NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 1243

___________ DE SHAWN DRUMGO , Appellant

v. CPL. REGINALD BROWN; SGT. THOMPSON; SGT. JAMES THOMAS; LT. STEVENSON; STAFF LT. KAREN HAWKINS; COUNSELO R RON HOSTERMAN; BETTY BRIAN, CMS Service; DEPUTY PIERCE; WARDEN PERRY PHELPS; LT. THOMAS SEACORD; SGT. MICHAEL MAANS

____________________________________ On Appeal from the United States District Court for the District of Delaware (D. Del. Civil Action N o. 08

- cv - 0059 2 ) District Judge: Honorable Jerome B. Simandle

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) May 24, 2013 Before: AMBRO, HARDIMAN and ALDISERT , Circuit Judges (Opinion filed : May 24, 2013 )

___________

OPINION

__ _________ PER CURIAM
De

- Shawn Drumgo, a Delaware state prisoner proceeding pro se , appeals an order of the United States District Court for the District of Delaware granting summary2 judgment for the defendants in his civil rights action . For the reasons below, we will vacate the judgment of the District Court in part and remand for further proceedings.
The record reflects that on September 27, 2007, C orporal Reginald Brown went to the James T. Vaughn Correctional Center Security Housing Unit to transpor t Drumgo , a
pre - trial detainee , to court. For security reasons, prisoners may not wear layers of clothing when being transported. Officer Brown told Drumgo that he could not wear the
thermal shirt he had on under his prison jumpsuit. The parties dispute what happened

next. According to Drumgo , he asked to speak with a lieutenant because it was 48 degrees out side

. He states in his declaration that Brown reiterated that he could not wear his shirt and began shaking a can of pepper spray . Drumgo says he told Brown that he
has asthma and that he would not be able to breathe if sprayed

. Brown then pointed the pepper spray can at him and Dru m g o ducked

. Brown tackled and punch ed Drumgo and
other officers were alerted

. Drumgo says he stated that he was not resisting, but
L ieutenant Stevenson and Corporals Thompson, Stil es, and Alexander spray ed their
pepper spray , caused him to fall by pulling on the chain to his leg shackles , and kicked
and stomp ed him

. He says he was punch ed in the back of the head with h andcuffs used
as brass knuckles

. Drumgo states that he was still handcuffed and covered in pepper
spray , that he was n ot taken to the infirmary, and that he was kept from court to prevent anyone from seeing a black eye and other injuries. Drumgo s tates t hat he suffers from
headaches , back pain , and numbness in his jaw and lip as a result of the beating

.3 Inmate Kevin Cuff , who was also scheduled to be transported , witnessed the
incident. Cuff also state s in his declaration that Drumgo ask ed to speak to a lieutenant about wearing a thermal shirt , that Brown shook his mace can , that Drumgo yelled that he
had asthma and would not be able to breathe if sprayed , and that Brown then pointed his mace at Drumgo

. 1

Corporal Brown , however, attest s that Drumgo was ordered to remove his thermal
shirt and he refused

. Brown state s that Drumgo moved toward him swinging his arms , that he retrieved his can of pepper spray, and that Drumgo struck him across his temple and knocked his pepper spray can to the floor

. Brown says that he tried to restrain Drumgo, who continued to swing his arms and grab him, and they landed on the floor. Brown states that Corporals Alexa n der and Thompson helped him tr y to subdue Drumgo , who resisted , and that Drumgo was ultimately handcuffed with the help of Lieutenant Cuff attests that Drumgo tried to use his hands , which were handcuffed, to shield his face from being maced. He states that Brown’s mace fell to the ground and Bro wn then began striking Dru mgo’s head or face. Cuff says that Brown
tackled Drumgo and that Brown and other officers continued to beat him ev en though he
never resisted . Cuff state s that Brown held Drumgo while officers punched him in the head using handcuffs as brass knuckles. Inmate Frederick Kaymore provided a similar

statement

. Cuff and Kaymore state that they thought the office rs were t rying t o kill Drumgo.

1 Although Cuff describes Brown’s can as mace, the record reflects that Brown carried pepper spray.4 Stevenson

. Brown denie s that he or the other officers used res training equipment to
cause Dru m g o pain. He states that medical staff examined Drumgo after the incident. Corporal Debra Stiles, who was assigned to transport another inmate, also
wit nessed the incident. She states in her declaration that Drumgo refused orders to remove his shirt, that Brown reached for his pepper spray, and that Drumgo then sw ung and hit B r own. She s a ys that she gave her pepper s pr ay to Alexander to use on Drumgo, who resisted control until he was sprayed and restrained by Brown, Alexander, and Thompson. Lieutenant Stevenson also submitted a declaration stating that Drumgo

re sisted efforts to subdue him , that he grabbed his arm to gain control of him , and that restraining equipment w as not used to cause him pain. Corporals Alexander, Thompson, and Stiles prepared incident reports reflect ing that Drumgo started the altercation and that the officers used force to restrain him

. At the related disciplinary hearing, Drumgo was found guilty of disorderly and threatening behavior and failing to obey an order. Assault charges were dismissed. The disciplinary
decision reflects that Drumgo stated that he might have swung at Brown’s mace can, but he denied swinging at Brown. Drumgo filed a complaint in District Court pursuant to 42 U.S.C. § 1983 claiming
that Br o wn, Thompson, and Stevenson used excessive force against him

. 2

2 Drumgo also alleged in his complaint that after the altercation prison officers tampered with his food, denied him access to the courts, and denied him his right to free exercise of his religion, but he does not pursue these claims on appeal

. In granti ng5 summary judgment for the officers, the District Court found that the use of force was in
response to a threat to the safety of staff and inmates and was done in a good faith effort to maintain or restore discipline

. The District Court found that Drumgo was at least non compliant, that the officers took action after he disobeyed orders and acted aggressively,
and that the officers’ actions must be afforded substantial latitude . The District Court
also noted that Drumgo had not produce d evidence of a dis cernible injury. Drumgo
moved for reconsideration and his motion was denied. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our stand ard of review is plenary. Brooks v. Kyler , 204 F.3d 102, 10 5 n.5 (3d Cir. 2000 ). As recogni zed by the District Court, Eighth Amendment cruel and unusual punishment standards apply to a pretrial detainee’s excessive force claim arising in the context of a prison disturbance

. Fuentes v. Wagner , 206 F.3d 335, 34 7 (3d Cir. 2000). The applicable te st under the Eighth Amendment is “whether force was applied in a good

- faith effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian , 503 U.S. 1, 7 (1992). Relevant factors include : (1) the
need for fo rce, ( 2) the relationship between the need and the amount of force used, (3) the
extent of injury, (4) the extent of the threat to safety as reas onably perceived by officials, and (5) “‘ any efforts made to temper the s everity of a forceful response.’” Bro oks , 204
F.3d at 106 (quoting Whitley v. Albers , 475 U.S. 312, 321 (1986)). As discussed above, Drumgo ’s declaration and witness statements reflect that he asked to speak to a lieutenant, that he reacted to the threat of pepper spray, that the6 officers b eat him while he was handcuffed and /or shackled on the floor, and that he did
not resist

. Although the officers present a different account of the incident, summary judgment is not appropriate if “‘ it appears that the evidence, viewed in the light most
fa vorable to the plaintiff, will support a reliable inference of wanton ness in the infliction of pain.’” Brooks , 204 F.3d at 106 (quoting Whitley , 475 U.S. at 322).
W e agree with Drumgo’s contention on appeal that there is a genuine issue of
material fact as to “ whether force was applied in a good

- faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson , 503 U.S. at 7

. The evidence relied upon by the District Court, including Drumgo’s statement at his discipli nary hearing that he might have swung at the pepper spray can and a note in a medical record that he said he had assaulted a correctional officer, may raise questions about Drumgo’s version of the events, but his credibility is a question for the fact find er. The District Court also relied on a handwritten medical note stating that Drumgo denied
any pain when e xamined on September 27, 2007, and that no bleeding, swelling, or
discoloration was observed

. Assuming its admissib ility , the note is one piece of evidence
for the fact finder’s consideration. See Smith v. Mensinger , 293 F.3d 641 , 649 (3d Cir. 2002) ( explain ing de minimis nature of injuries may cast doubt on prisoner’s account of the incident but that is an issue of fact to be resolved by the fact f inder based on all of the7 evidence). We thus conclude that summary judgment was not warranted on Drumgo’s
excessive force claim. 3 Accordingly, we will vacate the District Court ’s order to the extent the District Court granted summary judgment in favor of the officers on Drumgo’s excessive force
claim and remand for further proceedings. 4

3 Drumgo also appeals an order rejecting his contention that the defendants had not adequately responded to his discovery requests. Drumgo has not shown that the District Court abused its discretion. Petrucelli v. Bohringer and Ratzinger , 46 F.3d 1298, 1310 (3d Cir. 1995). To the extent Drumgo appeals the denial of his motion for appoi ntment of counsel, we also find no error in the District Court’s ruling.

4 Judge Hardiman would affirm the judgment of the District Court.