PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6705

DEMETRIUS HILL,

Plaintiff − Appellee,

v.

C.O. CRUM,

Defendant – Appellant,

and

TERRY O’BRIEN, Warden; MR. STRICKLAND, Associate Warden; MR. 

WILSON, Captain; LT. STIGER; PULIVAR, Counselor; COUNSELOR 

MULLINS; MS. HALL, Case Manager; NURSE MEADE; DR. ALLRED; 

DR. ROFF, Health Administrator; C.O. T. TAYLOR; C.O. TAYLOR; 

C.O. MARTIN,

Defendants.

Appeal from the United States District Court for the Western 

District of Virginia, at Roanoke. James C. Turk, Senior 

District Judge. (7:08-cv-00283-JCT-RSB)

Argued: March 22, 2013 Decided: August 14, 2013

Before NIEMEYER, AGEE, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Agee wrote 

the majority opinion, in which Judge Niemeyer joined. Judge 

Thacker wrote a dissenting opinion. 
2

James J. O'Keeffe, IV, GENTRY, LOCKE, RAKES & MOORE, Roanoke, 

Virginia, for Appellant. Arlene Sokolowski, SOKOLOWSKI LAW 

OFFICE, North Royalton, Ohio, for Appellee. 
3

AGEE, Circuit Judge:

Plaintiff Demetrius Hill (“Hill”) sued Correctional Officer 

William Crum (“Crum”) pursuant to Bivens v. Six Unnamed Agents, 

403 U.S. 388 (1971), alleging that Crum used excessive force 

against him in violation of Hill’s Eighth Amendment rights. 

Claiming he was entitled to qualified immunity, Crum appeals the 

district court’s denial of his Rule 50(b) motion for judgment as 

a matter of law. For the reasons that follow, we reverse the 

district court’s order denying Crum’s motion for judgment as a 

matter of law, and remand with instructions to enter judgment in 

favor of Crum.

I. Factual Background

At all times relevant to this appeal, Hill was an inmate in 

the U.S. Penitentiary Lee (“USP Lee”) in Jonesville, Virginia. 

Hill shared a cell with Delmont Logan (“Logan”).1

 On November 1, 

2007, Logan broke a fire sprinkler in their cell, which caused 

the cell to flood. Hill and Logan submitted to hand restraints

in order to be moved to a new cell so the damage could be 

repaired. Logan was first escorted by a correctional officer to 

 1 Crum disputes Hill’s version of events. However, because 

the district court denied Crum’s Rule 50(b) motion for judgment 

as a matter of law, we review the facts in the light most 

favorable to Hill, the non-movant. Konkel v. Bob Evans Farms, 

Inc., 165 F.3d. 275, 279 (4th Cir. 1999). 
4

a different cell, which left Crum alone in the flooded cell with 

Hill.

After Logan was removed, Crum shoved Hill and required him 

to leave his legal material in the flooded cell. Without

provocation, Crum then assaulted Hill, punching him in the 

abdomen and ribs, and elbowing the side of his head. During the 

assault, Crum shouted at Hill, “break another sprinkler, I’ll 

break your neck.” (J.A. 219). The assault lasted about two 

minutes before Crum moved Hill to a holding cell, knocking his 

head against a gate on the way out. The prison staff kept Hill 

in ambulatory restraints for seventeen hours following the 

assault.2 Hill alleged that as a result of Crum’s assault, he 

suffered a bruised rib, temporary dizziness, and a “vicious, 

vicious headache.” (J.A. 150-51, 223). 

About an hour after the assault, prison officials recorded 

two videos of Hill and Logan in their new cell. The videos 

depict Hill standing in his cell. While he does not seem to be 

 2 The captain and the warden, not Officer Crum, decide how 

long an inmate remains in ambulatory restraints. Hill does not 

contend the ambulatory restraint confinement is part of his 

cause of action against Crum. 
5

in visible distress, he alleged he had a swollen eye, although 

that is not apparent in any of the videos.3

Theresa Meade (“Meade”), a registered nurse, examined Hill 

after he was moved to the holding cell. Meade found that Hill 

had “[n]o injuries,” (J.A. 192), and documented her assessment

in a contemporaneous report, “Inmate Injury Assessment and 

Followup,” (J.A. 201). Meade testified that while her 

examination focused on injuries caused by the ambulatory 

restraints, it would have included notes regarding Hill’s

dizziness, feelings of pain, inability to stand or understand 

had she noticed any problems, or if he had complained of any 

injuries. Hill’s medical records did not indicate any 

complaints of injuries resulting from his alleged assault by 

Crum. 

On April 9, 2008, Hill brought a pro se Bivens suit in the 

United States District Court for the Western District of 

Virginia against eleven USP Lee prison officials alleging 

various deprivations of his rights. Hill’s complaint did not 

name Crum as a defendant or claim any injuries arising out of 

the November 1, 2007 assault; however, he did complain about the 

length of time during which he was subjected to ambulatory 

 3 The video does not show the alleged assault and begins 

running more than an hour after the assault occurred. Hill 

stands for much of the video and does not appear to be in pain. 
6

restraints that day. On April 18, 2008, Hill, still proceeding 

pro se, amended his pleading to include a separate excessive

force claim against Crum based on the alleged assault in the 

flooded cell on November 1, 2007.4

Initially, the district court sua sponte dismissed Hill’s 

excessive force claim against Crum for failure to state a claim,

pursuant to 28 U.S.C. § 1915A(b)(1).5

 In doing so, the court 

relied on Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994) (en 

banc),6 which held, “absent the most extraordinary circumstances, 

a plaintiff cannot prevail on an Eighth Amendment excessive 

force claim if his injury is de minimis.” Id. at 1263. Finding 

that Hill did not allege that Crum’s assault had caused more 

than a de minimis injury, the district court dismissed his

claim. Hill, still without counsel, appealed.

While Hill’s case was pending on appeal to this Court, the 

Supreme Court decided Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 

1175 (2010), holding that there is no de minimis injury 

 4 Although Hill and other plaintiffs brought multiple claims 

against multiple defendants in the district court, Hill’s 

excessive force claim against Crum is the only claim pertinent 

to this appeal.

5 Section 1915A(b)(1) directs a district court to identify 

and dismiss a civil action filed by a prisoner that is 

“frivolous, malicious, or fails to state a claim upon which 

relief may be granted.” 

6 Abrogated by Wilkins v. Gaddy, 559 U.S. 34, 130 S. Ct. 

1175 (2010).
7

threshold for an excessive force claim, specifically rejecting

the Fourth Circuit’s approach in Norman. In light of Wilkins, 

this Court vacated the district court’s dismissal of Hill’s 

excessive force claims and remanded the case to the district 

court. See Hill v. O’Brien, 387 F. App’x 396 (4th Cir. 2010) 

(unpublished); (J.A. 86-87). 

On remand, Crum filed motions to dismiss and for summary 

judgment on several grounds, including that he was entitled to 

qualified immunity. The district court ruled that Crum was not 

entitled to qualified immunity because a trier of fact could 

conclude that Hill’s Eighth Amendment rights had been violated. 

Crum answered Hill’s complaint, denied liability, and again 

moved for summary judgment based on qualified immunity, which 

was again denied based on the same rationale that it “cannot 

credibly be claimed that Defendants were not on notice that 

unnecessarily inflicting pain on the Plaintiff violated his 

constitutional rights.” (J.A. 136). Hill obtained counsel and 

the case proceeded to trial by jury.

At trial, Crum moved pursuant to Federal Rule of Civil 

Procedure 50(b) for judgment as a matter of law at the close of 

Hill’s case and again at the close of all the evidence on the 

basis of qualified immunity. The district court denied both 

motions, and the jury returned a verdict in Hill’s favor, 

finding Crum liable and awarding $25,000 in damages. (J.A. 
8

207). After trial, Crum moved for a new trial under Rule 59(a)

and again for judgment as a matter of law under Rule 50(b) on 

the ground of qualified immunity, arguing that his conduct did 

not violate a clearly established constitutional right under 

Norman at the time of the alleged assault. 

The district court granted Crum’s motion for a new trial on 

all issues, stating that “$25,000 in compensatory damages for a 

bruised rib and an impermanent headache simply shocks the 

conscience of the Court. It is a miscarriage of justice that 

cannot stand.”7

 (J.A. 227, 233). 

 7 Hill did not file a cross-appeal of the district court’s

grant of Crum’s motion for a new trial. As a consequence, we 

must treat that trial as a nullity. See United States ex rel. 

Drakeford v. Tuomey Healthcare Sys., Inc., 675 F.3d 394, 405

n.18 (4th Cir. 2012) (“Where a motion for new trial has been 

sustained, the issues stand as though they had never been tried. 

The cause is to be tried de novo. The whole case, including the 

issues of fact at the former trial, is open for hearing and 

determination.”) (quoting 66 C.J.S. New Trial § 331 (2011) 

(footnotes omitted). 

Despite the fact that the district court set aside the 

verdict and ordered a new trial, Hill’s counsel stated on brief

that “[t]he jury found that the injuries were not de minimis,” 

(Br. of Appellee at 18), and “a jury has already determined that 

Defendant Crum used an amount of force that was repugnant to 

their conscience,” (Br. of Appellee at 18-19). The jury did not 

return a special verdict on either point, and we have identified 

no support in the record for counsel’s statements regarding the 

jury’s “findings.” Notwithstanding the dubious veracity of 

counsel’s claims, however, any findings that were made by the 

jury are now void by the grant of a new trial. 
9

Although granting the new trial motion, the district court

denied Crum’s motion for judgment as a matter of law on the 

issue of qualified immunity, again stating that “[i]t is 

apparent—and cannot be credibly denied—that a reasonable officer 

in Crum’s position in 2007 would have known that repeatedly 

punching a restrained prisoner in the stomach, ribs, and head 

for a sustained period, for no other reason but to punish him 

for a behavioral issue, was unlawful in light of pre-existing 

law.” (J.A. 225). As with its earlier rulings, the district 

court cited no authority for its decision. Crum timely appealed 

the denial of his Rule 50(b) motion.8

 

28 U.S.C. § 1291 affords this Court jurisdiction over final 

orders of the district court. Pursuant to § 1291, the Court has 

jurisdiction to hear the appeal of the denial of a qualified 

immunity defense, before there is a final order, if the denial 

rests on a legal issue. Valladares v. Cordero, 552 F.3d 384, 

387-88 (4th Cir. 2009). If, however, the appeal presents an 

issue of the insufficiency of the evidence to raise a genuine 

issue of material fact, this Court does not have jurisdiction 

under § 1291 to consider such a claim. Bailey v. Kennedy, 349 

F.3d 731, 738 (4th Cir. 2003); see Johnson v. Jones, 515 U.S. 

 8 The district court has stayed further proceedings pending 

this appeal.
10

304, 319-20 (1995) (“[A] defendant, entitled to invoke a 

qualified immunity defense, may not appeal a district court’s 

summary judgment order insofar as that order determines whether 

or not the pre-trial record sets forth a ‘genuine’ issue of fact 

for trial.”). We do possess jurisdiction to consider this 

appeal from the denial of qualified immunity to the extent that 

Crum claims that his conduct did not violate clearly established 

law. See Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) 

(en banc) (“[W]e have jurisdiction over a claim that there was 

no violation of clearly established law accepting the facts as 

the district court viewed them.”). Because the district court’s 

rejection of Crum’s qualified immunity defense turns only on a 

question of law, it is subject to immediate appeal. Valladares, 

552 F.3d at 387-88. 

II. Legal Background

The Supreme Court has extended the application of the 

Eighth Amendment’s prohibition against “cruel and unusual 

punishments” to the treatment of prisoners by prison officials. 

In this context, the Court has stated that the Eighth Amendment 

forbids “the unnecessary and wanton infliction of pain.” 

Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. 

Wright, 430 U.S. 651 (1977)). “When prison officials 

maliciously and sadistically use force to cause harm, 
11

contemporary standards of decency always are violated.” Hudson 

v. McMillian, 503 U.S. 1, 9 (1992) (quoting Whitley, 475 U.S. at 

327). “This is true whether or not significant injury is 

evident. Otherwise, the Eighth Amendment would permit any 

physical punishment, no matter how diabolic or inhuman, 

inflicting less than some arbitrary quantity of injury.” Id. at 

9. 

The Hudson Court further stated 

[t]hat is not to say that every malevolent touch by a 

prison guard gives rise to a federal cause of action. 

The Eighth Amendment’s prohibition of cruel and 

unusual punishments necessarily excludes from 

constitutional recognition de minimis uses of physical 

force, provided that the use of force is not of a sort 

repugnant to the conscience of mankind. 

Id. at 9-10 (citations and quotation marks omitted). 

Referencing this statement in Hudson as its basis, the Fourth 

Circuit in Norman focused on the extent of the plaintiff’s 

injury rather than the nature of the defendant’s force as the 

threshold a plaintiff must cross to state an Eighth Amendment 

claim.9 The Norman court reasoned that “Hudson does not suggest, 

much less hold, that the extent of injury is irrelevant to 

whether excessive force has been employed and therefore that an 

 9 The inmate, Norman, alleged that the defendant swung his 

keys at him and “caught his right hand, hitting him on his thumb 

with the cell keys causing his hand to swell[].” Norman, 25 

F.3d at 1260-61 (brackets omitted). 
12

excessive force claim cannot be defeated by evidence that the 

plaintiff's injury was de minimis.” Norman, 25 F.3d at 1262-63. 

We held in Norman that “absent the most extraordinary 

circumstances, a plaintiff cannot prevail on an Eighth Amendment 

excessive force claim if his injury is de minimis.” Id. at 

1263. 

Following the Norman decision, until abrogated by the 

Supreme Court in Wilkins in 2010, the Fourth Circuit 

consistently held that a plaintiff could not prevail on an 

excessive force claim, “absent the most extraordinary 

circumstances,” if he had not suffered more than de minimis

injury. “Extraordinary circumstances” were defined as those

situations in which the force used is “repugnant to the 

conscience of mankind,” or the pain suffered is so significant 

that it constitutes more than de minimis injury. Id. at 1263 

n.4. 

In Riley v. Dorton, 115 F.3d 1159 (4th Cir. 1997), we 

observed the continuing validity of the Norman holding, 

extending that holding to pre-trial detainees. Riley, a pretrial detainee, alleged that the defendant used excessive force 

against him while he was handcuffed and awaiting booking at the 

police station. 115 F.3d at 1161. Specifically, Riley alleged 

that the defendant inserted the tip of his pen a quarter of an 

inch into Riley’s nose and threatened to rip his nose open. Id.
13

He further alleged that the defendant slapped him in the face 

with “medium” force. Id. In determining that the defendant’s

conduct was not actionable, we applied the holding in Norman

that “a plaintiff cannot prevail on an Eighth Amendment 

excessive force claim if his injury is de minimis” to Fourteenth 

Amendment excessive force claims of pre-trial detainees. Id. at 

1166 (quoting Norman, 25 F.3d at 1263). We thus reiterated

“[a]n injury need not be severe or permanent to be actionable 

under the Eighth Amendment, but it must be more than de minimis. 

We think this same rule applies to excessive force claims 

brought by pre-trial detainees.” Id. at 1167 (citation 

omitted). 

In Taylor v. McDuffie, 155 F.3d 479 (4th Cir. 1998), a pretrial detainee, Taylor, in “handcuffs and leg irons,” id. at 

481, alleged that officers shoved a small wooden object into his 

nose with such force that it caused a nose hemorrhage, shoved 

the same wooden object into his mouth, which cracked his tooth, 

hit him in the back of his head, and punched him in the ribs. 

155 F.3d at 481. Applying Norman and Riley, we affirmed summary 

judgment for defendants on the basis that plaintiff suffered 

only de minimis injury. Id. at 484. 

Judge Murnaghan dissented in Taylor, contending that under 

the Court’s holding in Norman, “officers in our circuit are free

to use excessive or unjustified force against inmates, so long 
14

as they are careful or fortunate enough to leave only minor 

traces of their blows.” 155 F.3d at 487 (Murnaghan, J., 

dissenting). This was one of the “unacceptable results achieved 

when a finding of de minimis injury is considered dispositive of 

the excessive force inquiry.” Id. at 486 (Murnaghan, J., 

dissenting). Despite Judge Murnaghan’s objections, Norman and 

Taylor remained the settled law in the Fourth Circuit.

Consistent with Norman, Riley, and Taylor, we have 

consistently applied the rule that a plaintiff cannot prevail on 

an excessive force claim if his injuries were de minimis. See, 

e.g., Stanley v. Hejirika, 134 F.3d. 629, 634-36 (4th Cir. 1998) 

(reversing the district court and finding as a matter of law 

that plaintiff’s bruising, swelling, and a loosened tooth were 

de minimis); Hines v. Young, 142 F. App’x 780, 781 (4th Cir. 

2005) (unpublished) (per curiam) (affirming district court’s 

grant of summary judgment for defendants where plaintiff’s 

hairline fracture to his finger required little medical 

treatment and no pain medication and was thus de minimis);

Germain v. Ruzicka, No. 99-6979, 2000 WL 139255, at *3 (4th Cir. 

Feb. 8, 2000) (unpublished) (per curiam) (summary judgment in 

favor of defendants was proper where plaintiff’s only alleged 

injury, a severe headache, was clearly de minimis); Williams v. 

Dehay, Nos. 94-7114, 94-7115, 1996 WL 128422, at *3 (4th Cir.

March 21, 1996) (unpublished) (per curiam) (affirming that 
15

plaintiff’s “[t]ransitory back and shoulder aches of limited 

duration” caused by the defendant were de minimis).10

The dissent correctly observes that Stanley involved the 

use of force that was at least arguably justified by a prison 

security interest. See post at [37] n.3. Stanley, however, 

like the myriad other cases from this Circuit decided in the 

Norman line, recognized that the proper inquiry, pre-Wilkins, 

was “whether the injury of which [the plaintiff] complains is 

significant enough, when viewed in its factual context, to 

amount to a violation of his right to be free from cruel and 

 10 District courts within our circuit have routinely applied 

the Norman holding to excessive force claims. See e.g., Martin 

v. Mathena, No. 7:08-cv-00573, 2009 U.S. Dist. LEXIS 3856, at

*5-6 (W.D. Va. Jan. 21, 2009) (dismissing excessive force claim 

for failure to state more than a de minimis injury in which 

inmate received a scratch with a small amount of blood as a 

result of a dog bite); Lewis v. Green, No. RWT-08-2649, 2009 WL 

2969584, at *4-5 (D. Md. Sept. 14, 2009) (scratches left by 

alleged assault by prison guards constituted de minimis injury);

Smalls v. S.C. Dep’t of Corr., No. 6:09-2654-TLW-WMC, 2009 WL 

5062393, *4 (D. S.C. Dec. 16, 2009) (injuries to eyes from 

alleged mace use de minimis where plaintiff failed to seek 

medical attention); Brown v. Spencer, No. 3:07-CV-61, 2008 WL 

4763317, at *4 (N.D.W. Va. Oct. 29, 2008) (summary judgment 

appropriate where plaintiff suffered only de minimis injuries 

resulting from use of pepper spray); Chatman v. Anderson, No. 

7:05 cv 0047, 2005 U.S. Dist. LEXIS 36560, *7-8 (W.D. Va. Aug. 

26, 2005) (finding de minimis plaintiff’s neck pain and bruising 

due to alleged choking incident); Garrett v. Bliley, No. 7:05 cv

00497, 2005 U.S. Dist. LEXIS 37610, *7-8 (W.D. Va. Sept. 23, 

2005) (finding de minimis plaintiff’s “superficial scratch” 

caused by correctional officer firing live round at another 

inmate).
16

unusual punishment[.]” Stanley, 134 F.3d at 636 (emphasis 

added). 

More to the point, however, the distinction referenced in 

Stanley, and relied upon by the dissent, between excessive force 

in the context of restoring prison order versus inflicting 

punishment on a nonviolent inmate, was not recognized under 

Norman or its following cases in the de minimis injury analysis. 

For example, Norman, Riley, and Wilkins involved cooperating 

prisoners. While there was some allegation in Taylor that the 

plaintiff was not cooperating with police, there was no 

suggestion that the plaintiff was involved in any disturbance 

that justified the assault alleged in that case. 

The Norman court specifically declined to base its de

minimis injury rule on a prison security distinction because it 

did “not base [its] conclusion on a separate conclusion that the 

force used by Sergeant Taylor was in response to the disturbance 

that Taylor alleges Norman was creating by yelling during the 

prison role call.” Norman, 25 F.3d at 1263 n.5. Thus, the fact 

that Hill alleged that he was not causing a disturbance is not 

dispositive of the issue of qualified immunity. Moreover, the 

dissent’s distinction for a “restrained and cooperative” inmate 

cannot be found in the Norman line of cases. In fact, the 

plaintiff in Riley was “handcuffed,” Riley, 115 F.3d at 1161, 
17

and in “handcuffs and leg irons” in Taylor, 155 F.3d at 481, 

when the alleged assaults took place. 

The threshold requirement that a plaintiff suffer more than 

a de minimis injury to state an excessive force claim was thus 

settled law in this circuit until 2010, when the Supreme Court 

in Wilkins abrogated Norman, Riley, and Taylor. In Wilkins, the 

prisoner alleged that a corrections officer, Gaddy, “maliciously 

and sadistically” assaulted him “without any provocation.” 

Wilkins, 130 S. Ct. at 1177. Gaddy allegedly slammed Wilkins 

onto the floor and “proceeded to punch, kick, knee and choke 

[Wilkins] until another officer had to physically remove him 

from [Wilkins].” Id. (citations in original). As a result of 

Gaddy’s force, Wilkins sustained “a bruised heel, lower back 

pain, increased blood pressure, as well as migraine headaches 

and dizziness” and “psychological trauma and mental anguish 

including depression, panic attacks and nightmares of the 

assault.” Id. 

Wilkins’ complaint was filed in the district court for the 

Western District of North Carolina, which dismissed the

complaint for failure to state a claim pursuant to Norman. “In 

order to state an excessive force claim under the Eighth 

Amendment, a plaintiff must establish that he received more than 

a de minimis injury.” Wilkins v. Gaddy No. 3:08CV138-01-MU, 

2008 WL 1782372, at *1 (W.D. N.C., Apr. 16, 2008). The district 
18

court, which found Wilkins’ injuries no more severe than those

deemed de minimis in Taylor and Riley, also noted that Wilkins 

failed to assert that his injuries had required medical 

attention. Id. We summarily affirmed that conclusion on appeal

based on the district court’s rationale under Norman and its 

progeny. See Wilkins v. Gaddy, 308 F. App’x 696 (4th Cir. 2009) 

(unpublished) (per curiam). 

Reversing the holding of this Court and abrogating Norman, 

Taylor, and Riley, the Supreme Court stated “[a]n inmate who is 

gratuitously beaten by guards does not lose his ability to 

pursue an excessive force claim merely because he has the good 

fortune to escape without serious injury.” Wilkins, 130 S.Ct.

at 1178-79. The Court also concluded that the

Fourth Circuit’s strained reading of Hudson is not 

defensible. This Court’s decision did not, as the 

Fourth Circuit would have it, merely serve to lower 

the injury threshold for excessive force claims from 

‘significant’ to ‘non-de minimis’—whatever those illdefined terms might mean. Instead, the Court aimed to 

shift the ‘core judicial inquiry’ from the extent of 

the injury to the nature of the force—specifically, 

whether it was nontrivial and ‘was applied . . . 

maliciously and sadistically to cause harm.’

 

Id. at 1179 (quoting Hudson, 503 U.S. at 7). The Wilkins Court 

clarified that the nature of the force, rather than the extent 

of the injury, is the relevant inquiry. “Injury and force, 

however, are only imperfectly correlated, and it is the latter 

that ultimately counts. ” Id. at 1178. Thus, it is clear that 
19

the de minimis injury threshold that this Court (and the 

district courts within this circuit) had relied upon in 

considering excessive force claims is no longer the appropriate 

test. The question , however, is whether Crum’s alleged conduct

which took place prior to the Supreme Court’s Wilkins decision, 

is covered by qualified immunity. 

III. Analysis

A. Standard of Review

We review the district court’s denial of Crum’s Rule 50(b) 

motion de novo. Sloas v. CSX Transp., Inc., 616 F.3d 380, 392 

(4th Cir. 2010). We view the facts in the light most favorable 

to Hill. Id. 

B. Analysis

“Qualified immunity shields government officials from civil 

liability insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a 

reasonable person would have known.” Trulock v. Freeh, 275 F.3d 

391, 399 (4th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 

800, 818 (1982)). Qualified immunity protects law enforcements 

officers from liability for “bad guesses in gray areas” and 

ensures that they will be held liable only for violating brightline rules. Braun v. Maynard, 652 F.3d 557, 560 (4th Cir. 

2011). It “operates to ensure that before they are subjected to 
20

suit, officers are on notice that their conduct is unlawful.” 

Hope v. Pelzer, 536 U.S. 730, 731 (2002). 

In deciding whether a defendant is entitled to qualified 

immunity, we examine (1) whether the facts illustrate that Crum 

violated Hill’s constitutional right to be free from excessive 

force; and, (2) if so, whether Crum’s conduct was objectively 

reasonable in view of the clearly established law at the time of 

the alleged event. See Orem v. Rephann, 523 F.3d 442, 445 (4th 

Cir. 2008) (citing Saucier v. Katz, 533 U.S. 194, 200 (2001)).11 

Crum does not dispute the first prong, that there is a 

constitutional right to be free of excessive force. His 

argument is that he is entitled to qualified immunity because 

Hill’s claimed constitutional violation was not clearly

established at the time of the assault. Under the clearly 

established law of the Fourth Circuit on November 1, 2007, we 

must agree with Crum. 

 11 Pearson v. Callahan, 555 U.S. 223 (2009), clarified that 

we are not required to look first at prong one: 

[w]hile the sequence set forth [in Saucier] is often 

appropriate, it should no longer be regarded as 

mandatory. The judges of the district courts and the 

courts of appeals should be permitted to exercise 

their sound discretion in deciding which of the two 

prongs of the qualified immunity analysis should be 

addressed first in light of the circumstances in the 

particular case at hand.

555 U.S. at 236.
21

For a right to be “clearly established,” in a qualified 

immunity case, “the contours of the right must be sufficiently 

clear that a reasonable officer would understand that what he is 

doing violates that right.” Wilson v. Layne, 526 U.S. 603, 615 

(1999). Therefore, in deciding whether the right was clearly 

established, we must determine whether an official in the 

defendant’s position knew or reasonably should have known that 

the action he took violated the constitutional rights of the 

plaintiff. See id. at 614-15. However, “[t]his is not to say 

that an official action is protected by qualified immunity 

unless the very action in question has previously been held 

unlawful, but it is to say that in the light of pre-existing law 

the unlawfulness must be apparent.” Id. at 615. 

“[W]e have long held that it is case law from this Circuit 

and the Supreme Court that provide notice of whether a right is 

clearly established.” Lefemine v. Wideman, 672 F.3d 292, 298 

(4th Cir. 2012), vacated on other grounds, 133 S. Ct. 9 (2012). 

In determining whether a right was clearly established 

at the time of the claimed violation, courts in this 

circuit ordinarily need not look beyond the decisions 

of the Supreme Court, this court of appeals, and the 

highest court of the state in which the cases arose.

. . . If a right is recognized in some other circuit, 

but not in this one, an official will ordinarily 

retain the immunity defense.

Id. at 298-99 (quoting Edwards v. City of Goldsboro, 178 F.3d 
22

231, 251 (4th Cir. 1999) (internal quotation marks, alterations, 

and citation omitted). 

As the Supreme Court made clear in Wilkins, Norman was an

incorrect reading of Hudson. Regardless of how we view Norman

in retrospect, however, we evaluate whether the right at issue, 

for qualified immunity purposes, was clearly established at the 

time of Crum’s conduct on November 1, 2007, three years before 

the Supreme Court decided Wilkins. See Meyers v. Baltimore 

Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013) (“[A] court . . . 

must determine whether the right at issue was ‘clearly 

established’ at the time of the officer’s conduct.”). At the 

time of the alleged assault on Hill, Norman and its progeny were

controlling in the Fourth Circuit and had been since 1994. 

Although Wilkins abrogated Norman in 2010, Wilkins can only be 

applied prospectively in the context of a qualified immunity 

analysis. See Fields v. Prater, 566 F.3d 381, 390 (4th Cir. 

2009) (qualified immunity protects defendants from being 

“retroactively subject to significant penalties at law for which 

they did not have proper notice”). In other words, the 2010 

holding in Wilkins cannot be imputed retroactively to an officer 

in this circuit whose allegedly tortious conduct predated the 

Wilkins decision. The applicable law for qualified immunity 

purposes would be that in existence in 2007, the time of the 

alleged assault. 
23

In 2007 under Norman, a reasonable correctional officer 

would have objectively believed that the law in this circuit was 

what the Fourth Circuit said it was; that is, a plaintiff could 

not prevail on an excessive force claim “absent the most 

extraordinary circumstances,” if he had suffered only de minimis

injury. Norman, 25 F.3d at 1263. Although Wilkins established

that the Fourth Circuit had been applying the incorrect 

standard, the inquiry—for qualified immunity purposes—is not 

whether the officer correctly interpreted the law as it would be 

changed in later years, but rather, whether the conduct at issue

was reasonable based on the officer’s imputed knowledge of the 

law at the time. Crum’s reliance on Norman satisfies this 

standard.

Crum’s alleged conduct was no more egregious than the 

conduct of other officers in a multitude of cases in which those 

officers were found not to have used excessive force under the 

Norman rule, including the Wilkins decision in our court. See,

e.g., Riley, 115 F.3d at 1161 (inserting tip of his pen into 

pre-trial detainee’s nose, threatening to rip nose open, and 

slapping him with “medium” force); Taylor, 155 F.3d at 484 

(shoving a small wooden object into pre-trial detainee’s nose, 

cracking his tooth, hitting him in the back of his head, and 

punching him in the ribs). The similarity of these cases to the 

case at bar demonstrates that, under the law of our circuit 
24

prior to Wilkins, Crum’s conduct would have been settled by the 

Norman analysis. 

Our decision in Wilkins provides a representative decision 

that supports Crum’s qualified immunity argument. Over two 

years after the events at issue here, we affirmed the grant of 

qualified immunity for failure to establish more than de minimis

injury where Wilkins alleged injury from a prison guard beating 

based on “multiple physical injuries including ‘a bruised heel, 

low back pain, increased blood pressure, as well as migraine 

headaches and dizziness’” and “psychological injuries such as 

anxiety, depression, and panic attacks.” Wilkins, 2008 WL 

1782372 at *1. Viewing Hill’s evidence in the light most 

favorable to him, his claim of injury is no greater (and would 

objectively appear less) than those found to be no more than de

minimis in Wilkins for qualified immunity purposes. 

Under Norman, the key inquiry in determining whether a 

prisoner stated an excessive force claim is whether the 

plaintiff’s injuries were more than de minimis. We may 

determine whether Hill’s injuries were de minimis as a matter of 

law. See Carter v. Morris, 164 F.3d 215, 219 n.3 (4th Cir. 

1999) (finding that the plaintiff’s claimed injury was “so 

insubstantial that it cannot as a matter of law support her 

claim”). 
25

Hill contends on appeal that his injuries were more than de

minimis because he “received more injuries than just a sore 

thumb or a stretched leg.” )Br. of Appellee at 18.) However,

Hill offered no proof that he suffered any injuries as a result 

of the assault. Nurse Meade, a registered nurse, who examined 

Hill after the assault, found that Hill had “[n]o injuries,” 

(J.A. 192) and documented this in a contemporaneous report, 

“Inmate Injury Assessment and Followup” (J.A. 201). Meade 

testified that her report would have included notes regarding 

his dizziness, feelings of pain, inability to stand or 

understand had she noticed any problems, or if he had complained 

of any injuries. Hill’s medical records do not indicate any 

complaints of injuries stemming from the assault. And when Hill 

first filed his pro se lawsuit against eleven prison officials

at USP Lee alleging various deprivations of rights, he did not 

name Crum as a defendant or claim any injuries arising out of 

the November 1, 2007 assault in his complaint. Hill simply

cannot rise above the allegations in his complaint or the 

evidence tendered to the district court for resolution of the 

Rule 50(b) motion. While we must construe the evidence in the 

light most favorable to Hill, we cannot construe that which does 

not exist. Hill’s injuries were clearly de minimis. 

Under Norman, however, a plaintiff with only de minimis

injuries may still bring an excessive force claim under the 
26

Eighth Amendment when certain “extraordinary circumstances” are 

present. Such “extraordinary circumstances” are either that the 

force used was “repugnant to the conscience of mankind” or the 

pain suffered was “such that it can properly be said to 

constitute more than de minimis injury.” Norman, 25 F.3d at 

1263 n.4.

The types of actions that have been classified as 

“repugnant to the conscience of mankind” are torture, 

humiliation, or degradation. See, e.g., Riley, 115 F.3d at 1168 

n.4 (citing Rochin v. California, 342 U.S. 165 (1952) for the 

proposition that forcibly pumping a suspect’s stomach for 

information after illegally entering his house shocks the 

conscience); Jordan v. Gardner, 986 F.2d 1521, 1523, 1526 (9th 

Cir. 1993) (en banc) (prison policy of subjecting female inmates 

to random, non-emergency pat-downs by male prison guards is 

cruel and unusual punishment). But see Jackson v. Morgan, 19 F. 

App’x 97, 101 (4th Cir. 2001) (unpublished) (placing inmate in 

isolation cell for three days wearing only underwear and in a 

three-point restraint did not constitute force repugnant to the 

conscience of mankind). 

District courts within our circuit have similarly found 

only egregious conduct “repugnant to the conscience of mankind.”

See, e.g., Davis v. Lester, 156 F. Supp. 2d 588, 594 (W.D. Va. 

2001) (finding that forcing a prisoner to be “restrained for 48 
27

hours with all four of his limbs and his chest immobilized, 

lying on his back in his own urine in a cold cell” to be 

repugnant to the conscience of mankind); Peoples v. S.C. Dep’t 

of Corr., No. 8:07-1203-CMC-BHH, 2008 WL 4442583, at *4-10 (D.

S.C. Sept. 25, 2008) (plaintiffs allegations that prison 

officials flooded his cell with unknown “chemical munition,” 

after which he was not allowed to seek medical attention, 

shower, or clean his cell, rose to the level of alleging conduct 

repugnant to the conscience of mankind); Acevedo v. Warner, No.

7:03CV00526, 2005 U.S. Dist. LEXIS 32332, *11-12, 15-*16 (W.D. 

Va. Mar. 29, 2005) (finding that beating a restrained prisoner, 

making racial slurs to him, and smearing feces and urine on his 

face was repugnant to the conscience of mankind).

On the other hand, breaking a prisoner’s finger by slamming 

his hand in a mail slot, Hines, 142 F. App’x at 781, and hitting 

a prisoner with twelve blasts of pepper spray while confined in 

a cell, Jackson 19 F. App’x at 101, were not “repugnant to the 

conscience of mankind.” Moreover, we have previously found in 

favor of defendants who assaulted a restrained inmate in 

circumstances similar to those alleged by Hill. See Germain, 

2000 WL 139255, at *2-3 (affirming summary judgment for 

defendants who sprayed mace at and struck with a baton a 

prisoner who was restrained, locked in his cell, compliant, and 

was not involved in the disturbance). We have not classified 
28

mere brute force, therefore, as “repugnant to the conscience of 

mankind.” Hill has cited to no case, and we have found none, 

where the injury pled or proved was “repugnant to the conscience 

of mankind” in circumstances even remotely close to those of the 

case at bar. 

Crum’s alleged conduct, which is undoubtedly reprehensible, 

nevertheless is more akin to brute force, rather than 

humiliation, degradation, or torture as we have described 

“extraordinary circumstances” in other cases. It is, therefore,

clear that his conduct does not rise to the level of conduct 

“repugnant to the conscience of mankind.” In no sense do we 

suggest that Crum’s alleged conduct was appropriate for a 

correctional officer, but it fails to cross the very high 

threshold for extraordinary circumstances that permit an 

excessive force claim to advance in the absence of more than de

minimis injury for purposes of a pre-Wilkins qualified immunity 

analysis. 

Furthermore, Hill’s injuries do not suggest that they were 

so painful that they constituted “more than de minimis injury,” 

the second of Norman’s two extraordinary circumstances. 25 F.3d 

at 1263 n.4. Nurse Meade found no injuries and documented this 

in her report, and Hill did not complain of any injuries during 

this examination. In the videotape taken a few hours after the 

assault, Hill shows no visible distress and does not appear to 
29

have any injuries. Hill never pled more than de minimis injury 

and introduced no evidence of any injury, de minimis or 

otherwise. 

Because no extraordinary circumstances are applicable to 

Hill’s injuries, and Hill suffered no more than de minimis

injury, he could not, at the time the assault took place, state 

a claim upon which relief could be granted under the Eighth 

Amendment. Therefore, the right he seeks to avail himself of 

was not clearly established in the Fourth Circuit at the time of 

the alleged assault. Consequently, Crum is entitled to 

qualified immunity.

IV. Conclusion

For the foregoing reasons, the district court’s order 

denying Crum’s Rule 50(b) motion is reversed and the case is 

remanded to the district court for the entry of judgment in 

favor of Crum on the basis of qualified immunity.

REVERSED AND REMANDED
THACKER, Circuit Judge, dissenting:

With all due respect to the majority, I must dissent. 

Under prevailing Supreme Court precedent available at the time 

of the assault in this case, it was clearly established that an 

officer could not maliciously or sadistically impose harm on a 

custodial, handcuffed, and completely non-resistant inmate 

without violating the inmate’s Eighth Amendment right to be free 

from cruel and unusual punishment –– and any reasonable officer 

would have known as much. 

As the district court correctly concluded, Appellant 

Crum is not entitled to qualified immunity in as much as “[i]t 

cannot credibly be claimed that [Appellant Crum] w[as] not on 

notice that unnecessarily inflicting pain on [Hill] violated 

[Hill’s] constitutional rights.” Hill v. O’Brien, No. 7:08-cv00283, 2011 WL 4566442, at *4 (W.D. Va. Sept. 30, 2011); see 

also Hill v. O’Brien, No. 7:08-cv-00283, 2012 WL 517544, at *4 

(W.D. Va. Feb. 16, 2012) (“It is apparent –– and cannot be 

credibly denied –– that a reasonable officer in Crum’s position 

in 2007 would have known that repeatedly punching a restrained 

prisoner in the stomach, ribs, and head for a sustained period, 

for no other reason but to punish him for a behavioral issue, 

was unlawful in light of pre-existing law.”). Therefore, I 

would affirm the ruling of the district court.
31

I.

This case involves the intersection of two judicial 

doctrines: qualified immunity and the use of excessive force in 

violation of the Eighth Amendment’s prohibition on cruel and 

unusual punishment.

Whether Appellant Crum is entitled to qualified 

immunity for his alleged assault on inmate Hill requires a 

familiar two-pronged inquiry. That inquiry requires a court to 

determine (1) “whether the facts that a plaintiff has 

alleged . . . or shown . . . make out a violation of a 

constitutional right,” Pearson v. Callahan, 555 U.S. 223, 232 

(2009) (internal citations omitted) (citing Saucier v. Katz, 533 

U.S. 194, 201 (2001)); and (2) “whether the right at issue was 

‘clearly established’ at the time of defendant’s alleged 

misconduct,” id. (quoting Saucier, 533 U.S. at 201) (holding 

that the sequence of the Saucier inquiry is not mandatory).

A.

Here, Appellant Crum has conceded that the first prong 

of the qualified immunity analysis –– the alleged violation of a 

constitutional right –– is satisfied. Appellant’s Br. 15 

(“[T]he evidence would allow a reasonable jury to conclude that 

he had violated Hill’s constitutional rights.”). More 

specifically, Crum’s repeated blows allegedly levied against 
32

Hill for “a good solid two minutes,” J.A. 142,1 while Hill was 

restrained, cooperative, and “attempt[ing] to hunch over [a] 

desk,” id., in an effort to protect himself, even if they may 

have caused only minor injuries, clearly constituted excessive 

force in violation of his Eighth Amendment right.

B.

This case then turns on the second prong of the 

qualified immunity analysis: whether the aforementioned right 

was clearly established. See Pearson, 555 U.S. at 232. When 

available, we consider “decisions of the Supreme Court, this 

court of appeals, and the highest court of the state in which 

the case arose” to discern whether a right was clearly 

established. Owens ex rel. Owens v. Lott, 372 F.3d 267, 279 

(4th Cir. 2004) (internal quotation marks omitted). To be 

“clearly established,”

[t]he contours of the right must be sufficiently clear 

that a reasonable official would understand that what 

he is doing violates that right. This is not to say 

that an official action is protected by qualified 

immunity unless the very action in question has 

previously been held unlawful, but it is to say that 

in the light of pre-existing law the unlawfulness must 

be apparent.

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (internal 

citations omitted).

 1 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.
33

Thus, we must inquire whether on November 1, 2007, a 

reasonable officer could have believed that repeatedly striking 

a restrained, cooperative, hunched-over inmate, so long as only 

de minimis injury resulted, “was lawful[] in light of clearly 

established law and the information the officer[] possessed.” 

Wilson v. Layne, 526 U.S. 603, 615 (1999). Appellant Crum 

claims that he was entitled to assault Mr. Hill unabated for 

over two minutes so long as any resulting injury was de minimis. 

Indeed, at oral argument, Appellant Crum argued, in essence, 

that there were no limits to excessive force as long as there 

were no marks left on the victim, or in other words, “as long as 

he didn’t hurt him, as long as he didn’t cause more than de

minimis injury.” Oral Argument at 2:17, Hill v. Crum, (No. 12-

6705), available at http://www.ca4.uscourts.gov/OAaudiotop.htm. 

Not so. Under controlling Supreme Court precedent at the time –

– not to mention applying pure common sense –- no reasonable 

officer could have believed such abuse was lawful.

1.

Controlling Precedent

On November 1, 2007, the controlling Supreme Court 

authority for excessive force cases in the Eighth Amendment 

context was Hudson v. McMillian, 503 U.S. 1 (1992). One need 

only read the first paragraph of Hudson to realize the right at 

issue was clearly established:
34

This case requires us to decide whether the use 

of excessive physical force against a prisoner may 

constitute cruel and unusual punishment when the 

inmate does not suffer serious injury. We answer that 

question in the affirmative.

503 U.S. at 4. The Supreme Court went on to emphasize as 

follows:

When prison officials maliciously and sadistically use 

force to cause harm, contemporary standards of decency 

always are violated. This is true whether or not

significant injury is evident. Otherwise, the Eighth 

Amendment would permit any physical punishment, no 

matter how diabolic or inhuman, inflicting less than 

some arbitrary quantity of injury.

Id. at 9 (emphasis supplied) (citation omitted). 

At the time of the incident in this case, Hudson had 

been controlling Supreme Court precedent for 15 years. In fact, 

this was the controlling law even before Hudson. The Hudson

Court merely extended its prior holding in Whitley v. Albers, 

475 U.S. 312 (1986) (regarding the legal standard for an Eighth 

Amendment excessive force claim arising out of a prison riot),

to standard claims by inmates against prison officials for the 

use of excessive force. Hudson, 503 U.S. at 6–7. Under Whitley

and Hudson, “‘the unnecessary and wanton infliction of 

pain . . . constitutes cruel and unusual punishment forbidden by 

the Eighth Amendment.’” Id. at 5 (quoting Whitley, 475 U.S. at 

319). The Court explained that “the core judicial inquiry” in 

excessive force cases is not whether a certain quantum of injury

was sustained, but rather “whether force was applied in a good-
35

faith effort to maintain or restore discipline, or maliciously 

and sadistically to cause harm.” Id. at 7; see also Wilkins v. 

Gaddy, 559 U.S. 34, 36 (2010) (“In requiring what amounts to a 

showing of significant injury in order to state an excessive 

force claim, the Fourth Circuit has strayed from the clear

holding of this Court in Hudson.” (emphasis supplied)). Thus, 

although this circuit misinterpreted Hudson in Norman v. Taylor, 

25 F.3d 1259 (4th Cir. 1994), the fact remains that Hudson and 

Whitley set forth the long standing and clearly established 

controlling precedent at the time of this incident.

2.

Use of Force

The law was, and is, clear; the proper focus is on the 

force used, not on the resulting injury. In determining whether 

force is permissibly applied, the Supreme Court has held that 

“the extent of injury suffered by an inmate is one factor” of 

many that should be considered. Hudson, 503 U.S. at 7 (emphasis 

supplied); see also Williams v. Benjamin, 77 F.3d 756, 762 (4th 

Cir. 1996) (“The absence of serious injury is a relevant, but 

not dispositive, additional factor to be considered in the 

subjective analysis [of an Eighth Amendment excessive force 

claim].”). Other factors include “[1] the need for application 

of force, [2] the relationship between that need and the amount 

of force used, [3] the threat reasonably perceived by the 
36

responsible officials, and [4] any efforts made to temper the 

severity of a forceful response.” Hudson, 503 U.S. at 7 

(internal quotation marks omitted).

Even if we assume Hill’s injuries were minor –– which 

he does not concede –– analysis of the other factors make clear 

Crum’s alleged use of force could be deemed excessive. Although 

there had been a prior disturbance in Hill’s cell that resulted 

in a broken sprinkler, there was no reason to exercise force to 

restore order –– order had already been restored. Indeed, the 

source of the disturbance –- Hill’s cellmate –- had been removed 

from the cell at the time of the incident at issue. Hill 

remained restrained, compliant, and cooperative when the prison 

guards arrived on the scene. See J.A. 141–42 (“Officer Crum 

came over to the cell and requested that we submit to hand 

restraints. I submitted to hand restraints. He placed 

handcuffs on us. . . . [Officer Crum] began to tell me I 

couldn’t take my legal work out of the cell which was soaked 

with water. During that time I put my legal work down, I put 

the legal work down.”). Appellant Crum does not refute Hill’s 

testimony. A lone cooperative inmate, handcuffed and hunched 

over a desk could not pose a reasonable threat to a prison 

officer sufficient to justify the use of force. Moreover, 

Appellant Crum did not temper the severity of the force 

employed, but, rather, allegedly continued beating Hill for a 
37

total of two minutes. These factors indicate that Crum 

exercised force, not in a good-faith effort to restore order, 

but, rather, maliciously and sadistically simply to cause harm.2

3.

Norman v. Taylor

Critically, as the district court correctly pointed 

out, the facts of Hudson –– where a restrained, cooperative 

inmate in the course of being transported to another cell, was 

physically beaten by prison officials –- are far more analogous 

to the present case than the facts of Norman. Indeed, Norman is 

distinguishable from this case. 

Unlike the present case, the inmate in Norman had 

himself created a disturbance by yelling to other inmates which 

disrupted prison security and justified at least some response. 

Norman, 25 F.3d at 1263 n.5 (“On this understanding of the 

incident, there can be no question that the district court 

properly held that the force used was justified in a good faith 

effort to maintain or restore discipline.” (internal quotation 

marks omitted)). Here, as the majority notes, it was Hill’s 

 2 According to Hill, Crum threatened him saying “break 

another sprinkler, I’ll break your neck.” J.A. 52. Hill’s 

testimony further revealed that Crum’s use of force may have had 

another malevolent purpose –- retribution. Hill testified that 

in the month leading up to the incident at issue, he filed a 

grievance with the prison against Officer Crum. Id. at 145 (“I 

had Officer Crum written up previously.”).
38

cellmate, not Hill, who had broken the sprinkler and created the 

initial disturbance. Ante at 3–4. And, in any event, the 

disturbance had been quelled at the time of this incident.3 As a 

result, a reasonable officer could not have relied on Norman to 

justify the sustained beating of a restrained and cooperative 

inmate.

II.

Ultimately, whatever erroneous interpretive gloss 

Norman placed on Hudson, see Wilkins v. Gaddy, 559 U.S. 34

(2010) (abrogating Norman), on November 1, 2007, it would have 

been readily apparent to a reasonable officer that where a 

disturbance had already been abated, he could not assault a 

restrained, compliant, and cooperative inmate for “a good solid 

two minutes,” J.A. 142, punching and elbowing him repeatedly in 

the abdomen and head, without applying excessive force in 

violation of the inmate’s Eighth Amendment right to be free from 

 3 It should come as no surprise that this distinction ––

that is, the distinction between instances where force is 

applied to restore order and instances where it is applied 

without justification –– is of significance. In fact, we 

recognized this exact distinction and its constitutional

consequences in Stanley v. Hejirika, 134 F.3d 629 (4th Cir. 

1998). In Stanley, we found that “bruises, swelling, and a 

loosened tooth sustained in a fracas that occurred while prison 

guards were trying to quell a disturbance are constitutionally 

insignificant and distinct from a loosened tooth and a cracked 

dental plate sustained in the context of punishment deliberately 

inflicted by guards because of a verbal argument.” Id. at 638.
39

cruel and unusual punishment. Accordingly, I would hold 

Appellant Crum is not entitled to qualified immunity, and affirm 

the decision of the district court.