Anthony Mann v. C Failey

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 0:11-cv-02232-RMG Copies to all parties and the district court/agency. [999397394].. [13-6446]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6446

ANTHONY L. MANN,
Plaintiff - Appellant,
v.
LT. C. FAILEY; MAJOR SHERONDA SUTTON; WARDEN ROBERT STEVENSON
III; ASST. WARDEN JOHN BARKLEY; ASST. WARDEN LARRY CARTLEDGE;
INV. DAVID HURT; VALERIE WHITAKER; CLASSIFICATION MNGR MACON;
DONALD SAMPSON, MD; E. KEITT; JAMES HARRIS, III; CAPT. PERCY
JONES; CAPT. WILSON; LT. WILLIE SIMMONS; LT. T. JOHNSON; SGT.
BELUE; SGT. YOUNG; SGT. HERMAN WRIGHT; SGT. KEITH MOORE; CPL.
OTIS DANIELS; CPL. VINCENT MANLEY; CPL. SMALLS; CPL. RAY; OFC.
MCNEAL; OFC. COX; CHRISTIAN MANGANELLI; C. COOK; ROBYN ELERBY,
Defendants - Appellees,
and
OFC.

MURRAY,
Defendant.

Appeal from the United States District Court for the District of
South Carolina, at Rock Hill.
Richard M. Gergel, District
Judge. (0:11-cv-02232-RMG)

Argued:

May 13, 2014

Decided:

July 17, 2014

Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS,
Senior Circuit Judge.

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Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.

ARGUED: Adam Zurbriggen, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.
Janet Brooks Holmes, MCKAY,
CAUTHEN, SETTANA AND STUBLEY, P.A., Columbia, South Carolina,
for Appellees. ON BRIEF: Steven H. Goldblatt, Director, Rita K.
Lomio,
Supervising
Attorney,
Lola
A.
Kingo,
Supervising
Attorney, Bethany S. Hamm, Student Counsel, Appellate Litigation
Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for
Appellant.
Daniel R. Settana, Jr., Richard E. Marsh, III,
MCKAY, CAUTHEN, SETTANA AND STUBLEY, P.A., Columbia, South
Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellant Anthony Mann, a South Carolina inmate, appeals an
adverse summary judgment on his Eighth Amendment excessive force
claims asserted pursuant to 42 U.S.C. § 1983. 1 Mann’s complaint
arises

out

of

a

series

of

incidents

involving

correctional

officers and others at the Broad River Correctional Institution
(“BRCI”). He contends that the officers assaulted and battered
him

and

denied

him

means

of

decontamination

after

they

used

significant quantities of pepper spray to subdue him.
Although

a

magistrate

judge

recommended

that

Appellees’

motion for summary judgment be granted in part and denied in
part, upon its de novo review of the magistrate judge’s report

1

Mann was self-represented in the district court and
initially on appeal. We appointed counsel to file a formal brief
and present oral argument in this Court. Although Mann
originally asserted many and varied claims, the only claims
before this Court are those claims discussed in this opinion. We
appreciate the fine efforts of counsel to assist this Court in
resolving this appeal.
Relatedly, we leave to the district court upon remand to
determine whether the interests of justice will be served
through an appointment of counsel in the district court. We also
leave to the district court determination whether further
proceedings short of trial, e.g., further discovery, is
appropriate. In this regard, we note that (as the case proceeded
below) the district court had no occasion to assess whether and
to what extent, if any, the potential individual liability of
any of the twenty-nine specifically named Appellees should be
more carefully scrutinized in light of the evidence in the
record, or whether any such party should be dismissed from the
action.

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and recommendation, the district court granted the motion in its
entirety. In doing so, the district court concluded that Mann
had forecasted insufficient evidence that the officers applied
force

“maliciously

causing

harm.”

and

See

sadistically

Whitley

v.

for

Albers,

the
475

very
U.S.

purpose
312,

of

320-21

(1986). For the reasons set forth within, we vacate the judgment
in part and remand for further proceedings.
I.
This

fact-intensive

case

arises

out

of

correctional

officers’ use of physical force against Mann during summer 2010.
At the summary judgment stage, we view the facts in the light
most

favorable

Leathers,

913

to

Mann,

F.2d

the

1085,

non-moving

1087

(4th

Cir.

party.

Miller

1990)

(en

v.

banc)

(observing in excessive force case that inmate was 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” (citation omitted)), cert. denied,
491 U.S. 1109 (1991).
Mann,

who

is

serving

a

life

sentence

for

murder,

was

incarcerated in BRCI’s Special Management Unit (“SMU”), located
in Columbia, South Carolina. It is undisputed that Mann was a
difficult
number

of

inmate:

his

disciplinary

prison

record

charges

4

and

contains

a

convictions,

significant
including

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attempted

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escape.

Medical

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records

indicate

that

Mann

suffers

from bipolar disorder, ADHD, anxiety, and depression.
In or about June 2010, Mann began experiencing conflict
with Lt. Cathaline Failey, the SMU unit supervisor, soon after
he

reported

an

incident

of

alleged

neglect

of

an

inmate

in

medical distress to her superiors. According to Mann’s verified
complaint, Lt. Failey began retaliating against Mann by shouting
verbal assaults and threats, withholding food, and denying him
access

to

his

legal

material.

Their

conflict

eventually

escalated into a series of acts of alleged excessive force by
Lt. Failey and other correctional officers; Mann’s allegations
as to these use-of-force incidents are briefly summarized below.
On June 9, 2010, officers sprayed Mann’s prison cell with
several blasts of Oleoresin Capsicum pepper spray for failing to
comply with orders to back up and be restrained. He was then
left

in

the

closed

cell

for

forty-five

minutes.

Thereafter,

despite his multiple requests to take a shower, Mann was placed
in a strip cell and was not decontaminated from the chemicals
for the next five days. As a result, he experienced burning
sensations over his body.
On the morning of June 14, Mann was checked by medical
staff and escorted back to the SMU in full body restraints. On
the way, he became lightheaded and knelt to the ground. The
escort

officer

called

for

assistance
5

from

Lt.

Failey,

who

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responded by “grabb[ing Mann] by his left arm and the back of
the crotch chain between his legs” and roughly dragging him 25
yards to the medical unit. Mann states that Lt. Failey’s actions
“smashed his testicles and caused him extreme pain and agony.”
J.A. 23.
Several weeks later, Lt. Failey had a heated conversation
with the attorney involved in Mann’s post-conviction proceedings
when he contacted her to request that she return Mann’s legal
material. The next day, on July 28, Lt. Failey locked Mann in a
small holding cell for the day, stating, “Let’s see how you like
sitting in here all day. You gon’ have your attorney call me,
like you don’t know no better. Im’a fix you, white boy.” J.A.
24.
At the end of the day, as Lt. Failey was part of a team
transporting

Mann

from

the

holding

cell

back

into

his

unit,

Mann’s leg restraints were removed in order for him to descend
the stairs. At some point, Lt. Failey adjusted the remaining
constraints
delivered

a

so

that

they

roundhouse

became

kick

to

painful.
Failey’s

Mann,
neck,

aggravated,
knocking

her

against the banister and sending her down the stairs. Four other
officers wrestled Mann to the floor, and Mann stopped resisting.
Even though Mann was subdued, Failey ran up the steps to
him and began kicking and punching him in the head, striking him
numerous times, until one of the other officers holding Mann
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interposed his body between her and Mann and told her that he
had

Mann

under

control.

Lt.

Failey

nevertheless

continuously

struck his head and face with her fist as he was carried, “in
hogtie form,” fifty yards to the holding cell. J.A. 580-81.
Four

of

Mann’s

fellow

inmates

provided

sworn

eyewitness

affidavits that corroborated Mann’s account of this incident.
J.A. 571; 573; 575; 576. There are no medical records related to
this incident, although Mann claims that he sought treatment for
his injuries but received no response to his requests.
The aforementioned interactions escalated further on August
23, 2010. The incident began when a disciplinary hearing for
Mann was interrupted because he produced a broken paperclip,
apparently
handcuff

as
key

restraints).

evidence

that

he

(although

he

had

Mann

was

ejected

had

not

been
from

previously

able
the

to

stolen

escape

hearing.

He

a

from
was

originally placed in his original cell but was to be transported
to

a

strip

cell.

When

Mann

refused

to

submit

for

transfer,

officers expelled several bursts of pepper spray into his cell
and left him there for an hour.
A five-officer extraction team then sought to enter the
cell. By that point, Mann had propped his mattress against the
cell door, and he began pelting the officers with approximately
13-18 bottles of fecal matter from his position on the top bunk.
This action, known as “shit-bombing,” had apparently been the
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subject of threats made by SMU prisoners in the past, though the
record does not state if it had ever actually occurred prior to
this incident. The team of officers were hit, some in their
faces.
Mann eventually allowed himself to be thrown to the floor
and placed in restraints. Affidavits from inmates in neighboring
cells report hearing Mann repeatedly yell that he is “down . . .
and not resisting.” J.A. 617; 621; 632.
Mann was thereafter attacked by the guards. One officer
slammed his face into the concrete floor and picked up a bottle
of fecal matter and poured it over his face. Others continuously
punched,

kneed,

kicked,

and

choked

him

until

he

lost

consciousness. He was carried in a chokehold position out of the
unit for 40 to 50 yards, with the officers slamming his body on
walls and bars along the way. Officers then immediately placed
him in a restraint chair for six hours, where he sat fully
restrained

at

the

ankles

and

wrists,

in

and

out

of

consciousness. Mann was denied the opportunity to decontaminate
even though he was “burning all over [his] face, body, and in
[his] facial wound.” J.A. 652-53. He was then placed in a strip
cell and was not permitted to shower for four days.
Inmate affidavits report hearing the commotion in Mann’s
cell and observing Mann being “aggressively removed” from the
cell with a “bed sheet tightly noosed” around his neck. J.A.
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632. Medical records completed immediately after the incident
indicate that Mann received treatment for a laceration on his
head

that

“moderate

was

one-inch

[amount]

of

long,

blood

one-quarter

on

face.”

inch

J.A.

deep,

341.

Mann

and

a

later

complained that one of his front teeth had been broken in the
encounter, but the prison nurse recorded that she was unable to
examine his teeth because Mann would not open his mouth.
Cell extractions in BRCI are intended to be recorded, and
at the onset of the August 23 extraction, one of the officers
carried a video recorder. At some point, however, the content of
the recorder became unavailable. Other inmates have overheard
guards suggesting that they deliberately destroyed the evidence
of the beating so “no jury [could] see that video-tape.” J.A.
627; 630.
According to Mann, he repeatedly asked both the officers
and

the

nurses

who

treated

his

injuries

if

he

could

be

decontaminated, but he was denied: the nurses said he would have
to talk to Security; the officers told him he would “be lucky if
[he] ever got to decontaminate after what [he’d] done.” J.A.
652. He was also told that he had to wait until his hours in the
restraint chair were up. Mann’s medical records do not mention
these requests. He has stated that he was in the chair for six
hours and was not permitted to shower for four days.

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II.
Mann

filed

personnel,

suit

against

and

others,

twenty-nine

including

the

officers,

Warden

and

medical
Assistant

Warden, Lt. Failey, and those officers involved or observing the
August 23 cell extraction. All defendants but one are Appellees
before this Court. They filed a lengthy consolidated motion for
summary

judgment,

in

response

to

which

Mann

filed

a

lengthy

opposition accompanied by more than fifty exhibits. The district
court referred the motion to a magistrate judge for a report and
recommendation.
As

relevant

to

this

appeal,

the

magistrate

judge

recommended granting Appellees summary judgment on all excessive
force

claims

except

Mann’s

claim

that

the

officers

unconstitutionally denied his request to decontaminate on August
23,

which

magistrate

she

recommended

judge

concluded

should
that

proceed
the

to

trial.

circumstances

The
were

indistinguishable from those presented in Williams v. Benjamin,
77 F.3d 756 (4th Cir. 1996). The parties filed timely exceptions
to

the

report

and

recommendation

and

the

district

court

conducted a de novo review thereof.
The

district

court

granted

Appellees’

summary

judgment

motion on all counts. With respect to the officers’ use of force
on June 14, July 28, and August 23, the court concluded that no
reasonable jury could find that the officers were not acting in
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good faith in taking action to subdue Mann. As to the June 9
decontamination

denial,

the

court

noted

that

Mann

had

not

complained during his subsequent medical visits; and as to the
August

23

decontamination

denial,

the

court

distinguished

Williams on several grounds, including that pepper spray was
used, not mace, and that Mann was examined by medical staff
before

being

placed

in

the

restraint

chair.

Mann

timely

appealed.
III.
State

and

federal

inmates

serving

sentences

of

incarceration are protected under the Eighth Amendment from the
“unnecessary and wanton infliction of pain” by prison guards and
supervisory

officers.

Whitley

v.

Albers,

475

U.S.

312,

327

(1986) (internal citations omitted). Eighth Amendment excessive
force claims contain an objective and a subjective component: in
order for the plaintiff to prevail, he must demonstrate that
that (1) the “deprivation suffered or injury inflicted . . . was
sufficiently serious,” and (2) the “prison official acted with a
sufficiently culpable state of mind.” Williams v. Benjamin, 77
F.3d

756,

761

(4th

Cir.

1996).

Only

the

latter,

subjective

requirement is at issue in this case.
The

subjective

component

is

satisfied

when

an

officer’s

application of force was applied “maliciously and sadistically
for the very purpose of causing harm,” rather than as part of “a
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good-faith effort to maintain or restore discipline.” Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992) (internal citations omitted).
“[A] court may allow an inmate’s claim to go to the jury only if
it concludes that the evidence, viewed in a light most favorable
to the claimant, will support a reliable inference of wantonness
in the infliction of pain.” Stanley v. Hejirika, 134 F.3d 629,
634 (4th Cir. 1998) (internal quotation marks omitted).
In Whitley, the Supreme Court outlined several factors to
consider when evaluating the subjective component: the need for
the application of force; the relationship between the need and
the amount of force that was used; the extent of the injury
inflicted; the extent of the threat to the safety of staff and
inmates, as reasonably perceived by the responsible official;
and

any

efforts

made

to

temper

the

severity

of

a

forceful

response. Whitley, 475 U.S. at 320-21. Notably, a lack of injury
is not dispositive, so long as there is sufficient evidence of
maliciously-applied force. Wilkins v. Gaddy, 559 U.S. 34, 38
(2010) (per curiam) (“An inmate who is gratuitously beaten by
guards does not lose his ability to pursue an excessive force
claim merely because he has the good fortune to escape without
serious injury.”).
The

evidence

supporting

Mann’s

case-in-chief

is

derived

from inmate affidavits, prison records, and his own statements

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under oath. 2 Many of the facts are disputed – and vigorously so but

Appellees

argue

that,

even

under

Mann’s

version

of

the

facts, they are entitled to judgment as a matter of law. Upon
our careful review of the summary judgment record, however, we
cannot

agree.

evidence

to

We

conclude

substantiate

that
each

Mann
of

the

has

provided

excessive

sufficient

force

claims

pressed on appeal and that the entry of summary judgment on
those counts was error.

2

Appellees have repeatedly criticized Mann’s presentation
of evidence as improper and insufficient. These protestations
are unavailing. The vast majority of the statements submitted by
inmate witnesses were either notarized or declared under the
penalty of perjury. See Fed. R. Civ. P. 56(c)(1)(A) (permitting
either “affidavits” or “declarations”); 28 U.S.C. § 1746 (a
litigant may rely on an “unsworn declaration, certificate,
verification, or statement” if it is subscribed “as true under
penalty of perjury”).
Indeed, the record could defeat summary judgment even if
the evidence consisted exclusively of so-called “self-serving”
declarations from Mann himself. Opp. Br. at 12-14. It is well
settled that we may not, at summary judgment, discount viable,
material evidence on the ground that it was offered by a
plaintiff with a troubled past. E.g., Williams v. Staples, Inc.,
372 F.3d 662, 667 (4th Cir. 2004) (the court “may not make
credibility
determinations”
in
reviewing
the
record).
As
Appellant’s brief observes, this rule is acutely necessary in
cases with pro se prisoner plaintiffs, where “events [take]
place with only prison guards present[, a]nd an inmate has
little control of his situation and movement, and few means of
establishing facts, other than recounting evidence himself.”
Rep. at 8-9.

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A.

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Claims as to Deprivation of Decontamination

We first examine Mann’s contention that Appellees violated
the Eighth Amendment when they refused to let him shower or
otherwise decontaminate after expelling pepper spray in his cell
on June 9 and again on August 23.
We have previously held that the denial of decontamination
can give rise to an Eighth Amendment claim. Williams, 77 F.3d at
768. In Williams, an inmate threw “foul” liquids on officers,
and they responded by spraying a near-lethal dose of mace into
the plaintiff’s cell. Although the plaintiff then complied with
the officers’ orders, he was placed in four-point restraints and
chained to a bunk for eight hours. Williams was in “immense
pain” because of the mace and pleaded for water to wash off the
mace, but the officers did not permit him to decontaminate, and
no medical personnel checked on his condition. Id. at 765. This
Court applied the Whitley factors and concluded that summary
judgment was unwarranted. It held that to do otherwise would
create

a

“harmful

precedent,”

in

that

“whenever

any

inmate

causes a disturbance by throwing water or something similar at a
guard,

and

refuses

to

obey

a

further

command,

guards

can

—

without fear of violating the Constitution — spray an inmate in
the face with mace and then confine him in four-point restraints
for

an

extended

period

of

time

wash[.]” Id.
14

without

permitting

him

to

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We agree with the magistrate judge that Williams controls
in the instant case and that evidence bearing on the August 23
incident warrants a merits trial. Although Mann’s circumstances
are not on all fours with those presented in Williams, the fact
remains that, taking Mann’s sworn allegations as true, Appellees
have

provided

“no

reason

for

the

guards’

refusal

to

permit

[Mann] to wash” and “no evidence that [Mann] was not in the
[pain] he alleges.” Id. at 765. Regardless of whether pepper
spray

or

mace

was

used,

and

regardless

of

whether

he

was

restrained in a separate room, the record (viewed in the light
most favorable to Mann) clearly reflects a prisoner in pain for
several hours and a cadre of officers who refused to allow him
to decontaminate. With the additional submission by Mann that an
officer told him that he would “be lucky if he ever got to
decontaminate after what [he’d] done,” J.A. 652, there is ample
evidence from

which

a

fact

finder

could

find

that

Appellees

acted maliciously, sadistically, and in violation of the Eighth
Amendment.
Similarly,
summary

judgment

we
as

hold
to

that
the

Appellees

June

9

are

denial

not

of

entitled

to

decontamination

claim. Mann has sworn that after being sprayed, he repeatedly
asked officers and medical staff for a shower, was denied, and
experienced

burning

pain

over

his

body

for

five

days;

a

reasonable jury could infer from this evidence that Mann has
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adequately established both the subjective and objective prongs
of his Eighth Amendment claim.
The district court’s holding to the contrary relies on the
absence of certain evidence, namely the fact that the official
prison records do not contain any complaints of injury, or any
evidence “suggest[ing] that Plaintiff lacked running water with
which he could have decontaminated himself.” J.A. 879. But Mann
has

supplied

sufficient

evidence,

in

the

form

of

his

sworn

affidavit and those of other inmates, to rebut those inferences.
See

Davis

(summary

v.

Zahradnick,

judgment

affidavits

present

“may

600

not

F.2d

be

458,

invoked

conflicting

460

(4th

where,

versions

of

the

Cir.

as

1979)

here,

facts

the

which

require credibility determinations.”). Mann’s statements raise
genuine issues of disputed fact as to whether Appellees wantonly
denied his repeated requests to wash off the painful effects of
pepper spray before confining him with four-point restraints or
placing him into a strip cell. It was error for the district
court to grant summary judgment on this record.
B.
Mann
granting

Claims as to Use of Physical Force
also
summary

contends
judgment

that

the

district

court

on

his

allegations

of

erred

in

excessive

physical force; we agree.
With regard to the events of August 23, the version of
events sworn to by Mann (and supported by the affidavits of
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other inmates) amply make the case that officers on the cell
extraction team wrapped a bed sheet around Mann’s neck, choked
him into unconsciousness with it, continued to beat him after he
had been wrestled to the floor and had been placed in leg and
arm restraints, and afterward slammed his face into iron doors
and bars en route to a holding cell. Inmate affidavits from
those in neighboring cells report hearing Mann yell that he was
“down” and “not resisting.” Subsequent records reflect medical
treatment to a not-insignificant laceration on Mann’s head.
Notwithstanding

Mann’s

egregiously

offensive

and

abusive

behavior in spattering the extraction team with feces as they
entered his cell, it is plainly the case that a jury could find
that

the

force

officers

against

Mann

on

the

well

extraction
after

he

team

had

continued

ceased

his

to

apply

resistance.

Because a jury could infer from these facts that the officers
wantonly administered serious force to Mann in retaliation for
his conduct rather than for the purpose of bringing him under
control, the district court failed to apply summary judgment
principles as Fed. R. Civ. P. 56 and we prescribe. See Miller,
913 F.2d at 1087.
The

district

court

focused

on

giving

“wide-ranging

deference to the judgment of prison officials.” J.A. 881. Most
assuredly, as it stated, “[a] court should not retrospectively
attempt, in the calmness of a federal courthouse years after a
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volatile

incident

prisoner,

to

initiated

second

guess

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by

the

a

disobedient

exact

moment

the

and

violent

prisoner

was

under control and no further use of force was necessary.” J.A.
881-82. But while some degree of forceful officer action was
undoubtedly required to contain Mann in the instant situations,
courts may not “insulate from review [those] actions taken in
bad faith and for no legitimate purpose.” Whitley, 475 U.S. at
321. Given the affidavits, both from Mann and other inmates,
that

he

shouted

multiple

times

that

he

was

“not

resisting;”

given the probative evidence of the officers’ statements before,
during,

and

after

disappearance
ample

of

support

the
for

the

incident;

official
an

and

August

inference

23

that

given

the

suspect

videotape,

there

is

“summary,

informal,

unofficial and unsanctioned corporal punishment” was employed in
retaliation for Mann’s attack. Ort v. White, 813 F.2d 318, 324
(11th Cir. 1987).
Our review of the record leads us to the same conclusion
with

regard

to

the

June

14

and

July

28

incidents.

On

both

occasions, according to Mann’s amply supported version of the
facts, Lt. Failey acted aggressively in dealing with a fullyrestrained inmate. On June 14, for example, she dragged Mann for
25 yards by a chain that was attached to his crotch because he
had felt lightheaded and knelt down to recover. And on July 28,
she continued to assault Mann to the point where another guard
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used his own body to shield Mann’s head and neck from further
blows.
Many of the Whitley factors support a holding in favor of
Mann. The force applied by Lt. Failey occurred after Mann had
been restrained, and in that sense was unnecessary to preserve
order. It would appear that there was not a significant “need
for the application of force” and that Mann was not a serious
threat as “reasonably perceived by the responsible officials.”
Whitley, 475 U.S. at 320-21. This is especially true in light of
Lt. Failey’s statements to Mann before and during the incidents,
from which malicious intent could be readily inferred. E.g.,
J.A. 24 (“Im’a fix you, white boy.”); J.A. 25 (threatening to
“kick [his] ass”); J.A. 580 (calling Mann a “crybaby” and that
“she was going to beat [him] like [his] mama should’ve.”).
It

may

very

well

be

the

case

that

Mann

is

violent,

volatile, and engaged in flagrantly provocative behavior. It may
likewise be the case that, when the record is further developed,
Mann will find it difficult, and perhaps impossible, to prevail
on his claims - to prove that he was confined and assaulted in
the manner he alleges, that the force applied by Appellees was
unjustified, and that they full well knew this. But where, as
here,

a

prisoner

has

duly

filed

the

necessary

briefs,

affidavits, and corroborative evidence to support his claims,

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such disputes of credibility are reserved for a fact finder,
here, as requested by Appellees, a jury.
IV.
For the reasons set forth, we vacate the judgment of the
district

court

in

part

and

remand

for

further

proceedings

insofar as judgment was granted in favor of Appellees as to the
claims discussed herein. See supra, n.1. In all other respects,
we affirm the judgment of the district court.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART

20