The Honorable Fernando J. Gaitan, Jr., United States District Judge for th e 1 Western District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3539

___________ Jeffrey E. Samuels, * * Appellant, * * v. * Appeal from the United States * District Court for the Regina Hawkins; Jackie Robinson; * Western District of Missouri. Mark Boucher; James McCoy; Charles * Megerman, * [UNPUBLISHED] * Appellees. *

___________ Submitted: April 6, 1998 Filed: May 19, 1998

___________ Before BOWMAN, Chief Judge, WOLLMAN, MORRIS SHEPPARD ARNOLD , Circuit Judges.

___________ PER CURIAM. Jef frey E. Samuels appeals from the district court & s adverse grant of summary 1 judgmen t in his 42 U.S.C. § 1983 action alleging constitutional violations agains t Jackson County Missouri Detention Center employees. Having carefully considered-2-

the record in this case, we affirm the judgment of the district court. See 8th Cir. R

. 47B. MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring and dissenting.
I concur in the affirmance of the district court & s judgment as to Mr. Samuels & s claims against Captain Jackie Robinson, Officer Mark Boucher, Manager of Detention James McCoy, and Director Charles Megerman.
As to Mr. Samuel & s Eighth Amendment claim against Officer Regina Hawkins, however, I respectfully dissent. Although the facts are contested, I recount them most favorably to Mr. Samuels, the non-moving party. See Dulany v . Carnahan , 132 F.3d 1234, 1237 (8th Cir. 1997). O n the evening of May 24, 1994, Officer Hawkins reported that Mr. Samuels, then a Jackson County Detention Center (JCDC) inmate, had thrown urine on her, and Mr

. Samuels was placed in restraints. He was s hackled to his cell bed on his back, and his arms and hands were chained and handcuffed at his sides.
Four hour s later, Officer Hawkins was admitted to the module in which Mr

. Samuels was housed. Officer Hawkins went directly to the open doorway of Mr

. Samuels & s cell. With her hands behind her back, she asked Mr. Samuels whether he was serving a l ife sentence; stated, “I & m gonna make sure you never see, again!”; and brought a cup out from behind her back and threw a cle ar liquid at Mr. Samuels, which caused him to experience a slight burning sensation in his eyes and on his face

. Because of his restraints, Mr. Samuels was unable to avoid the liquid or shield his face. Officer Hawkins then ran from th e area. Other inmates, hearing Mr. Samuels yell that Officer Hawkins had thrown a liquid on him that seemed to be burning his face, called-3-

for help. Mr. Samuels was examined by a JCDC nurse, who found his vision wa s intact, but told him to apply cold compresses to his eyes.
After the occurrence, Mr. Samuels experienced sleeplessness, nightmares , flashbacks, extreme st

ress, paranoia, and vision problems, and doctors diagnosed him with “reactive anxiety ” and “post-traumatic stress disorder.” He was prescribed antidepressant and anti-anxiety medications.
The unnecess ary and wanton infliction of pain is cruel and unusual punishment forbidden by the Eighth Amendment. See Hudson v. M cMillian , 503 U.S. 1, 5 (1992). Where a n inmate’s Eighth Amendment claim is based on excessive force, the “cor e judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore dis cipline, or maliciously and sadistically to cause harm.” See id. at 6-7
. Con siderations relevant to this determination include the threat prison official s reasonably perceive d, the need for force, the efforts made to minimize the force used, the relationship between the need for using force and the amount of force used, and the degree of injury inflicted. See id. at 7; McLaurin v. Prater , 30 F.3d 982, 984 (8th Cir. 1994).
Based on the Hudson considerations, I conclude that Mr. Samuels offere d su fficient evidence that Officer Hawkins’s conduct was malicious and sadistic t o surviv e summary judgment. Because Mr. Samuels was fully restrained and posed no threat to anyone, no force was necessary. His subsequent symptoms and psychiatric treatm ent demonstrated a cognizable injury under the circumstances of this case. Cf. Hobbs v. Lockhart , 46 F.3d 864, 869 (8th Cir. 1995) (inmate & s emotional distress was suffici ently serious to support Eighth Amendment failure-to-protect claim; citin g Hudson , 503 U.S. at 16 (Blackmun, J., concurring) (“ # [p]ain & in its ordinary meaning surely includes a notion of psychological harm”)).-4-

I disagree with the district court & s statement that Officer Hawkins cannot b e liable because “de mi nimis” force was employed. “De minimis” uses of force are not ex cluded from the Eighth Amendment & s prohibition against cruel and unusua l punishment where the use of force is of a sort “repugnant to the conscience o f mankind.” Hudson , 503 U.S. at 10 (quotation marks and qu oted cases omitted). Here, viewing the evidence favorably to Mr. Samuels, Officer Hawkins in tentionally and with premeditati on approached Mr. Samuels while he was on his back and fully restrained to the bed b y chains and handcuffs, reminded him of his life sentence, threatened him with permanent blindness, while throwing a stinging liquid into his eyes, and then ran from the area without providing any aid. I believe that such conduct, when examined i n its totality, would have placed Mr. Samuels, who was helpless to assist himself, in reasonabl e and immediate fear of permanent blindness, and I conclude that suc h conduct is “repugnant to the conscience of mankind.” Consequently, I would reverse the judgment entered in fa vor of Officer Hawkins and remand that claim to the district court for further proceedings. I would affirm the judgment of the district court in all other respects. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.