PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-7611

JAMES GARY MOSKOS,

Plaintiff – Appellant,

v.

JAMES HARDEE; KATHERINE BUTLER; JAMES HORNE; LARON LOCKLEAR; JAMES MCRAE; ROSE LOCKLEAR,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:16-ct-03177-BO)

Argued: December 7, 2021 Decided: January 20, 2022

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Agee joined.

ARGUED: Jason Michael Burton, BURTON LAW FIRM, PLLC, Raleigh, North Carolina, for Appellant. Sripriya Narasimhan, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Michael A. Kaeding, Ryan Ethridge, ALSTON & BIRD LLP, Raleigh, North Carolina, for Appellant. Joshua H. Stein, Attorney General, Orlando L. Rodriguez, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. WILKINSON, Circuit Judge:

James Gary Moskos, a state prisoner in North Carolina, sued several prison officials

under § 1983, alleging that they had used excessive force against him, had acted with

deliberate indifference to his serious medical needs and to unconstitutional conditions of

his confinement, and had violated his due process rights. Moskos also brought a state-law

assault and battery claim. At trial, the district court granted judgment as a matter of law to

the defendants on the deliberate indifference and due process claims, while a jury found

for the defendants on the remaining claims. Moskos now appeals, contesting the district

court’s grant of judgment as a matter of law, as well as an evidentiary decision made by

the district court at trial. For the following reasons, we affirm.

I.

A.

At about 9:15 pm on the evening of August 2, 2013, Moskos, an inmate at the

Lumberton Correctional Institute in North Carolina, approached Officer James Hardee and

asked whether he could cross to a different wing of the prison to get cold water from a

water fountain there. Hardee denied this request because, he later testified, it would have

violated protocol for an inmate to move across the prison yard once the dormitories had

been secured for the evening. Shortly thereafter, Moskos came across Officer Katherine

Butler, who allowed him to fill a nearby cooler with water. The cooler was located in an

area adjacent to Moskos’s wing, and therefore did not require him to cross the prison yard.

See J.A. 805.

2 As Moskos returned with the cooler full of cold water, he encountered Hardee again.

The details of what happened next are hotly disputed. According to Butler and Hardee,

Moskos began cursing at Hardee, and Hardee asked Moskos for his ID card, which he was

required to carry with him at all times. Moskos did not have his card with him and walked

away as if to retrieve it from his locker, but then abruptly turned around, repeatedly

punched Hardee in the face, and jumped on top of him. Butler radioed for assistance and

Officer James Horne testified that he ran to the scene, ordered Moskos to stop the assault,

and used pepper spray twice when Moskos refused. Moskos continued to assault both

officers until Horne was able to subdue him.

Moskos testified to a very different series of events. According to Moskos, he had

threatened to file a grievance against Hardee during their earlier conversation, which had

angered Hardee. When Moskos stated that he did not have his ID card with him, Hardee

became enraged. Moskos testified that when he set off to retrieve the card, Hardee struck

him without warning in the back of the head, and then pretended to fall to the ground, while

punching and grabbing at Moskos’s legs. Moskos stepped away from Hardee, retrieved his

ID card from his locker, and returned. At this point Horne, upon seeing Hardee on the

ground, allegedly sprayed Moskos in the face with a can of pepper spray, hit him in the

head with the can, and put him in a choke hold. Moskos also alleges that an unknown third

officer joined in the assault and injured Moskos’s shoulder while handcuffing him.

Following the altercation, the officers brought Moskos to the prison’s segregation

unit, where he was assessed by Nurse Charletta Scott. Moskos complained that his eyes

were burning, and according to Rose Locklear, a captain at the prison, he was given a

3 shower shortly thereafter, within about 30 to 45 minutes of the incident. Scott testified that

Moskos was then subject to a full medical assessment, following which he was transferred

to the Southeastern Regional Medical Center. Moskos disputes the timing of this: in his

account, Scott ordered that he be decontaminated of the pepper spray immediately but the

officers instead returned Moskos to his cell. As a result, Moskos claims that he was only

decontaminated after the full medical examination, approximately 90 to 120 minutes after

the pepper spray had been used against him.

When Moskos returned from the hospital, he was placed in a segregation unit.

Moskos alleges that the unit was very cold and dark, that it lacked toilet paper, running

water, and soap, that he was not provided with a mattress or any bedding, and that he was

not allowed to shower or shave for the approximately 20 days during which he was placed

in the unit.

The prison conducted an investigation into the August 2nd incident. Shortly

thereafter, Moskos was charged with, and found guilty of, three prison disciplinary

infractions: assault on an officer, profane language, and disobeying an order. He lost 15

earned good-credit days, was sentenced to 60 days in disciplinary segregation, and was

transferred to a maximum-level security facility, Maury Correctional Institute.

Shortly thereafter, Moskos submitted a grievance with the prison, contending that

Horne had struck him over the head with a can of pepper spray and that he had been

“punished wrongfully” because the officers had “lie[d] in their reports.” The grievance was

dismissed on a recommendation by Assistant Superintendent James McRae, who

concluded that Moskos had not been hit with the can.

4 B.

Moskos filed suit under

against several correctional officers,

including Hardee, Butler, and Horne, alleging Eighth Amendment, due process, and ADA

claims. The district court granted summary judgment to the defendants on Moskos’s ADA

claims but denied the motion as to the remaining claims, which proceeded to a jury trial.

Moskos’s claims before the jury included allegations of excessive force in the initial

altercation, as well as assault and battery; deliberate indifference as to the alleged delay in

decontaminating him; wrongful confinement of him in the segregation unit; and due

process violations relating to his disciplinary investigation.

On the second day of trial, Moskos called McRae as a witness and asked him to

confirm that a particular exhibit contained documents related to the grievance that Moskos

had filed. The district court asked Moskos’s counsel to explain the purpose behind this line

of questioning, and then stated that it was “completely irrelevant.” J.A. 931. Without

referencing the exhibit specifically, counsel asked McRae some further questions about his

review of the grievance, and then concluded the examination.

At the close of Moskos’s case at trial, the defendants moved for judgment as a matter

of law under Rule 50(a). The court granted this motion as to the due process and deliberate

indifference claims and the jury returned a verdict for the defendants on the remaining

excessive force and assault and battery claims.

The court set forth its Rule 50(a) ruling in a written order. With respect to Moskos’s

due process claim, the court concluded that there was no evidence indicating that Moskos

had been denied written notice or the opportunity to call witnesses. See J.A. 994–95. As to

5 Moskos’s claim of deliberate indifference stemming from the alleged failure to

decontaminate him following the use of pepper spray, the court concluded that this claim

was not supported by the record, as there was “no evidence that any defendant intentionally

delayed [Moskos’s] access to decontamination.” J.A. 993–94. Finally, the court held that

Moskos’s claim of deliberate indifference to unconstitutional prison conditions failed since

the alleged conditions did not constitute an “extreme deprivation” that could qualify as an

Eighth Amendment violation and since Moskos had not produced evidence indicating that

the defendants were aware of the alleged conditions anyway. See J.A. 991–93 (quoting

De’lonta v. Johnson,

(4th Cir. 2013)).

On appeal, Moskos contends primarily that the district court erred in granting

judgment as a matter of law on his due process and deliberate indifference claims. In

addition, he also argues that the district court erred by preventing counsel from examining

McRae on the subject of Moskos’s grievance.

A court may grant judgment as a matter of law where “a party has been fully heard

on an issue during a jury trial and the court finds that a reasonable jury would not have a

legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P.

50(a)(1). We review such judgments de novo. Chaudhry v. Gallerizzo,

, 404–

05 (4th Cir. 1999).

II.

We begin with Moskos’s due process claim. This claim boils down to an argument

that prison officials fabricated evidence so that Moskos would be wrongfully convicted of

6 prison disciplinary infractions, causing him to lose good-time credits. But controlling

precedent from the Supreme Court clearly precludes prisoners from bringing this sort of a

challenge under § 1983 unless the disciplinary conviction has been invalidated, which is

not the case here. It follows that there was no “legally sufficient evidentiary basis” to find

for Moskos on this issue, and that judgment as a matter of law was proper. Fed. R. Civ.

Pro. 50(a)(1). In addition, since Moskos’s due process claim fails as a matter of law, we

reject his evidentiary challenge, as the testimony that Moskos sought to elicit from McRae

could only conceivably have been relevant to that claim.

A.

Moskos alleges that the defendants violated his substantive and procedural due

process rights by conducting a sham investigation, following which he was convicted of

several disciplinary infractions and lost good-time credits. Moskos brought his suit under

, which provides a cause of action for individuals seeking damages for

constitutional violations. But § 1983 does not provide a cause of action in the

circumstances present here.

The Supreme Court has long held that “habeas corpus is the appropriate remedy for

state prisoners attacking the validity of the fact or length of their confinement” and that this

“specific determination must override the general terms of § 1983.” Preiser v. Rodriguez,

(1973). “It would wholly frustrate explicit congressional intent” if

petitioners could avoid the requirements for habeas relief “by the simple expedient of

putting a different label on their pleadings.”

at 489–90. This principle applies just as

clearly to prison disciplinary convictions resulting in the loss of good-time credits as it does

7 to other convictions, since the restoration of good-time credits is “within the core of habeas

corpus in attacking the very duration of [the prisoner’s] physical confinement itself.”

at

487–88.

It has long been settled law, therefore, that a plaintiff may not challenge the validity

of a disciplinary conviction through a damages suit under § 1983. In particular, “when a

state prisoner seeks damages in a § 1983 suit, the district court must consider whether a

judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction

or sentence.” Heck v. Humphrey,

(1994). If so, “the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction or sentence already has

been invalidated,” whether on direct appeal, by executive order, by a state tribunal, or by a

federal court’s issuance of a writ of habeas corpus.

In Edwards v. Balisok,

(1997), the Supreme Court made clear that this

rule applies not merely to substantive challenges to convictions, but also to those

challenges to internal prison procedures that would be “such as necessarily to imply the

invalidity of the judgment.”

. The prisoner there alleged that a hearing officer

“concealed exculpatory witness statements and refused to ask specified questions of

requested witnesses.”

. As a result, he alleged that he was deprived of the chance

to present exculpatory evidence and wrongfully deprived of good-time credits. See

at

646–47. The Court held that this sort of damages claim, “based on allegations of deceit and

bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment

imposed,” was not cognizable under § 1983. Id. at 648. And Balisok was emphatic as to

how the courts should handle such claims: “[A] claim is either cognizable under § 1983

8 and should immediately go forward, or is not cognizable and should be dismissed.” Id. at

649.

Here, as in Balisok, Moskos brings a due process challenge to the disciplinary

investigation conducted against him, which resulted in the loss of good-time credits. Here,

as in Balisok, Moskos has not invalidated his disciplinary convictions. And here, for

virtually identical reasons as in Balisok, Moskos’s due process challenge would

“necessarily imply the invalidity of the punishment imposed.” Id.

After all, the gravamen of Moskos’s due process argument is that the defendants

falsified information, because of which “Moskos was ultimately found guilty of three

prison disciplinary offenses that he did not commit,” causing him to lose good-time credits.

Appellant’s Br. at 29. This is practically identical to Balisok, where the prisoner alleged

“deceit and bias on the part of decisionmaker” that prevented him from presenting

exculpatory evidence and led to his wrongful conviction.

. Here too, a

conclusion that prison staff fabricated evidence to cover up their involvement clearly would

imply that Moskos’s disciplinary convictions were invalid. Indeed, Moskos states

repeatedly that he was wrongfully convicted “based solely” on the due process violations

he alleges. See Appellant’s Br. at 2, 29. Because his claims would necessarily imply the

invalidity of the judgment, they must be dismissed under Balisok.

If Moskos believes that he has been wrongfully convicted of these disciplinary

infractions, he is of course free to seek legal recourse. But if he seeks to do so in federal

court, he must use the channel that Congress has provided for such claims. That path is

through a habeas petition, subject to those statutory requirements that Congress carefully

9 crafted to respect the finality of state judgments. In law, unlike in history, not all roads lead

to Rome. Since Moskos did not take a proper road, we affirm the district court as to his due

process claim.

B.

Since we hold that Moskos’s due process claim fails as a matter of law, we also

reject his contention that the district court erred by preventing his counsel from examining

McRae on the subject of Moskos’s grievance. We review such evidentiary decisions for

abuse of discretion and we “will only overturn an evidentiary ruling that is arbitrary and

irrational.” Gentry v. E. W. Partners Club Mgmt. Co.,

(4th Cir. 2016)

(quoting Noel v. Artson,

(4th Cir. 2011)). Here the district court cut short

Moskos’s line of questioning on the grounds that any testimony as to the grievance would

be “completely irrelevant” to the case. J.A. 931. Evidence is relevant if “it has any tendency

to make a fact more or less probable than it would be without the evidence” and “the fact

is of consequence in determining the action.” Fed. R. Evid. 401.

On appeal, Moskos states that further testimony from McRae would have allowed

him to “develop the record regarding the prison grievance process, its relationship to the

[prison’s] investigation and Mr. Moskos’s disciplinary charges, and, thus, its relevance to

Mr. Moskos’s harm and Defendants’ liability therefor.” Appellant’s Br. at 50. But even

assuming arguendo that McRae’s testimony could have been relevant in this respect, any

error would be harmless since the disciplinary investigation pertains only to Moskos’s due

process claim, and that claim fails as a matter of law. See Wickersham v. Ford Motor Co.,

(4th Cir. 2021) (“Any abuse of discretion is reviewed for harmless error,

10 and a new trial is required only when the admission of evidence affected the substantial

rights of a party.”).

Moskos, however, argues that the excluded testimony would also have been relevant

to his excessive force and assault and battery claims because his claims are “all inextricably

tied together” and because testimony on the grievance might indicate that the officers

falsified their account of the assault. Appellant’s Br. at 52. This supposed connection is

doubtful in light of the total lack of evidence that McRae even communicated with Hardee

and Horne. At the very least, the trial court can scarcely be said to have abused its discretion

in rejecting a purely speculative and wide-roaming foray into the grievance process. Trial

courts have “broad discretion to control the mode of interrogation and presentation of

evidence” so that “witnesses are treated fairly and the search for truth is not impaired by

presentation of extraneous, prejudicial or confusing material.” United States v. Gravely,

(4th Cir. 1988). The court here was well justified in concluding that

a trial-within-a-trial of the prison grievance system would have only produced more heat

than light.

As a final note, Moskos can hardly contend that he was deprived of a fair trial. He

testified at length to his account of what had happened, and the defendants did the same,

largely uninterrupted by the district court. The jurors, in short, were presented with a classic

contest of credibility between plaintiff and defendant, a contest which they resolved by

finding for the defendants. This is precisely the sort of question we delegate to juries, and

we see no basis for disturbing the verdict.

11 III.

Next, we turn to Moskos’s Eighth Amendment deliberate indifference claims. To

prevail on these claims, Moskos must establish two things. First, he must prove an objective

element: a “deprivation of a basic human need” that is “sufficiently serious.” De’lonta,

(quoting De’Lonta v. Angelona,

(4th Cir. 2003)). And

second, he must prove a subjective element: “that the officials acted with a sufficiently

culpable state of mind.”

(quoting De’Lonta,

).

Moskos contends that the district court incorrectly granted judgment as a matter of

law on two distinct Eighth Amendment claims. He alleges that the prison officials were

deliberately indifferent to his serious medical needs because they delayed decontaminating

him after he was sprayed with pepper spray. And he alleges that they were deliberately

indifferent to unconstitutional conditions of confinement when he was placed in the

segregation unit following his return from the hospital. We address each in turn.

A.

First, Moskos contends that the defendants violated the Eighth Amendment by

failing to decontaminate him in a timely manner after his exposure to pepper spray. At trial,

Moskos and the prison staff gave different accounts as to the time it took for Moskos to be

decontaminated. According to Moskos’s testimony, 90 to 120 minutes elapsed between the

use of the pepper spray and his decontamination. The prison officials testified by contrast

that only 45 to 50 minutes elapsed. Even under Moskos’s account, however, there was no

Eighth Amendment violation, because the objective prong is not satisfied.

12 As the Supreme Court has made clear, “[m]edical malpractice does not become a

constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble,

(1976). Rather, “to state a cognizable claim, a prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical

needs.”

Not all medical delays, of course, will meet this standard. Medical care is often

not immediate. Only the most fortunate are able to receive a doctor’s appointment at the

precise time they want it or medical attention at the very moment of arrival at a hospital.

Waiting is often the name of the game. And actual treatment may not follow immediately

upon medical attention, whether due to the caution of a prudent physician or the inevitable

uncertainties of diagnosis. It would be wrong to turn the everyday inconveniences and

frictions associated with seeking medical care into constitutional violations whenever they

occur within the prison walls.

Mere delay is therefore not enough. Rather, “[t]he objective prong requires

[Moskos] to show that the alleged delay . . . put him at a ‘substantial risk’ of ‘serious

harm.’” Moss v. Harwood,

(4th Cir. 2021) (quoting Scinto v. Stansberry,

(4th Cir. 2016)). A commonplace medical delay such as that experienced

in everyday life will only rarely suffice to constitute an Eighth Amendment violation,

absent the unusual circumstances where the delay itself places the prisoner at “substantial

risk of serious harm,” such as where the prisoner’s condition deteriorates markedly or the

ailment is of an urgent nature.

Such conditions are plainly not met here. Moskos experienced the usual transitory

effects of pepper spray for a period of, at most, 90 to 120 minutes. He did not testify to any

13 serious medical reaction or to any pain beyond the normal discomfort of pepper spray: even

by his own account, he simply expressed that his eyes were burning, not that he was

experiencing more serious medical issues. See J.A. 751. In circumstances such as these,

involving a short delay in decontamination, without any aggravating factors such as a

serious medical reaction, courts have consistently found that the objective prong is not

satisfied. See, e.g., Burns v. Eaton,

(8th Cir. 2014); Jacoby v. Baldwin

Cnty.,

(11th Cir. 2014); Allen v. Bosley,

(9th

Cir. 2007). And the facts here do not remotely resemble cases where we have found the

objective prong to be met, as with an inmate who collapsed and subsequently died after the

use of pepper spray, see Iko v. Shreve,

(4th Cir. 2008), or an inmate who

was denied medical attention for several days while vomiting blood, see Scinto, 841 F.3d

at 231–32. We therefore conclude that the district court properly granted judgment as a

matter of law on this claim.

B.

Second, Moskos contends that the defendants violated the Eighth Amendment

through deliberate indifference to the inhumane conditions that he alleged when confined

to the segregation unit following his return from the hospital. But this claim also faces a

threshold difficulty, for Moskos failed to establish that the subjective prong of the Eighth

Amendment was satisfied. The Supreme Court has stated that “a prison official cannot be

found liable under the Eighth Amendment for denying an inmate humane conditions of

confinement unless the official knows of and disregards an excessive risk to inmate health

or safety.” Farmer v. Brennan,

(1994). “[T]he official must both be

14 aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.”

Yet Moskos did not produce any evidence at trial indicating that any of the

defendants were responsible or aware of the alleged conditions that he experienced.

Moskos never testified that any of these particular officers oversaw his custody in the

segregation unit, nor that he complained to them about the conditions of his confinement.

He merely asserts as a conclusory matter that the defendants placed him in solitary

confinement as “further punishment for speaking out [about] what happened.” J.A. 753.

But there is not even circumstantial evidence indicating that the defendants were

responsible for those conditions or could alleviate them. Moskos’s conclusory assertion,

entirely unsupported by other evidence, could hardly create a “legally sufficient evidentiary

basis” for the jury to conclude that the specific defendants were deliberately indifferent to

the conditions of Moskos’s confinement.

“If a reasonable jury could reach only one conclusion based on the evidence or if

the verdict in favor of the non-moving party would necessarily be based upon speculation

and conjecture, judgment as a matter of law must be entered.” Myrick v. Prime Ins.

Syndicate, Inc.,

(4th Cir. 2005). Since the only basis on which Moskos

could satisfy the subjective prong is through precisely this sort of “speculation and

conjecture,” the district court properly granted judgment on this claim as well.

15 IV.

The district court gave Moskos every opportunity to prove his claims at trial. But

Moskos failed to make a legally cognizable due process claim or to provide any evidence

that could establish a deliberate indifference claim under the Eighth Amendment. And on

his remaining excessive force and assault and battery claims, the jury heard the complete

testimony of both plaintiff and defendants and found the defendants more credible. We

therefore affirm the judgment.

AFFIRMED

16