UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-6882

KORY PUTNEY,

Plaintiff - Appellant,

v.

R. LIKIN, Correctional Officer; J. PHILIP MORGAN, Warden; S. 

A. WILSON, Correctional Officer; W. SLATE, Correctional 

Officer; R. WATSON, Assistant Commissioner; J. MICHAEL 

STOUFFER, Deputy Secretary,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. George L. Russell, III, District Judge. 

(1:13-cv-01837-GLR)

Argued: September 15, 2015 Decided: July 14, 2016

Before GREGORY, Chief Judge, and NIEMEYER and THACKER, Circuit 

Judges.

Vacated and remanded by unpublished per curiam opinion. Judge 

Niemeyer wrote a separate opinion concurring in part, dissenting

in part, and concurring in the judgment. 

ARGUED: Ruthanne Mary Deutsch, GEORGETOWN UNIVERSITY LAW CENTER, 

Washington, D.C., for Appellant. Dorianne Avery Meloy, OFFICE 

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for 

Appellees. ON BRIEF: Steven H. Goldblatt, Director, Matthew J. 
2

Greer, Student Counsel, Utsav Gupta, Student Counsel, Appellate 

Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, 

Washington, D.C., for Appellant. Brian E. Frosh, Attorney 

General of Maryland, Stephanie Lane-Weber, Assistant Attorney 

General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, 

Maryland, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Kory Putney (“Appellant”) appeals the district court’s 

grant of summary judgment to officials at the Western 

Correctional Institution (“WCI”) (collectively, “Appellees”) on 

his Eighth Amendment claim. After a “shakedown” in his housing 

unit, Appellant’s mattress was removed. Although he was 

adjudged not guilty of hiding contraband in the mattress, prison 

officials did not return his mattress for more than four months. 

Appellant claims the deprivation of his mattress caused lack of 

sleep, confusion, headaches, backaches, and other infirmities. 

Appellees moved to dismiss, or in the alternative, for summary 

judgment. Although Appellant requested discovery, the district 

court construed the motion as one for summary judgment and 

granted it without addressing Appellant’s discovery request. 

We hold that the district court failed to conduct a 

plenary analysis on the objective prong of Appellant’s Eighth 

Amendment claim, and it erred in failing to grant Appellant’s 

discovery request. We therefore vacate and remand for further 

proceedings.

I.

A.

 We view the facts in the light most favorable to 

Appellant. See Butler v. Drive Auto. Indus. of Am., Inc., 793 
4

F.3d 404, 407 (4th Cir. 2015). At all times relevant to this 

appeal, Appellant was in the custody of the Maryland Department 

of Public Safety and Correctional Services and confined at WCI 

in Cumberland, Maryland. 

In November 2010, Appellant was placed in a WCI 

housing unit designated for disciplinary segregation after he 

was found guilty of assaulting a correctional staff member (the 

“November 2010 incident”). Appellant claims that from November

2010 to February 2011, correctional officers (“COs”), including

Officer S.A. Wilson, deprived Appellant of a pillow and blanket 

“as revenge” for the November 2010 incident. J.A. 136.1 

Then, on June 28, 2011, COs conducted a shakedown in 

Appellant’s housing unit. During the shakedown, COs searched 

the inmates’ mattresses for contraband, usually cutting or 

damaging the mattresses. Appellant’s mattress was damaged and 

confiscated.2 Appellees claim that, pursuant to WCI policy, a 

copy of which is absent from this record, each inmate whose 

mattress had been removed and/or damaged had to either pay for 

the mattress, or receive an infraction “ticket” and resolve the 

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

by the parties in this appeal.

2 It appears that Appellant retained his sheets and blanket. 
5

matter via a disciplinary hearing. J.A. 137. Appellant chose 

the latter course. 

On July 1, 2011, Appellant’s disciplinary hearing was 

held. He was adjudged not guilty. Appellees claim that a 

search of Appellant’s mattress revealed that his mattress 

contained a “fishing line,” made out of state-issued bed sheets, 

which inmates often use to pass contraband from cell to cell. 

See Appellees’ Br. 7; J.A. 64. However, they claim that because 

the infraction ticket listed “someone other than [Appellant] in 

error,” Appellant was found not guilty. J.A. 92. Appellant, on 

the other hand, claims that he “did nothing to the mattress that 

was taken from [him] and destroyed.” Id. at 36. Viewing the 

facts in the light most favorable to Appellant, we must proceed 

under the assumption that he had no contraband in his mattress. 

In any event, it is undisputed that Appellant was adjudged not 

guilty of any prison rule violation on July 1. 

After the disciplinary hearing, having been found not 

guilty of any infraction, Appellant asked Wilson for a mattress. 

Wilson replied, “[Lt. Rodney] Likin is the reason you don’t have 

a mattress and I’m not going to get my ass chewed off for going 

against Likin’s orders.” J.A. 137. Appellant claims he also

asked Officer W. Slate for a mattress, and although Slate 

“ensured all [other] inmates were provided a mattress,” he 
6

“deprived [Appellant of] a mattress as revenge for the November 

[2010] incident.” Id. 

Despite the fact that Appellant had been adjudged not 

guilty, Likin ordered a second infraction ticket to be issued to 

Appellant on July 6, 2011. At a hearing on July 11, all charges 

underlying that second ticket were also dismissed. During the 

July 11 hearing, Slate “spitefully informed [Appellant] that 

money [that is, payment for the damaged mattress per the 

purported WCI policy] was not the reason [he] was being deprived 

[of] a mattress.” J.A. 140. This July 11 second not guilty

verdict was affirmed by Warden J. Phillip Morgan on July 21. 

Meanwhile, Appellant “began suffering [from] headaches 

from sleeping on cold hard metal.” J.A. 183. He also had lower 

back, neck, and hip pain. In a sick-call request form dated 

July 11, 2011, Appellant complained, “I am having headaches. 

Sound (loud) and bright lights are hurting me. It is worse in 

the morning when I wake up. My mind is confused all day.” Id.

at 17. On another sick-call request form dated July 17, 

Appellant complained, “[m]y lower back is hurting. My muscles 

are tight. My neck is hurting, along my spine . . . .” Id. at 

19. WCI physicians prescribed him Amitriptyline Hydrochloride 

(an antidepressant with sedative effects), Ibuprofen, Baclofen

(a muscle relaxer), and Excedrin Migraine. On July 22, 
7

Appellant filed yet another sick-call request form, indicating 

he was still “suffering from headaches and . . . having trouble 

sleeping” and his “neck, back, and head” were in pain. Id. at 

23. In a declaration, Appellant later stated that lying on the

“metal [bunk]” made it “hard to sleep,” and when he did sleep, 

he did not sleep “well or long.” Id. at 144-45.

On June 28, 2011, Appellant filed a grievance seeking 

the return of his mattress. On July 28 Warden Morgan dismissed 

the grievance, explaining, “Your mattress was destroyed as a 

result of staff retrieving contraband that you had hidden inside 

of it. . . . [Y]ou will be issued a new mattress when 

restitution has been made to the institution for destruction of 

property.” J.A. 22. Appellant appealed the dismissal of his 

grievance, and on October 17, R. Watson, Assistant Commissioner 

of Corrections, directed Morgan to give Appellant a mattress, 

explaining, “[Appellant’s] appeal has been reviewed and is found 

meritorious. The investigation revealed [Appellant was] found 

not guilty of the infraction received on 6/28/11 for destruction 

of state property and possession of contraband.” Id. at 36 

(emphasis supplied). 

Appellant received a copy of the order directing 

Morgan to give him a mattress, and he presented it to “every 

C.O. who would give [him] time”; however, still “none would give 
8

[him] a mattress.” J.A. 142. Two Inmate Grievance Officers 

visited the facility on November 3 and “made prison officials

give [him] a mattress.” Id. at 11, 142. More than four months 

after Appellant was first adjudged not guilty, prison officials 

finally complied. 

B.

On June 21, 2013, Appellant filed a pro se complaint 

pursuant to 42 U.S.C. § 1983 in the District of Maryland. 

Appellees filed a motion to dismiss, or in the alternative, for 

summary judgment. They argued that Appellant was deprived a 

mattress only because he refused to pay restitution, he failed 

to show any objective injury, and he failed to show that 

Appellees had a culpable state of mind. Additionally, Appellees 

claimed qualified immunity. 

Appellant, still proceeding pro se, filed an 

opposition along with a declaration seeking discovery before the 

entry of judgment. In the opposition, Appellant claimed that he 

was deprived of his mattress because of Appellees’ “malicious 

behaviors, motivated by revenge” based on the November 2010 

incident. J.A. 120, 123. He further urged that prison 

officials were “deliberate[ly] indifferen[t]” to the injuries he

suffered as a result of this deprivation. Id. at 130 (internal 

quotation marks omitted). 
9

The district court construed Appellees’ filing as a 

motion for summary judgment and granted it. Treating

Appellant’s claim as an Eighth Amendment conditions-ofconfinement claim, the district court concluded that Appellees 

“were aware that [Appellant] was without a mattress long after 

he was exonerated of disciplinary charges related to its 

destruction.” J.A. 256. Nonetheless, the district court 

granted summary judgment, reasoning that Appellant could not 

show an objectively significant physical injury:

[Appellant] maintains that he still suffers 

from back pain as a result of sleeping in a 

cell without a mattress. Medical records 

indicate that Plaintiff was prescribed 

Baclofen, Amitriptyline, Ibuprofen, and 

Excedrin migraine on July 25, 2011. The 

same record, however, indicates that 

[Appellant] appeared to be in little to no 

distress. There are no medical records 

documenting any continued problems with pain

or discomfort during the following months 

when Plaintiff did not have a mattress. 

[Appellant] claims that he continues to 

suffer pain from sleeping on a metal bunk 

without a mattress. He does not, however, 

forecast evidence which would establish the 

injury claimed.

Id. (footnotes and citations omitted). The district court did 

not address Appellant’s discovery request or Appellees’ 

qualified immunity argument.
10

II.

Appellant maintains the district court erred by, inter 

alia, failing to consider the risk of harm posed by depriving 

him of a mattress for four months, and by failing to grant his 

request to pursue discovery before ruling on Appellees’ motion. 

Because we agree that the district court erred on both counts, 

we vacate and remand. 

A.

We first address Appellant’s argument that the 

district court erroneously failed to consider the risk of harm 

in its Eighth Amendment analysis. We review the district 

court’s legal analysis at summary judgment de novo. See Front 

Royal & Warren Cty. Indus. Park Corp. v. Town of Front Royal, 

Va., 135 F.3d 275, 284-85 (4th Cir. 1998) (reversing grant of 

summary judgment where “district court’s analysis stopped 

short”).

The Eighth Amendment “protects inmates from inhumane 

treatment and conditions while imprisoned.” Williams v. 

Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). It “prohibits

punishments which, although not physically barbarous, involve 

the unnecessary and wanton infliction of pain, or are grossly 

disproportionate to the severity of the crime.” Rhodes v. 
11

Chapman, 452 U.S. 337, 346 (1981) (citations and internal 

quotation marks omitted). 

When an inmate raises an Eighth Amendment claim based 

on a prisoner’s conditions of confinement,3 he must first prove 

he experienced a “deprivation of a basic human need [that] was 

objectively sufficiently serious.” De’Lonta v. Johnson, 708 

F.3d 520, 525 (4th Cir. 2013) (alterations and internal 

quotation marks omitted) (the “Objective Prong”). Second, the 

inmate must prove that “subjectively the officials acted with a 

sufficiently culpable state of mind.” Id. (alterations and 

internal quotation marks omitted) (the “Subjective Prong”).

On the Objective Prong, the district court concluded 

the physical injuries actually suffered by Appellant “do[] not 

qualify as . . . significant . . . for purposes of a 

constitutional claim.” J.A. 256. This conclusion is 

incomplete. By focusing only on the injury Appellant actually 

suffered, the court erred by ignoring the risk of harm posed by 

depriving someone of a mattress for over four months. We have 

made clear that a prisoner can satisfy the objective prong of an 

 3 Appellant attempts to cast his cause of action as an 

excessive force claim to this court; however, we decline to rule 

on the propriety of this characterization at this stage. 

Appellant’s arguments on this point may be presented upon 

remand. 
12

Eighth Amendment claim by showing this “substantial risk of 

. . . serious harm.” Shakka v. Smith, 71 F.3d 162, 166 (4th 

Cir. 1995); see also Raynor v. Pugh, 817 F.3d 123, 127 (4th Cir. 

2016); De’Lonta, 708 F.3d at 525; cf. Helling v. McKinney, 509 

U.S. 25, 33 (1993) (“We have great difficulty agreeing that 

prison authorities . . . may ignore a condition of confinement 

that is sure or very likely to cause serious illness and 

needless suffering the next week or month or year.”).4 

Therefore, on remand, the district court should complete the 

analysis and consider the risk of harm posed to Appellant. 

B.

Next, Appellant contends the district court improperly

ruled on Appellees’ motion for summary judgment without allowing 

Appellant to conduct discovery. We give district courts “wide 

latitude in controlling discovery,” and will not disturb a 

district court’s discovery order “absent a showing of clear

 4 This court has remanded Eighth Amendment actions in two 

recent unpublished decisions, directing the district court to 

address the risk of harm analysis. See Webb v. Deboo, 423 F. 

App’x 299, 301 (4th Cir. 2011) (per curiam) (concluding that the 

district court erred by only considering actual injury suffered 

and not the risk of harm); Thomas v. Younce, 604 F. App’x 325, 

326 (4th Cir. 2015) (per curiam) (“Although Thomas may have 

suffered a relatively minor injury to his knee, the risk of more 

significant harm from a fall down the stairs (or out of an upper 

bunk) is obvious.”).
13

abuse of discretion.” Rowland v. Am. Gen. Fin., Inc., 340 F.3d 

187, 195 (4th Cir. 2003) (internal quotation marks omitted); see 

also McCray v. Md. Dep’t of Transp., Md. Transit Admin., 741 

F.3d 480, 483 (4th Cir. 2014). 

In response to a summary judgment motion, the nonmoving party may present an “affidavit or declaration that, for 

specified reasons, it cannot present facts essential to justify 

its opposition.” Fed. R. Civ. P. 56(d). The court may then 

“defer considering the motion or deny it”; “allow time to obtain 

affidavits or declarations or to take discovery”; or “issue any 

other appropriate order.” Fed. R. Civ. P. 56(d)(1)-(3). Here, 

the district court chose the third path, simply ruling on 

Appellees’ summary judgment motion without addressing the 

discovery request. We find this to be an abuse of discretion.

1.

First, despite Appellees’ arguments to the contrary, 

Appellant’s request for discovery was procedurally sufficient. 

We have explained a non-moving party “cannot complain 

that summary judgment was granted without discovery unless that 

party had made an attempt to oppose the motion on the grounds 

that more time was needed for discovery.” Evans v. Techs. 

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). 

Along these lines, Appellees contend that Appellant failed to 
14

comply with the formal substantive requirements of Rule 56(d). 

They contend Appellant “failed to specify the reasons why he 

could not present facts essential to justify his opposition” and 

“failed to specify the facts he wished to discover.” Appellees’ 

Br. 29-30. Appellees’ argument fails both legally and 

factually.

We have not insisted on an affidavit in technical 

accordance with Rule 56(d) “if the nonmoving party has 

adequately informed the district court that the motion is premature and that more discovery is necessary.” Harrods Ltd. v. 

Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002); 

see also Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). 

Harrods explains: 

[I]f the nonmoving party’s objections before 

the district court served as the functional 

equivalent of an affidavit, and if the 

nonmoving party was not lax in pursuing 

discovery, then we may consider whether the 

district court granted summary judgment 

prematurely, even though the nonmovant did 

not record its concerns in the form of a 

Rule 56[(d)] affidavit. 

302 F.3d at 244-45 (citation, footnote, and internal quotation 

marks omitted). This is especially true where, as here, the 

non-moving party is proceeding pro se. See Erickson v. Pardus, 

551 U.S. 89, 94 (2007) (“A document filed pro se is to be 

liberally construed[.]” (internal quotation marks omitted)); cf.
15

Gordon v. Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (“What 

might be a meritorious claim on the part of a pro se litigant 

unversed in the law should not be defeated without affording the 

pleader a reasonable opportunity to articulate his cause of 

action.”). 

And although Appellant’s declaration may not have 

mentioned Rule 56 or been filed in technical accordance with 

Rule 56(d), Appellant clearly “made an attempt to oppose the 

motion on the grounds that more time was needed for discovery.” 

Evans, 80 F.3d at 961. In his opposition to Appellees’ motion, 

Appellant specifically stated that he had “not yet had access to 

discovery” and that it was “difficult for [him] to get 

documentation and declarations[,] especially from prisoners and 

prison officials from the[] Cumberland region, and prisoners 

who[] have been released.” J.A. 119. Further, Appellant’s 

declaration, filed as an exhibit to his opposition, stated, “I 

need Discovery to uncover information that is essential to my 

suit.” Id. at 147. The declaration delineates nine pieces of 

evidence Appellant needs but cannot obtain in order to mount an 

adequate opposition, including: 

• The names of “[t]he other inmates who 

refused restitution but were given another 

mattress”;
16

• “[M]edical” evidence; 

• “[C]ircumstances” surrounding the “November 

3, 2011” return of his mattress; 

• The “WCI policy,” which is referred to but 

not provided as part of the record in this 

appeal; and

• Information regarding “[t]he July 6, 2011 

incidents,” in which Likin allegedly ordered 

a second infraction ticket to be issued to 

Appellant.

Id. at 147-48. Appellant also gave an explanation as to why he 

was not more specific: “I fear de[s]cribing what I need because 

it may disap[p]ear.” Id. at 148. This statement should have 

indicated to the district court that much of the evidence 

Appellant desired was in the custody of the Appellees, against 

which Appellant had already made allegations of maliciousness.

Therefore, Appellees’ argument that Appellant’s 

submissions were procedurally insufficient is unfounded.

2.

Second, the district court should have, in its 

discretion, determined that Appellant was entitled to discovery 

before it ruled on Appellees’ motion. Ruling on a summary 

judgment motion before discovery “forces the non-moving party 

into a fencing match without a sword or mask.” McCray, 741 F.3d 

at 483. This is especially true where the information requested 
17

is in the sole possession of the moving party, and where the 

district court would be otherwise unable to conduct a proper 

summary judgment assessment without the requested evidence. 

This court has emphasized, “56(d) motions for more 

time to conduct discovery are proper . . . where most of the key 

evidence lies in the control of the moving party.” McCray, 741 

F.3d at 484; see also Harrods, 302 F.3d at 246–47. In Ingle ex 

rel. Estate of Ingle v. Yelton, for example, we held the 

district court abused its discretion in denying a Rule 56(d)

request where a mother sought videotape evidence, which the 

police allegedly kept pursuant to department policy, of a police 

chase that ended in her son’s death. See 439 F.3d 191, 193-94

(4th Cir. 2006). We explained, “courts should hesitate before 

denying Rule 56[(d)] motions when the party opposing summary 

judgment is attempting to obtain necessary discovery of 

information possessed only by her opponent.” Id. at 196-97; see 

also Willis v. Town of Marshall, 426 F.3d 251, 263 (4th Cir. 

2005) (concluding district court wrongly denied Rule 56(d) 

request where evidence plaintiff sought was “wholly within the 

knowledge of” defendant).

Here, essentially all of the evidence Appellant seeks 

is in the possession of WCI officials, including the names of 

other inmates who refused restitution but were given mattresses 
18

back anyway, and a copy of the WCI policy upon which WCI 

officials have relied throughout this litigation. This evidence 

is not only controlled by Appellees, but also bears on “factintensive issues, such as intent” of the moving party. Harrods, 

302 F.3d at 244. 

Moreover, we cannot fathom how Appellant can mount a 

successful defense -- nor can we fathom how the district court 

could properly assess Appellant’s claims -- without the 

discovery Appellant requests. Indeed, requests for discovery 

are “broadly favored and should be liberally granted because the 

rule is designed to safeguard non-moving parties from summary 

judgment motions that they cannot adequately oppose.” Greater 

Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City 

Council of Baltimore, 721 F.3d 264, 281 (4th Cir. 2013) (en 

banc); Ingle, 439 F.3d at 195 (Rule 56 “requires that summary 

judgment be refused where the nonmoving party has not had the 

opportunity to discover information that is essential to his 

opposition.” (internal quotation marks omitted) (emphasis 

supplied)).

For example, on the Eighth Amendment Objective Prong, 

the district court noted “there are no medical records 

documenting any continued problems with pain or discomfort 

during the [] months [after July 25] when [he] did not have a 
19

mattress.” J.A. 256. But Appellant was not able to conduct 

discovery to access or present additional records, despite the 

fact that he requested it. Thus, Appellant was only able to 

present evidence of injury from a limited three-week period 

after he was first deprived of his mattress. And disputes of 

fact remain regarding the extent of Appellant’s injuries: even 

as late as February 2014, Appellant alleged that he “still 

suffer[s] pain in [his] lower back.” Id. at 146; cf. Pisano v. 

Strach, 743 F.3d 927, 932 (4th Cir. 2014) (finding no abuse of 

discretion where non-moving party’s proposed evidence “would not 

create a genuine issue of material fact”). We found similar 

error where a district court granted summary judgment for prison 

officials, faulting the plaintiff-inmate for “not providing any 

evidence, other than his own affidavit, to support his 

allegations,” when the court had already stayed his earlier

discovery requests. Raynor, 817 F.3d at 130 (alterations and 

internal quotation marks omitted).

As to the Eighth Amendment Subjective Prong, it is 

unclear whether the prison’s policy (which, again, is not in the 

record) allows for the return of a mattress after a prisoner is 

found “not guilty” for any reason. Drawing a reasonable 

inference that it does -- indeed, Assistant Commissioner Watson 

himself ordered Appellant’s mattress to be returned because he 
20

was “found not guilty of the infraction received on 6/28/11 for 

destruction of state property and possession of contraband,”

J.A. 36 -- issues of fact remain as to whether the officials 

were abiding by their own policy, or rather, were acting in a

deliberately indifferent or malicious manner. Further discovery 

would give Appellant the chance to demonstrate how the 

“officers’ account . . . conflicts with” his account. Ingle, 

439 F.3d at 196. Moreover, whether the policy was applied 

uniformly is duly contested, and “[a] course of conduct that 

tends to prove that [a prison regulation] was merely a sham, or 

that [prison officials] could ignore it with impunity, provides 

equally strong support for the conclusion that they were fully 

aware of the wrongful character of their conduct.” Hope v. 

Pelzer, 536 U.S. 730, 744 (2002). 

C.

For these reasons, the district court abused its 

discretion in failing to grant Appellant’s discovery request. 

“Once discovery . . . is completed, the district court may again 

consider [Appellees’] motion for summary judgment” or qualified 

immunity, “if it deems that to be the appropriate course,” 

Ingle, 439 F.3d at 197, keeping in mind that qualified immunity 

questions “should be resolved at the earliest possible stage of 
21

a litigation.” Anderson v. Creighton, 483 U.S. 635, 646 n.6 

(1987).

III.

For all of the foregoing reasons, we vacate the 

district court’s grant of summary judgment and remand for 

further proceedings consistent with this opinion. 

VACATED AND REMANDED
22

NIEMEYER, Circuit Judge, concurring in part, dissenting in part, 

and concurring in the judgment:

The majority remands this case to the district court for 

two nonexclusive purposes: (1) to permit the district court to 

“consider the risk of harm posed by depriving [Putney] of a 

mattress [but not blankets and pillows] for four months,” and 

(2) “to grant [Putney] his request to pursue discovery.”

While those purposes may become relevant -- and I do not 

disagree with the majority’s discussion given in connection with 

them -- they jump over two other essential determinations that 

the district court must make before reaching the subjects 

identified by the majority. First, the district court must, at 

the outset, address the defendants’ claim of qualified immunity, 

because such immunity is designed to protect the defendants from 

both discovery and trial. Second, the court must, in connection 

with the Eighth Amendment claim, determine whether Putney was 

deprived of a basic human need, which is a condition precedent 

under the Eighth Amendment to conducting an inquiry into the 

risk of injury. I will address these two points, in reverse 

order, to provide the district court with further guidance when 

it reconsiders this case.
23

I

On his conditions-of-confinement claim under the Eighth 

Amendment, Putney contends that, in depriving him of a mattress 

(but not blankets and pillows) for a four-month period, prison 

officials knowingly failed to provide him with a basic human 

need, causing him harm in violation of the Eighth Amendment.

The Eighth Amendment provides, in relevant part, that 

“cruel and unusual punishments [shall not be] inflicted.” U.S. 

Const. amend. VIII. The Supreme Court has construed this clause 

to require prison officials to “provide humane conditions of 

confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). 

Thus, “prison officials must ensure that inmates receive 

adequate food, clothing, shelter, and medical care, and must 

‘take reasonable measures to guarantee the safety of the 

inmates.’” Id. (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 

(1984)). But the Court has noted that “the Constitution does 

not mandate comfortable prisons.” Rhodes v. Chapman, 452 U.S. 

337, 349 (1981). To succeed on an Eighth Amendment claim that a 

prisoner was not provided humane conditions of confinement, the 

prisoner must prove “(1) that the deprivation of [a] basic human 

need was objectively sufficiently serious, and (2) that 

subjectively the officials act[ed] with a sufficiently culpable 

state of mind.” De’Lonta v. Angelone, 330 F.3d 630, 634 (4th 
24

Cir. 2003) (alterations in original) (emphasis added) (internal 

quotations marks and emphasis omitted) (quoting Strickler v. 

Waters, 989 F.2d 1375, 1379 (4th Cir. 1993)); see also Farmer, 

511 U.S. at 834 (explaining that, to violate the Eighth 

Amendment, “a prison official’s act or omission must result in 

the denial of ‘the minimal civilized measure of life's 

necessities’” (quoting Rhodes, 452 U.S. at 347)).

In this case, Putney has so far failed to explain how the 

denial of a mattress was anything more than a discomfort, and 

the Constitution, of course, does not afford him the right to a 

“comfortable” prison. Rhodes, 452 U.S. at 349; see also

Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (“We have no 

doubt that Trammell was made uncomfortable by the deprivation of 

his clothing, but there is simply no factual dispute regarding 

whether the temperature in his cell posed a threat to his 

‘health or safety’ of the sort that would disallow summary 

judgment in defendants’ favor”). Indeed, when children or young 

adults participate in sleepovers or “crash” at each other’s 

apartments, sleeping on the floor and using only blankets and 

pillows, they do not deprive themselves of a basic human need. 

Neither do soldiers on a mission away from their barracks, nor 

hikers on the trail. In fact, people have slept without 

mattresses from time immemorial, and do so routinely even today, 
25

using only blankets and some form of headrest to serve as a 

pillow.

Understandably, Putney has not yet advanced any precedent 

to support his position that a mattress, on its own, qualifies 

as an indisputable life necessity, but this is a matter that 

must be explored by the district court on remand. Failing such 

support for his claim, Putney would fail, as a matter of law, to 

satisfy the objective prong of the test that governs such claims 

-- the prong requiring that he show that he suffered an extreme 

deprivation of a basic human need. See Strickler, 989 F.2d at 

1379 (“Because we conclude that Strickler has not established 

the serious deprivation of a basic human need required to 

survive summary judgment on his claim of an Eighth Amendment 

violation, we need not consider whether Sheriff Waters acted 

with an intent sufficient to satisfy the Amendment’s state-ofmind requirement” (emphasis added)).

II

Even before addressing whether the first prong of an Eighth 

Amendment conditions-of-confinement claim has been satisfied, 

however, the district court will have to address the defendants’ 

claim of qualified immunity, the analysis for which includes 
26

whether Putney demonstrated a “clearly established” Eighth 

Amendment violation.

“The doctrine of qualified 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, 555 U.S. 223, 231 (2009) 

(emphasis added) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 

818 (1982)). The doctrine thus involves two steps: (1) whether 

a constitutional right would have been violated on the facts 

alleged, and (2) whether that right was clearly established at 

the relevant time. See Plumhoff v. Rickard, 134 S. Ct. 2012, 

2020 (2014). A district court has discretion as to which step 

to address first. Pearson, 555 U.S. at 236.

Qualified immunity is “an immunity from suit rather than a 

mere defense to liability,” and it is therefore “effectively 

lost if a case is erroneously permitted to go to trial.” 

Pearson, 555 U.S. at 231 (emphasis added) (quoting Mitchell v. 

Forsyth, 472 U.S. 511, 526 (1985)). Indeed, the “driving force” 

behind the doctrine is the “desire to ensure that ‘insubstantial 

claims against government officials [will] be resolved prior to 

discovery.’” Id. (alteration in original) (emphasis added) 

(quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). 
27

The Supreme Court has accordingly “repeatedly . . . stressed the 

importance of resolving immunity questions at the earliest 

possible stage in litigation.” Id. at 232 (quoting Hunter v. 

Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

The majority recognizes that the district court did not 

originally address qualified immunity, and it properly indicates 

that it be addressed on remand. I only add that, to protect the 

defendants from both discovery and suit, it should be addressed 

at the outset as a gateway issue.

In addressing the immunity issue, the district court will 

have to determine whether Putney demonstrated that prison 

officials violated clearly established constitutional rights of 

which a reasonable official would have known. See Pearson, 555 

U.S. at 231. And to determine whether a constitutional right 

was clearly established, he would have to show a violation of 

the right that is “particularized” to the circumstances of his 

case, such that a reasonable prison official “would understand 

that [confiscating Putney’s mattress] violate[d] that right.” 

Anderson, 483 U.S. at 640. “[T]he unlawfulness must be 

apparent.” Id.

Of course, if the defendants are entitled to qualified 

immunity, it would not be necessary for the district court to 

reach the Eighth Amendment claim on the merits.