ALI v. DINWIDDIE, 09-5151 (10th Cir. 8-26-2011)

No. 09-5151.United States Court of Appeals, Tenth Circuit.
August 26, 2011.

(N.D. Okla.) (D.C. No. 4:07-CV-00059-TCK-TLW).

ORDER AND JUDGMENT[*]

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Before BRISCOE, Chief Circuit Judge,EBEL, and O’BRIEN, Circuit Judges.

Terrence L. O’Brien United States Circuit Judge

Murtaza Ali, an Oklahoma state-prison inmate, brought a 42 U.S.C. § 1983 action claiming, inter alia, Correctional Officer Matthew Hampton used excessive force in restraining him in violation of his Eighth Amendment rights.[1] Ali appeals from the district court’s entry of summary judgment in favor of all defendants.[2] Because Ali’s evidence is sufficient to create a genuine issue of material fact on his claim of excessive force by Hampton, [3] we reverse the summary judgment as to that claim and remand for further proceedings. In all other respects, we affirm.

I. BACKGROUND
The parties agree on some of the background details. At approximately 7 p.m. on

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November 24, 2005, Hampton ordered Ali out of his cell. Hampton then conducted a pat-down search for contraband. At some point during the search, Hampton used force against Ali.

From there, the parties’ versions of the incident differ significantly. In his verified amended complaint, [4] Ali asserts Hampton stopped at Ali’s cell, yelled “nine-eleven,”[5] and ordered him to “[g]et out of [the] cell and place his mother f[. . . . .g] hands on the wall.” (Supp. R. Vol. II at 103.) Ali complied and Officer Hampton then conducted a pat-down search of Ali. From there on, the gravamen of Ali’s claim is that he was punched and kicked after he was handcuffed and not resisting. His sworn statements vary, tone and tint, but generally present a consistent theme.[6] When another officer

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arrived, the two officers escorted Ali to the security office.[7] He was then taken for a medical evaluation by the on-duty nurse, who noted he suffered numerous contusions to his head, bruising and pain to his left shoulder, and abrasions to his right wrist. In the ensuing weeks, Ali was examined several times by medical staff who reported his complaints about chronic pain; x-rays were taken. Roughly a year and a half after the incident, a report from the Chief Medical Officer at the Oklahoma Department of Corrections Medical Services stated Ali had “limited abduction of his left shoulder.”

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(Supp. R. Vol. II at 94.) Ali asserts the medical evidence subsequent to the November 24, 2005 incident with Hampton, when compared to his previous medical records, demonstrates his injuries were the result of Hampton’s excessive use of force. Specifically, the Oklahoma Department of Corrections “Work/Activity/Housing Summary” form completed roughly two months before the incident indicates Ali had “no medical limitations.” (Id. at 117.)

Defendants present a very different version of events. They claim Officer Hampton noticed an odor when he walked by Ali’s cell and asked him (and his cellmate) about it. At this point, Hampton noticed Ali’s speech was slurred, and ordered him out of his cell in order to conduct a pat down search. Hampton ordered Ali to turn around and began searching Ali’s person. As Hampton was searching, a plastic baggy with blue pills fell from the waistband of Ali’s pants. When Hampton bent over to pick up the bag, Ali made a movement towards the floor which resulted in the two knocking shoulders causing Hampton to fall backwards. In response to this contact, Hampton brought up his left arm in a “large circular motion”; his response knocked Ali off balance causing Ali to fall backwards. (Supp. R. Vol. I at 40.) Hampton picked up the contraband and placed it in his pocket. After another corrections officer arrived Ali was handcuffed, escorted to the security office and then to the showers for a strip search. While strip searching Ali, Hampton noticed something in Ali’s hand and ordered Ali to produce it. Instead Ali swallowed it. After the strip search, Ali was taken for medical attention and examined by a nurse who observed no significant injuries warranting immediate medical attention. She recommended Ali be taken to the hospital for drug detoxification. He was

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transported to the hospital and returned to the correctional facility at approximately 10 p.m.

II. STANDARD OF REVIEW
“We review the district court’s grant of summary judgment de novo, applying the same legal standard used by the district court.” Garrison v. Gambro, Inc., 428 F.3d 933, 935
(10th Cir. 2005). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).[8] “A[] [dispute] is `genuine’ if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “A[] . . . fact is `material’ if under the substantive law it is essential to the proper disposition of the claim.”Id. “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Garrison, 428 F.3d at 935.

III. DISCUSSION
Ali says “Officer Hampton’s use of force against him was unprovoked and of an excessive degree and duration.” (Appellant’s Supp. Br. at 6.) Specifically, he claims “Hampton punched him with a force that sent him reeling into the wall and onto the floor, and then repeatedly kicked and punched him in the head and back — even after he was

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handcuffed.” (Id. at 25.) Ali maintains this evidence was sufficient to create a genuine dispute of material fact concerning the use of excessive force and therefore the district court erred in granting summary judgment to defendants on the excessive force claim.[9] We agree.

“[T]he 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) (quotations omitted). To determine whether a prison official’s use of force was “unnecessary and wanton,” we ask “whether [the] force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”[10] Id. at 7. We consider “the need for [the use of] force, the relationship between that need and

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the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Id. at 7 (quotations omitted). Although the extent of the inmate’s injury is also relevant, an inmate need not show a “significant injury” or a certain level or type of injury to state a claim Id. at 7, 9; see also United States v. LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). “From such considerations inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Whitley v. Albers, 475 U.S. 312, 321
(1986).

Not “every malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. Rather,

[t]o be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. . . . The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.

Whitley, 475 U.S. at 319. Accordingly, de minimis uses of physical force are excluded from the cruel and unusual punishment inquiry unless “repugnant to the conscience of mankind.” Hudson, 503 at 9-10 (quotations omitted) see also Northington v. Jackson, 973 F.2d 1518, 1524
(10th Cir. 1992).

Here, the district court concluded that “whatever force used by Defendant Hampton was applied in a good-faith effort to restore discipline, and was not applied maliciously or sadistically for the purpose of causing harm.” (R. Vol. I at 300.) It noted

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Ali’s version of the incident, but seemingly did not credit it. But viewing the evidence relevant to the Hudson
factors in the light most favorable to Ali, as required, reveals genuine issues of material fact as to whether more than de minimis force was applied maliciously and sadistically, rather than in a good faith effort to maintain or restore discipline. See Hudson, 503 U.S. at 7.

The summary judgment on the excessive force claim against Hampton is REVERSED and the case isREMANDED for further consideration consistent with this order and judgment. In light of further proceedings necessary on this claim, the district court should carefully consider Ali’s request to conduct appropriate discovery. All remaining claims have either been abandoned or lack sufficient particularity and discussion to warrant our review. See supra n. 10. With respect to those claims the district court’s judgment is AFFIRMED.

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