Argued: December 11, 2018
Appeals from the United States District Court for the
District of South Carolina, at Beaufort. Patrick Michael
Duffy, Senior District Judge. (9:15-cv-2677-PMD-BM)
Daniel Lockaby, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens,
Georgia, for Appellant.
Michael DeAntonio, SENN LEGAL, LLC, Charleston, South
Carolina, for Appellees.
V. Burch, Cary Berkeley Kaye, Wade Barron, Student Counsel,
Sarah Quattrocchi, Student Counsel, Appellate
Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW,
Athens, Georgia, for Appellant. Christopher T. Dorsel, SENN
LEGAL, LLC, Charleston, South Carolina, for Appellees.
KEENAN, WYNN, and HARRIS, Circuit Judges.
HARRIS, Circuit Judge.
prison official deployed a taser three times against Altony
Brooks when Brooks refused to hold still for an
identification photograph. Brooks filed an Eighth Amendment
excessive force suit, and the district court granted summary
judgment against him, finding it beyond genuine dispute that
the officer had applied force in a good faith effort to
obtain Brooks's photograph.
disagree. The critical Eighth Amendment question in this case
is one of motive: whether the corrections officer shocked
Brooks three times "in a good faith effort to maintain
or restore discipline," or "maliciously" and
"for the very purpose of causing harm," Whitley
v. Albers, 475 U.S. 312, 320-21 (1986) (internal
quotation marks omitted). Viewing the record in the light
most favorable to Brooks, as we must, we think a reasonable
jury could find that the officer used multiple shocks not to
induce Brooks's cooperation, but to punish him for his
intransigence through the "wanton infliction of
pain," id. at 320. Accordingly, we vacate the
grant of summary judgment and remand for further proceedings
consistent with this opinion.
from the critical question of motive, the facts relevant to
this appeal are largely undisputed. Indeed, much of the key
incident is captured on soundless video footage, which we
have reviewed carefully. Except where we attribute an
allegation to a particular party, the following account is
of force in question occurred in 2013, when Altony Brooks was
serving a prison sentence with the South Carolina Department
of Corrections. On September 17 of that year, Brooks was
transported to the Hill-Finklea Detention Center for a
one-night stay, so that he could attend a nearby court
appearance the next morning. From the time of his arrival,
Detention Center officers reported, Brooks was "very
disrespectful and uncooperative," "continuously
threaten[ing] to sue the officers for anything he didn't
like." J.A. 681-82 (contemporaneous incident report
filed by corrections officer) ("Incident Report").
Center policy requires that an identification photograph be
taken whenever an inmate enters the facility. According to
corrections officers, Brooks would not cooperate with their
efforts to photograph him when he began his stay on September
17. The officers tried a second time the following afternoon,
before Brooks's scheduled return to his permanent
correctional facility. Brooks once again refused to
cooperate, and the result was the episode at issue in this
time, instead of forgoing the picture, Detention Center
officers escorted Brooks to the booking area that housed the
photography equipment. From this point on, Brooks was in
handcuffs and held by two or more officers while additional
officers closely flanked him; the total number of officers on
the scene grew from five to six as events unfolded. According
to the officers, this did not stop Brooks from using
"aggressive" language and verbally threatening at
least some of those present. See J.A. 689 (affidavit
of defendant Captain Jacumin) ("Jacumin
Affidavit"); see also Incident Report, J.A. 681
(describing Brooks as "making threats to the
officers"). Brooks denies threatening the officers, but
his own account includes what could be described as
"aggressive" verbal resistance. See J.A.
28 ("I advised that I was sovereign and I'm not
taking any pictures. . . . I stated . . . that I was already
false[ly] imprisoned and I'm not giving them no
picture."). The soundless video cannot resolve
inconsistencies on this point, and so we take the view more
favorable to Brooks, as the party opposing summary judgment.
See Henry v. Purnell, 652 F.3d 524, 527 (4th Cir.
2011) (en banc).
start of the video shows a substantial period of time -
roughly seven and a half minutes - during which the officers
appear to be "attempting to convince [Brooks] to let
them take his picture," Brooks v. Jacumin, No.
9:15-cv-2677-PMD-BM, 2017 WL 3307648, at *3 (D.S.C. Aug. 3,
2017), consistent with the officers' own account,
see Incident Report, J.A. 681 (referring to
"several minutes of trying to reason with inmate
Brooks"). But as the district court explains, it is
clear from the video that Brooks continues to resist having
his photograph taken, by "moving his head repeatedly to
prevent a clear picture." Brooks, 2017 WL
3307648, at *1. This, too, is roughly consistent with the
accounts of both Brooks and the officers involved.
See Complaint, J.A. 28 ("I refused and turned
my head repeatedly"); Jacumin Affidavit, J.A. 688
("Brooks refused to allow [the officers] to take his
picture by bending over out of the camera view and hiding his
this seven-and-a-half-minute period, the video shows one of
the officers - Sergeant Sheila Johnston - pointing a taser
gun at Brooks while two other officers hold Brooks in place.
Though the record does not establish precisely what Johnston
said, the parties agree, in substance, that Johnston warned
Brooks that she would deploy the taser if he did not
cooperate. See Complaint, J.A. 28 ("if you move
again I'll taze you"); Jacumin Affidavit, J.A. 689
("Johnston warned [Brooks] that she would tase him if he
did not stop."). Approximately ten seconds later, when
Brooks continued to move around, Johnston deployed the taser
for the first time, hitting Brooks in the leg. As the
district court describes, Brooks "fell to the ground,
writhed and kicked for approximately five seconds, and
ultimately laid still." Brooks, 2017 WL
3307648, at *3.
lying on the ground, Brooks was well outside the camera's
frame, so his photograph could not be taken. Roughly 16
seconds after the first shock, while Brooks remained on the
ground with two officers standing over him, Johnston deployed
the taser for the second time. On the video, Brooks appears
to thrash in pain. Two officers then brought Brooks to his
feet, so that his head again was in camera range, and the
officers tried once more to take his photograph.
held by the officers, continued to move instead of holding
still for the camera, though the parties dispute whether
Brooks's movements were continued resistance,
see Incident Report, J.A. 682 (Brooks
"continued to . . . struggle with the officers"),
or an involuntary response to the two taser shocks already
administered, see Complaint, J.A. 29 (Brooks
"tried to stay still"). Approximately 45 seconds
after Brooks was pulled upright by the officers, Johnston
deployed her taser for the third time. This time, the
officers caught Brooks as he fell. The video concludes
shortly thereafter, but the parties agree that the officers
then were able to take Brooks's photograph.
alleges that he has experienced knee pain ever since the
incident, and an MRI taken two years later revealed a kneecap
irregularity and a possibly torn meniscus that he attributes
to the use of force against him.
proceeding pro se - that is, without the assistance of
counsel - filed a complaint under 42 U.S.C. § 1983
against Johnston and several other officers present during
the incident. As relevant here, Brooks alleged that the
corrections officers used excessive force in violation of the
Eighth Amendment, which prohibits the infliction of
"cruel and unusual punishments," U.S. Const. amend.
procedural issues arose in the early stages of Brooks's
case. First, several months after Brooks filed his complaint,
the district court dismissed Sergeant Johnston - the officer
who deployed the taser - as a defendant in the case because
Brooks had not properly served her during the 120-day period
allowed under Federal Rule of Civil Procedure
4(m). Brooks's complaint had misidentified
Johnston, who is a sergeant, as a lieutenant, and misspelled
her name as "Johnson," dropping the "t."
As a result, the United States Marshals Service, which often
effects service on behalf of prisoners like Brooks,
see 28 U.S.C. § 1915(d), was unable to serve
process on Johnston. Brooks made multiple efforts to advise
the Marshals and the court of his initial error in
identifying Johnston, sending the Marshals a letter with a
corrected name and title and advising the court that he had
run out of service forms and needed its assistance. A
magistrate judge nevertheless recommended dismissing Johnston
from the case, and the district court adopted that
recommendation, finding that Brooks had not shown "good
cause" for his failure to serve Johnston. J.A. 449.
dismissal left just two corrections officers as the
defendants for Brooks's Eighth Amendment claim: Captain
Kris Jacumin and Officer Selisa Fludd, who were present
during the incident but did not themselves deploy the
taser. The case proceeded to discovery, at which
point the second preliminary issue arose: a dispute over
production of the Detention Center's use-of-force
policies. When Brooks requested copies of those policies, the
defendants objected, arguing that production would raise
security concerns. The magistrate judge denied ...