PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-7227

WILLIE JAMES DEAN, JR.,

Plaintiff – Appellant,

v.

JOHNNIE JONES; CHARLES C. HOBGOOD,

Defendants – Appellees,

and

GEORGE T. SOLOMON; CARLTON JOYNER; S. WADDELL,

Defendants.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:16-ct-03109-FL)

Argued: September 9, 2020 Decided: January 4, 2021

Before GREGORY, Chief Judge, and WYNN and HARRIS, Circuit Judges.

Reversed and remanded by published opinion. Judge Harris wrote the opinion, in which Chief Judge Gregory and Judge Wynn joined.

ARGUED: Jehanne McCullough, Virginia Oat, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Mary Carla Babb, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: James S. Ballenger, Molly M. Cain, Third Year Law Student, Read W. Mills, Third Year Law Student, Appellate Litigation Clinic, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville, Virginia, for Appellant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

2 PAMELA HARRIS, Circuit Judge:

This appeal arises from two uses of force against a North Carolina prison inmate,

Willie James Dean, Jr., by correctional officers. In the first, according to Dean, after he

head-butted an officer escorting him to his cell, the officer retaliated by pepper-spraying

his face while he was subdued and lying on his back in handcuffs. And soon afterwards,

Dean attests, a second officer responded to a second head-butt by pushing Dean into a

closet where multiple officers kicked and punched him while he lay on the ground with his

hands cuffed behind him.

Dean sued, alleging excessive force under the Eighth Amendment, and the district

court granted summary judgment to the officers. Even if Dean was handcuffed and prone

when he was pepper-sprayed or beaten, the court held, a reasonable jury would have to

conclude that both uses of force were necessary to protect officer safety and proportionate

to the threat posed by Dean. It therefore was beyond dispute, the court reasoned, that the

officers had applied force only to ensure safety and maintain order and not for any

impermissible purpose.

We disagree. As the district court recognized, the Eighth Amendment excessive

force inquiry turns on motive: Here, whether the officers used force in good faith to protect

officer safety, as they contend, or whether, as Dean avers, they used force maliciously to

punish Dean for his head-butts. Viewing the record in the light most favorable to Dean, as

we must at the summary judgment stage, we do not think this question can be answered in

the officers’ favor as a matter of law. A reasonable jury crediting Dean’s account could

find that the officers used force not to protect themselves but to retaliate against Dean, in

3 violation of the Eighth Amendment. Accordingly, we reverse the grant of summary

judgment.

I.

A.

This appeal concerns two uses of force against Dean by correctional officers Charles

Hobgood and Johnnie Jones on December 12, 2015, while Dean was serving a prison

sentence at Central Prison in Raleigh, North Carolina. Soundless video footage from the

prison captures some of the surrounding events but does not show either use of force itself.

The parties dispute many of the critical facts, and those disputes are noted below.

We begin with the first incident, which occurred while Officer Hobgood was

escorting Dean back to his cell after a visit to the prison barber. During that walk, Dean

concedes, he head-butted Officer Hobgood, “causing him to fall.” J.A. 110. 1 According

to Dean, he promptly was subdued by a second officer, Dustin Gipson, who arrived on the

scene. Dean ended up lying on his back with his arms handcuffed beneath him, while

Officer Gipson, on top of him, pressed his knees into Dean’s chest. At that point, Dean

attests – while he was restrained by Officer Gipson and non-resistant – Officer Hobgood

got to his feet and “administered one long burst [of pepper spray] to [Dean’s] face, lasting

over 3 seconds” and “partially blind[ing]” him. J.A. 111, 113.

1 In his initial witness statement, Dean attributed his actions to a PTSD-caused episode.

4 Officer Hobgood’s account differs in critical respects. In Officer Hobgood’s telling,

Dean resisted Officer Gipson’s efforts to subdue him, and although Gipson was able to

control Dean’s “upper body,” the two then fell to the floor together with Dean continuing

to struggle. J.A. 38. It was only after he saw Dean resisting on the ground, Officer

Hobgood claims, that he administered a single burst of pepper spray to Dean’s face.

The second episode began after twelve other correctional officers arrived on the

scene in response to a call for backup. Two of those officers – one of whom was Sergeant

Jones – held onto Dean’s handcuffed wrists and began escorting him toward a nurses’

station for decontamination. These events are captured by video, which shows 11 other

officers following closely behind the group of three.

According to Dean, during this escort, Sergeant Jones twice pushed him into sliding

doors without provocation; one of those incidents can be seen on the video. As the escort

continued, Dean states, he “fear[ed] for his well being,” panicked, and head-butted

Sergeant Jones’s face. J.A. 113. The video shows Sergeant Jones, surrounded at this point

by 10 other officers, responding by pushing Dean up against a nearby wall. And then, on

Dean’s account, Sergeant Jones told the other officers to “get him in there,” J.A. 114, and

the officers pushed Dean into a nearby janitor’s supply closet, out of range of the video

camera.

Dean, still handcuffed, landed on the closet floor and there, he claims, he was

“maliciously beaten by . . . Jones and other officers.” J.A. 115. As the punching and

kicking continued, Dean avers, he tried to “curl up to protect himself,” but the officers

5 “grabbed his legs” to make that impossible. J.A. 115. And according to Dean, Sergeant

Jones repeatedly shouted at him, “You done fucked up!” during the beating. J.A. 115.

Sergeant Jones disputes important elements of this account. According to Jones, he

and another officer placed Dean against the wall near the janitor’s closet to restrain him

after the head-butt. Dean and the two officers ended up in the closet by accident; Dean, in

handcuffs against the wall, continued to resist and then the group’s “collective momentum”

caused them to fall into a nearby closet. J.A. 25. Injuries to Dean’s face likewise were the

result of an accident: After the group stumbled into the closet together, Dean “struck the

right side of his head on a protruding shelf and his face on the concrete floor.” J.A. 25.

Because Dean continued to struggle, Jones claims, he and another officer applied a bent-

wrist technique to restrain him. But according to Jones, Dean was not punched, kicked, or

otherwise beaten.

Finally, there is the video footage of the hallway outside the closet. Dean was in

the closet for just over a minute, while several officers stood outside its door. Those

officers pulled boxes out of the closet while Dean was inside, and one can be seen making

a kicking motion near the door. At another point, Dean’s shoe can be seen flying out of

the closet before being kicked aside by an officer. In the end, Dean can be seen, as he

attests, being “tossed on the floor” outside the closet with a bloodied face. J.A. 116.

Dean’s injuries were severe. The discharge instructions from Wake Medical Center,

where he was treated, state that Dean suffered a “contusion of face,” an “abrasion of face,”

a “closed fracture of nasal bone,” and “subconjunctival hematoma.” J.A. 124. Weeks after

the incident, Dean could not see anything out of his left eye. He later underwent surgery

6 to excise a sinus cyst that developed near his nasal fracture. When he filed the complaint

in this action, Dean still was suffering from blurred vision, dizzy spells, and light

sensitivity, among other ailments.

B.

Dean, proceeding pro se, filed a § 1983 action against Officer Hobgood and

Sergeant Jones, alleging that they used excessive force against him in violation of the

Eighth Amendment. 2 After discovery, the defendants moved for summary judgment.

Dean could not prevail on his Eighth Amendment claim, they argued, because they applied

force permissibly in order to protect their safety after being head-butted by Dean, and no

reasonable jury could find otherwise. And even if there had been an Eighth Amendment

violation, according to the officers, they were entitled to qualified immunity because that

violation was not “clearly established” in 2015.

The district court agreed with the officers on the merits, holding that Dean could not

establish an Eighth Amendment violation as a matter of law. As the court recognized,

Dean’s Eighth Amendment excessive force claim turned on whether the officers applied

force with a “sufficiently culpable state of mind” – that is, maliciously and in order to inflict

pain, and not for a permissible reason like the protection of officer safety. Dean v. Jones,

No. 5:16-CT-3109-FL,

, at *3 (E.D.N.C. Sept. 27, 2018) (citation

omitted). To analyze the officers’ motives, the court applied the so-called Whitley factors,

2 Dean also sued three prison supervisors. The district court dismissed those claims at an early stage of the litigation, finding that Dean failed to allege facts establishing supervisory liability. Dean has not appealed that ruling.

7 which include the need for force, the proportionality of the force used, and any threat to

officer safety.

(citing Whitley v. Albers,

(1986)).

With respect to Officer Hobgood’s use of pepper spray, the district court adopted

Dean’s basic account, as required on summary judgment, which had Dean on the ground

in handcuffs and non-resistant at the time the pepper spray was deployed. Even so, the

court held, Hobgood’s use of force was clearly necessary – and no reasonable jury could

find otherwise – because it came “almost immediately after” Dean’s head-butt, when

Hobgood still “reasonably feared for his own and officer Gipson’s safety.” Id. at *4.

Similarly, assuming for purposes of summary judgment that Sergeant Jones kicked and

punched Dean while he was handcuffed on the floor of the supply closet, no reasonable

jury could find that Jones had acted in anything but good faith: Jones, like Hobgood,

“applied force immediately after [Dean] head butted him,” and all of “the officers

reasonably feared for their safety.” Id.

Dean timely appealed the district court’s grant of summary judgment to the

defendants.

II.

Now represented by pro bono counsel, Dean argues that the district court misapplied

the summary judgment standard, failing to construe the record evidence in the light most

favorable to Dean as the nonmoving party. Properly viewed, he claims, the record would

support a jury finding that Officer Hobgood and Sergeant Jones violated the Eighth

Amendment by using force not to protect themselves from a handcuffed and subdued

8 inmate, but in retaliation for Dean’s prior intransigence. We agree with Dean. And we

further conclude that if the officers maliciously used force against Dean after any threat to

officer safety had passed, then they violated Eighth Amendment law that was “clearly

established” at the time. We therefore reverse the judgment of the district court.

A.

The district court granted summary judgment to the officers on the merits of Dean’s

excessive force claim, finding as a matter of law that the officers had used force for the

permissible purpose of protecting officer safety. We review that award of summary

judgment de novo. Brooks v. Johnson,

(4th Cir. 2019).

A court may “grant summary judgment only if, taking the facts in the best light for

the nonmoving party, no material facts are disputed and the moving party is entitled to

judgment as a matter of law.” Ausherman v. Bank of Am. Corp.,

, 899 (4th

Cir. 2003). In other words, we, like the district court, must review the facts in the light

most favorable to Dean, drawing all reasonable inferences in his favor. Brooks,

. If the record, so viewed, gives rise to genuine factual disputes about why Officer

Hobgood and Sergeant Jones deployed force in the way they did, then those questions must

be resolved by a jury, not on summary judgment.

at 111–12. A dispute is “genuine”

for these purposes so long as a reasonable jury could resolve it in Dean’s favor. See Jacobs

v. N.C. Admin. Off. of the Cts.,

(4th Cir. 2015) (internal quotation marks

omitted).

1.

9 The legal standard that governs Dean’s Eighth Amendment excessive force claim is

clear. An inmate’s claim of excessive force involves both an objective and a subjective

component. The objective component measures the nature of the force employed, asking

whether that force “was sufficiently serious to establish a cause of action.” Brooks, 942

F.3d at 112. This is not a high bar; de minimis or trivial force is not enough, but anything

more will suffice. Id.

The more demanding part of the test – and the one on which the district court

appropriately focused – is the subjective component, which asks a single question: whether

the officers acted with a “sufficiently culpable state of mind.” Williams v. Benjamin,

(4th Cir. 1996). As the district court explained, the state of mind required

here is “wantonness in the infliction of pain.” Dean,

, at *3 (internal

quotation marks omitted); see Iko v. Shreve,

(4th Cir. 2008) (quoting

Whitley,

). Whether an inmate can establish that impermissible motive

turns on “whether force was applied in a good faith effort to maintain or restore discipline

or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at

320–21 (internal quotation marks omitted).

As we have explained, officers employ force in “good faith” – and thus permissibly

– when they are motivated by an “immediate risk[] to physical safety” or threat to prison

order. Brooks,

. But they cross the line into an impermissible motive when

they inflict pain not to protect safety or prison discipline but to punish or retaliate against

an inmate for his prior conduct. Id.; see Boone v. Stallings,

(4th

Cir. 2014) (“[T]he Eighth Amendment does not permit a correctional officer to respond to

10 a misbehaving inmate in kind.”). And the use of force on an inmate who is “restrained and

compliant and posing no physical threat” raises the specter of such an impermissible

motive. Thompson v. Virginia,

(4th Cir. 2017).

On summary judgment, then, the inquiry under the subjective component boils

down to whether a reasonable jury could determine that an officer acted with malice,

applying force punitively and “for the very purpose of causing harm.” Whitley, 475 U.S.

at 320–21 (internal quotation marks omitted); see Williams,

. Because direct

evidence of motive or intent may be hard to come by, the Supreme Court in Whitley v.

Albers set out four factors from which “we may infer the existence of th[e] subjective state

of mind required for an Eighth Amendment violation.” Brooks,

(alteration

in original) (internal quotation marks omitted). Those factors are:

(1) “the need for the application of force”; (2) “the relationship between the need and the amount of force that was used”; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) “any efforts made to temper the severity of a forceful response.”

Iko,

(quoting Whitley,

). If a reasonable jury could find,

based on inferences drawn under the Whitley factors or other evidence, that correctional

officers used force maliciously to punish or retaliate against an inmate, then summary

judgment is not appropriate. See Brooks,

.

2.

We begin with Officer Hobgood’s use of pepper spray against Dean while Dean was

lying on the ground with his hands cuffed behind him. Consistent with the legal standard

described above, Officer Hobgood raises two arguments in defense of the district court’s

11 grant of summary judgment. Hobgood first argues that Dean has failed to establish a

sufficiently serious use of force under the Eighth Amendment’s objective component,

primarily because officers sought to decontaminate Dean’s eyes after the pepper-spraying.

And in any event, Hobgood argues, Dean cannot satisfy the subjective component, because

any reasonable jury would have to find that Hobgood used force only to protect officer

safety in the wake of Dean’s head-butt, and not “maliciously” to punish Dean. We disagree

on both points.

We need address the objective component only briefly here. The district court

suggested that Dean fell short on this score because he had not shown injuries from the

pepper spray that “rise above the level of de minimis harm.” See Dean,

,

at *4. But as Hobgood acknowledges on appeal, that is the wrong question: Although we

once considered the severity of an inmate’s injuries under the objective component, the

Supreme Court has clarified that what matters is the severity of the force employed. See

Wilkins v. Gaddy,

(2010). So long as the force used is more than de

minimis, the objective component is satisfied, regardless of the extent of the injury. See

id.; Hill v. Crum,

(4th Cir. 2013) (“[T]here is no de minimis injury

threshold for an excessive force claim . . . .”); Thompson,

(“[A] prisoner

who suffers a minor, but malicious, injury may be able to prevail on an excessive force

claim . . . .”).

Under the correct standard, we have no difficulty concluding – as we have before –

that a reasonable jury could find that a sustained blast of pepper spray directly to the face

constitutes something more than de minimis force. See Greene v. Feaster,

80, 81–82 (4th Cir. 2018) (per curiam) (holding that use of pepper spray for “two to three

seconds” is sufficient to make out excessive force claim); cf. Iko, 535 F.3d at 238–39

(holding that extensive use of pepper spray may satisfy prior version of the objective

prong). Officer Hobgood argues that because the officers intended to decontaminate

Dean’s eyes after the fact, his use of force becomes de minimis. We disagree. What

happens after force is employed – whether and what kind of treatment is provided – may

bear on the extent of an inmate’s injuries, but it will not affect the nature of the force itself.

And as we have explained, it is the force itself that is the focus of the objective component.

See Thompson,

. 3

That brings us to the subjective component, and whether Officer Hobgood used

force in a “good faith effort” to subdue Dean and protect officer safety or “maliciously” to

punish Dean. See Whitley, 475 U.S. at 320–21 (internal quotation marks omitted).

Applying the first three Whitley factors – the need for force, the proportionality of the force

3 Officer Hobgood also suggests that even if Dean can satisfy the objective component, Dean’s failure to establish significant injury would bar the recovery of compensatory damages under

. Because Hobgood did not make that argument below, it is forfeited on appeal. See Robinson v. Equifax Info. Servs., LLC,

(4th Cir. 2009). What damages would be available were Dean to prevail at trial is something we may leave for the district court on remand. We note, however, that what is required for compensatory damages under § 1983 is no more than “actual injury,” see Memphis Cmty. Sch. Dist. v. Stachura,

(1986); and that Dean, who described himself as “partially blinded” in the aftermath of the pepper-spraying, has presented evidence of injury to his eyes that includes damaged blood vessels and persistent vision problems. J.A. 113, 117-19. On this record, we think it likely that a reasonable jury could infer that the pepper-spraying, as opposed to the episode in the supply closet, caused at least some portion of those injuries.

13 used, and any threats to officer safety – the district court held that only one inference could

be drawn as a matter of law: Officer Hobgood pepper-sprayed Dean because he feared for

officer safety, and thus acted with a permissible motive. See Dean,

, at

*4. 4 On appeal, Hobgood echoes the district court, arguing that his use of force was so

evidently necessary and proportional under the Whitley factors that no reasonable jury

could infer a malicious motive.

The problem with this analysis is that whether Hobgood’s use of pepper spray was

“clearly necessary” to respond to a threat to officer safety,

turns on material questions

of fact that are sharply disputed by the parties. On Officer Hobgood’s account, to be sure,

the pepper spray was necessary to protect against the threat posed by a resistant Dean, still

largely unsubdued and grappling on the ground with Officer Gipson at the time force was

used. But we must view the record in the light most favorable to Dean, and Dean’s account

has him fully subdued and non-resistant, lying on his back with handcuffed arms beneath

him and Officer Gipson kneeling on his chest, when Hobgood pepper-sprayed his face. A

4 The district court found that the fourth Whitley factor – efforts made to temper the severity of a forceful response – did not favor Officer Hobgood, see Dean,

, at *4, and on this point, we agree. Whether other officers sought to decontaminate Dean’s eyes after the pepper-spraying has no bearing on whether Hobgood tempered his response, and it is Hobgood’s state of mind that is at issue. Hobgood also points to a Department of Public Safety policy identifying pepper spray as the “approved and recommended minimum” use of force, noting that compliance with a use-of-force policy would be “highly relevant” under this Whitley factor. See Brooks,

. But whether Hobgood in fact complied with that policy – which does not permit the use of force to punish – is precisely the material dispute that forecloses summary judgment, as we explain below. See Williams,

(finding that “critical flaw” in reliance on use- of-force policy is that compliance is “hotly disputed”).

14 reasonable jury crediting Dean could draw a different inference from the Whitley factors:

that the need for force to protect safety and order was not so “self-evident” that it excluded

the possibility of a malicious motive. See Brooks,

.

As we have explained, it is “well-established . . . that officers may not use gratuitous

force against a prisoner who has already been subdued . . . [or] incapacitated.” See

Thompson,

(alterations in original) (internal quotation marks omitted).

And when officers do use force – including pepper spray – against a formerly recalcitrant

inmate after he has been subdued, then a reasonable jury may infer that the force was

applied not for protective reasons but instead to retaliate or punish. See Iko, 535 F.3d at

239–40 (holding that deployment of pepper spray after inmate is lying on the floor

restrained may give rise to inference that force was not employed protectively); see also

Brooks,

(holding that improper motive could be inferred in part from fact

that inmate was subjected to taser shocks while “handcuffed and surrounded by officers”).

We applied those straightforward principles in exactly this context in Boone v. Stallings,

, reversing a grant of summary judgment to correctional officers

because there was a factual dispute as to whether the plaintiff inmate was handcuffed before

or after he was pepper-sprayed. If “a jury were to believe Boone’s allegation that he was

on the ground, already restrained in handcuffs” when the pepper spray was deployed, we

held, then it reasonably could conclude that the officers used force punitively and not

protectively, subjecting Boone to “unconstitutionally excessive force.”

The same is

true here. Viewing the record facts in the light most favorable to Dean, a reasonable jury

15 could find that he was pepper-sprayed only after any threat to safety had passed, and from

that infer an impermissible retaliatory motive under Whitley. 5

In reaching a contrary conclusion, the district court appears to have made two

mistakes. First, it seems to have found, as a matter of law, that Dean remained a threat to

Officers Gipson and Hobgood while he was lying on his back in handcuffs. And that was

so, the court reasoned, because even on Dean’s account of the episode, though Officer

Gipson was attempting to hold Dean’s knees to his chest, Dean’s legs were unrestrained.

Dean,

, at *4. But that misunderstands Dean’s sworn Statement of

Material Facts, in which Dean describes a different scene: Dean is lying on his back with

his cuffed arms beneath him and Officer Gipson on top of him, with Officer Gipson’s knees

driven into Dean’s chest. And a jury crediting that account could find that Dean was

entirely restrained when he was pepper-sprayed, posing no threat to any officer by way of

legs or otherwise.

Second and more fundamentally, the district court erred to the extent it suggested

that a jury would be required to deem Officer Hobgood’s use of pepper spray “necessary”

and proportionate so long as it came “almost immediately after” Dean’s head-butt.

We

appreciate that the decision to use force often involves “split-second judgments” made

5 Our decision in Grayson v. Peed,

(4th Cir. 1999), on which the officers and the district court heavily rely, is not to the contrary. In Grayson, we affirmed a grant of summary judgment to defendant officers in an excessive force case because the plaintiff’s own account established that force was used in order to subdue him.

. There was no allegation in Grayson, as there is here, that the officers used force after the plaintiff already had been restrained. See id.; see also Iko,

n.11 (distinguishing Grayson on this ground).

16 under tense and difficult circumstances,

(quoting Graham v. Connor,

,

396–97 (1989)), and that “due deference” is owed to correctional officers’ efforts to protect

their own and others’ safety, Grayson,

. But we also have made clear that

the justification for using protective force expires at the very moment a threat is neutralized.

Once Dean was subdued and Officer Hobgood no longer had reason to fear for officer or

public safety, the use of force became unnecessary and unjustified – even if all of that

transpired merely seconds after Dean head-butted Hobgood. See, e.g., Harris v. Pittman,

(4th Cir. 2019) (“[T]he reasonableness of force employed can turn on a

change of circumstances during an encounter lasting only a few seconds.” (internal

quotation marks omitted)); Waterman v. Batton,

(4th Cir. 2005)

(“[F]orce justified at the beginning of an encounter is not justified even seconds later if the

justification for the initial force has been eliminated.”). Again, we have applied this well-

established principle to facts much like those presented here, holding that a jury may infer

an impermissible retaliatory motive when a correctional officer assaults an inmate very

shortly after the inmate “deliver[s] a roundhouse kick to [the officer’s] neck,” if the inmate

by then has been wrestled to the floor and subdued. Mann v. Failey,

(4th Cir. 2014) (per curiam).

In sum, on this record viewed most favorably to Dean, the inferences to be drawn

from the Whitley factors are “not so plain that they may be resolved as a matter of law” on

summary judgment. Brooks,

. We of course do not opine on how an

ultimate fact-finder might evaluate the parties’ differing accounts, or weigh the necessity

and proportionality of Officer Hobgood’s use of force. But a reasonable jury crediting

17 Dean’s version of events could infer under Whitley that force was used not to protect officer

safety but instead to retaliate against Dean for his head-butt, and for that reason, Officer

Hobgood is not entitled to summary judgment on the merits of Dean’s Eighth Amendment

claim.

3.

We turn now to Dean’s excessive force claim against Sergeant Jones, arising from

the use of force inside the janitor’s closet. That incident left Dean with multiple serious

injuries, and Jones does not dispute that the Eighth Amendment’s objective component is

satisfied. Sergeant Jones argues and the district court held, however, that Dean cannot

establish, as a matter of law, the culpable state of mind required by the subjective

component: Under the Whitley factors, the force applied in the closet was made necessary

by and proportionate to the threat Dean posed to officer safety, foreclosing any inference

of an improper motive. See Dean,

, at *4–5.

We disagree. In granting summary judgment to Sergeant Jones, the district court

made two mistakes. First, in applying the Whitley factors, the court failed to view the

record in the light most favorable to Dean, and instead drew inferences in Sergeant Jones’s

favor while overlooking inconsistencies in his account. And second, the court entirely

disregarded direct evidence of malicious intent, in the form of Dean’s testimony regarding

statements made by Jones during the closet episode. When all the evidence is considered,

and considered in the light most favorable to Dean – as it must be at the summary judgment

stage – there is enough for a reasonable jury to find that what motivated Sergeant Jones

18 was an impermissible intent to retaliate rather than a need to protect officer safety and

prison order.

a.

In applying the Whitley factors, the district court found, as Sergeant Jones argues on

appeal, that there was a “clear need for the application of force” against Dean because

Jones “and the other officers” in the closet with Dean “reasonably feared for their safety.”

Dean,

, at *4. But according to Dean, he was completely restrained and

not resisting after he was pushed into the closet, lying on the floor with his hands still

cuffed behind his back and trying to “curl up to protect himself” as he was punched and

kicked repeatedly by numerous officers. J.A. 115. And as explained above, a jury crediting

that account reasonably could infer that the multiple officers confronting a handcuffed

Dean in the supply closet in fact did not fear for their safety but instead intended to punish

Dean for his intransigence. See, e.g., Mann,

(continued assault on

formerly resistant inmate after he has been subdued gives rise to inference of malice under

Whitley).

The district court did not confront directly Dean’s account or its implications for the

Whitley analysis, instead dismissing as “conclusory” Dean’s sworn and detailed attestation

that he was non-resistant and fully subdued during his beating. Dean,

,

at *5. It did suggest that the officers might have “interpreted” Dean’s efforts to protect

himself by curling his legs as “attempts to kick them,” necessitating a forceful response.

But none of the officers in the closet asserted in their initial witness statements that

Dean attempted to kick them, and the district court was not authorized, at the summary

19 judgment stage, to draw its own inferences about what they believed – inferences that favor

Jones, rather than Dean. See, e.g., Brooks,

(explaining that all reasonable

inferences must be drawn in favor of plaintiff inmate when defendant officers move for

summary judgment). And to the extent the district court again suggested that any use of

force would qualify as “necessary” under Whitley so long as it came “almost immediately

after” a threat to officer safety – here, Dean’s head-butt of Jones, see Dean,

, at *4–5 – it was again mistaken, for the reasons we already have described. See,

e.g., Waterman,

(force initially justified becomes unreasonable as soon as

threat has passed).

The district court’s analysis of Whitley’s proportionality factor is similarly flawed.

On Sergeant Jones’s account, of course, the only force deployed was a “bent-wrist

technique” designed to restrain Dean, J.A. 19, which might be deemed proportionate to the

circumstances Jones describes. But on Dean’s account, the force in question consisted of

a serious beating after he was restrained, administered by multiple officers who kicked and

punched him until he nearly blacked out. Even assuming some need to administer force at

the time, a reasonable jury crediting Dean – and perhaps considering that Dean was at all

times in handcuffs and substantially outnumbered by the officers surrounding him – could

find that the extent of the force was so disproportionate to any genuine threat that it must

have resulted from an impermissible retaliatory motive. The district court suggested that

the officers “reasonably believed” that lesser force in the form of pepper spray “would not

be effective,” given that Dean continued to resist by head-butting Sergeant Jones even after

the initial pepper-spraying. See Dean,

, at *4. But the record is silent

20 as to any such belief by any of the officers involved, so this, too, is an inference improperly

drawn against Dean and in favor of Jones on summary judgment. And we can find no

support for the district court’s suggestion that the beating described by Dean was

“proportionate” as a matter of law because the officers brought it to an end after a minute.

See id. at *5 (“The officers also removed [Dean] from the janitor’s closet approximately

one minute after the incident began, which does not suggest defendants used a

disproportionate amount of force under the circumstances.”).

Finally, the district court did not address the record evidence that could allow a

reasonable jury to credit all or part of Dean’s account, rather than Sergeant Jones’s, in

applying the Whitley factors. For instance, Sergeant Jones’s description of how he, Dean,

and another officer accidentally fell into the janitor’s closet is consistent with only some of

the officers’ witness statements; all told, there seem to be six versions of who ended up in

the closet and how, differing in respects both relatively minor (how many officers

accidentally fell into the closet with Dean, see J.A. 43) and more significant (whether Dean

fell into the closet or was “placed” there by Sergeant Jones, see J.A. 50). What’s more, a

jury could view the video evidence as resolving this discrepancy in Dean’s favor: Taken

in the light most favorable to Dean, the video can be construed to show Jones and other

officers holding Dean against the wall for a moment and then forcefully and intentionally

pushing him into the closet. And while Sergeant Jones denies that Dean was punched or

kicked once in the closet, the video clearly shows an officer making a kicking motion inside

the closet doorframe, and one of Dean’s shoes flying out of the closet. Lastly, while Jones

21 asserts that Dean injured his face when he fell and hit the right side of his head on a closet

shelf, Dean’s most serious injuries are to the left side of his face.

Again, we have no occasion here to anticipate how a fact-finder ultimately might

assess the credibility of Dean’s account, or what inferences about motive it might draw

from the Whitley factors as applied to all the record evidence. But those are jury questions,

inappropriate for resolution on summary judgment. See Wilson v. Prince George’s County,

(4th Cir. 2018) (reiterating that court does not “weigh the evidence or

make credibility determinations” in reviewing grant of summary judgment). On this

record, we cannot say that the Whitley factors establish, as a matter of law, that Sergeant

Jones acted with a permissible motive when he applied force against Dean in the janitor’s

closet.

b.

The district court erred in a second respect, as well, in analyzing the merits of Dean’s

excessive force claim against Sergeant Jones: It never addressed Dean’s direct evidence

that Jones acted with an impermissible retaliatory motive. In his sworn statement, Dean

attests that Jones first told the other officers to “get him [Dean] in there” as Dean was

pushed into the janitor’s closet, and then repeatedly shouted, “You done fucked up!” to

Dean as the officers beat him. J.A. 114–15. According to Dean, that evidence, properly

credited as required at the summary judgment stage, see Brooks,

, would

permit a trier of fact to conclude that Jones acted with the requisite “malicious” motive

under the Eighth Amendment. We agree.

22 The district court gave no reason for its failure to consider this evidence. On appeal,

however, Sergeant Jones supplies an explanation, arguing that the alleged statements are

of limited import, at best: An inmate can satisfy the Eighth Amendment subjective

component, Jones contends, only if the Whitley factors lead to an inference of malice,

rendering any other evidence largely immaterial. But that justification for ignoring Dean’s

direct evidence will not work, because it misunderstands the nature and function of the

Whitley factors.

The crucial question under the Eighth Amendment’s subjective component is one

of motive: whether the officer acted “in a good faith effort” to protect safety or maintain

discipline, or “maliciously and sadistically for the very purpose of causing harm.” Whitley,

475 U.S. at 320–21 (internal quotation marks omitted). The Whitley factors provide one

“non-exclusive” way to interrogate that question, Thompson,

, allowing a

fact-finder to infer a malicious state of mind when no legitimate purpose for a use of force

is readily apparent. See Brooks,

(“Even without direct evidence of

malicious intent, that is, we may infer the existence of the subjective state of mind required

for an Eighth Amendment violation from the Whitley factors.”). But nothing about Whitley

– or any other case – suggests that an officer’s intent may not be proven directly or through

other circumstantial evidence as well, when such evidence is available. On the contrary,

we have relied heavily on non-Whitley record evidence – including a correctional officer’s

statements – in finding that an officer’s motive for using force is a triable issue of fact. See

at 114–16 (reversing summary judgment to correctional officers because non-Whitley

evidence – including officer statements – would allow a jury to find that force was used

23 with punitive intent); Mann,

(holding that “malicious intent could be

readily inferred” from correctional officer’s statement to inmate before and while using

force).

The officers’ suggestion that motive may be evaluated only through the lens of the

Whitley factors is fundamentally incompatible with the nature of an Eighth Amendment

violation. “The point of [the Whitley] analysis,” we have explained, is to provide objective

benchmarks to measure whether a use of force was “reasonably related to a legitimate

nonpunitive” governmental interest or could “plausibly have been thought necessary” by

the officers in question. Brooks,

(internal quotation marks omitted). If so,

then that will tend to exclude an impermissibly punitive motive; if not, then such a motive

may be inferred.

But the ultimate question remains subjective, not objective – “not

whether a reasonable officer could have used force” for a legitimate reason,” as per Whitley,

but “whether these particular officers did use force for that reason.”

. So whatever

the outcome of the Whitley analysis, other evidence of an impermissible malicious motive,

direct or circumstantial, always will be relevant to the Eighth Amendment inquiry.

Recognizing our case law relying on such evidence in Eighth Amendment cases,

Sergeant Jones raises an alternative argument. Even if officer statements could prove or

help to prove malicious intent, he contends, his alleged statements here do not: Shouting

“You done fucked up” at Dean while beating him evinces no more than the “neutral truth”

that Dean in fact did mess up, head-butting two officers in short order. Appellee’s Br. 39.

But we cannot say that a reasonable jury would be compelled, as a matter of law, to endorse

that reading. A jury crediting Dean’s account also might find that the alleged statements

24 evinced a different truth: that Jones was angry at Dean – justifiably so – and used force

punitively, to retaliate for Dean’s head-butts. Whether Sergeant Jones made the statements

in question and, if so, what they say about his state of mind is for a fact-finder to resolve,

and the district court erred in granting summary judgment in the face of direct evidence on

which a jury could have relied to find malicious intent.

B.

Because we conclude that a reasonable jury could find that Officer Hobgood and

Sergeant Jones violated Dean’s Eighth Amendment rights, we – unlike the district court –

must now consider whether the officers are nevertheless entitled to qualified immunity.

Under the doctrine of qualified immunity, “a corrections officer who ‘has violated a

prisoner’s constitutional right’ is ‘shielded from liability . . . if an objectively reasonable

officer could have believed that his actions were lawful in light of clearly established law.’”

Brooks,

(ellipsis in original) (quoting Cox v. Quinn,

(4th

Cir. 2016)). The officers argue that because there is no published circuit precedent finding

an Eighth Amendment violation where force is used shortly after an inmate has assaulted

an officer, Dean’s right to be free from Officer Hobgood’s use of pepper spray or Sergeant

Jones’s blows was not “clearly established” at the time of the incidents in 2015. See Meyers

v. Baltimore County,

(4th Cir. 2013). For two reasons, we disagree.

First, it was clearly established in 2015 – and for many years before that – that

inmates have a right to be free from pain inflicted maliciously and in order to cause harm,

rather than in a good-faith effort to protect officer safety or prison order. See, e.g., Hudson

v. McMillian,

(1992); Whitley, 475 U.S. at 320–21; see also

25 F.3d at 102 (discussing long-standing precedent establishing this principle). And our case

law long has made clear that correctional officers cross this line when they use force to

punish an inmate for prior misconduct or intransigence. See, e.g., Williams,

;

Iko, 535 F.3d at 239–40; see also Brooks, 924 F.3d at 113–14 (discussing precedent). So

assuming – as we do, for purposes of this alternative argument – that the officers here acted

with a wrongful and punitive motive, then they violated clearly established Eighth

Amendment law.

And as we have explained before, that clearly established Eighth Amendment

principle was enough by itself to put reasonable officers on “fair notice” that their use of

force against Dean – assuming, again, that it was intended to retaliate against Dean for his

head-butts and not to protect officer safety – would violate the Constitution. Thompson,

; see also Brooks,

. In this “unusual” qualified immunity

context, we are “dealing with a constitutional violation that has ‘wrongful intent’ as an

element.” Brooks,

(quoting Thompson,

). The case law,

in other words, is “intent-specific,” Thompson,

, which means that liability

turns not on the particular factual circumstances under which the officer acted – which may

change from case to case as the precedent develops – but on whether the officer acts with

a culpable state of mind. And because an officer necessarily will be familiar with his own

mental state, he “reasonably should know” that he is violating the law if he acts with a

prohibited motive. Brooks,

; see also Thompson,

(“For

claims where intent is an element, an official’s state of mind is a reference point by which

she can reasonably assess conformity to the law . . . .”).

26 Second, even if the officers were entitled to some additional notice, we had

explained before 2015, “at the appropriate level of specificity,” Thompson,

, that a correctional officer uses excessive force if he maliciously uses force against an

inmate who has been subdued, even if force might have been justified to control the inmate

only moments before. In Iko, for instance – decided in 2008 – we established that the use

of pepper spray on a formerly non-compliant inmate could qualify as excessive force. See

535 F.3d at 239–40; Boone, 583 F. App’x. at 176 (describing Iko). In that case, correctional

officers used pepper spray to “incapacitate” an inmate who refused to comply with their

orders so that they safely could extract him from his cell. Iko,

(internal

quotation marks omitted). We agreed with the officers that an initial dispersal of pepper

spray was warranted. But if the officers continued to use pepper spray after Iko was

compliant and “the threat reasonably perceived” by the officers had “decreased”

significantly – a question on which there was a genuine dispute of fact – then, we held, a

reasonable jury could find that they had violated the Eighth Amendment.

at 239–40;

see Thompson,

(describing Iko).

Iko is hardly an outlier. See, e.g., Cowart v. Erwin,

, 449–50 (5th Cir.

2016) (holding that it was “clearly established” in 2009 that “officers may not use

gratuitous force against a prisoner who has already been subdued” (internal quotation

marks omitted));

F.3d at 104–05 (discussing additional cases). And it was

enough to put officers on clear notice, in 2015, that the use of pepper spray – or kicks and

punches, see, e.g., McMillian,

; Thompson,

(discussing cases)

– against Dean after he had been fully subdued and no longer posed a risk to their safety

27 could give rise to an inference of “wanton punishment” in violation of the Eighth

Amendment, even if force appropriately might have been used just a few seconds earlier.

Brooks, 924 F.3d at 119–20 (alterations omitted) (applying Iko to repeated uses of taser).

The officers insist that Iko is not sufficiently on point, because in that case, the initial

justification for the use of force was the enforcement of prison rules and not, as here, the

protection of officer safety after Dean’s two head-butts. But the point is precisely the same

– once the justification for the use of force has expired, any additional force may be deemed

“malicious” and hence unconstitutional – and it applies with “obvious clarity” whatever

the original justification. See Hope v. Pelzer,

(2002) (citation omitted);

cf. Thompson,

(holding that precedent involving force in one form –

kicking and punching – puts officers on “fair warning” that application of force in a

different form also may violate the Eighth Amendment). And in any event, the rationale

for force in Iko was not as singularly focused on prison discipline as the officers suggest.

Instead, the purported need to compel compliance with prison rules was intertwined with

concerns for officer safety: Iko’s refusal to obey orders to present his hands for cuffing

posed a danger to the officers attempting to carry out a cell extraction. See Iko,

(discussing Iko’s “alleged dangerousness”);

(discussing need to

“incapacitate” inmate before “committing staff” to the cell extraction procedure (internal

quotation marks omitted)).

In sum, the officers here were on “fair notice” of Dean’s right not to be subjected to

force in the form of pepper spray or a beating if that force was deployed to retaliate against

Dean after he was subdued, and not to protect officer safety. For that reason, the officers

28 cannot prevail on their alternative argument that they are entitled to summary judgment on

qualified immunity grounds even if they violated Dean’s Eighth Amendment rights.

III.

For the foregoing reasons, we reverse the judgment of the district court granting

summary judgment to the defendants and remand for further proceedings consistent with

this opinion.

REVERSED AND REMANDED

29