UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1576

ERIC M. MCMILLIAN,

Plaintiff - Appellant,

v.

WAKE COUNTY SHERIFF’S DEPARTMENT; S. HARRIS; S. BALDWIN; E. 

BARRERA,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan,

Chief District Judge. (5:08-cv-00342-FL)

Submitted: September 17, 2010 Decided: October 28, 2010

Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed in part, vacated in part, and remanded with 

instructions by unpublished per curiam opinion.

Eric M. McMillian, Appellant Pro Se. John Albert Maxfield, 

COUNTY ATTORNEY’S OFFICE FOR THE COUNTY OF WAKE, Raleigh, North 

Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

This appeal stems from the district court’s order 

granting Wake County Correctional Officers Harris, Baldwin, and 

Barrera (collectively, “Defendants”) summary judgment on the 

basis of qualified immunity, and dismissing Plaintiff Eric 

McMillian’s civil rights action, filed pursuant to 42 U.S.C. 

§ 1983 (2006).1

In July 2008, McMillian was arrested and transported 

to the Wake County Jail. After being processed without 

incident, McMillian was placed in a single-person cell. After 

he was unsuccessful in his attempts to utilize the pay phone, 

McMillian became agitated. However, he eventually calmed down 

and rested in his cell. 

 Taken in the light most favorable to the injured 

party, see Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled 

on other grounds by Pearson v. Callahan, __ U.S. __, 129 S. Ct. 

808 (2009), the record establishes the following facts. 

 1 Although McMillian also named the Wake County Sheriff’s 

Department as a defendant, the district court dismissed the 

complaint as to this defendant and further denied McMillian’s 

request to amend his complaint to add the proper legal entity. 

McMillian does not contest either of these rulings on appeal. 

Nor does McMillian challenge the district court’s disposition of 

his Eighth Amendment deliberate indifference claim. 

Accordingly, we conclude McMillian has forfeited appellate 

review of those aspects of the district court’s order. See 4th 

Cir. R. 34(b) (limiting review to issues raised in the informal 

brief on appeal).
3

Defendant Harris later informed McMillian that he 

would be transferred to a different cell. To effectuate this 

transfer, Harris handcuffed McMillian and began to remove him 

from the cell. At this point, according to McMillian, 

Defendants placed him in a choke hold, forced him to the ground, 

and repeatedly struck him in the head. McMillian specifically 

alleged that, while he was handcuffed, Baldwin kneed him in the 

right eye, causing his eye to bleed. Although the record 

reveals some inconsistencies with regard to the particulars of 

the assault, McMillian has consistently maintained that the 

assaultive contact occurred after he was handcuffed. 

McMillian filed the instant civil action several days 

later, alleging Defendants employed excessive force during the 

cell transfer. Defendants denied the allegations and claimed 

they were entitled to qualified immunity. Shortly thereafter, 

McMillian filed the first of several discovery requests, asking 

the district court to order Defendants to produce any video 

recordings and photographs from the night in question. 

Defendants did not deny the existence of such evidence, but 

instead asked the court to defer all discovery pending 

resolution of the qualified immunity issue. 

The magistrate judge directed that discovery would be 

limited, initially, to that evidence relevant to Defendants’ 

assertion of qualified immunity, and found that the materials 
4

McMillian sought were not relevant to that issue. The district 

court upheld this ruling. 

Defendants filed a motion for summary judgment, which

was supported by affidavits from jail officials. According to 

these affidavits, McMillian was belligerent and disruptive from 

the time he arrived at the jail. When removed from his cell, 

McMillian began to rip folders from the walls, triggering 

Harris’ decision to place him in handcuffs. Instead of 

complying with their order to turn for cuffing, McMillian 

attacked Harris, knocking him to the floor. Several other 

officers pried McMillian off of Harris, handcuffed him, and 

proceeded to move him to a new cell. The officers averred 

McMillian was not kicked or punched. McMillian, in response,

denied these assertions, and reiterated that the video-recording 

from the jail would corroborate his version of events. 

McMillian submitted a sworn declaration in which he again 

averred that the assault occurred after he was handcuffed. 

The magistrate judge concluded Defendants were 

entitled to qualified immunity because the officers’ use of 

force was justified by the need to restore order. In reaching 

this conclusion, however, the magistrate judge did not address 

McMillian’s contention that the officers assaulted him after he 

had been handcuffed. The magistrate judge further denied 

McMillian’s request for the appointment of counsel. 
5

In his objections to the magistrate judge’s report, 

McMillian again emphasized that he had in fact complied with 

Harris’ request that he turn around to be handcuffed; that he 

placed his hands behind his back, as ordered; and that he was 

assaulted by the officers after he was handcuffed. McMillian 

argued the use of force, after he was immobilized and subdued, 

was not employed in a good faith effort to restore order. 

McMillian again reiterated his request for the production of the 

video surveillance footage. 

The district court adopted the magistrate judge’s 

recommendation and found the officers were entitled to qualified 

immunity. The district court found McMillian’s agitation and 

aggression during his transfer to a new cell justified 

handcuffing him, and that the level of force employed to 

accomplish that objective was appropriate. 

McMillian subsequently filed another motion to compel 

discovery and a motion, pursuant to Fed. R. Civ. P. 59(e), to 

alter or amend the court’s judgment. The district court denied 

both motions. 

On appeal, McMillian reiterates that Defendants’ 

actions constituted excessive force in light of the fact that he

was already handcuffed. McMillian further asserts error in the 

district court’s refusal to authorize the requested discovery. 
6

Finally, McMillian challenges the district court’s denial of his 

motion for the appointment of counsel. 

I.

This court reviews a district court’s order granting 

summary judgment de novo, drawing all reasonable inferences in 

the light most favorable to the nonmoving party. See Robinson 

v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010). Summary judgment 

may be granted only when “there is no genuine issue as to any 

material fact and . . . the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(c)(2). However, 

“[c]onclusory or speculative allegations do not suffice, nor 

does a mere scintilla of evidence in support of his case.” 

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 

2002) (internal quotation marks omitted). Summary judgment will 

be granted unless a reasonable jury could return a verdict for 

the nonmoving party on the evidence presented. See Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

“[Q]ualified immunity protects government officials 

from liability for civil damages insofar as their conduct does 

not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.” Pearson 

v. Callahan, ___ U.S. ___, ___, 129 S. Ct. 808, 815 (2009) 

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The 
7

Supreme Court has outlined a two-prong test for determining 

whether an officer is entitled to qualified immunity. Id. at 

815-16. First, a court should decide whether the facts alleged 

by the plaintiff demonstrate a violation of a constitutional 

right. Id. If so, the court must determine “whether the right 

at issue was clearly established at the time of [the] 

defendant’s alleged misconduct.” Id. at 816. Courts are no 

longer required to rigidly adhere to this sequence, however, and 

may exercise their discretion in determining which prong to 

address first. See id. at 818-22.

Excessive force claims of arrestees and pretrial 

detainees are governed by the Due Process Clause of the 

Fourteenth Amendment. See Orem v. Rephann, 523 F.3d 442, 446 

(4th Cir. 2008); Riley v. Dorton, 115 F.3d 1159, 1166 (4th Cir. 

1997) (en banc), abrogated on other grounds by Wilkins v. Gaddy, 

__ U.S. __, __, 130 S. Ct. 1175, 1178-79 (2010) (per curiam). 

In analyzing such a claim, “[t]he proper inquiry is whether the 

force applied was in a good faith effort to maintain or restore 

discipline or maliciously and sadistically for the very purpose 

of causing harm.” Taylor v. McDuffie, 155 F.3d 479, 483 (4th 

Cir. 1998) (internal quotation marks omitted), abrogated on 

other grounds by Wilkins, 130 S. Ct. at 1178-79. This analysis 

requires consideration of whether the given situation required 
8

the use of force and “the relationship between the need and the 

amount of force used.” Orem, 523 F.3d at 446. 

McMillian has consistently asserted that, after he was 

handcuffed and subdued, Defendants knocked him to the ground, 

repeatedly struck him, and kneed him in the head, causing his 

eye to bleed and injury to his neck. In granting summary 

judgment to Defendants, the district court accepted Defendants’ 

assertions that they handcuffed McMillian due to his disruptive 

conduct, and that their use of force was limited to 

accomplishing that objective. Neither the magistrate judge nor 

the district court squarely addressed McMillian’s allegation 

that the complained-of use of force occurred after he was 

handcuffed. 

Accepting McMillian’s allegations and evidence as 

true, as we must at this procedural juncture, see Jones v. 

Buchanan, 325 F.3d 520, 524 n.1 (4th Cir. 2003), we conclude the 

district court erred in finding there was no issue of material 

fact as to the need for the use of force and the extent of force 

Defendants used. Crediting McMillian’s version of the events, 

we cannot say, as a matter of law, that knocking down, punching, 

and kicking an arrestee while he is in handcuffs are actions 

taken in good faith to restore order. See Young v. Prince 

George’s Cnty., Md., 355 F.3d 751, 756-58 (4th Cir. 2004) 

(vacating order granting defendant police officer summary 
9

judgment on plaintiff’s Fourth Amendment excessive force claim, 

in which plaintiff alleged officer assaulted him after he was 

placed in handcuffs); Jones, 325 F.3d at 529 (noting factual 

dispute over whether plaintiff was handcuffed and that plaintiff 

might be unable to prove that he was in fact handcuffed, but 

suggesting that whether plaintiff was handcuffed was highly 

relevant to assessment of the reasonableness of the officer’s 

conduct); see also Orem, 523 F.3d at 446-47 (upholding denial of 

qualified immunity defense asserted by police officer who used a 

taser on a suspect after she was handcuffed and restrained). 

Adjudication of this issue is complicated by the fact 

that the district court denied McMillian’s repeated requests for 

discovery of any videotapes and photographs from the night in 

question. We review the denial of a request for discovery for 

an abuse of discretion. Conner v. United States, 434 F.3d 676, 

680 (4th Cir. 2006). “An abuse of discretion may be found where 

denial of discovery has caused substantial prejudice.” Nicholas 

v. Wyndham Int’l, Inc., 373 F.3d 537, 542 (4th Cir. 2004) 

(internal quotation marks omitted). 

McMillian has steadfastly maintained that the jail’s

surveillance cameras captured the events at issue. The court 

denied McMillian’s request for discovery of any such evidence, 

finding it was not relevant to Defendants’ assertion of 

qualified immunity. We disagree. In evaluating whether a 
10

police officer is entitled to qualified immunity, the district 

court must assess whether there was a constitutional violation. 

See Pearson, 129 S. Ct. at 815. Certainly, evidence that would 

have confirmed (or dispelled) McMillian’s allegations pertaining 

to the events that form the subject of this lawsuit is highly 

probative of that issue.2

For these reasons, we conclude the district court’s grant 

of summary judgment on the basis of qualified immunity was 

premature, particularly in light of the erroneous evidentiary 

ruling. Accordingly, we vacate the district court’s order 

granting Defendants summary judgment on the basis of qualified 

immunity. 

 See Ingle ex rel. Estate of Ingle v. 

Yelton, 439 F.3d 191, 196 (4th Cir. 2006) (“Because there was a 

sufficient basis to believe such videos existed, and because 

this evidence represented [plaintiff’s] principal opportunity to 

contradict the assertion that the district court found 

dispositive, the court should have allowed discovery as to the 

videos.”). Because we conclude the denial of McMillian’s 

discovery requests substantially prejudiced him, we hold the 

district court abused its discretion in denying these requests. 

 2 It bears repeating that Defendants did not deny the 

existence of such evidence. 
11

II.

McMillian also argues the magistrate judge erred in 

denying his motion for appointment of counsel. While a § 1983 

litigant has no right to appointed counsel, see Bowman v. White, 

388 F.2d 756, 761 (4th Cir. 1968), a district court’s refusal to 

appoint counsel may be an abuse of discretion when “a pro se 

litigant has a colorable claim but lacks the capacity to present 

it.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984) 

(holding that 28 U.S.C. § 1915 (2006) does not authorize 

compulsory appointment of counsel), abrogated on other grounds 

by Mallard v. U.S. Dist. Ct., 490 U.S. 296, 298 (1989). In a 

civil case, orders denying appointment of counsel are reviewed 

for an abuse of discretion. See Miller v. Simmons, 814 F.2d 

962, 966 (4th Cir. 1987). 

As discussed above, McMillian’s complaint arguably 

raises a colorable claim; however, the record reflects that 

McMillian ably pursued his claim in the district court. 

Accordingly, we conclude the district court did not abuse its 

discretion in denying McMillian’s request for the appointment of 

counsel, and affirm that aspect of the district court’s order. 

III.

For the foregoing reasons, we vacate the district 

court’s order granting Defendants summary judgment and remand 
12

this case to the district court for further proceedings. We 

direct the district court to order Defendants to produce any and 

all relevant videotape and photographic evidence from the night 

in question. Further, although we affirm the district court’s 

denial of McMillian’s motion for appointment of counsel, we 

conclude it would be prudent for McMillian to be represented by 

counsel for the remainder of this litigation. Accordingly, upon 

remand, the district court should take the necessary steps to 

appoint counsel for McMillian. We dispense with oral argument 

because the facts and legal contentions are adequately presented 

in the materials before the court and argument would not aid the 

decisional process.

AFFIRMED IN PART,

VACATED IN PART, AND

REMANDED WITH INSTRUCTIONS