McClain v. Clark

Opinion

USCA1 Opinion

April 13, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-2139 

                                  DONALD J. MCCLAIN,

                                Plaintiff, Appellant,

                                          v.

                                GORDON CLARK, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                          Boudin and Stahl, Circuit Judges.
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                                 ____________________

            Donald J. McClain on brief pro se.
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            Marc  J. Miller and Bernstein, Golder & Miller,  P.A. on brief for
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        appellee Gordon Clark.

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Per  Curiam.   Appellant  Donald  McClain  filed an
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            action in the district  court under 42 U.S.C.    1983 against

            Gordon Clark, a correctional officer, and John McGonigle, the

            Middlesex  County  Sheriff.    McClain  alleged  the  use  of

            excessive force  by Clark  in the  process of  moving McClain

            from the jail in which he  was housed to a van in preparation

            for  transportation to  court.   The  district court  granted

            Clark's  motion for summary judgment.  In so doing, it relied

            on Clark's affidavit to find that the force used by Clark was

            reasonable and necessary to  fulfill his duties under Whitley
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            v. Albers, 475 U.S. 312 (1986).
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                      On appeal,  McClain first  complains that he  never

            received the  report of a magistrate judge  which had earlier

            recommended  the  denial  of  McClain's  motion  for  summary

            judgment.   McClain also states that he was not notified that

            the case  had  been  transferred from  Judge  Wolf  to  Judge

            Hornby.    In  light  of  the  fact that  McClain  apparently

            received notice  of Judge  Wolf's adoption of  the magistrate

            judge's  recommendation,  it  is  hard  to  see  how  he  was

            prejudiced.   Even if he  was deprived of  the opportunity to

            file  objections to  the report,  he essentially  received an

            equivalent opportunity when  he responded  to Clark's  motion

            for summary judgment.   That  is, he wrote  a memorandum  and

            submitted  his  medical records  and  the  affidavits of  two

            witnesses to some of the events in question.

Second, McClain argues that he met the requirements

            for summary  judgment because  he suffered an  injury to  his

            right hand when Clark smashed his  hand by stepping on it and

            when Clark, in double-handcuffing him, placed the cuffs on so

            tightly that circulation  was cut  off to his  hands.   Also,

            prison officials allegedly applied excessive force in the way

            they  carried him  to  the van.    McClain asserts  that  the

            actions of  the prison officials, especially  Clark, were not

            warranted because  he (McClain)  never presented a  threat to

            any officers.

                      To  prevail on  a  motion for  summary judgment,  a

            moving party must "show that there is no genuine  issue as to

            any material  fact and that the moving party is entitled to a

            judgment as a matter of law."   Fed. R. Civ. P. 56(c).   Once

            the  movant has met this  standard, the burden  shifts to the

            non-moving party to  establish the existence of "at least one

            issue that  is  both `genuine'  and  `material.'"   Kelly  v.
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            United States,  924 F.2d 355,  357 (1st Cir.  1991) (citation
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            omitted);  Fed.  R. Civ.  P. 56(e).    Here, as  Judge Hornby

            noted, McClain did not  file his own affidavit.   However, he

            did  submit  the  affidavits  of the  two  inmates;  he  also

            submitted medical records.

                      To show an Eighth Amendment violation when force is

            used, an inmate must  demonstrate "the unnecessary and wanton

            infliction of pain."  See Whitley, 475 U.S. at 320.  That is,
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that the  force was not  "`applied in a good  faith effort to

            maintain or restore discipline [but was used] maliciously and

            sadistically  for the very purpose of causing harm.'"  Id. at
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            320-21  (quoting Johnson  v. Glick, 481  F.2d 1028,  1033 (2d
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            Cir.), cert. denied,  414 U.S. 1033 (1973)).   In considering
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            this  question, courts must take into  account "the extent of

            the  threat to the safety of staff and inmates, as reasonably

            perceived  by the responsible  officials on the  basis of the

            facts known to them. . . . "  Id. at 321.
                                          ___

                      Upon reviewing the affidavits of the two  prisoners

            and  comparing  them  to  Clark's  affidavit,  the  following

            undisputed scenario emerges.  There  was an argument in which

            McClain refused  to let the prison officials  prepare him for

            transportation to court  and in which he  denied the requests

            that  he  be voluntarily  handcuffed  as  required by  prison

            policy.  Although one of the inmates asserts in his affidavit

            that McClain "appeared" not to be putting  up any resistance,

            Clark nonetheless  forced McClain onto  a table with  a night

            stick.  However, this inmate also states that he (the inmate)

            was taken  out to  the van immediately  after this  occurred.

            Thus, he did not see, nor  did the other inmate claim to see,

            what  happened next when Clark  put the leg  irons on McClain

            and began patting down McClain.   Because McClain claims that

            Clark inflicted  the force (smashing his  hand and tightening

            the  handcuffs) during  this period  of time,  we  think that

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Clark's version of what happened in the course of the ensuing

            process remains  uncontradicted.  That is,  that McClain, due

            to his  resistance and  combativeness, presented a  threat to

            Clark which required the use of force by Clark.

                      Once this is established, the question then becomes

            whether  the   force  employed  was  used   "maliciously  and

            sadistically for  the very  purpose of  causing harm" or,  as

            Clark asserts in his  affidavit, in a "good faith"  effort to

            keep McClain in  custody and  under control.   "The focus  of

            this  standard  is  on  the  detention  facility   official's

            subjective  intent to punish."  Valencia v. Wiggins, 981 F.2d
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            1440,  1449 (5th Cir.), cert. denied, 113 S. Ct. 2998 (1993).
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            Further, the  Whitley Court recognized that  deference should
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            be  accorded  prison  officials  in the  choice  and  use  of

            practices they believe  are necessary  to maintain  security.

            See 475 U.S. at 321-22.
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                      Given the  situation facing Clark  -- that  McClain

            had  to be transported to  court but was  refusing to proceed

            voluntarily  -- Clark  reasonably could  have  perceived that

            some  force   would  be  needed  to   accomplish  this  goal.

            Moreover,  once  McClain   became  combative,  and  therefore

            potentially  dangerous, one  way to  subdue and  keep McClain

            from  hurting  others  was  by  the  use  of  leg  irons  and

            handcuffs.  In the  absence of any evidence to  the contrary,

            Clark's  assertion that, based on  the facts then before him,

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he  acted in good faith during  this process must be taken as

            true.  See Whitley, 475 U.S. at 321.
                   ___ _______

                      Because  the use  of  force in  this  case was  not

            constitutionally  excessive,  the  alleged  injuries  McClain

            suffered become  irrelevant.   We therefore need  not address

            McClain's claim  that Clark  committed perjury by  stating in

            his affidavit that McClain  had not received any "significant

            injury."

                      The judgment of the district court is affirmed.
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