Korey Putney v. R. Likin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-01837-GLR. Copies to all parties and the district court/agency. [999887521]. [14-6882]--[Edited 07/14/2016 by JQ]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6882

KORY PUTNEY,
Plaintiff - Appellant,
v.
R. LIKIN, Correctional Officer; J. PHILIP MORGAN, Warden; S.
A. WILSON, Correctional Officer; W. SLATE, Correctional
Officer; R. WATSON, Assistant Commissioner; J. MICHAEL
STOUFFER, Deputy Secretary,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:13-cv-01837-GLR)

Argued:

September 15, 2015

Decided:

July 14, 2016

Before GREGORY, Chief Judge, and NIEMEYER and THACKER, Circuit
Judges.

Vacated and remanded by unpublished per curiam opinion.
Judge
Niemeyer wrote a separate opinion concurring in part, dissenting
in part, and concurring in the judgment.

ARGUED: Ruthanne Mary Deutsch, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.
Dorianne Avery Meloy, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees. ON BRIEF: Steven H. Goldblatt, Director, Matthew J.

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Greer, Student Counsel, Utsav Gupta, Student Counsel, Appellate
Litigation
Program,
GEORGETOWN
UNIVERSITY
LAW
CENTER,
Washington, D.C., for Appellant.
Brian E. Frosh, Attorney
General of Maryland, Stephanie Lane-Weber, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore,
Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kory Putney (“Appellant”) appeals the district court’s
grant

of

summary

judgment

to

officials

at

the

Western

Correctional Institution (“WCI”) (collectively, “Appellees”) on
his Eighth Amendment claim.

After a “shakedown” in his housing

unit,

was

Appellant’s

mattress

removed.

Although

he

was

adjudged not guilty of hiding contraband in the mattress, prison
officials did not return his mattress for more than four months.
Appellant claims the deprivation of his mattress caused lack of
sleep, confusion, headaches, backaches, and other infirmities.
Appellees moved to dismiss, or in the alternative, for summary
judgment.
court

Although Appellant requested discovery, the district

construed

the

motion

as

one

for

summary

judgment

and

granted it without addressing Appellant’s discovery request.
We hold that the district court failed to conduct a
plenary analysis on the objective prong of Appellant’s Eighth
Amendment claim, and it erred in failing to grant Appellant’s
discovery request.

We therefore vacate and remand for further

proceedings.
I.
A.
We
Appellant.

view

the

facts

in

the

light

most

favorable

to

See Butler v. Drive Auto. Indus. of Am., Inc., 793

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F.3d 404, 407 (4th Cir. 2015).

At all times relevant to this

appeal, Appellant was in the custody of the Maryland Department
of Public Safety and Correctional Services and confined at WCI
in Cumberland, Maryland.
In

November

2010,

Appellant

was

placed

in

a

WCI

housing unit designated for disciplinary segregation after he
was found guilty of assaulting a correctional staff member (the
“November 2010 incident”).

Appellant claims that from November

2010 to February 2011, correctional officers (“COs”), including
Officer S.A. Wilson, deprived Appellant of a pillow and blanket
“as revenge” for the November 2010 incident.

J.A. 136. 1

Then, on June 28, 2011, COs conducted a shakedown in
Appellant’s housing unit.
the

inmates’

mattresses

damaging the mattresses.
confiscated. 2

During the shakedown, COs searched
for

contraband,

usually

cutting

or

Appellant’s mattress was damaged and

Appellees claim that, pursuant to WCI policy, a

copy of which is absent from this record, each inmate whose
mattress had been removed and/or damaged had to either pay for
the mattress, or receive an infraction “ticket” and resolve the

1

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
2

It appears that Appellant retained his sheets and blanket.

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matter via a disciplinary hearing.

J.A. 137.

Appellant chose

the latter course.
On July 1, 2011, Appellant’s disciplinary hearing was
held.

He was adjudged not guilty.

search

of

Appellant’s

mattress

Appellees claim that a

revealed

that

his

mattress

contained a “fishing line,” made out of state-issued bed sheets,
which inmates often use to pass contraband from cell to cell.
See Appellees’ Br. 7; J.A. 64.

However, they claim that because

the infraction ticket listed “someone other than [Appellant] in
error,” Appellant was found not guilty.

J.A. 92.

Appellant, on

the other hand, claims that he “did nothing to the mattress that
was taken from [him] and destroyed.”

Id. at 36.

Viewing the

facts in the light most favorable to Appellant, we must proceed
under the assumption that he had no contraband in his mattress.
In any event, it is undisputed that Appellant was adjudged not
guilty of any prison rule violation on July 1.
After the disciplinary hearing, having been found not
guilty of any infraction, Appellant asked Wilson for a mattress.
Wilson replied, “[Lt. Rodney] Likin is the reason you don’t have
a mattress and I’m not going to get my ass chewed off for going
against Likin’s orders.”
asked

Officer

“ensured

all

W.

Slate

[other]

J.A. 137.
for

inmates

a

Appellant claims he also

mattress,
were

5

and

provided

although
a

Slate

mattress,”

he

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“deprived [Appellant of] a mattress as revenge for the November
[2010] incident.”

Id.

Despite the fact that Appellant had been adjudged not
guilty, Likin ordered a second infraction ticket to be issued to
Appellant on July 6, 2011.

At a hearing on July 11, all charges

underlying that second ticket were also dismissed.
July

11

money

hearing,

[that

is,

Slate

“spitefully

payment

for

the

informed
damaged

During the

[Appellant]
mattress

per

that
the

purported WCI policy] was not the reason [he] was being deprived
[of] a mattress.”

J.A. 140.

This July 11 second not guilty

verdict was affirmed by Warden J. Phillip Morgan on July 21.
Meanwhile, Appellant “began suffering [from] headaches
from sleeping on cold hard metal.”
back, neck, and hip pain.

J.A. 183.

He also had lower

In a sick-call request form dated

July 11, 2011, Appellant complained, “I am having headaches.
Sound (loud) and bright lights are hurting me.
the morning when I wake up.
at

17.

On

another

It is worse in

My mind is confused all day.”

sick-call

request

form

dated

Appellant complained, “[m]y lower back is hurting.
are tight.
19.

July

Id.
17,

My muscles

My neck is hurting, along my spine . . . .”

Id. at

WCI physicians prescribed him Amitriptyline Hydrochloride

(an antidepressant with sedative effects), Ibuprofen, Baclofen
(a

muscle

relaxer),

and

Excedrin

6

Migraine.

On

July

22,

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Appellant filed yet another sick-call request form, indicating
he was still “suffering from headaches and . . . having trouble
sleeping” and his “neck, back, and head” were in pain.
23.

Id. at

In a declaration, Appellant later stated that lying on the

“metal [bunk]” made it “hard to sleep,” and when he did sleep,
he did not sleep “well or long.”

Id. at 144-45.

On June 28, 2011, Appellant filed a grievance seeking
the return of his mattress.

On July 28 Warden Morgan dismissed

the grievance, explaining, “Your mattress was destroyed as a
result of staff retrieving contraband that you had hidden inside
of

it.

.

.

.

[Y]ou

will

be

issued

a

new

mattress

when

restitution has been made to the institution for destruction of
property.”

J.A. 22.

Appellant appealed the dismissal of his

grievance, and on October 17, R. Watson, Assistant Commissioner
of Corrections, directed Morgan to give Appellant a mattress,
explaining, “[Appellant’s] appeal has been reviewed and is found
meritorious.

The investigation revealed [Appellant was] found

not guilty of the infraction received on 6/28/11 for destruction
of state property and possession of contraband.”

Id. at 36

(emphasis supplied).
Appellant

received

a

copy

of

the

order

directing

Morgan to give him a mattress, and he presented it to “every
C.O. who would give [him] time”; however, still “none would give

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[him] a mattress.”

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J.A. 142.

Two Inmate Grievance Officers

visited the facility on November 3 and “made prison officials
give [him] a mattress.”

Id. at 11, 142.

More than four months

after Appellant was first adjudged not guilty, prison officials
finally complied.
B.
On June 21, 2013, Appellant filed a pro se complaint
pursuant

to

42

U.S.C.

§

1983

in

the

District

of

Maryland.

Appellees filed a motion to dismiss, or in the alternative, for
summary judgment.

They argued that Appellant was deprived a

mattress only because he refused to pay restitution, he failed
to

show

any

objective

injury,

and

he

Appellees had a culpable state of mind.

failed

to

show

that

Additionally, Appellees

claimed qualified immunity.
Appellant,

still

proceeding

pro

se,

filed

an

opposition along with a declaration seeking discovery before the
entry of judgment.

In the opposition, Appellant claimed that he

was deprived of his mattress because of Appellees’ “malicious
behaviors,
incident.

motivated
J.A.

by

120,

revenge”
123.

He

based

on

further

the

November

urged

that

2010

prison

officials were “deliberate[ly] indifferen[t]” to the injuries he
suffered as a result of this deprivation.
quotation marks omitted).

8

Id. at 130 (internal

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The district court construed Appellees’ filing as a
motion

for

Appellant’s

summary
claim

judgment
as

an

and

granted

Eighth

Amendment

it.

Treating

conditions-of-

confinement claim, the district court concluded that Appellees
“were aware that [Appellant] was without a mattress long after
he

was

exonerated

of

disciplinary

destruction.”

J.A.

granted

judgment,

summary

256.

charges

Nonetheless,
reasoning

that

the

related

to

district

Appellant

its
court

could

not

show an objectively significant physical injury:
[Appellant] maintains that he still suffers
from back pain as a result of sleeping in a
cell without a mattress.
Medical records
indicate
that
Plaintiff
was
prescribed
Baclofen,
Amitriptyline,
Ibuprofen,
and
Excedrin migraine on July 25, 2011.
The
same
record,
however,
indicates
that
[Appellant] appeared to be in little to no
distress.
There are no medical records
documenting any continued problems with pain
or discomfort during the following months
when Plaintiff did not have a mattress.
[Appellant] claims that he continues to
suffer pain from sleeping on a metal bunk
without a mattress.
He does not, however,
forecast evidence which would establish the
injury claimed.
Id. (footnotes and citations omitted).
not

address

Appellant’s

discovery

qualified immunity argument.

9

The district court did
request

or

Appellees’

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II.
Appellant maintains the district court erred by, inter
alia, failing to consider the risk of harm posed by depriving
him of a mattress for four months, and by failing to grant his
request to pursue discovery before ruling on Appellees’ motion.
Because we agree that the district court erred on both counts,
we vacate and remand.
A.
We

first

address

Appellant’s

argument

that

the

district court erroneously failed to consider the risk of harm
in

its

Eighth

Amendment

analysis.

We

review

the

district

court’s legal analysis at summary judgment de novo.

See Front

Royal & Warren Cty. Indus. Park Corp. v. Town of Front Royal,
Va., 135 F.3d 275, 284-85 (4th Cir. 1998) (reversing grant of
summary

judgment

where

“district

court’s

analysis

stopped

short”).
The Eighth Amendment “protects inmates from inhumane
treatment
Benjamin,

and
77

punishments

conditions
F.3d

which,

756,

761

although

while
(4th
not

imprisoned.”
Cir.

1996).

physically

Williams
It

v.

“prohibits

barbarous,

involve

the unnecessary and wanton infliction of pain, or are grossly
disproportionate

to

the

severity

10

of

the

crime.”

Rhodes

v.

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Chapman,

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452

quotation

U.S.

marks

337,

346

Pg: 11 of 27

(1981)

(citations

and

internal

omitted).

When an inmate raises an Eighth Amendment claim based
on a prisoner’s conditions of confinement, 3 he must first prove
he experienced a “deprivation of a basic human need [that] was
objectively

sufficiently

F.3d

525

520,

(4th

serious.”

Cir.

De’Lonta

2013)

v.

(alterations

quotation marks omitted) (the “Objective

Johnson,
and

Prong”).

708

internal

Second, the

inmate must prove that “subjectively the officials acted with a
sufficiently

culpable

state

of

mind.”

Id.

(alterations

and

internal quotation marks omitted) (the “Subjective Prong”).
On the Objective Prong, the district court concluded
the physical injuries actually suffered by Appellant “do[] not
qualify

as

.

constitutional
incomplete.

.

.

significant

claim.”

J.A.

.

.

256.

.

for
This

purposes

of

conclusion

a
is

By focusing only on the injury Appellant actually

suffered, the court erred by ignoring the risk of harm posed by
depriving someone of a mattress for over four months.

We have

made clear that a prisoner can satisfy the objective prong of an
3

Appellant attempts to cast his cause of action as an
excessive force claim to this court; however, we decline to rule
on the propriety of this characterization at this stage.
Appellant’s arguments on this point may be presented upon
remand.

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Eighth

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Amendment

claim

. . . serious harm.”

by

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showing

this

“substantial

risk

of

Shakka v. Smith, 71 F.3d 162, 166 (4th

Cir. 1995); see also Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir.
2016); De’Lonta, 708 F.3d at 525; cf. Helling v. McKinney, 509
U.S. 25, 33 (1993) (“We

have

great

difficulty

agreeing

that

prison authorities . . . may ignore a condition of confinement
that

is

needless

sure

or

very

suffering

the

likely

to

next

cause

week

or

serious
month

illness
or

and

year.”). 4

Therefore, on remand, the district court should complete the
analysis and consider the risk of harm posed to Appellant.
B.
Next, Appellant contends the district court improperly
ruled on Appellees’ motion for summary judgment without allowing
Appellant to conduct discovery.
latitude

in

controlling

district

court’s

We give district courts “wide

discovery,”

discovery

order

4

and

“absent

will
a

not

showing

disturb
of

a

clear

This court has remanded Eighth Amendment actions in two
recent unpublished decisions, directing the district court to
address the risk of harm analysis. See Webb v. Deboo, 423 F.
App’x 299, 301 (4th Cir. 2011) (per curiam) (concluding that the
district court erred by only considering actual injury suffered
and not the risk of harm); Thomas v. Younce, 604 F. App’x 325,
326 (4th Cir. 2015) (per curiam) (“Although Thomas may have
suffered a relatively minor injury to his knee, the risk of more
significant harm from a fall down the stairs (or out of an upper
bunk) is obvious.”).

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abuse of discretion.”

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Rowland v. Am. Gen. Fin., Inc., 340 F.3d

187, 195 (4th Cir. 2003) (internal quotation marks omitted); see
also McCray v. Md. Dep’t of Transp., Md. Transit Admin., 741
F.3d 480, 483 (4th Cir. 2014).
In response to a summary judgment motion, the nonmoving party may present an “affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify
its opposition.”

Fed. R. Civ. P. 56(d).

The court may then

“defer considering the motion or deny it”; “allow time to obtain
affidavits or declarations or to take discovery”; or “issue any
other appropriate order.”
the

district

Appellees’

court

chose

summary

discovery request.

Fed. R. Civ. P. 56(d)(1)-(3).
the

judgment

third
motion

path,

simply

without

Here,

ruling

addressing

on
the

We find this to be an abuse of discretion.
1.

First, despite Appellees’ arguments to the contrary,
Appellant’s request for discovery was procedurally sufficient.
We have explained a non-moving party “cannot complain
that summary judgment was granted without discovery unless that
party had made an attempt to oppose the motion on the grounds
that

more

time

was

needed

for

discovery.”

Evans

v.

Techs.

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996).
Along these lines, Appellees contend that Appellant failed to

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comply with the formal substantive requirements of Rule 56(d).
They contend Appellant “failed to specify the reasons why he
could not present facts essential to justify his opposition” and
“failed to specify the facts he wished to discover.”
Br.

29-30.

Appellees’

argument

fails

both

Appellees’

legally

and

factually.
We
accordance

have
with

not

insisted

Rule

56(d)

on
“if

an

affidavit

the

in

nonmoving

technical
party

has

adequately informed the district court that the motion is premature and that more discovery is necessary.”

Harrods Ltd. v.

Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002);
see also Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008).
Harrods explains:
[I]f the nonmoving party’s objections before
the district court served as the functional
equivalent of an affidavit, and if the
nonmoving party was not lax in pursuing
discovery, then we may consider whether the
district
court
granted
summary
judgment
prematurely, even though the nonmovant did
not record its concerns in the form of a
Rule 56[(d)] affidavit.
302 F.3d at 244-45 (citation, footnote, and internal quotation
marks omitted).

This is especially true where, as here, the

non-moving party is proceeding pro se.
551

U.S.

89,

94

(2007)

(“A

document

See Erickson v. Pardus,
filed

pro

se

is

to

be

liberally construed[.]” (internal quotation marks omitted)); cf.

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Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (“What
might be a meritorious claim on the part of a pro se litigant
unversed in the law should not be defeated without affording the
pleader

a

reasonable

opportunity

to

articulate

his

cause

may

not

of

action.”).
And

although

Appellant’s

declaration

have

mentioned Rule 56 or been filed in technical accordance with
Rule 56(d), Appellant clearly “made an attempt to oppose the
motion on the grounds that more time was needed for discovery.”
Evans, 80 F.3d at 961.

In his opposition to Appellees’ motion,

Appellant specifically stated that he had “not yet had access to
discovery”

and

that

it

was

“difficult

for

[him]

to

get

documentation and declarations[,] especially from prisoners and
prison

officials

who[] have

been

from

the[]

Cumberland

released.”

J.A.

119.

region,

and

Further,

prisoners

Appellant’s

declaration, filed as an exhibit to his opposition, stated, “I
need Discovery to uncover information that is essential to my
suit.”

Id. at 147.

The declaration delineates nine pieces of

evidence Appellant needs but cannot obtain in order to mount an
adequate opposition, including:
•

The names of “[t]he other inmates who
refused restitution but were given another
mattress”;

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•

“[M]edical” evidence;

•

“[C]ircumstances” surrounding the
3, 2011” return of his mattress;

•

The “WCI policy,” which is referred to but
not provided as part of the record in this
appeal; and

•

Information regarding “[t]he July 6, 2011
incidents,” in which Likin allegedly ordered
a second infraction ticket to be issued to
Appellant.

Id. at 147-48.

“November

Appellant also gave an explanation as to why he

was not more specific: “I fear de[s]cribing what I need because
it may disap[p]ear.”
indicated

to

the

Id. at 148.

district

court

This statement should have
that

much

of

the

evidence

Appellant desired was in the custody of the Appellees, against
which Appellant had already made allegations of maliciousness.
Therefore,

Appellees’

argument

that

Appellant’s

submissions were procedurally insufficient is unfounded.
2.
Second,

the

district

court

should

have,

in

its

discretion, determined that Appellant was entitled to discovery
before

it

ruled

on

Appellees’

motion.

Ruling

on

a

summary

judgment motion before discovery “forces the non-moving party
into a fencing match without a sword or mask.”
at 483.

McCray, 741 F.3d

This is especially true where the information requested

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is in the sole possession of the moving party, and where the
district court would be otherwise unable to conduct a proper
summary judgment assessment without the requested evidence.
This

court

has

emphasized,

“56(d)

motions

for

more

time to conduct discovery are proper . . . where most of the key
evidence lies in the control of the moving party.”

McCray, 741

F.3d at 484; see also Harrods, 302 F.3d at 246–47.

In Ingle ex

rel.

Estate

of

Ingle

v.

Yelton,

for

example,

we

held

the

district court abused its discretion in denying a Rule 56(d)
request

where

a

mother

sought

videotape

evidence,

which

the

police allegedly kept pursuant to department policy, of a police
chase that ended in her son’s death.
(4th Cir. 2006).

See 439 F.3d 191, 193-94

We explained, “courts should hesitate before

denying Rule 56[(d)] motions when the party opposing summary
judgment

is

attempting

to

obtain

necessary

information possessed only by her opponent.”

discovery

of

Id. at 196-97; see

also Willis v. Town of Marshall, 426 F.3d 251, 263 (4th Cir.
2005)

(concluding

district

court

wrongly

denied

Rule

56(d)

request where evidence plaintiff sought was “wholly within the
knowledge of” defendant).
Here, essentially all of the evidence Appellant seeks
is in the possession of WCI officials, including the names of
other inmates who refused restitution but were given mattresses

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back

Doc: 51

anyway,

Filed: 07/14/2016

and

a

copy

of

Pg: 18 of 27

the

WCI

policy

upon

officials have relied throughout this litigation.

which

WCI

This evidence

is not only controlled by Appellees, but also bears on “factintensive issues, such as intent” of the moving party.

Harrods,

302 F.3d at 244.
Moreover, we cannot fathom how Appellant can mount a
successful defense -- nor can we fathom how the district court
could

properly

assess

Appellant’s

discovery Appellant requests.

claims

--

without

the

Indeed, requests for discovery

are “broadly favored and should be liberally granted because the
rule is designed to safeguard non-moving parties from summary
judgment motions that they cannot adequately oppose.”

Greater

Baltimore

&

Ctr.

for

Pregnancy

Concerns,

Inc.

v.

Mayor

City

Council of Baltimore, 721 F.3d 264, 281 (4th Cir. 2013) (en
banc); Ingle, 439 F.3d at 195 (Rule 56 “requires that summary
judgment be refused where the nonmoving party has not had the
opportunity to discover information that is essential to his
opposition.”

(internal

quotation

marks

omitted)

(emphasis

supplied)).
For example, on the Eighth Amendment Objective Prong,
the

district

documenting

court

any

noted

continued

“there
problems

are
with

no

medical

pain

or

records

discomfort

during the [] months [after July 25] when [he] did not have a

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mattress.”

Filed: 07/14/2016

J.A. 256.

Pg: 19 of 27

But Appellant was not able to conduct

discovery to access or present additional records, despite the
fact that he requested it.
present

evidence

of

Thus, Appellant was only able to

injury

from

a

limited

three-week

after he was first deprived of his mattress.

period

And disputes of

fact remain regarding the extent of Appellant’s injuries: even
as

late

as

February

2014,

Appellant

suffer[s] pain in [his] lower back.”

alleged

that

he

“still

Id. at 146; cf. Pisano v.

Strach, 743 F.3d 927, 932 (4th Cir. 2014) (finding no abuse of
discretion where non-moving party’s proposed evidence “would not
create a genuine issue of material fact”).

We found similar

error where a district court granted summary judgment for prison
officials, faulting the plaintiff-inmate for “not providing any
evidence,

other

allegations,”

than

when

discovery requests.

the

his
court

own
had

affidavit,
already

to

support

stayed

his

his

earlier

Raynor, 817 F.3d at 130 (alterations and

internal quotation marks omitted).
As to the Eighth Amendment Subjective Prong, it is
unclear whether the prison’s policy (which, again, is not in the
record) allows for the return of a mattress after a prisoner is
found

“not

guilty”

for

any

reason.

Drawing

a

reasonable

inference that it does -- indeed, Assistant Commissioner Watson
himself ordered Appellant’s mattress to be returned because he

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was “found not guilty of the infraction received on 6/28/11 for
destruction

of

state

property

and

possession

of

contraband,”

J.A. 36 -- issues of fact remain as to whether the officials
were abiding by their own policy, or rather, were acting in a
deliberately indifferent or malicious manner.
would

give

Appellant

the

chance

to

Further discovery

demonstrate

“officers’ account . . . conflicts with” his account.
439

F.3d

at

196.

Moreover,

whether

the

policy

was

how

the

Ingle,
applied

uniformly is duly contested, and “[a] course of conduct that
tends to prove that [a prison regulation] was merely a sham, or
that [prison officials] could ignore it with impunity, provides
equally strong support for the conclusion that they were fully
aware of the wrongful character of their conduct.”

Hope v.

Pelzer, 536 U.S. 730, 744 (2002).
C.
For

these

reasons,

the

district

court

abused

its

discretion in failing to grant Appellant’s discovery request.
“Once discovery . . . is completed, the district court may again
consider [Appellees’] motion for summary judgment” or qualified
immunity,

“if

it

deems

that

to

be

the

appropriate

course,”

Ingle, 439 F.3d at 197, keeping in mind that qualified immunity
questions “should be resolved at the earliest possible stage of

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a litigation.”

Pg: 21 of 27

Anderson v. Creighton, 483 U.S. 635, 646 n.6

(1987).
III.
For
district

all

court’s

of
grant

the
of

foregoing
summary

reasons,
judgment

we

vacate

the

and

remand

for

further proceedings consistent with this opinion.

VACATED AND REMANDED

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NIEMEYER, Circuit Judge, concurring in part, dissenting in part,
and concurring in the judgment:
The majority remands this case to the district court for
two nonexclusive purposes:

(1) to permit the district court to

“consider the risk of harm posed by depriving [Putney] of a
mattress [but not blankets and pillows] for four months,” and
(2) “to grant [Putney] his request to pursue discovery.”
While those purposes may become relevant -- and I do not
disagree with the majority’s discussion given in connection with
them -- they jump over two other essential determinations that
the

district

court

must

make

identified by the majority.

before

reaching

the

subjects

First, the district court must, at

the outset, address the defendants’ claim of qualified immunity,
because such immunity is designed to protect the defendants from
both discovery and trial.

Second, the court must, in connection

with the Eighth Amendment claim, determine whether Putney was
deprived of a basic human need, which is a condition precedent
under the Eighth Amendment to conducting an inquiry into the
risk of injury.

I will address these two points, in reverse

order, to provide the district court with further guidance when
it reconsiders this case.

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I
On

his

conditions-of-confinement

claim

under

the

Eighth

Amendment, Putney contends that, in depriving him of a mattress
(but not blankets and pillows) for a four-month period, prison
officials knowingly failed to provide him with a basic human
need, causing him harm in violation of the Eighth Amendment.
The

Eighth

Amendment

part,

that

“cruel and unusual punishments [shall not be] inflicted.”

U.S.

Const. amend. VIII.

provides,

in

relevant

The Supreme Court has construed this clause

to require prison officials to “provide humane conditions of
confinement.”

Farmer

Thus,

officials

“prison

v.

Brennan,

U.S.

ensure

must

511

825,

that

832

inmates

(1994).
receive

adequate food, clothing, shelter, and medical care, and must
‘take

reasonable

inmates.’”
(1984)).

measures

to

guarantee

the

safety

of

the

Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27
But the Court has noted that “the Constitution does

not mandate comfortable prisons.”
337, 349 (1981).

Rhodes v. Chapman, 452 U.S.

To succeed on an Eighth Amendment claim that a

prisoner was not provided humane conditions of confinement, the
prisoner must prove “(1) that the deprivation of [a] basic human
need

was

objectively

sufficiently

serious,

and

(2)

that

subjectively the officials act[ed] with a sufficiently culpable
state of mind.”

De’Lonta v. Angelone, 330 F.3d 630, 634 (4th

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Cir. 2003) (alterations in original) (emphasis added) (internal
quotations

marks

and

emphasis

omitted)

(quoting

Strickler

v.

Waters, 989 F.2d 1375, 1379 (4th Cir. 1993)); see also Farmer,
511

U.S.

at

834

(explaining

that,

to

violate

the

Eighth

Amendment, “a prison official’s act or omission must result in
the

denial

of

‘the

minimal

civilized

measure

of

life's

necessities’” (quoting Rhodes, 452 U.S. at 347)).
In this case, Putney has so far failed to explain how the
denial of a mattress was anything more than a discomfort, and
the Constitution, of course, does not afford him the right to a
“comfortable”

prison.

Rhodes,

452

U.S.

at

349;

see

also

Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (“We have no
doubt that Trammell was made uncomfortable by the deprivation of
his clothing, but there is simply no factual dispute regarding
whether

the

‘health

or

temperature
safety’

of

in
the

his
sort

judgment in defendants’ favor”).
adults

participate

in

cell
that

posed
would

a

threat

disallow

to

his

summary

Indeed, when children or young

sleepovers

or

“crash”

at

each

other’s

apartments, sleeping on the floor and using only blankets and
pillows, they do not deprive themselves of a basic human need.
Neither do soldiers on a mission away from their barracks, nor
hikers

on

the

trail.

In

fact,

people

have

slept

without

mattresses from time immemorial, and do so routinely even today,

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using only blankets and some form of headrest to serve as a
pillow.
Understandably, Putney has not yet advanced any precedent
to support his position that a mattress, on its own, qualifies
as an indisputable life necessity, but this is a matter that
must be explored by the district court on remand.

Failing such

support for his claim, Putney would fail, as a matter of law, to
satisfy the objective prong of the test that governs such claims
-- the prong requiring that he show that he suffered an extreme
deprivation of a basic human need.

See Strickler, 989 F.2d at

1379 (“Because we conclude that Strickler has not established
the

serious

deprivation

of

a

basic

human

need

required

to

survive summary judgment on his claim of an Eighth Amendment
violation, we need not consider whether Sheriff Waters acted
with an intent sufficient to satisfy the Amendment’s state-ofmind requirement” (emphasis added)).

II
Even before addressing whether the first prong of an Eighth
Amendment

conditions-of-confinement

claim

has

been

satisfied,

however, the district court will have to address the defendants’
claim of qualified immunity, the analysis for which includes

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Putney

demonstrated

Pg: 26 of 27

a

“clearly

established”

Eighth

Amendment violation.
“The

doctrine

of

qualified

immunity

protects

government

officials ‘from liability for civil damages insofar as their
conduct

does

not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person would have
known.’”

Pearson

v.

Callahan,

555

U.S.

223,

231

(2009)

(emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)).

The doctrine thus involves two steps:

(1) whether

a constitutional right would have been violated on the facts
alleged, and (2) whether that right was clearly established at
the relevant time.
2020 (2014).

See Plumhoff v. Rickard, 134 S. Ct. 2012,

A district court has discretion as to which step

to address first.

Pearson, 555 U.S. at 236.

Qualified immunity is “an immunity from suit rather than a
mere defense to liability,” and it is therefore “effectively
lost

if

a

case

is

erroneously

permitted

to

go

to

trial.”

Pearson, 555 U.S. at 231 (emphasis added) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)).

Indeed, the “driving force”

behind the doctrine is the “desire to ensure that ‘insubstantial
claims against government officials [will] be resolved prior to
discovery.’”

Id.

(alteration

in

original)

(emphasis

added)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).

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The Supreme Court has accordingly “repeatedly . . . stressed the
importance

of

resolving

immunity

possible stage in litigation.”

questions

at

the

earliest

Id. at 232 (quoting Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The majority recognizes that the district court did not
originally address qualified immunity, and it properly indicates
that it be addressed on remand.

I only add that, to protect the

defendants from both discovery and suit, it should be addressed
at the outset as a gateway issue.
In addressing the immunity issue, the district court will
have

to

determine

whether

Putney

demonstrated

that

prison

officials violated clearly established constitutional rights of
which a reasonable official would have known.
U.S. at 231.

See Pearson, 555

And to determine whether a constitutional right

was clearly established, he would have to show a violation of
the right that is “particularized” to the circumstances of his
case, such that a reasonable prison official “would understand
that

[confiscating

Anderson,
apparent.”
Of

483

U.S.

Putney’s
at

mattress]

640.

violate[d]

“[T]he

that

unlawfulness

right.”
must

be

Id.

course,

if

the

defendants

are

entitled

to

qualified

immunity, it would not be necessary for the district court to
reach the Eighth Amendment claim on the merits.

27