Wally Boone v. C. D. Everett

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999942876-2], denying Motion to appoint/assign counsel [999891803-2] Originating case number: 1:14-cv-01619-AJT-TCB Copies to all parties and the district court/agency. [999952128]. Mailed to: Wally Boone. [16-6843]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-6843

WALLY BOONE,
Plaintiff - Appellant,
v.
C.D. EVERETT, K-9 Officer; RODRIGUEZ, Sergeant,
Defendants - Appellees,
and
CORIZON,
contractors
in
the
employment
of
Virginia
Department of Corrections Medical Department; MS. SIDI; MS.
JACKSON; MS. M. WOODRUFF,
Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Anthony J. Trenga,
District Judge. (1:14-cv-01619-AJT-TCB)

Submitted:

September 28, 2016

Decided:

October 21, 2016

Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished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

Wally Boone, Appellant Pro Se. John Michael Parsons, Assistant
Attorney General, Richmond, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Wally
Officer

Boone

C.D.

appeals

Everett

the

and

district

Sergeant

court’s

L.

order

Rodriguez’s

granting

motion

for

summary judgment and denying relief on his 42 U.S.C. § 1983
(2012)

complaint.

Boone’s

excessive force claims.

complaint

raises

Eighth

Amendment

In his complaint, Boone alleges that:

(1) Everett slammed Boone’s head into a wall, threw him on the
floor, jumped on top of him, and choked him until he became
unconscious,

and

(2)

Rodriguez

dragged

Boone

to

the

medical

department while threatening to drop him and allowing Boone’s
genitals to remain exposed. *
The district court granted Defendants’ motion for summary
judgment.

We affirm in part, vacate in part, and remand for

further proceedings.
We review a district court’s award of summary judgment de
novo, viewing the facts and inferences reasonably drawn from
those facts in the light most favorable to the nonmoving party.
Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320 (4th
*

Boone also appeals the district court’s dismissal of his
deliberate indifference claim against Nurse Sidi.
But Boone
does not challenge the district court’s sole dispositive ruling
on the claim against Sidi—that Boone failed to exhaust his
administrative remedies against Sidi.
Thus, Boone has waived
appellate review of that ruling.
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).

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Cir. 2014).

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A court can only award summary judgment when no

genuine dispute of material fact remains and the record shows
that the moving party is entitled to judgment as a matter of
law.

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

When the moving party makes an

initial showing that there is no genuine issue of material fact,
the nonmoving party must “go beyond the pleadings” and rely on
some form of evidence, including affidavits, to demonstrate that
a

genuine

issue

of

material

fact

Catrett, 477 U.S. 317, 324 (1986).

exists.

Celotex

Corp.

v.

Thus, to withstand summary

judgment, the nonmoving party must produce competent evidence
that goes beyond “[c]onclusory or speculative allegations” and
relies on more than “a mere scintilla of evidence.”

Thompson v.

Potomac

Cir.

Elec.

Power

Co.,

312

F.3d

645,

649

(4th

2002)

(internal quotations omitted).
When

reviewing

the

evidence

submitted,

a

court

cannot

“credit[ ] the evidence of the party seeking summary judgment
and fail[ ] properly to acknowledge key evidence offered by the
party opposing that motion.”
1867 (2014).

Tolan v. Cotton, 134 S. Ct. 1861,

Such conduct would improperly weigh the evidence

and resolve disputed issues in the moving party’s favor.
But

when

the

record

“blatantly

contradict[s]”

the

Id.

nonmoving

party’s version of events, a court can adopt the moving party’s
version.

Scott v. Harris, 550 U.S. 372, 380 (2007) (relying on

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unaltered videotape evidence that contradicted nonmoving party’s
claim to adopt moving party’s version of facts).
Here, the issue for summary judgment implicates the Eighth
Amendment, which protects prisoners from “unnecessary and wanton
infliction

of

pain.”

Whitley

v.

Albers,

475

U.S.

312,

319

(1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S.
34 (2010).
Boone’s

An Eighth Amendment claim for excessive force, like

claim,

requires

the

prisoner

to

prove

the

official

possessed a culpable state of mind (subjective component) and
caused the prisoner a sufficiently serious deprivation or injury
(objective component).

Williams v. Benjamin, 77 F.3d 756, 761

(4th Cir. 1996).
The subjective component requires a prisoner to prove the
official

acted

“maliciously

and

sadistically

for

the

very

purpose of causing harm” rather than “in a good faith effort to
maintain or restore discipline.”

Whitley, 475 U.S. at 320-21

(internal quotation marks omitted).
by

a

prison

guard

gives

rise

to

Not every malevolent touch
an

excessive

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

force

claim.

Factors showing

malicious or sadistic intent include:
(1)
(2)
(3)
(4)

the need for force,
the degree of force used in relation to the need
for force,
the existence of a threat reasonably perceived by
the official,
any efforts made to lessen the severity of a
forceful response, and
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the extent of the prisoner’s injury.

Id. at 7.
The

objective

“contemporary

component

standards

of

measures

decency.”

(internal quotations omitted).

the

force

Hudson,

used

503

against

U.S.

at

8

When a prisoner satisfies the

subjective standard, “contemporary standards of decency always
are violated.”

Id. at 9.

Turning first to the excessive force claim against Everett,
we

hold

that

the

district

necessitating remand.

court’s

opinion

contains

flaws

First, the opinion does not mention the

evidence Boone proffered to support his claim, which included:
(1)

his

affidavit

attesting

to

his

account

of

the

incident,

(2) his prison grievances detailing injuries consistent with his
allegations, and (3) affidavits from three other inmates who
attested they observed Everett slam Boone’s head into a wall and
choke

him.

evidence,

A
such

court
as

may

only

Boone’s

reject

the

affidavits

and

nonmoving

party’s

grievances,

when

uncontroverted evidence in the record “blatantly contradict[s]”
it.

Scott, 550 U.S. at 378.

No such blatant contradiction

exists here.
By

overlooking

Boone’s

evidence,

the

district

court’s

opinion offers a version of the facts that almost exclusively
relies

on

Defendants’

account.

Boone

relied

on

evidence

he

submitted to allege that Everett slammed Boone’s head against a
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wall and choked him.
this

direct

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Everett denied those allegations.

contradiction,

the

opinion

adopts

allegations without crediting Boone’s allegations.

Despite
Everett’s

See Tolan,

134 S. Ct. at 1867 (finding that the court erred in its review
of a summary judgment motion when it “did not credit directly
contradictory

evidence”

to

the

nonmoving

party).

The

court

therefore did not view the facts in the light most favorable to
the nonmoving party as required for summary judgment review.
Id. at 1866; Core Commc’ns, Inc., 744 F.3d at 320.
Thus, the district court did not apply the correct standard
when viewing the record, and our review shows a genuine dispute
of material fact exists as to the need for and amount of force
Everett used.

Accordingly, we vacate the award of judgment for

Everett and remand for further proceedings.
We
Sergeant

next

turn

Rodriguez.

to

Boone’s

excessive

Rodriguez

made

an

force

claim

initial

support summary judgment through his affidavit.

against

showing

to

In response,

Boone offered nothing more than his conclusory allegations that
Rodriguez dragged him, threatened to drop him, and allowed his
genitals to remain exposed.

In one of the affidavits Boone

submitted, the witness attested to watching officers drag Boone
with his genitals exposed, but the witness did not identify the
officer or explain why the officer dragged Boone.

Without more

than “a mere scintilla of evidence,” Boone has not raised a
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genuine dispute of material fact for whether Rodriguez acted
maliciously or sadistically.

Thompson, 312 F.3d at 649.

Nor

has Boone offered any evidence to make the objective showing.
Thus, although we vacate the district court’s grant of summary
judgment to Everett, we affirm the district court’s grant of
summary judgment to Rodriguez.
We further deny Boone’s motion to appoint counsel at this
stage.
legal
before

We dispense with oral argument because the facts and
contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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