USCA4 Appeal: 23-6151 Doc: 48 Filed: 06/24/2024 Pg: 1 of 16

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-6151

THOMAS D. ALEXANDER,

Plaintiff – Appellant,

v.

SERGEANT CONNOR; GREGORY WILKINS,

Defendants – Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, District Judge. (5:20-ct-03076-D)

Argued: May 9, 2024 Decided: June 24, 2024

Before WYNN, HARRIS, and HEYTENS, Circuit Judges.

Vacated and remanded by published opinion. Judge Heytens wrote the opinion, which Judge Wynn and Judge Harris joined.

ARGUED: Kinsey Novak Booth, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Morgantown, West Virginia, for Appellant. Alex Ryan Williams, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Lawrence D. Rosenberg, JONES DAY, Washington, D.C., for Appellant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. USCA4 Appeal: 23-6151 Doc: 48 Filed: 06/24/2024 Pg: 2 of 16

TOBY HEYTENS, Circuit Judge:

An incarcerated person claims two correctional officers violated the Fourth and

Eighth Amendments by violently pulling a contraband phone out of his rectum in a prison

shower. The officers, in contrast, insist they found the phone in the plaintiff ’s pocket and

used no more force than warranted under the circumstances. The district court granted

summary judgment for the officers, relying on a video that captured some of what

happened. But that video does not resolve even the basic question of where the phone was

located. We therefore vacate and remand for further proceedings.

I.

In 2020, plaintiff Thomas Alexander was incarcerated at Eastern Correctional

Institution in North Carolina. Defendant Brandon Connor, a correctional officer who then

held the rank of sergeant, got a tip that Alexander had an unauthorized cellphone. Connor

ordered Gregory Wilkins, another correctional officer, to “pull [Alexander] from his cell to

be strip searched in an attempt to locate the contraband cell phone.” JA 162.

Connor used a handheld metal detector to scan the outside of Alexander’s clothes,

but the parties disagree about whether the detector alerted. The officers say it did.

Alexander insists it did not. But no one disputes that—after the external scan—Connor and

Wilkins brought Alexander to a shower room for a more thorough search.

Once the three arrived at the shower room, Connor ordered Alexander to submit to

a strip search. What happened next is disputed. In Alexander’s version of events, he refused

but agreed to a “pat . . . down” or “frisk.” JA 207. Connor then responded “we can do this

the easy way or the hard way.” Id. Alexander claims he asked for a more senior officer to

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be called to the shower, but that request was ignored. All agree that, after some back and

forth, Connor pepper sprayed Alexander in the face.

From there, the parties’ accounts diverge even more. Alexander says the officers

“slammed” him to the ground, forced him on to his stomach, and handcuffed him. JA 174.

Connor then “grab[bed] a fist full of [Alexander’s] hair and start[ed] yanking [his] head

back and forth,” yelling “where is the fucking phone.” JA 207. As Alexander screamed “as

loud as [he] could” for help, the officers pulled down three layers of clothing (outer pants,

a pair of shorts worn under the pants, and underwear) before Alexander felt “a person’s

hand slide in between [his] buttocks [and] fingers enter into [his] rectum and pull out [a]

cell phone.” JA 207–08. After the phone was recovered, Alexander says Connor grabbed

his right hand and “jerk[ed] it violently . . . against the metal cuffs,” spraining his wrist.

JA 208. The officers brought Alexander to his feet and held him under a shower head,

clearing some (but not all) of the pepper spray from his face. Alexander was escorted back

to his cell, where he sat for an hour “in soaking wet clothes and shoeless” before being

taken to a hospital to have the rest of the pepper spray flushed from his face and his wrist

x-rayed. Id. 1

Not surprisingly, the officers offer a different account. They claim that Alexander

was pepper sprayed because he started swinging his arms in a threatening manner, and that

1 The officers fault Alexander for not specifically asserting in his complaint that Connor pulled his hair or when precisely during the encounter Connor yanked his wrist. But pro se complaints like Alexander’s must be liberally—not grudgingly—construed, see, e.g., Pendleton v. Jividen,

(4th Cir. 2024), and we conclude Alexander’s arguments on appeal are fairly encompassed within his complaint. 3 USCA4 Appeal: 23-6151 Doc: 48 Filed: 06/24/2024 Pg: 4 of 16

he responded to the officers’ warning that they would spray him by saying “do what you

do.” JA 69. The officers also assert that they removed only one layer of clothing

(Alexander’s outer pants) before finding the phone inside a makeshift pocket sewn into the

shorts Alexander was wearing between his pants and his underwear. The officers insist that

they never grabbed Alexander’s hair, jerked his head around, or yanked his wrists against

the handcuffs.

Alexander filed a pro se lawsuit against the officers under

,

asserting violations of the Fourth and Eighth Amendments. The officers moved for

summary judgment, presenting affidavits, incident and medical reports, and a video

showing a portion of the incident. Alexander filed several handwritten documents

(including a declaration) that gave a sharply different account of the facts than the officers

did.

The district court granted the officers’ summary judgment motion, concluding no

reasonable jury could find they violated the Fourth or Eighth Amendments. Alexander filed

a pro se notice of appeal and an informal opening brief. After a preliminary review, this

Court appointed pro bono counsel to represent Alexander. “We review a grant of summary

judgment de novo, applying the same legal standards as the district court[.]” Reyes v.

Waples Mobile Home Park Ltd. P’ship,

(4th Cir. 2024).

II.

“The first step in assessing the constitutionality of [an officer’s] actions is to

determine the relevant facts.” Scott v. Harris,

(2007). This case presents

a recurring question: what should courts do where (as here) the parties disagree about what

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happened?

The answer, of course, turns on a case’s procedural posture. When a defendant

moves to dismiss a plaintiff ’s complaint for failure to state a claim on which relief can be

granted, the court must—no matter how vehemently the defendant disagrees—decide that

motion on the assumption that all the complaint’s “well-pleaded factual allegations” are

true. Ashcroft v. Iqbal,

(2009). In contrast, once a case reaches trial the

factfinder—whether a jury or the judge—considers all the evidence before it, resolves any

conflicts, and decides who and what to believe.

Summary judgment lies between these poles, but the principles that control here are

closer to those governing a motion to dismiss than a trial on the merits. True, non-moving

parties who would bear the burden of proof on an issue at trial (like Alexander) may not

simply rest on assertions in their complaint but must produce evidence that could—if

believed—permit a reasonable factfinder to rule in their favor. See, e.g., Celotex Corp. v.

Catrett,

, 322–25 (1986). But once that party produces such evidence, the

court must decide a summary judgment motion on the assumption that the factfinder would

believe that evidence and credit it over any contrary evidence offered by the moving party.

See Anderson v. Liberty Lobby, Inc.,

(1986).

Take the parties’ dispute about whether the handheld metal detector went off when

the officers ran it across Alexander’s body. The officers submitted affidavits claiming it

alerted, and their brief argues that must be right because the cellphone that was ultimately

found contained metal (which would have triggered the metal detector). But Alexander was

there too, and he submitted his own declaration saying the metal detector never went off

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and that the phone contained no metal components. Yes, that assertion is far from ironclad,

and a reasonable factfinder might decline to believe it. But making “[c]redibility

determinations” is strictly forbidden at this stage, Anderson,

, and this Court

has made clear that—so long as they are “based on personal knowledge or firsthand

experience”—“self-serving affidavits offered by the non-movant can be used as evidence

to defeat summary judgment.” Jones v. Solomon,

, 206–07 (4th Cir. 2024)

(brackets and quotation marks removed). For that reason, the district court had to assume—

for purposes of the current motion—that the metal detector never alerted.

The same goes for the officers’ assertions that “the record as a whole” refutes

Alexander’s claim “that a manual body cavity search . . . occurred.” Officers Br. 11. The

officers insist that the video’s timeline “does not support the conclusion that” they did a

cavity search, that “it does not make sense” that they would have done one without fully

removing Alexander’s shorts, and that the video shows Connor touching his pants after the

search, which “he would not have done if his fingers had just been inside [Alexander’s]

rectum.”

at 11–12. The officers also say that photographs and medical records they

submitted “support[ ]” their “contentions” about what happened and tend to undermine

Alexander’s. Id. at 13.

Those arguments might well persuade a factfinder, but they profoundly

misunderstand the role of the court at the summary judgment stage. At this point, the sort

of things the officers are asking us to do—weigh evidence and draw inferences from the

facts—have no place. See Anderson,

. Our job is not to determine what

really happened or figure out whose version of events is more likely to be true or lines up

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better with the known facts. Instead, we must “view the evidence . . . in the light most

favorable to” Alexander and assume the factfinder would resolve all genuinely “disputed

issues” in his favor and against the officers. Tolan v. Cotton,

(2014) (per

curiam).

Unlike the officers’ arguments about the “record as a whole” (Officers Br. 11), the

district court lasered in on the videotape. Citing the Supreme Court’s decision in Scott v.

Harris,

(2007), the court concluded that “[t]he video so utterly discredits”

the “version of events” set out in Alexander’s declaration “that no reasonable jury could

have believed him.” JA 282 (brackets and quotation marks removed). We conclude that

was legal error.

This Court has repeatedly cautioned against misuse of Scott’s “narrow exception”

to the general rule that a court must adopt “the plaintiff’s version of the facts” when

considering a summary judgment motion. Lewis v. Caraballo,

(4th Cir.

2024) (first quote); Scott,

(second quote). 2 A court may not disregard

contrary evidence just because there is a video that lines up with “a governmental officer’s

version of events” or “even makes it unlikely that the plaintiff ’s account is true.” Witt v.

West Va. State Police, Troop 2,

(4th Cir. 2011) (first quote); Harris v.

Pittman,

(4th Cir. 2019) (quotation marks removed) (second quote).

2 Along with Lewis, see Jones,

; Harris v. Pittman,

(4th Cir. 2019); Witt v. West Va. State Police, Troop 2,

, 276–77 (4th Cir. 2011); Greene v. Feaster,

, 91 (4th Cir. 2019) (per curiam) (vacating decision that relied on Scott in resolving a summary judgment motion); Poindexter v. Sandy, No. 21-6638,

, at *3 (4th Cir. May 25, 2022) (per curiam) (same); Fraley v. Davis, No. 21-6641,

, at *2 (4th Cir. Aug. 9, 2022) (per curiam) (same). 7 USCA4 Appeal: 23-6151 Doc: 48 Filed: 06/24/2024 Pg: 8 of 16

Instead, a court considering a defendant’s summary judgment motion may discount a

plaintiff ’s first-hand account “only [1] when there is evidence . . . of undisputed

authenticity that [2] shows some material element of the plaintiff ’s account to be blatantly

and demonstrably false” [3] such “that no reasonable jury could” credit the plaintiff ’s

version of events. Harris,

(emphases added and quotation marks removed)

(first quote); Scott,

(second quote).

The video here comes nowhere close to meeting that high standard. The soundless

ten-minute recording shows the officers leading Alexander from the cellblock into the

shower room. From that point on, Alexander is largely out of view until he is brought back

out of the shower room and the officers are either not shown or seen almost entirely from

behind. The officers appear to have a short conversation with Alexander before one of them

brings Alexander to the floor. One or both officers’ bodies are between the camera and

Alexander’s body from then on, and a third officer (who is not a defendant here) later

arrives and begins further blocking the camera’s view while the incident is still ongoing.

The officers then appear to lift Alexander to his feet, and Alexander disappears from the

video again for more than four minutes. The video ends with all three officers leading

Alexander out through a different door than the one through which he entered.

Although the parties invite us to read things into a flash of Alexander’s hair or the

movement of an officer’s body, we conclude that the video does not “clearly” depict much

of anything about what happened in the shower room. Scott,

. At no point

do we see how many layers of Alexander’s clothing are removed. The video does not allow

us to determine whether an officer grabbed Alexander’s hair or yanked on his wrist;

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whether there was a white pocket sewn onto Alexander’s shorts; or the location from which

the phone was recovered. We see no inherent contradiction between the video and

Alexander’s account—blatant or otherwise. For that reason, the district court needed to

credit Alexander’s version of events when resolving the officers’ summary judgment

motion.

III.

With the facts properly framed, we arrive at the merits questions on which the

district court’s ruling turned: Could a reasonable jury find facts that would establish a

violation of Alexander’s Fourth or Eighth Amendment rights? Concluding the answer is

yes as to both, we vacate the district court’s judgment and remand for further proceedings.

A.

The Fourth Amendment forbids “unreasonable searches and seizures.” U.S. Const.

amend. IV. No doubt, the prison setting matters a great deal, and the Fourth Amendment

permits prison officials to conduct plenty of searches and seizures that would be

constitutionally unreasonable if performed outside a prison. See, e.g., Bell v. Wolfish,

(1979) (dismissing any suggestion that prison officials need a warrant

to search a prisoner’s cell). Yet “prisons are not beyond the reach of the Constitution,”

Hudson v. Palmer,

(1984), and this Court has held that the Fourth

Amendment continues to guarantee prisoners “some legitimate expectation of privacy in

[their] person,” King v. Rubenstein,

(4th Cir. 2016). In deciding whether

an in-prison search violates the Fourth Amendment, we consider: (1) “the scope of the

particular intrusion”; (2) “the manner in which it is conducted; (3) “the justification for

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initiating it”; and (4) “the place in which it is conducted.”

at 214–15 (quotation marks

removed). Applying those standards, we conclude that resolving all factual disputes and

drawing all reasonable inferences in Alexander’s favor would establish a Fourth

Amendment violation here.

To be sure, the third factor—the asserted justification for the search—favors the

officers. The presence of contraband in prisons is “one of the most perplexing problems of

prisons today” and prison officials always “must be . . . alert to” it. Hudson,

. Although we must accept Alexander’s claim that the handheld metal detector never

went off, both the anonymous tip and Alexander’s undisputed history of possessing

contraband in prison supported the officers’ decision to search him.

But that does not end the inquiry. Even when the Constitution permits a search,

courts must ensure it was carried out in a constitutionally reasonable manner. This is

particularly so of the sort of “sexually invasive” search that we must assume took place

here. United States v. Edwards,

(4th Cir. 2011). And taking the facts in

the light most favorable to Alexander, we conclude that the other three factors identified in

our cases—the scope, manner, and location of the search—cut in Alexander’s favor.

For starters, no matter how you look at it, the sort of manual examination of

Alexander’s rectum described in his declaration constitutes a grave and “objectively

extreme” intrusion. King,

. The Supreme Court has cautioned against

“underestimat[ing] the degree to which” even a visual body cavity search—one where

prisoners “are required to expose their body cavities for visual inspection”—“invade[s] the

personal privacy of inmates.” Bell,

. What Alexander alleges (and what

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we must assume true) goes far beyond that. Alexander’s declaration describes what courts

have termed a “manual body cavity search,” an action that “constitut[es] a drastic and total

intrusion of the personal privacy and security values shielded by the [F]ourth

[A]mendment” and “threaten[s] the highest degree of dignity that we are entrusted to

protect.” Leverette v. Bell,

, 165 n.1 (4th Cir. 2001) (quotation marks removed)

(first quote); Rodriques v. Furtado,

(1st Cir. 1991) (second and third

quotes).

The context, manner, and location of the intrusion only compound the Fourth

Amendment concerns. This search was neither conducted by a medical professional, nor in

a medical setting. See Rodriques,

(stating that, absent exigent

circumstances, manual body cavity searches should be “conducted by a doctor in a private

and hygienic setting and in a medically approved manner”). Instead, it was performed by

two correctional officers on the floor of a shower room whose door was open to a public

corridor through which others could—and did—pass by during the encounter.

See Edwards,

(instructing us to “consider whether a sexually invasive

search could have been viewed by others, and whether it was in fact viewed by others, in”

analyzing “the reasonableness of the search”).

Alexander also asserts that the officers quickly—and unnecessarily—escalated the

nature of the encounter with little provocation from him by pepper spraying him, slamming

him to the ground, grabbing him by his hair, and screaming expletives in his face before

forcibly searching his rectum on the floor of a prison shower. We acknowledge, once again,

that a factfinder might not believe Alexander, may credit the officers’ version of events, or

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find that the truth lies somewhere in between. But searches conducted “in an abusive

fashion . . . cannot be condoned” even inside a prison, Bell,

, and Alexander

has created a genuine dispute of material fact about whether that is what happened here.

And because this Court does not even require sexually invasive searches to rise to the level

of abuse before they are deemed unreasonable, a reasonable jury could conclude this search

violated Alexander’s Fourth Amendment rights. See Edwards, 666 F.3d at 884–85 (holding

that a sexually invasive search may be unreasonable if it is conducted in a manner that

would instill fear, trauma, or risk of harm in the suspect); see also Sims v. Labowitz,

, 261–62 (4th Cir. 2018) (holding that the “intimidating manner” in which a

sexually invasive search occurred weighed strongly against reasonableness).

B.

Although the matter is closer, we reach the same conclusion about Alexander’s

Eighth Amendment claim. The prohibition against “cruel and unusual punishments,” U.S.

Const. amend. VIII, includes “the use of excessive physical force against a prisoner.”

Hudson v. McMillian,

(1992). A prisoner bringing an Eighth Amendment

excessive force claim must make two showings—one objective, the other subjective. “The

objective component asks whether the force applied was sufficiently serious to establish a

cause of action.” Brooks v. Johnson,

(4th Cir. 2019). “[T]he subjective

component . . . asks whether the officers” against whom the claim is brought “acted with a

sufficiently culpable state of mind.”

(quotation marks removed).

Alexander has done more than enough to avoid summary judgment on the objective

component. This portion of the Eighth Amendment analysis focuses “on the nature of the

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force” used “rather than the extent of ” any injuries suffered by the plaintiff and requires

only a “nontrivial” use of force. Wilkins v. Gaddy,

(2010) (per curiam).

Alexander’s account of the events in the shower room—which we must assume to be true

at this stage—easily clears that low bar. See Brooks,

(describing “[t]he

objective component” as “not a high bar”).

We also conclude that the record as a whole—construed in the light most favorable

to Alexander—would permit a reasonable jury to conclude that Alexander has satisfied the

subjective component. See Brooks,

(framing the summary judgment

inquiry for the subjective component around what “a reasonable jury could find”). That

component turns on an officer’s motive for using the force they did—specifically, “whether

[the] 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 v. Albers,

,

320–21 (1986) (quotation marks removed). “The question is not whether a reasonable

officer could have used force to maintain discipline, but whether these particular officers

did use force for that reason.” Brooks,

.

The problem, of course, is that “direct evidence of motive or intent may be hard to

come by.” Dean v. Jones,

(4th Cir. 2021). For that reason, courts use yet

another (and non-exhaustive) four-factor test to determine whether “a reasonable jury”

could find the subjective component satisfied in a particular situation.

Those factors

include: “(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

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severity of a forceful response.”

(quotation marks removed). This Court has emphasized

that, as with the underlying facts, “the proper inferences to be drawn from these factors”

are “matter[s] for the jury.” Brooks,

.

Although the subjective component for Eighth Amendment excessive force claims

imposes “a demanding standard,” we conclude that a jury that resolved all factual disputes

and drew all reasonable inferences in Alexander’s favor would not exceed the bounds of

its authority in finding that standard satisfied here. Brooks,

. To begin, a

jury that credited Alexander’s account could find that there was never any “reasonably

perceived threat” to the officers. Dean,

(quotation marks removed). Of

course, correctional officials must sometimes use force for other reasons, and “we owe

officers wide-deference in their determinations that force is required to induce compliance

with policies important to institutional security.” Brooks,

(quotation marks

removed). But a jury that believed Alexander’s version of events could reasonably

conclude that there was little need for any force to determine whether he had a prohibited

cellphone and that the types and amount of force the officers used in the shower went far

beyond any legitimate justification. A jury that believed Alexander could further conclude

that even though Alexander tried to deescalate the situation, the officers escalated it several

times throughout the encounter. And a jury that reached those conclusions could infer that

the reason the officers acted as they did was not to force Alexander to submit to a search

for contraband but “to punish him for his” perceived “intransigence.”

. For that

reason, we conclude that the district court erred in concluding that “no reasonable jury

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could find” that the officers violated the Eighth Amendment. JA 283. 3

IV.

Before the district court, the officers also sought summary judgment on a different

ground: that, even assuming they violated Alexander’s constitutional rights, they are still

entitled to qualified immunity because their actions did not violate any clearly established

rights of which a reasonable officer would have been aware. The district court did not reach

that issue, and the officers do not ask us to affirm on that alternative ground. Although we

would have the power to decide the qualified immunity question in the first instance

ourselves, see, e.g., Aleman v. City of Charlotte,

(4th Cir. 2023), we

decline to do so because neither party has asked us to and the officers chose not to brief the

relevant issues. We thus vacate the district court’s decision granting the officers’ summary

judgment motion and remand for further proceedings.

* * *

We reaffirm that a plaintiff ’s own affidavit based on personal knowledge must be

credited for purposes of adjudicating a summary judgment motion—even affidavits that

are uncorroborated, self-serving, or filed by pro se prisoners. We also reiterate that Scott v.

Harris’s narrow exception to the normal rules governing summary judgment is just that—

narrow. The judgment is vacated, and the case is remanded for further proceedings

3 In a two-sentence footnote devoid of citations, the officers’ brief asserts that Wilkins cannot be held liable for violating the Eighth Amendment because “all alleged acts of excessive force were . . . completed by Sergeant Connor.” Officers Br. 19 n.3. But the district court did not rely on any Wilkins-specific defense, and that sort of “passing shot” at an alternative ground for a partial affirmance is not enough to tee up an issue for our review. Short v. Hartman,

(4th Cir. 2023) (quotation marks removed). 15 USCA4 Appeal: 23-6151 Doc: 48 Filed: 06/24/2024 Pg: 16 of 16

consistent with this opinion.

SO ORDERED

16