Surrell Duff v. Chris Potter

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cv-00026-FDW Copies to all parties and the district court/agency. [999961509].. [16-6783]

Appeal: 16-6783

Doc: 12

Filed: 11/03/2016

Pg: 1 of 8

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6783

SURRELL MONTIA DUFF,
Plaintiff – Appellant,
v.
CHRIS POTTER, Correctional Officer at Buncombe County
Detention Facility; ROBERT MANGUM, Correctional Officer at
Buncombe
County
Detention
Facility;
WILLIAM
BAXTER,
Correctional Officer at Buncombe County Detention Facility;
THOMAS SCHINDLER, Correctional Officer at Buncombe County
Detention Facility,
Defendants - Appellees.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.
Frank D. Whitney,
Chief District Judge. (1:15-cv-00026-FDW)

Submitted:

October 31, 2016

Before DUNCAN
Circuit Judge.

and

WYNN,

Decided:

Circuit

Judges,

and

November 3, 2016

DAVIS,

Senior

Affirmed in part; vacated and remanded in part by unpublished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

Surrell Montia Duff, Appellant Pro Se. Thomas Joseph Doughton,
DOUGHTON RICH BLANCATO, PLLC, Winston-Salem, North Carolina, for
Appellees.

Appeal: 16-6783

Doc: 12

Filed: 11/03/2016

Pg: 2 of 8

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 16-6783

Doc: 12

Filed: 11/03/2016

Pg: 3 of 8

PER CURIAM:
Surrell
granting

Duff

summary

appeals
judgment

from
to

the

district

Defendants

in

court’s

Duff’s

42

order
U.S.C.

§ 1983 (2012) complaint alleging the use of excessive force in
violation of the Eighth Amendment and deliberate indifference to
serious medical needs.

On appeal, Duff solely challenges the

district court’s grant of summary judgment to Defendants Potter,
Mangum, and Baxter on the excessive force claim.

He argues

primarily that the court erred in determining that there were no
genuine dispute of material fact because he did not provide an
affidavit or other supporting material opposing the motion to
dismiss.
Duff, now a federal inmate housed in Florida, filed a 42
U.S.C.

§ 1983

action

against

four

Buncombe

County,

North

Carolina, correctional officers related to an incident at the
county

detention

detainee.

facility

Defendants

where

filed

a

Duff

had

motion

for

been

a

summary

pretrial
judgment.

Duff received Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975)
notice.
judgment

Duff
and

filed

also

summary judgment.

a

filed

brief
a

in

motion

response
to

dismiss

opposing
the

summary

motion

for

The court granted the Defendants’ motion for

summary judgment, noting that Duff’s brief “was not accompanied
by any sworn affidavits, or any other type of evidence that
would be admissible on summary judgment.”
3

Appeal: 16-6783

Doc: 12

“We

Filed: 11/03/2016

review

judgment,

de

viewing

novo
the

a

Pg: 4 of 8

district

facts

and

court’s

award

inferences

of

summary

reasonably

drawn

therefrom in the light most favorable to the nonmoving party.”
Woollard

v.

Gallagher,

712

F.3d

865,

873

(4th Cir.

2013).

“Summary judgment is appropriate only if the record shows ‘that
there is no genuine dispute as to any material fact and the
movant

is

entitled

to

judgment

as

a

Id. (quoting Fed. R. Civ. P. 56(a)).

matter

of

law.’”

The relevant inquiry on

summary judgment is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided

that

one

party

must

prevail

as

a

matter

of

law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
We will uphold the district court’s grant of summary judgment
unless we find that a reasonable jury could return a verdict for
the non-moving party on the evidence presented.

See EEOC v.

Cent. Wholesalers, Inc., 573 F.3d 167, 174-75 (4th Cir. 2009).
Summary
perfectly

judgment

clear

“should

that

no

be

issue

granted
of

only

material

when
fact

it

is

exists.”

Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).
A

“verified

affidavit

for

complaint”
summary

is

the

judgment

equivalent
purposes.

of
World

an

opposing

Fuel

Servs.

Trading, DMCC v. Hebei Prince Shipping Co., 783 F.3d 507, 516
(4th Cir. 2015); see also Davis v. Zahradnick, 600 F.2d 458,
459-60

(4th

Cir.

1979)

(holding
4

that

factual

allegations

Appeal: 16-6783

Doc: 12

Filed: 11/03/2016

Pg: 5 of 8

contained in a verified complaint that conflict with affidavits
supporting motion for summary judgment established a prima facie
case under § 1983, so as to preclude summary judgment).

Duff’s

complaint included a statement under 28 U.S.C. § 1746 (2012)
that the contents were true and correct.
present

conflicting

credibility

versions

determinations,

of

the

summary

“[W]here affidavits
facts

which

judgment

require

cannot

lie.”

Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016) (internal
quotation and citation omitted).

Thus, Duff’s statements in his

complaint should have been considered by the court as admissible
evidence rebutting the Defendants’ evidence.

It is clear that

the district court did not do so, and to the extent that it may
have, it resolved the factual disputes in favor of the moving
party.
Turning to what Duff must prove to succeed on his excessive
force claim, it is well established that the Due Process Clause
of the Fourteenth Amendment “protects a pretrial detainee from
the

use

of

excessive

force

that

amounts

to

punishment,”

Graham v. Connor, 490 U.S. 386, 395 n.10 (1989), and is not “an
incident
Bell v.

of

some

Wolfish,

other

441

legitimate

U.S.

520,

538

governmental
(1979).

In

purpose.”

Kingsley

v.

Hendrickson, 135 S. Ct. 2466 (2015), however, the Supreme Court
held

that

purposely

a
or

plaintiff

must

knowingly

demonstrate

used

against
5

“only
him

that
was

the

force

objectively

Appeal: 16-6783

Doc: 12

Filed: 11/03/2016

unreasonable.”
force

was

Pg: 6 of 8

135 S. Ct. at 2473.

objectively

In determining whether the

unreasonable,

a

court

considers

the

evidence “from the perspective of a reasonable officer on the
scene, including what the officer knew at the time, not with the
20/20 vision of hindsight.”

Id. (citing Graham, 490 U.S. at

396).
Considerations
reasonableness
relationship

or

such

as

the

following

unreasonableness

between

the

need

for

may

of

the

the

use

bear

force
of

on

the

used:

the

force

and

the

amount of force used; the extent of the plaintiff’s injury; any
effort made by the officer to temper or to limit the amount of
force; the severity of the security problem at issue; the threat
reasonably perceived by the officer; and whether the plaintiff
was actively resisting.

Kingsley, 135 S. Ct. at 2473.

Because

the standard is an objective one, the court is not concerned
with the officers’ motivation or intent.
Emmi,

797

F.3d

364,

370

(6th

Cir.

See, e.g., Clay v.

2015).

Moreover,

it

is

appropriate to determine whether the force used was objectively
reasonable in “full context,” as a segmented view of the events
“misses the forest for the trees.”
101

(4th

Cir.

2015)

(brackets

and

Smith v. Ray, 781 F.3d 95,
internal

quotation

marks

omitted).
Viewed from this legal lens, in the light most favorable to
Duff, and to the extent supported by the record, we conclude
6

Appeal: 16-6783

that

Doc: 12

the

Filed: 11/03/2016

district

court

Pg: 7 of 8

erred

in

determining

that

a

genuine

dispute of material fact did not exist as to the excessive force
claim.

Because Duff’s verified complaint acts as an opposing

affidavit,

there

are

several

factual

disputes:

whether

Duff

refused to remove his hands from his jumpsuit; whether Duff made
an aggressive move towards the officers; whether Duff’s head was
accidentally

pushed

into

the

wall

while

resisting,

causing

injury, or whether the officers carried out a more directed and
significant physical altercation; whether Duff resisted officers
when they attempted to secure him; and the severity of Duff’s
injuries.

These factual disputes must be resolved to assess the

Kingsley factors of need for the use of force and how much force
was

used,

extent

of

Duff’s

injuries,

any

effort

made

by

an

officer to limit the amount of force used, the threat reasonably
perceived
resisting.

by

the

officers,

and

whether

Duff

was

actively

See Kingsley, 135 S. Ct. at 2473.

Duff’s

version

of

events

in

his

verified

complaint

significantly different from the Defendants’ version.

is

Although

the Defendants submitted affidavits and support for the motion
for summary judgment, the court may not consider these materials
in a vacuum.

The court must view the facts and inferences drawn

from the facts in Duff’s favor.

The record before this court

does not conclusively establish that the district court complied
with

these

mandates.

Accordingly,
7

we

vacate

and

remand

the

Appeal: 16-6783

order

Doc: 12

as

to

Filed: 11/03/2016

the

excessive

Pg: 8 of 8

force

claims

against

Defendants

Potter, Mangum, and Baxter for further proceedings.
We affirm the portion of the district court order granting
summary

judgment

to

Defendant

Schindler

on

indifference to a serious medical need claim.
address this claim in his informal brief.
informal

brief

liberal

construction,

challenge this district court ruling.

the

deliberate

Duff did not

Even affording Duff’s
Duff

has

failed

to

See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (instructing courts to construe pro se
documents liberally).

Accordingly, we conclude that Duff has

forfeited appellate review of the court’s order as to deliberate
indifference to a serious medical need.

See 4th Cir. R. 34(b)

(“The Court will limit its review to the issues raised in the
informal brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th
Cir. 2014) (noting importance of Rule 34(b)).
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

8