Nathan Miller v. Emery Leathers, Officer, and North Carolina Prisoner Legal Services, Inc. Carolina Legal Assistance, Inc., Amici Curiae , 913 F.2d 1085 ( 1990 )

K.K. HALL, Circuit Judge:

Nathan Miller, a North Carolina inmate, brought this action pursuant to 42 U.S.C. § 1983 claiming that a state prison guard, Emery Leathers, used excessive force against him in violation of his Eighth Amendment rights. He appeals from the district court’s order granting Leathers’ motion for summary judgment. We vacate the judgment of the district court and remand the case for further proceedings.

I.

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The facts and inferences to be drawn from the facts must be viewed in the light most favorable to the non-moving party, and this party is entitled “to have the credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, [and] all internal conflicts in it resolved favorably to him.” Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). Appellate review is de novo and, therefore, we are required to review the record under the same standards employed by the district court. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 (4th Cir.1987).

In order to succeed on his claim of excessive force, Miller must show that Leathers “inflicted unnecessary and wanton pain and suffering.” Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1985). To determine whether the pain inflicted was unnecessary and wanton, a court should consider “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1084-85 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). “ ‘[S]uch factors as the need for application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted’ are relevant to that ultimate determination.” Whitley, 475 U.S. at 321, 106 S.Ct. at 1085 (citation omitted). With these principles in mind, we turn to the facts.

II.

On January 3, 1987, Miller filed a grievance with the prison administration complaining that Officer Leathers had told another inmate that he (Miller) was a “snitch.” A correctional officer investigated the grievance by merely discussing it with Leathers, and the prison superintendent concluded that the “[investigation reveals that there is no merit to inmates [sic] complaint.” Leathers brought a copy of the written decision to Miller’s cell on January 7, 1987, to obtain his signature indicating that he had been served with it.

Upon reviewing the decision, Miller refused to sign it and a verbal confrontation ensued. Miller admits that he decided to verbally provoke Leathers in an attempt to get his grievances before higher authorities. He further alleges, however, that the threats and insults flowed both ways, and that at one point, Leathers threatened to “kick [Miller’s] white ass.” Miller eventually signed and returned the form, but Leathers nevertheless decided to bring him out of his cell “to see the sergeant or lieutenant.” Leathers then removed Miller from his cell, handcuffed him, and began to escort him down the hall.

According to Miller, the verbal sparring continued as Leathers escorted Miller off the cellblock and down a flight of stairs; this trip was punctuated by several jabs from Leathers’ riot baton to Miller’s back. Upon reaching a doorway which he claims was blocked by a food cart, Miller refused to move forward. Turning around to face Leathers, Miller claims that Leathers insulted him and that he responded in kind. At this point, Miller says that Leathers raised his baton and that he (Miller) raised his handcuffed hands to ward off the impending blow. After he was struck, he laughed at Leathers and was struck two more times. Miller also alleges that Leathers twice threatened to kill him during the incident. Miller claims that he reacted by pushing the officer away and picking up a broom handle to protect himself. With the aid of some nearby officers, Miller was eventually subdued. As a result of the blows from Leathers’ baton, Miller sustained a fractured arm and a swollen elbow.

The district court, upon consideration of the materials submitted by both parties pursuant to Leathers’ motion for summary judgment, concluded that there was a need for the application of force, the amount of force was not disproportionate to the need, the injuries inflicted were de minimis, and the force used was applied in a good faith effort to discipline Miller and was both reasonable and justified on the basis of the facts then known to Leathers. The district court concluded that Miller had no basis for recovery and, accordingly, dismissed the action against Leathers. This appeal followed.

III.

On appeal, Miller contends that the evidence, when viewed most favorably to him, clearly gives rise to an issue of fact as to the necessity for the amount of force employed by Leathers. He argues that his version of the events supports his claim that Leathers either intended to injure him once they were off the cellblock or, alternatively, that Leathers used excessive force not in response to a threat by Miller, but rather as a reaction to verbal provocation. We agree.

Miller’s version of the incident supports a reasonable inference that Leathers intended to provoke an incident so as to allow Leathers to beat him under the guise of maintaining order or defending himself. The grievance filed by Miller indicates that Leathers may have harbored ill will against him.^* Miller also points to a prison regulation that requires that the removal of a disruptive inmate from his cell may only be done in the presence of a sergeant or higher-ranking officer. Leathers’ removal of Miller was apparently effected in violation of this regulation, and this undisputed fact further supports an inference that Leathers intended to retaliate against Miller.

The critical juncture in the sequence of events occurred at the doorway that Miller claimed was blocked. Unable to move forward as ordered, he was insulted by Leathers. Miller turned in the doorway and responded with a similarly provocative insult. It was at this point that Miller says Leathers raised his baton and he (Miller) reacted by raising his shackled hands to protect himself. The first blow brought a mocking insult from Miller, which in turn produced two more blows by Leathers.

Leathers characterizes Miller’s actions in turning around in the doorway, while simultaneously directing a derogatory remark toward Leathers, as evincing “apparent offensive intentions.” Leathers attempts to buttress his argument by pointing to Miller’s history of violent behavior and by arguing that the blows inflicted were consistent with an attempt to defend himself rather than to injure Miller. While his arguments may eventually prevail at a later stage of the proceedings, they are inadequate to overcome the genuine issues of material fact raised by Miller’s statements.

Accepting Miller’s version as true, we find that it supports a “reliable inference of wantonness in the infliction of pain.” Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir.1987). Verbal provocation alone does not justify a response such as occurred in this case, and whether there was any more than verbal provocation by Miller is in genuine issue on any fair reading of this record. Moreover, we are unable to agree with the district court’s characterization of Miller’s injuries as de minimis. The outcome of the case depends on the resolution of certain factual disputes which will largely turn on judgments about credibility. These determinations must be made by the finder of fact. Accordingly, we vacate the judgment of the district court and remand the case for further proceedings.

VACATED AND REMANDED.

* It is impossible to minimize the possible consequences to a prisoner of being labelled a "snitch.” See Harmon v. Berry, 728 F.2d 1407, 1409 (11th Cir.1984) (§ 1983 claim by inmate, alleging that prison officials endangered him by labelling him a “snitch,” allowed to proceed past service of process stage).