UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-6843

WALLY BOONE,

Plaintiff - Appellant,

v.

C.D. EVERETT, K-9 Officer; RODRIGUEZ, Sergeant,

Defendants - Appellees,

and

CORIZON, contractors in the employment of Virginia 

Department of Corrections Medical Department; MS. SIDI; MS. 

JACKSON; MS. M. WOODRUFF,

Defendants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Anthony J. Trenga, 

District Judge. (1:14-cv-01619-AJT-TCB)

Submitted: September 28, 2016 Decided: October 21, 2016 

Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Wally Boone, Appellant Pro Se. John Michael Parsons, Assistant 

Attorney General, Richmond, Virginia, for Appellees.
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

Wally Boone appeals the district court’s order granting 

Officer C.D. Everett and Sergeant L. Rodriguez’s motion for 

summary judgment and denying relief on his 42 U.S.C. § 1983 

(2012) complaint. Boone’s complaint raises Eighth Amendment 

excessive force claims. In his complaint, Boone alleges that: 

(1) Everett slammed Boone’s head into a wall, threw him on the 

floor, jumped on top of him, and choked him until he became 

unconscious, and (2) Rodriguez dragged Boone to the medical 

department while threatening to drop him and allowing Boone’s 

genitals to remain exposed.*

The district court granted Defendants’ motion for summary 

judgment. We affirm in part, vacate in part, and remand for 

further proceedings.

We review a district court’s award of summary judgment de 

novo, viewing the facts and inferences reasonably drawn from 

those facts in the light most favorable to the nonmoving party. 

Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320 (4th 

 * Boone also appeals the district court’s dismissal of his 

deliberate indifference claim against Nurse Sidi. But Boone 

does not challenge the district court’s sole dispositive ruling 

on the claim against Sidi—that Boone failed to exhaust his 

administrative remedies against Sidi. Thus, Boone has waived 

appellate review of that ruling. See 4th Cir. R. 34(b) (“The 

Court will limit its review to the issues raised in the informal 

brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 

2014).
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Cir. 2014). A court can only award summary judgment when no 

genuine dispute of material fact remains and the record shows 

that the moving party is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(a). When the moving party makes an 

initial showing that there is no genuine issue of material fact, 

the nonmoving party must “go beyond the pleadings” and rely on 

some form of evidence, including affidavits, to demonstrate that 

a genuine issue of material fact exists. Celotex Corp. v. 

Catrett, 477 U.S. 317, 324 (1986). Thus, to withstand summary 

judgment, the nonmoving party must produce competent evidence

that goes beyond “[c]onclusory or speculative allegations” and 

relies on more than “a mere scintilla of evidence.” Thompson v. 

Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)

(internal quotations omitted). 

When reviewing the evidence submitted, a court cannot 

“credit[ ] the evidence of the party seeking summary judgment 

and fail[ ] properly to acknowledge key evidence offered by the 

party opposing that motion.” Tolan v. Cotton, 134 S. Ct. 1861, 

1867 (2014). Such conduct would improperly weigh the evidence 

and resolve disputed issues in the moving party’s favor. Id. 

But when the record “blatantly contradict[s]” the nonmoving 

party’s version of events, a court can adopt the moving party’s 

version. Scott v. Harris, 550 U.S. 372, 380 (2007) (relying on 
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unaltered videotape evidence that contradicted nonmoving party’s 

claim to adopt moving party’s version of facts).

Here, the issue for summary judgment implicates the Eighth 

Amendment, which protects prisoners from “unnecessary and wanton 

infliction of pain.” Whitley v. Albers, 475 U.S. 312, 319 

(1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 

34 (2010). An Eighth Amendment claim for excessive force, like 

Boone’s claim, requires the prisoner to prove the official 

possessed a culpable state of mind (subjective component) and 

caused the prisoner a sufficiently serious deprivation or injury 

(objective component). Williams v. Benjamin, 77 F.3d 756, 761 

(4th Cir. 1996).

The subjective component requires a prisoner to prove the 

official acted “maliciously and sadistically for the very 

purpose of causing harm” rather than “in a good faith effort to 

maintain or restore discipline.” Whitley, 475 U.S. at 320-21 

(internal quotation marks omitted). Not every malevolent touch 

by a prison guard gives rise to an excessive force claim. 

Hudson v. McMillian, 503 U.S. 1, 9 (1992). Factors showing 

malicious or sadistic intent include:

(1) the need for force,

(2) the degree of force used in relation to the need 

for force, 

(3) the existence of a threat reasonably perceived by 

the official, 

(4) any efforts made to lessen the severity of a 

forceful response, and 
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(5) the extent of the prisoner’s injury.

Id. at 7.

The objective component measures the force used against 

“contemporary standards of decency.” Hudson, 503 U.S. at 8 

(internal quotations omitted). When a prisoner satisfies the 

subjective standard, “contemporary standards of decency always 

are violated.” Id. at 9.

Turning first to the excessive force claim against Everett, 

we hold that the district court’s opinion contains flaws

necessitating remand. First, the opinion does not mention the 

evidence Boone proffered to support his claim, which included: 

(1) his affidavit attesting to his account of the incident,

(2) his prison grievances detailing injuries consistent with his 

allegations, and (3) affidavits from three other inmates who 

attested they observed Everett slam Boone’s head into a wall and 

choke him. A court may only reject the nonmoving party’s 

evidence, such as Boone’s affidavits and grievances, when 

uncontroverted evidence in the record “blatantly contradict[s]” 

it. Scott, 550 U.S. at 378. No such blatant contradiction 

exists here.

By overlooking Boone’s evidence, the district court’s 

opinion offers a version of the facts that almost exclusively 

relies on Defendants’ account. Boone relied on evidence he 

submitted to allege that Everett slammed Boone’s head against a 
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wall and choked him. Everett denied those allegations. Despite 

this direct contradiction, the opinion adopts Everett’s 

allegations without crediting Boone’s allegations. See Tolan, 

134 S. Ct. at 1867 (finding that the court erred in its review 

of a summary judgment motion when it “did not credit directly 

contradictory evidence” to the nonmoving party). The court 

therefore did not view the facts in the light most favorable to 

the nonmoving party as required for summary judgment review. 

Id. at 1866; Core Commc’ns, Inc., 744 F.3d at 320.

Thus, the district court did not apply the correct standard 

when viewing the record, and our review shows a genuine dispute 

of material fact exists as to the need for and amount of force 

Everett used. Accordingly, we vacate the award of judgment for 

Everett and remand for further proceedings.

We next turn to Boone’s excessive force claim against 

Sergeant Rodriguez. Rodriguez made an initial showing to 

support summary judgment through his affidavit. In response, 

Boone offered nothing more than his conclusory allegations that 

Rodriguez dragged him, threatened to drop him, and allowed his 

genitals to remain exposed. In one of the affidavits Boone 

submitted, the witness attested to watching officers drag Boone 

with his genitals exposed, but the witness did not identify the 

officer or explain why the officer dragged Boone. Without more 

than “a mere scintilla of evidence,” Boone has not raised a 
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genuine dispute of material fact for whether Rodriguez acted 

maliciously or sadistically. Thompson, 312 F.3d at 649. Nor 

has Boone offered any evidence to make the objective showing. 

Thus, although we vacate the district court’s grant of summary 

judgment to Everett, we affirm the district court’s grant of 

summary judgment to Rodriguez.

We further deny Boone’s motion to appoint counsel at this 

stage. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional 

process.

AFFIRMED IN PART,

VACATED IN PART,

AND REMANDED