Robert Campbell v. Jean Smith


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:08-cv-03668-PMD Copies to all parties and the district court/agency. [998450362] [10-6643, 10-6737]

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Robert Campbell v. Jean Smith Doc. 0 Case: 10-6643 Document: 23 Date Filed: 10/21/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-6643 ROBERT CAMPBELL, Plaintiff Appellant, v. JEAN SMITH; SHAMYRA MCREA; JOHN BRITT; SGT. MCCLINEN, Defendants Appellees. No. 10-6737 ROBERT CAMPBELL, Plaintiff Appellee, v. JEAN SMITH; SGT. MCCLINEN, Defendants Appellants, and SHAMYRA MCREA; JOHN BRITT, Defendants. Appeals from the United States District Court for the District of South Carolina, at Rock Hill. Patrick Michael Duffy, Senior District Judge. (0:08-cv-03668-PMD) Case: 10-6643 Document: 23 Date Filed: 10/21/2010 Page: 2 Submitted: October 14, 2010 Decided: October 21, 2010 Before MOTZ, KING, and DAVIS, Circuit Judges. No. 10-6643 dismissed; No. 10-6737 dismissed in affirmed in part by unpublished per curiam opinion. part and Robert Campbell, Appellant/Cross-Appellee Pro Se. Christopher R. Antley, DEVLIN & PARKINSON, PA, Greenville, South Carolina, for Appellees/Cross-Appellants. Unpublished opinions are not binding precedent in this circuit. 2 Case: 10-6643 Document: 23 Date Filed: 10/21/2010 Page: 3 PER CURIAM: Pursuant to 42 U.S.C. 1983 (2006), Robert Campbell, a South Carolina inmate, filed an action seeking damages for alleged civil rights violations in connection with an incident that occurred at the Evans Correctional Institution on June 25, 2008. Campbell claims that Defendants Jean Smith and Sgt. McClinen used excessive force against him when Smith sprayed him with tear gas following a verbal altercation and later hit him in the face while McClinen restrained him, even though he was handcuffed at the time. conviction for Campbell received a prison disciplinary Smith and claims further that assaulting Defendants Shamyra McRae and John Britt conspired against him on Smith's behalf to charge him with the disciplinary infraction. Defendants moved for summary judgment, asserting, among other arguments, a defense of qualified immunity to suit. The magistrate motion judge be recommended as use to of that Defendants' summary force claim as to and judgment claim granted Smith's Campbell's tear gas and excessive and his challenging his challenging Campbell's disciplinary force conviction claim denied excessive challenging Smith McClinen's actions while Campbell was handcuffed. court adopted the magistrate judgment use of judge's motion tear 3 gas The district granted claims recommendation, on and Campbell's his Defendants' challenging summary Smith's disciplinary Case: 10-6643 Document: 23 Date Filed: 10/21/2010 Page: 4 conviction, dismissed McRae and Britt from the suit, and denied Defendants' summary judgment motion on Campbell's excessive force claim challenging Smith and McClinen's actions following Smith's use of the tear gas, implicitly rejecting their request for qualified immunity. Campbell noted an interlocutory appeal (No. 10-6643), and Smith and McClinen noted an interlocutory cross-appeal (No. 10-6737). This court may exercise jurisdiction only over final orders, 28 U.S.C. 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 54547 (1949). a As final to Campbell, nor the an district court's order is or neither order appealable interlocutory collateral order. Accordingly, in No. 10-6643, we dismiss the appeal for lack of jurisdiction. With although the respect Supreme to Smith has and McClinen's cross-appeal, an order Court recognized that rejecting a claim of qualified immunity is an appealable order at the summary judgment stage, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), immediate appealability of an order rejecting a government official's qualified immunity defense is appropriate only if the rejection rests on a purely legal determination that the facts do not establish a violation of a clearly established right, Johnson v. Jones, 515 U.S. 304, 319-20 (1995). 4 Thus, "if Case: 10-6643 Document: 23 Date Filed: 10/21/2010 Page: 5 the appeal seeks to argue the insufficiency of the evidence to raise a genuine issue of material fact, this Court does not possess jurisdiction under [28 U.S.C.] 1291 to consider the claim." 2009). Relying on the parties' conflicting accounts of the events following Smith's use of the tear gas, the district court concluded that there existed in the record evidence from which a reasonable trier of fact could conclude that Smith and McClinen acted maliciously and sadistically to cause Campbell harm while he was handcuffed and restrained. claim that their application the of Although Smith and McClinen force did not amount to Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. excessive force violating Eighth Amendment because Smith only slapped Campbell, we lack jurisdiction to consider this claim, as it asserts the "insufficiency of the evidence to raise a genuine issue of material fact." Id. Although we have jurisdiction to consider Smith and McClinen's claim that they were entitled to qualified immunity because a prison officer's singular attack on an inmate does not qualify as punishment, we nonetheless conclude it fails because, in June 2008, it was the clearly established and that the Eighth of Amendment forbade "unnecessary wanton infliction pain" against inmates. Whitley v. Albers, 475 U.S. 312, 319 Not every infliction (1986) (internal quotation marks omitted). 5 Case: 10-6643 Document: 23 Date Filed: 10/21/2010 Page: 6 of pain is forbidden, however, and prison officials may apply force to an inmate "in a good faith effort to maintain or restore [prison] discipline." marks omitted). However, Id. at 320 (internal quotation prison officials use force where "maliciously and sadistically for the very purpose of causing harm," an Eighth Amendment violation has occurred. 21 (internal quotation marks omitted). Based on Id. at 320Campbell's version of events giving rise to this litigation, he was in handcuffs and restrained by McClinen when Smith hit him. If this version of events is accepted, a trier of fact could easily conclude that an Eighth Amendment violation occurred. Accordingly, in No. 10-6737, we dismiss in part and affirm in part. facts and legal before We dispense with oral argument because the contentions the court are and adequately argument presented not in aid the the materials would decisional process. No. 10-6643 DISMISSED No. 10-6737 DISMISSED IN PART AND AFFIRMED IN PART 6

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