Michael Dilworth v. Captain Adams

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6910
MICHAEL ANTHONY DILWORTH,
Plaintiff - Appellant,
v.
CAPTAIN ADAMS; A R. FALES, JR.; LT. L. ROBINSON; LT. R.
JOHNSON; OFFICER COOKSON; OFFICER TROTT,
Defendants – Appellees,
and
ED MCMAHON, Sheriff; New Hanover County; LT. TRAVIS ROBINSON;
SGT. WHITMORE; OFFICER MARINO; MR. WHITE; MR. THOMAS,
Defendants.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:13-ct-03291-D)
Argued: September 20, 2016 Decided: November 7, 2016
Before WILKINSON, MOTZ, and HARRIS, Circuit Judges.
Reversed in part, vacated in part, and remanded by published
opinion. Judge Harris wrote the opinion, in which Judges
Wilkinson and Motz joined.
ARGUED: E. Brantley Webb, MAYER BROWN LLP, Washington, D.C., for
Appellant. Scott Christopher Hart, SUMRELL, SUGG, CARMICHAEL,
HICKS & HART, P.A., New Bern, North Carolina, for Appellees. ON
BRIEF: Jason R. LaFond, MAYER BROWN LLP, Washington, D.C., for
Appellant.
2
PAMELA HARRIS, Circuit Judge:
In 2013, Michael Anthony Dilworth was a pretrial detainee
at North Carolina’s New Hanover County Detention Facility.
While awaiting trial, Dilworth spent a total of 85 days in
disciplinary segregation as punishment for two disciplinary
infractions, one arising from an altercation with another
prisoner and one from an altercation with correctional officers.
Dilworth was not afforded a hearing in connection with either of
his placements in disciplinary segregation.
Dilworth sued various Detention Facility officials under 42
U.S.C. § 1983, arguing that the imposition of disciplinary
segregation without a hearing violated his procedural due
process rights. The district court granted summary judgment to
the defendants, reasoning that due process requirements were
satisfied by Dilworth’s opportunity to file a written appeal
after he was placed in disciplinary segregation. We disagree,
and hold that as a pretrial detainee, Dilworth was entitled to a
hearing before he was punished. As the defendants concede, no
such hearing was afforded, and we therefore direct that judgment
be entered for Dilworth on his due process claim.
Dilworth also raised an excessive force claim against the
two officers involved in his second fracas. Again, the district
court granted summary judgment to the defendants, on the ground
that the record showed the officers had acted in good faith and
3
without a culpable state of mind. As the parties agree, a
subsequent Supreme Court decision has made clear that excessive
force claims by pretrial detainees are governed by an objective
standard, rather than the subjective one applied by the district
court. Accordingly, we remand for consideration of Dilworth’s
excessive force claim under the proper standard.
I.
A.
Dilworth was held in the New Hanover County Detention
Facility as a pretrial detainee. A pretrial detainee is someone
who has been charged with a crime – in Dilworth’s case, failing
to appear in court as ordered – but not yet tried. Though
Dilworth had “not been adjudged guilty of any crime,” he could
be detained pending trial in order to ensure his presence at
that proceeding. See Bell v. Wolfish, 441 U.S. 520, 536 (1979).
During his pretrial detention, at 4:20 p.m. on the
afternoon of May 11, 2013, Dilworth was involved in a physical
fight with another inmate. Officer Charles Thomas, the
supervising guard, immediately placed the unit on “lockdown”
while he summoned assistance. Less than an hour later, at 5:05
p.m., Thomas filed an “Inmate Disciplinary Report” describing
the incident and stating that he had taken the “disciplinary
action” of placing Dilworth in segregation for 45 days. J.A.
4
58. By 5:30, the watch commander on duty, Lieutenant Robert
Johnson, had reviewed and approved that penalty.
Dilworth maintained that he had been disciplined in error,
as he was not the aggressor in the fight but had only protected
himself. On May 21, he filed a written appeal pursuant to the
Detention Facility’s disciplinary procedures. On May 23, two
days later and twelve days after Dilworth’s initial placement in
segregation, administrative review officer A.R. Fales dismissed
the appeal, finding that a videotape of the incident did not
make clear “who started the fight or how[.]” J.A. 55. Dilworth
ultimately was released from segregation on June 20, 2013. At
no point during his time in disciplinary segregation was
Dilworth afforded a hearing.
Shortly after his release, Dilworth was involved in a
second altercation, this one involving Officers B.M. Cookson and
A. Trott. The incident ended with Cookson using physical force
to restrain Dilworth, “throw[ing] multiple knee spears to his
legs and multiple punches to his head,” and with Trott
“assist[ing] Cookson in taking Dilworth to the floor.” J.A. 126
(internal quotation marks omitted). How the incident began is
disputed: According to the officers, force was required because
Dilworth refused to comply with orders and resisted an effort to
handcuff him; according to Dilworth, Cookson rushed him after
the two exchanged verbal insults. This incident, too, was
5
captured on video tape, but although Dilworth requested the
video in a “Motion for Production of Documents” filed with the
district court, there is no indication that the tape was turned
over to Dilworth or viewed by the district court.
Again, Dilworth was placed in disciplinary segregation
for 45 days. Again, no hearing was provided. Within five hours
of the July 5, 2013 fight, Trott had filed an Inmate
Disciplinary Report calling for 45 days in segregation as a
disciplinary action, and Lieutenant Johnson had reviewed and
approved the sanction. Dilworth once more contested his
sanction, and this time, he filed a grievance seeking a hearing
at which he suggested he would present witnesses supporting his
account of events. And Dilworth again filed a written appeal of
the disciplinary action, which was again dismissed by Fales, who
emphatically rejected the request for a hearing: “I am NOT
required to recommend a disciplinary hearing if grounds for such
do not exist.” J.A. 60 (emphasis in original). Dilworth served
the entirety of his 45-day sentence.
B.
In November 2013, Dilworth filed this pro se action under
42 U.S.C. § 1983. He alleges, first, that Detention Facility
officials including Johnson and Fales violated the Due Process
Clause of the Fourteenth Amendment by failing to provide
adequate procedural safeguards – and, particularly, a hearing –
6
in connection with his two disciplinary sanctions. Second,
Dilworth claims that Cookson and Trott used excessive force
against him, also in violation of the Fourteenth Amendment.
The defendants moved for summary judgment on both claims,
and the district court granted their motion. As to procedural
due process, the district court held that because Dilworth was a
pretrial detainee, he could not be “placed in segregation as a
punishment for a disciplinary infraction” without due process.
J.A. 129 (internal quotation marks omitted). Due process was
satisfied here, the district court reasoned, because Dilworth
was provided with notice of the charges against him and
permitted to file a written appeal of his disciplinary sanction.
On that basis, the district court awarded summary judgment to
the defendants.
On Dilworth’s excessive force claim, the district court
applied a subjective standard, holding that Dilworth was
required to establish that officers Cookson and Trott had used
force “maliciously and sadistically to cause harm,” rather than
in a “good-faith effort” to maintain discipline. J.A. 130
(internal quotation marks omitted). Because no reasonable juror
could find that the officers had a “sufficiently culpable state
of mind,” the district court concluded, the defendants were
entitled to summary judgment. J.A. 131-32 (internal quotation
marks omitted).
7
Dilworth timely appealed.
II.
We review a district court’s award of summary judgment de
novo. Jehovah v. Clarke, 798 F.3d 169, 176 (4th Cir. 2015).
Summary judgment is appropriate only if “no material facts are
disputed and the moving party is entitled to judgment as a
matter of law.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir.
2011) (en banc) (quoting Ausherman v. Bank of Am. Corp., 352
F.3d 896, 899 (4th Cir. 2003)) (internal quotation marks
omitted).
A.
We begin with Dilworth’s contention that the district court
erred when it granted summary judgment to the defendants on his
procedural due process claim. The due process question presents
two related but distinct inquiries: whether Dilworth’s
placement in disciplinary segregation implicated a liberty
interest triggering procedural due process requirements; and, if
so, whether the procedures afforded Dilworth satisfied those
requirements. See Wolff v. McDonnell, 418 U.S. 539, 556-57
(1974) (applying procedural due process analysis to denial of
prisoner good-time credits); Slezak v. Evatt, 21 F.3d 590, 593–
94 (4th Cir. 1994) (applying procedural due process analysis to
prison classification system). We hold that the disciplinary
8
actions taken against Dilworth necessitated compliance with
procedural due process standards, and further hold that those
standards were not satisfied here.
1.
At the first step of the procedural due process inquiry, we
must determine whether Dilworth’s placement in disciplinary
segregation implicates a protected liberty interest and thus
warrants procedural safeguards. See Sandin v. Conner, 515 U.S.
472, 484–86 (1995). The district court answered that question
in the affirmative, holding that pretrial detainees like
Dilworth may not be placed in disciplinary segregation without
due process. On this point, we agree with the district court.
By definition, pretrial detainees have not been convicted
of the crimes with which they are charged. For that reason, the
Supreme Court held in Bell v. Wolfish, they retain a liberty
interest in freedom from “punishment,” even while they are
detained to ensure their presence at trial. 441 U.S. at 535-37.
Though “[l]oss of freedom of choice and privacy are inherent
incidents” of pretrial detention, discrete “punitive measures”
imposed during pretrial detention intrude on a protected liberty
interest. Id. at 537; Surprenant v. Rivas, 424 F.3d 5, 17 (1st
Cir. 2005) (“Pretrial detainees, unlike convicts, have a liberty
interest in avoiding punishment[.]”); Martin v. Gentile, 849
F.2d 863, 870 (4th Cir. 1988) (finding pretrial detainees are
9
protected with respect to “any form of ‘punishment’”) (emphasis
in original).
Though Bell would appear to settle the issue, the
defendants take a different position. According to the
defendants, the Supreme Court clarified in Sandin v. Conner that
only a subcategory of prison “punishments” will infringe on
protected liberty interests and necessitate due process
protections: those that impose “atypical and significant
hardship” on prisoners. See 515 U.S. at 484. Because
disciplinary segregation, the Court held in Sandin, does not
rise to this level, id. at 485-86, the defendants conclude that
Dilworth had no protected liberty interest and thus was not
entitled to due process at all.
But Sandin, which concerned the punishment of convicted
prisoners, id. at 474-75, 484-85, has no application to pretrial
detainees like Dilworth. In Sandin, the Supreme Court explained
that prison regulations providing for procedures in connection
with punishment will not give rise to a protected liberty
interest unless the punishment in question “imposes atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Id. at 484. That was so, the Court
reasoned, because a wide range of “[d]iscipline by prison
officials . . . falls within the expected perimeters of the
sentence imposed by a court of law.” Id. at 485 (emphasis
10
added). But pretrial detainees, as we have explained, have not
been convicted or sentenced by a court of law, and thus fall
plainly outside this rationale. And indeed, the Court in Sandin
expressly distinguished Bell on precisely this ground. Id. at
484 (rejecting prisoner’s reliance on Bell because “Bell dealt
with the interests of pretrial detainees and not convicted
prisoners”); see also Kingsley v. Hendrickson, 135 S. Ct. 2466,
2475 (2015) (“pretrial detainees (unlike convicted prisoners)
cannot be punished at all”).
Every federal court of appeals to consider the question has
concluded that Sandin’s “atypical and significant hardship”
standard does not govern the procedural due process claims of
pretrial detainees. See Jacoby v. Baldwin Cty., No. 14-12932,
2016 WL 4506051, at *6 (11th Cir. Aug. 29, 2016); Hanks v.
Prachar, 457 F.3d 774, 776 (8th Cir. 2006) (per curiam);
Surprenant, 424 F.3d at 17; Peoples v. CCA Det. Ctrs., 422 F.3d
1090, 1106 n.12 (10th Cir. 2005); Benjamin v. Fraser, 264 F.3d
175, 188–89 (2d Cir. 2001); Rapier v. Harris, 172 F.3d 999,
1004–05 (7th Cir. 1999); Mitchell v. Dupnik, 75 F.3d 517, 524
(9th Cir. 1996); see also Fuentes v. Wagner, 206 F.3d 335, 342
n.9 (3rd Cir. 2000) (holding Sandin inapplicable to detainee
convicted but not yet sentenced), cert denied, 531 U.S. 821(2000). We join our sister circuits and hold that Dilworth, as
a pretrial detainee, was entitled under Bell to procedural due
11
process in connection with any “punishment” imposed on him by
the Detention Facility.
It remains to be considered only whether Dilworth’s two
placements in disciplinary segregation constitute “punishment”
within the meaning of Bell. That a “disability is imposed for
the purpose of punishment,” the Court held in Bell, may be clear
from “an expressed intent to punish on the part of detention
facility officials[.]” 441 U.S. at 538. If it is not, then a
court still may infer an intent to punish if a “restriction or
condition is not reasonably related” to some other legitimate
goal. Id. at 539; see Martin, 849 F.2d at 870 (to establish
that restriction is “punishment,” pretrial detainee must show
“either that it was (1) imposed with an expressed intent to
punish or (2) not reasonably related to a legitimate non-
punitive governmental objective”); Slade v. Hampton Rds. Reg’l
Jail, 407 F.3d 243, 251 (4th Cir. 2005) (same).
In this case, an intent to punish is express, and
manifestly clear from the record. Dilworth’s placement in
segregation was identified as a “disciplinary action[] taken” on
the “Inmate Disciplinary Report” filed in connection with each
of his altercations. J.A. 64, 69. In dismissing Dilworth’s
appeals, administrative review officer Fales referred expressly
to the “disciplinary sanctions” and “disciplinary actions” on
review. J.A. 55, 60. And in their brief on appeal, the
12
defendants similarly, and consistently, describe Dilworth’s
placement as “disciplinary,” a “disciplinary action,” and a
“penalty for [] disciplinary violations.” When it comes to
intent, in other words, this is the easy case in which we need
not go beyond what is express.
The defendants suggested for the first time at oral
argument that the restriction imposed on Dilworth might be so
“de minimis” that it cannot amount to punishment under Bell,
whatever its intent. See Bell, 441 U.S. at 539 n.21 (defining
“punishment” in terms of intent but noting that there is “a de
minimis level of imposition with which the Constitution is not
concerned”) (internal quotation marks omitted); Robles v. Prince
George’s Cty., Md., 302 F.3d 262, 269 (4th Cir. 2002) (finding
pretrial detainee must show that official action was not “de
minimis” to invoke due process protections); Slade, 407 F.3d at
251 (same). Though some cases may present close questions on
this score, see Collins v. Ainsworth, 382 F.3d 529, 545 (5th
Cir. 2004) (finding denial of phone calls and mattresses for
less than 24 hours to be de minimis), this one does not. For
the 85 days in which he was in disciplinary segregation,
Dilworth was confined to his cell for 23 hours each day and
denied all personal contact except with attorneys or clergy.
Other courts have had no difficulty classifying this sort of
disciplinary segregation as “punishment” under Bell. See Kirk
13
v. Boyles, 2010 WL 2720886, at *2 (E.D. Cal. July 8, 2010)
(magistrate report) (rejecting argument that three-day
disciplinary confinement is de minimis), adopted by, 2010 WL
3516630 (E.D. Cal. Sept. 8, 2010); see also Surprenant, 424 F.3d
at 13–14 (treating disciplinary segregation as punishment);
Higgs v. Carver, 286 F.3d 437, 438 (7th Cir. 2002) (same);
Mitchell, 75 F.3d at 524 (same). The Detention Facility itself,
in its policy on inmate disciplinary procedures, appears to
agree, treating disciplinary segregation as a sanction
implicating liberty interests and triggering procedural
protections. J.A. 105. We, too, conclude that disciplinary
segregation of a pretrial detainee, intended as a penalty for
disciplinary infractions, implicates a protected liberty
interest under the Fourteenth Amendment and may not be imposed
without due process.
2.
Having determined that Dilworth was entitled to due process
before he was punished with disciplinary segregation, we turn to
the question of whether the procedures afforded Dilworth
satisfied Fourteenth Amendment requirements. We do not doubt,
as the Supreme Court has held, that the realities of the prison
environment require “some amount of flexibility” in the due
process inquiry, so as to accommodate the very real interest of
prison officials in maintaining order and safety. Wolff v.
14
McDonnell, 418 U.S. 539, 566 (1974). But the Supreme Court has
set out certain procedural minimums that pertain even in the
prison setting, and those requirements were not met here.
The elements of due process in prison disciplinary
proceedings were established by the Supreme Court in Wolff.
Emphasizing the need for “mutual accommodation” of institutional
objectives and constitutional rights, id. at 556, the Wolff
Court struck a careful balance between inmates’ due process
interests and the legitimate goals and security concerns of a
penal institution, id. at 556-63. The result was a clear
explication of the necessary procedural safeguards, beginning,
most critically, with a hearing, at which an inmate may call
witnesses and present documentary evidence unless doing so would
present an undue hazard. Id. at 557-58 (“The Court has
consistently held that some kind of hearing is required at some
time before a person is finally deprived of his property
interests . . . . We think a person’s liberty is equally
protected[.]”). An inmate also is entitled, the Court held, to
written notice of the alleged disciplinary violation at least 24
hours before the hearing, and, after the hearing, to a written
statement describing the reasons for the disciplinary action
taken. Id. at 563-65.
We note that the requirements laid out in Wolff are clear
enough that the Detention Facility has incorporated them into
15
its own published policy on inmate discipline. Under that
policy, as per Wolff, an inmate charged with a disciplinary
violation implicating a liberty interest is entitled, after 24
hours notice of the charges, to a hearing at which the inmate
may make a statement on his or her behalf, present witnesses and
evidence, and ask questions of his or her accuser. After the
hearing, the inmate is provided a written report describing the
disciplinary findings made as a result of the hearing. 1
As the defendants concede, the process afforded Dilworth
complies with neither the Detention Facility’s policy nor the
dictates of Wolff. There is no factual dispute as to what
process Dilworth received: the opportunity to take a written
appeal after his sanction was finalized. Nor can there be any
question but that this process falls short of what Wolff
requires.
Under Wolff, the core component of due process in the
prison discipline context is the right to a hearing. To be
1To be clear, Dilworth’s liberty interest, as explained in
Bell, arises from the Constitution itself, and not from any
mandatory language in the Detention Facility’s policy. See 441
U.S. at 535 (“[U]nder the Due Process Clause, a detainee may not
be punished prior to an adjudication of guilt in accordance with
due process of law.”); cf. Sandin, 515 U.S. at 483-84(discussing circumstances under which state may create liberty
interest through mandatory regulatory language). The Detention
Facility’s policy does, however, suggest both that Wolff’s
requirements are generally understood and that the Detention
Facility believes itself able to comply with them.
16
sure, Wolff does not contemplate “full adversary proceedings,”
Benjamin, 264 F.3d at 190, and prison officials retain the
discretion to “keep [a] hearing within reasonable limits” in an
effort to avoid disruption and threats to safety. Wolff, 418
U.S. at 566. For instance, prison officials need not permit an
inmate to cross-examine witnesses against him, nor allow an
inmate to call witnesses who would “create a risk of reprisal or
undermine authority”; and inmates do not possess the right to
retained or appointed counsel. Id. at 566-70; see also Baker v.
Lyles, 904 F.2d 925, 932–33 (4th Cir. 1990) (permitting use of
hearsay statements by unidentified informants in prison
disciplinary hearings). But the hearing itself, at which a
pretrial detainee like Dilworth may contest whether he has in
fact violated a disciplinary rule before he is punished, is the
minimal requirement of the Wolff process. See 418 U.S. at 557-
58; see also, e.g., Mitchell, 75 F.3d at 524 (“[P]retrial
detainees may be subjected to disciplinary segregation only with
a due process hearing[.]”); Benjamin, 264 F.3d at 190(contrasting hearing required by Wolff with more minimal process
required for prison administrative actions). 2
2
Indeed, the petitioner in Wolff was afforded a hearing
before he was sanctioned; the issue in Wolff was whether that
hearing provided sufficient process, or whether more was
required. 418 U.S. at 559-60. In holding that an inmate’s
right to call or cross-examine witnesses must be balanced
(Continued)
17
That minimal requirement was not satisfied here. As the
defendants acknowledge, Dilworth never was provided a due
process hearing. Instead, when Dilworth requested a hearing, a
Detention Facility official informed him that the official was
“NOT required to recommend a disciplinary hearing if grounds for
such do not exist.” J.A. 60 (emphasis in original). Nor can
Dilworth’s opportunity to file a written appeal substitute for
the missing hearing. A statement in writing is not a hearing,
and it is not what is contemplated by Wolff – as is clear, for
instance, when Wolff holds that an inmate has a qualified right
to call witnesses to testify at his hearing. 418 U.S. at 566-
67. And by definition, an appeal is a request for review of an
action already taken, whereas Wolff’s due process hearing is to
be provided before final deprivation of a liberty interest. Id.
at 557-58.
That is not to say, of course, that prison or jail
officials are barred from taking immediate action, without a
prior hearing, in response to altercations like Dilworth’s or
other disciplinary offenses. On the contrary, it is clear – and
Dilworth does not dispute – that for safety or security reasons,
against a prison’s need for order and security, in other words,
the Court cast no doubt on the necessity of the underlying
hearing itself.
18
a jail may take immediate preventative action to segregate a
detainee after a fight or disruption. See, e.g., Baker, 904
F.2d at 930-31; Higgs, 286 F.3d at 438. And prisons and jails
may and routinely do place inmates charged with disciplinary
infractions in “administrative segregation” pending their
disciplinary hearings, allowing both prison officials and
inmates time to investigate and prepare for those hearings. See
Hewitt v. Helms, 459 U.S. 460, 463-65, 473-74 (1983) (approving
placement of inmate in administrative segregation pending
investigation and hearing on disciplinary charges), receded from
on other grounds by Sandin, 515 U.S. at 482–83; see Brown v.
Braxton, 373 F.3d 501, 503 (4th Cir. 2004) (inmate placed in
“administrative detention” pending disciplinary hearing while
officials investigated altercation). The Detention Facility’s
disciplinary policy contemplates as much, providing that an
inmate may be placed in segregation prior to a hearing and
formal disciplinary action to ensure order and security, and we
have no quarrel with that understanding. But all of this
presupposes that there is, in fact, a hearing in connection with
the final imposition of disciplinary action, and that is the
element that is missing here.
On this record, it is plain that Dilworth was not provided
a hearing before he was subjected to punishment in the form of
disciplinary segregation, and the defendants do not contend
19
otherwise. That is enough to resolve Dilworth’s due process
claim as a matter of law. We remand for resolution of
Dilworth’s damages claim, consistent with this opinion.
B.
We next address Dilworth’s contention that the district
court erred in granting the defendants summary judgment on his
excessive force claim. As noted above, the district court
applied a subjective standard to Dilworth’s claim, requiring
Dilworth to show that Officers Cookson and Trott had acted “with
a sufficiently culpable state of mind” in the form of an intent
to “maliciously and sadistically [] cause harm.” J.A. 130
(internal quotation marks omitted). Because the record could
not support such a finding, the district court granted summary
judgment to the defendants.
After the district court issued its ruling, the Supreme
Court held in Kingsley v. Hendrickson that “the appropriate
standard for a pretrial detainee’s excessive force claim is
solely an objective one.” 135 S. Ct. at 2473. It is enough,
the Supreme Court concluded, that a pretrial detainee show that
the “force purposely or knowingly used against him was
objectively unreasonable,” id., regardless of an officer’s state
of mind, id. at 2472.
The parties agree that the district court has not evaluated
Dilworth’s claim under the standard set out by the intervening
20
decision in Kingsley. Accordingly, we remand so that the
district court may consider, in the first instance, whether
under the “facts and circumstances” of this particular case, and
from the “perspective of a reasonable officer on the scene,” the
force used against Dilworth was objectively excessive. Id. at
2473; see Barrett v. Applied Radiant Energy Corp., 240 F.3d 262,
264 (4th Cir. 2001) (remanding for reconsideration in light of
intervening authority). In deciding whether summary judgment
may be granted to the defendants under that objective standard,
the district court should view the video of the July 5 incident
and consider it along with other relevant evidence bearing on
objective reasonableness. Cf. Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 197 (4th Cir. 2006) (holding grant of
summary judgment on excessive force claim premature where
district court has not considered videotape evidence).
III.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the defendants on Dilworth’s due
process claim, order that judgment be entered for Dilworth, and
remand for resolution of Dilworth’s damages claim. We vacate
the district court’s grant of summary judgment to the defendants
21
on the excessive force claim and remand for further proceedings
consistent with this opinion.
REVERSED IN PART, VACATED IN PART, AND REMANDED
22