Steven McClam, II v. Franz Verhelst

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN M. MCCLAM II, No. 21-35426
Plaintiff-Appellant, D.C. No. 2:19-cv-00096-RAJ
v.
MEMORANDUM*
FRANZ VERHELST, Correctional Officer,
King County Jail; RACHEL WILKS, IIU
Sergeant; JOHN DOES, 1-50, employees of
King County Jail; JANE DOE I, King
County Jail medical employee who initially
provided medical attention to the plaintiff's
injury; JANE DOES, 2-50, employees of
King County Jail,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted March 9, 2022
Seattle, Washington
Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges.
Dissent by Judge MILLER.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Plaintiff Steven McClam II appeals from the district court’s grant of
summary judgment in favor of defendant Franz Verhelst on the ground of qualified
immunity. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see
Gordon v. County of Orange, 6 F.4th 961, 967 (9th Cir. 2021), we reverse and
remand.
McClam, a pretrial detainee at King County Jail, brought this § 1983
excessive force action against Verhelst, a correctional officer.1 Verhelst has
qualified immunity from suit unless his conduct violated one of McClam’s clearly
established constitutional rights. See id. at 967–68. In determining whether
Verhelst was entitled to summary judgment, we view the evidence and draw all
inferences in the light most favorable to McClam, the non-moving party. See id. at
967.
Due process guarantees that “pretrial detainees (unlike convicted prisoners)
cannot be punished at all, much less ‘maliciously and sadistically.’” Kingsley v.
Hendrickson, 576 U.S. 389, 400 (2015) (quoting the Eighth Amendment standard
from, e.g., Whitley v. Albers, 475 U.S. 312, 320 (1986)). Thus, a pretrial detainee
can show that a correctional officer used excessive force against him without
delving into the officer’s subjective intent. See id. at 398 (“[A] pretrial detainee
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McClam conceded that the other defendants he sued were entitled to
summary judgment.
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can prevail by providing only objective evidence that the challenged governmental
action is not rationally related to a legitimate governmental objective or that it is
excessive in relation to that purpose.”). But the pretrial detainee can also prevail
by showing that the defendant’s action was “taken with an ‘expressed intent to
punish.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)).
Though McClam and Verhelst offer competing versions of the incident at
issue, for purposes of this appeal we accept as true McClam’s version of events. In
January 2016, McClam asked the correctional officer on duty for his unit, Haiko
Postma, for permission to take two paper towels from a box on the floor. Postma
authorized him to do so. McClam took the first paper towel without incident, in
full view of Verhelst, who was standing directly behind the box outside of
McClam’s reach.
As McClam reached into the box a second time, Verhelst moved forward
and “stomped aggressively and with great force” on McClam’s hand, causing
McClam “extreme pain.” McClam “[a]t no time” reached for Verhelst “or even
[got] close to him with [his] hand.”
McClam repeatedly pleaded with Verhelst to get off his hand. Verhelst
pinned McClam’s hand to the concrete floor with his boot “for a few seconds”
while trying to kick the paper towel box away, out of McClam’s reach. As a result
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of this incident, McClam experienced some loss of function in his hand and, after
four years, continued to suffer regular shooting pain.
From this evidence, a jury could reasonably conclude that Verhelst stomped
on McClam’s hand to punish him with physical pain rather than for any
penological purpose. It was clearly established in 2016 that a correctional officer
who gratuitously assaults an inmate for the purpose of inflicting pain commits
constitutionally excessive force—even if the inmate is not seriously injured. See
Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam) (holding that inmate stated
claim for excessive force by alleging that prison guards assaulted him without
provocation, including by kicking him, causing him to suffer a bruised heel and
back pain).
Verhelst contends that “no case . . . would have alerted a reasonable officer
in [his] situation that putting his boot down on an inmate’s extended hand, when he
feared for his personal safety, would violate the inmate’s constitutional rights.”
We agree with this statement as a matter of law but not with its factual predicate.
When viewed most favorably to McClam and drawing every inference in his
favor—as we must at this stage of the litigation—the evidence supports a finding
that Verhelst employed considerably more force than “putting his boot down.”
More importantly, the evidence supports a finding that Verhelst did not fear for his
personal safety but rather acted out of annoyance with McClam. See Estate of
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Aguirre v. County of Riverside, No. 19-56462, 2022 WL 871286, at *5 (9th Cir.
Mar. 24, 2022) (“We cannot assume the jury’s role to resolve the disputed question
whether [the plaintiff] presented an immediate threat.”).
While Verhelst claims that he was unaware Postma gave McClam
permission to take two paper towels, a jury could infer otherwise. Verhelst was
standing directly behind the box and Postma was standing directly next to
McClam. Verhelst did not react when McClam took the first paper towel but only
after McClam reached into the box for another. Moreover, a jury could draw a
negative credibility inference from Verhelst’s false log entry stating that he used
no force at all; when the jail’s internal investigation unit subsequently questioned
him, “[h]e admitted to applying pressure on McClam’s hand.” If so, that would
undermine his claim to be acting out of fear for his own safety.
Similarly, a jury could infer that Verhelst’s aggressive reaction reflected an
intent to punish McClam for taking a second paper towel rather than to protect
himself. Although Verhelst was not within McClam’s immediate reach and had
the ability to step back, he instead moved forward and stomped on McClam’s hand
with great force. According to Postma, Verhelst “obviously did not want
[McClam] to take [the paper towel].” Even “[a]ssuming” that Verhelst was
unaware McClam had permission, Postma thought Verhelst overreacted and that a
physical response “seemed unnecessary.” Postma believed “[i]t would have been
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more appropriate [for Verhelst] to verbalize” that he did not want McClam to take
the paper towel. And the jail’s policy manual authorized uniformed staff to use
reasonable force only when necessary, as relevant here, to protect themselves or
enforce a lawful order.
Because a jury could reasonably conclude that Verhelst’s actions expressed
an intent to punish McClam rather than to protect himself, as he claimed, the
district court erred in granting summary judgment.
REVERSED and REMANDED.
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FILED
McClam v. Verhelst, No. 21-35426 APR 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MILLER, Circuit Judge, dissenting:
The general principle is well established: Correctional officers may not
gratuitously attack inmates. See Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir.
1991). But the Supreme Court has “repeatedly told courts—and the Ninth Circuit
in particular—not to define clearly established law at a high level of generality.”
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (citation omitted). Thus, except in an
“obvious case,” a plaintiff seeking to overcome an assertion of qualified immunity
“must identify a case that put [the defendant] on notice that his specific conduct
was unlawful.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam).
No case or “robust consensus of cases” clearly establishes any right in these
circumstances. al-Kidd, 563 U.S. at 742 (internal quotation marks and citation
omitted). The most closely analogous cases are not analogous at all. See, e.g.,
Wilkins v. Gaddy, 559 U.S. 34, 38–40 (2010) (per curiam) (holding that a pretrial
detainee who was “punched, kicked, kneed, choked, and body slammed
‘maliciously and sadistically’ and ‘[w]ithout any provocation’” and who was left
with “a bruised heel, back pain, and other injuries requiring medical treatment”
need not allege some greater degree of force, though ultimately “express[ing] no
view on the underlying merits of his excessive force claim”); Felix, 939 F.2d at701–02 (clearly established violation where prison guards threw a handcuffed
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inmate across a room in response to a verbal disagreement); Lolli v. County of
Orange, 351 F.3d 410, 416–18, 421–22 (9th Cir. 2003) (clearly established
violation where pretrial detainee was brutally beaten by guards after notifying them
that he was diabetic).
Even viewing the facts in the light most favorable to McClam, this case
differs from those in two significant ways. First, Officer Verhelst’s action was not
completely unprovoked. Officer Verhelst stepped on McClam’s hand when
McClam reached for a paper towel near the officer’s feet. No evidence suggests
that Officer Verhelst was aware that McClam had permission to grab anything.
And although Officer Verhelst’s leg was not McClam’s target, it is undisputed that
McClam reached in that direction. In responding to what he perceived to be an
unauthorized movement toward his leg, Officer Verhelst may have acted
unreasonably—and perhaps even maliciously—but not entirely without
provocation. Second, the level of force employed was far lower than in the cited
cases; there is no medical evidence that Officer Verhelst’s action caused any
injury.
Although McClam’s Fourteenth Amendment right to be free from excessive
force may have been violated, the district court correctly determined that the right
was not clearly established and that Officer Verhelst is entitled to qualified
immunity. I would affirm the grant of summary judgment.
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