conclusion that

there was no need for the force used, the force used was out

of proportion in comparison to the amount of force which

would have been appropriate and that the prison officials

could not have reasonably perceived that the Plaintiff posed

a threat. Additionally, the Plaintiff presented evidence that

4la

the Defendants did not follow their own regulations

regarding the use of pepper spray, three-piece restraints and

isolation confinement, supporting the conclusion that the

prison officials did not make a sufficient effort to tempter

[sic] the severity of their response. Therefore, the Plaintiff

presented evidence, which in light of the factors outlined in

Whitley v. Albers, 475, U.S. 312, 321 (1986), and viewed in

the light most favorable to the Plaintiff, supported the Jury's

conclusion that the actions of the prison officials against the

Plaintiff were "maliciously and sadistically for the very

purpose of causing harm.” Id.

The objective component of the Eighth Amendment

analysis requires that deprivation or injury inflicted upon an

inmate be sufficiently serious. To maintain a claim under the

Eighth Amendment, the injury caused by the excessive force

of the prison official must be more than "de minimis”. See

Hudson, 503 U.S. at 9; see also Taylor v. McDuffie, 155

F.3d 479, 484 (4™ Cir. 1998). However, "the objective

component can be met by ‘pain itself’ even if an inmate has

no ‘enduring injury’." Williams, 77 F.3d at 762 (quoting

Norman v. Taylor, 25 F.3d 1259, 1263 n.4 (4" Cir. 1994)).

In the present case, the Plaintiff introduced sufficient

evidence to support a finding that he suffered more than a

"de minimis" injury. Indeed, the Plaintiff's testimony was

corroborated by the testimony of his use of force expert, the

Defendant's use of force expert (on the pain and disability

caused by pepper spray) and graphically demonstrated by the

videotape of the whole incident. The videotape showed the

clearly insufficient medical treatment the Plaintiff received

after being maced with 12 bursts of pepper spray before

being placed in the pink room for nearly 44 hours. This was

more than sufficient evidence to support a conclusion by a

reasonable jury that he suffered more than constitutionally

negligible pain. A reasonable jury could have concluded that

the Plaintiff was in considerable pain throughout his time in

42a

the pink room due to the obvious failure to decontaminate

him effectively from the pepper spray. Finally, a prisoner

can maintain an Eighth Amendment excessive force claim

even if he or she only suffered "de minimis" injury if there

were extraordinary circumstances. See Norman v. Taylor,

25 F.3d 1259, 1263 (4th Cir. 1994) (citing Hudson v.

McMillian, 503 U.S. 1 (1992)). A prisoner can maintain an

Eighth Amendment excessive force claim if the force used

was the type "repugnant to the conscience of mankind.” Id.

As discussed, the Jury did conclude that the force used

against the Plaintiff was repugnant to mankind, as evidenced

by the fact that after delivering their verdict, they took the

extraordinary measure of reading a public statement

regarding their feelings about the Defendants’ conduct.

Thus, there is sufficient evidence to support the Jury's

conclusion that the force used met the objective component

of an Eighth Amendment excessive force claim.

In looking at all the circumstances, the Plaintiff

provided sufficient evidence to support the Jury's

conclusion.’ The sufficiency of the evidence is exemplified

> This case is very similar to Williams, 77 F.3d 756, in which the Fourth

Circuit remanded an excessive force claim to be decided by a jury. In

both cases a prisoner was placed in isolation in restraints shortly after

being exposed to a chemical agent. In both cases, there were allegations

that the prisoner had not received proper medical care after being

exposed to a chemical agent but before being placed in isolation.

The Defendants have insisted throughout this case that courts in this

district have consistently ruled, "as a matter of law" that the use of

restraints on inmates, and their confinement in the pink room, do not rise

to level of excessive force. First, this is wrong, see Chase v. Sgt. Jones. et

al., Civil No. CCB-96-1287 (D. Md. Sept. 28, 1999), a recent decision by

Judge Catherine Blake denying summary judgment on Eighth

Amendment excessive force claims brought by a plaintiff who was

placed in the pink room in restraints. Second, the unpublished slip

opinions cited by the Defendants did not involve a combination of

chemical agents, restraints and isolation to the degree that this case

43a

by the statement read by the Jury at the conclusion of the

case. (See Ex. 1 to this Memorandum and Order.) The Jury

stated that they found that the conditions inflicted upon the

Plaintiff, in particular being placed in the pink room, were

the type which were "repugnant to the conscience of

mankind." (Id.) This statement demonstrates that the Jury

understood the type of action required to find that excessive

force was used against the Plaintiff. See Norman, 25 F.3d at

1264 Fn.4 (quoting Hudson v. McMillian, 503 U.S. I (1992))

(noting that force which is "repugnant to the conscience of

mankind" is in violation of the Eighth Amendment

regardless of the injury caused). The Jury's statement also

revealed that they concluded that Corporal Fenton

purposefully hit the Plaintiff in the head during this incident.

The Jury's comments about this incident indicated that they

conch:ded that this action met the subjective component of

an excessive force claim but failed to meet the objective

component because there was no evidence to establish that

this unprovoked assault caused more than a "de minimis"

injury. The Jury's statement establishes that they clearly

understood and properly applied the two part analysis for

determining whether excessive force was used. They

condemned the gratuitous and malicious application of force

by Corporal Fenton against a then disorientated, incoherent,

and completely restrained inmate, even as they recognized

that it did not rise to the level of cruel and unusual

punishment. Having dutifully discharged their

responsibilities as jurors, they then spoke out as ordinary

citizens, simply and sincerely. Against this backdrop, to

presented and therefore, are easily distinguishable. It is the combination

of all these events which inflicted excessive force on the Plaintiff and it

papi ienssic isnt pt tine dn cam aie gt

the Williams case. Id. at 765 (citing United States v. Cobb, 905 F.2d

784, 789 (4° Cir. 1990) (noting that "the unnecessary infliction of

continued pain throughout a prolonged time period clearly supports an

inference that the guards were acting to punish, rather than to quell the

disturbance").

44a

suggest that the Jury did not properly weight the evidence

and follow the instruction of law is untenable. Therefore, the

Jury's conclusion that the Defendants used excessive force in

violation of the Plaintiff's Eighth Amendment rights when

they placed him in the pink room in three piece restraints

without adequate decontamination from the pepper spray is

upheld.

The Defendants argue that even if there was a use of

excessive force, they are entitled to qualified immunity.

Government officials are entitled to qualified immunity

when their "conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Winfield v. Bass, 106 F.3d 525, 530 (4th

Cir. 1997). The right to be free from the use of excessive

force is a clearly established right. See Whitley, 475 U.S.

312; see also Finnecan v. Fountain, 915 F.2d 817, 823 (2nd

Cir. 1990) (citing Anderson v. Creighton, 483 U.S. 635,

640-41 (1987)) (noting that "the right of an individual not to

be subjected to excessive force is ‘clearly established’ in the

conventional sense"). However,

to say that the use of constitutionally

excessive force violates a clearly established

right . . . begs the open question whether the

particular degree of force under the

particular circumstances was excessive... .

[T]he facts and circumstances of each case

must be examined to determine whether the

contours of the right . . . [are] sufficiently

clear that a reasonably [sic] official would

understand that what he is doing violates

that right ....

45a

Id. The contours of the right to be free from excessive force

have long been sufficiently developed such that prison

officials are aware that they cannot use force without

justification. Indeed, as the Department of Corrections and

Supermax regulations which were introduced into evidence

in this case amply demonstrate, in every situation in which

prison officials use force, they know that unless there is a

sufficient justification for that force, their actions are subject

to scrutiny under the Eighth Amendment. The factors

outlined by the Supreme Court in Whitley, 475 U.S. at 320-

21, for evaluating the subjective component of an excessive

force claim establish the type of justifications required for

the use of force. Any prison official who uses force against

an inmate knows that his or her actions will be evaluated in

light of these factors. Therefore, this case is not about

whether or not the use of the pink room or three piece

restraints is in every case a use excessive force, but about

whether or not there was sufficient justification for the use

of force in this case.* In this case, the Jury concluded that

the prison officials did not have sufficient justification for

the force they used in light of these Whitley factors. The

Defendants knew, or reasonably should have known, that

they would be held liable for any use of force that a jury

“ The fact that the use of the pink room, pepper spray or three piece

restraint has sometimes been found to be justified does not provide the

Defendants with qualified immunity. The specific actions in question

need not have been held unlawful to overcome an official's qualified

immunity. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citing

Mitchell v. Forsyth, 472 U.S. 511, 535 n.12 (1985)) (noting that officials

are not protected by qualified immunity simply because the very action in

question has not previously been held unlawful); see also Gutierrez v.

City of San Antonio, 139 F.3d 441, 445 (Sth Cir. 1998) (holding that two

police officers were not entitled to qualified immunity as a matter of law

even though action they were accused of, hog-tying an arrestee, had

never specifically been found to constitute excessive force).

46a

—————~~~eeRmae—a—X—

concluded was not justified. Therefore, the Defendants are

not entitled to qualified immunity.

The Defendants also objected to the award of

punitive damages. The Defendants noted that while the Jury

answered in the affirmative the question on the verdict sheet

regarding whether the Plaintiff had proved by a

preponderance that the Defendants acted with malicious or

callous disregard for the Plaintiff's constitutional rights, they

answered negatively the question on the verdict sheet

regarding whether the Plaintiff had proven by clear and

convincing evidence that the Defendants acted with malice.

While the Supreme court has not specifically addressed this

issue, preponderance of the evidence appears to be the

federal burden of proof standard for awarding punitive

damages under § 1983.° See Cooper v. Dyke, 814 F.2d 941,

948 (4th Cir. 1987) (citing Smith v. Wade, 461 U.S. 30,

51-55 (1983)) (noting that the standard for assessing punitive

damages under section 1983 is not higher than the standard

for determining liability); see also 1 SHELDON H.

NAHMOND, CIVIL RIGHTS AND CIVIL LIBERTIES

LITIGATION, THE LAW OF SECTION 1983 § 4:41, at

4-109, 4-110 (4th ed. 1997) (citing Nelson v. Emerald

People's Utility District, 318 Or. 99, (1993)). It is sufficient

that the Jury found the evidence supported a punitive

damages award by a preponderance of the evidence.

Therefore, the Defendants’ Motion for Judgment is denied.

SThe Defendants noted that under Maryland Law the standard for

awarding punitive damages is “clear and convincing evidence."

However, a cause of action brought under section 1983 is a federal cause

of action and therefore, federal standards govern determination of

punitive damages. See Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir.

1986); see also Jackson v. Pool Mortg. Co., 868 F.2d 1178, 1181 (10th

Cir. 1989).

47a

The Plaintiff has also filed a motion for judgment as

a matter of law, alleging that based on the evidence at trial

no reasonable jury could have found that the Defendants did

not use excessive force in violation of the Eighth

Amendment when they sprayed the Plaintiff with pepper

spray on January 11, 1994. The two-part analysis outlined

above, see Williams, 77 F.3d at 761, is also the appropriate

method for determining if the evidence at trial was so

overwhelming that 'no reasonable jury could conclude that

the Plaintiff was not exposed to excessive force when he was

maced with pepper spray. As discussed above, the Jury's

post verdict statement to the Court demonstrates that they

properly and clearly understood this two-part analysis. The

Jury recognized that the Plaintiff was not without fault.

There was testimony that he failed to follow the direct orders

of the prison officials on several occasions. The videotape

also established that he refused to cooperate with the prison

officials’ efforts to search his cell until after he was maced

with pepper spray. This is sufficient evidence to allow a

reasonable jury to conclude that the initial use of pepper

spray was reasonably related to a threat reasonably perceived

by the prison guards. Therefore, a reasonable jury could

conclude that this event did not meet the subjective

component of the analysis and find that it was not a use of

excessive force. The Plaintiff's motion for judgment is

therefore denied.

CONCLUSION

The Defendants failed to establish that evidence

presented at trial was insufficient to support the Jury's verdict

that the Defendants used excessive force when they placed

the Plaintiff in three piece restraints in the pink room.

Therefore, the Defendants’ motion for judgment is denied.

Additionally, the Plaintiff failed to establish that a reasonable

jury could not have found that the Defendants did not use

48a

excessive force when they maced the Plaintiff with pepper

spray. Therefore, the Plaintiff's motion for judgment also is

denied. The Jury's verdict on October 4, 1999, of a judgment

against the Defendants in the amount of $9,501.00 is upheld.

A separate order shall issue in conformity with this

Memorandum.

Dated: 12/20/99 /s/ Paul W. Grimm

United States Magistrate Judge

49a

EXHIBIT 1

We the jury in the matter of Quinten X Jackson vs CO

III Harlee, et al wish to enter the following statement

into the record.

We find that the conditions existing at the Maryland

Correctional Adjustment Center, in particular, the

isolation cell known as the ‘pink room’, violate the

eighth. amendment rights of prisonor occupants.

Specifically we regard the conditions inflicted upon

the prisonors of "a sort repugnant to the conscience of

mankind. Although we find that some of the

responsibility for the use of the pink room, to inflict

crue] & unusual punishment lays with the defendants,

the higher levels of management including Cptn

Pugese, the assistant warden, the warden & the

Department of Correction bare the major

responsibility.

We urge the cessation of the use of the ‘pink room’

while its conditions violate the eighth amendment.

In the course of this trial, a gratuitous battery inflicted

by Cpl Fenton upon Quinten Jackson was revealed to

this jury & the court. Although we do not find that it

rises to a level that deprived Mr. Jackson of his

constitutional rights, we as citizens find it abhorent.

We urge that appropriate disciplinary action should

be taken against Cpl Fenton & to those other officers

who did not report and covered up for his agregious

actions.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

October 23, 2001

No. 00-6129

CA-95-271-WMN

QUINTEN X. JACKSON

Plaintiff - Appellee

LAMONT A. MORGAN, Correctional Officer; STANLEY

LOCKLEAR, Lieutenant; GREGORY MADDOX, Sergeant;

KEVIN FENTON, Corporal; ROBERT HICKS;

MAARUFU AULU; ERIK NELSON

Defendants - Appellants

and

STEVEN HARLEE; HOWARD GRANT; RICHARD

LANHAM; EUGENE NUTH; T. CARTER, Sergeant; R.

PARKER, Corporal

Defendants

On Petition for Rehearing and Rehearing En Banc

5la

The Appellee Quinten X. Jackson's petition for

rehearing and rehearing en banc was submitted to this Court.

As no member of this Court or the panel requested a poll on

the petition for rehearing en banc, and as the panel

considered the petition for rehearing and is of the opinion

that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

For the Court,

's/ Patricia S.C

CLERK

52a

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional Provisions

United States Constitution, Amendment VIII

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

United States Constitution, Amendment XIV

[NJor shall any State deprive any person of

life, liberty, or property, without due process

of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Statutes

42 U.S.C. 1983 (1982)

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected,

any citizen of the United States or any other person within

the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

53a

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