1 --- U.S. ----, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), rev'g 929 F.2d 1014 (5th Cir.1990). United States Court of Appeals,

Fifth Circuit.

No. 92-2627

Summary Calendar.

Joseph RANKIN, Plaintiff-Appellee,

v.

John KLEVENHAGEN, et al., Defendants,

G.D. Pinkins, Defendant-Appellant.

Oct. 21, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, JONES and DUHÉ, Circuit Judges.

DUHÉ, Circuit Judge:

This is an interlocutory appeal from the denial of Appellant's motion for summary judgment

claiming qualified immunit y. Joseph Rankin (Rankin) alleges that Appellant used excessive force on

him while he was an inmate in the Harris County Jail. Gregory Pinkins (Pinkins), a Deputy Sheriff

in Harris County, Texas, asserts that he is entitled to qualified immunit y from Appellee's § 1983 suit.

We hold that the district court erred in applying Hudson v. McMillian 1 to the second prong of the

bifurcated inquiry into Pinkins' qualified immunity defense, and remand for further proceedings.

I.

Rankin was incarcerated at the Harris County Jail in 1986. He was placed in a large holding

cell with 150-200 other inmates awaiting court appearances. A group of female prisoners passed in

front of the holding cell, and the inmates therein began shouting and otherwise creating a disturbance.

Deputy Pinkins attempted to restore order to the holding area, so that the processing of the inmates

could continue.

Rankin alleges that Pinkins singled him out from the others in the holding cell and forcibly

removed him. The ensuing events are disputed; however, Rankin contends that Pinkins placed him2 In Hudson, the Supreme Court held that the use of excessive force against a prisoner may rise

to the level of an Eighth Amendment violation even though the inmate does not suffer a serious

injury. Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992).

This decision overturned prior Fifth Circuit precedent in the area of Eighth Amendment excessive

force claims, which had required an inmate to plead and prove that he suffered a "significant

injury" at the hands of prison personnel. See, e.g. Huguet v. Barnett, 900 F.2d 838, 841 (5th

Cir.1990). in a "compliance hold," slammed him against a wall and the jail's floor, handcuffed him and "stomped"

on his back and legs. Rankin suffered injuries to his knee, throat and a finger.

Appellee filed this 42 U.S.C. § 1983 suit. Appellant moved for summary judgment, arguing

that (1) he did not apply excessive force to Appellee; and, (2) he was entitled to qualified immunity

from suit.

The court init ially indicated that it would grant Pinkins' motion, but delayed ruling until

Appellee responded. Rankin, in his response, moved to stay the proceedings pending the Supreme

Court's decision in Hudson v. McMillian,

--- U.S.

----, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), rev'g

929 F.2d 1014 (5th Cir.1990). 2 The district court agreed, and stayed the proceedings. After the

Supreme Court decided H udson, Pinkins renewed his motion for summary judgment. The court

denied it and Pinkins t imely appealed. S ee Mitchell v. Forsyth, 472 U.S. 511, 525, 105 S.Ct. 2806,

2814, 2815, 86 L.Ed.2d 411 (1985) (rulings which deny qualified immunit y are appealable under the

"collateral order" exception to 28 U.S.C. § 1291).

When Pinkins filed his petition for review, he also requested that the district court stay the §

1983 action pending this appeal. The district court granted this motion. In the stay order the court

explained that it had denied Pinkins' summary judgment request based on the standards announced

in Hudson. R. 901. Pinkins now appeals, arguing that the court should have evaluated his defense

under the law in place at the time of the incident instead of retroactively applying Hudson.

II.

In assessing a claim of qualified immunit y, we engage in a bifurcated analysis. S ee Salas v.

Carpenter, 980 F.2d 299, 305 (5th Cir.1992). First, we determine whether the plaintiff has "allege[d]

the violation of a clearly established constitutional right." S iegert v. Gilley,

--- U.S.

----, ----, 111

S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). If so, we then decide if the defendant's conduct wasobjectively reasonable, because " "[e]ven if an o fficial's conduct violates a constitutional right, he is

entitled to qualified immunit y if the conduct was objectively reasonable.' " S pann v. Rainey, 987 F.2d

1110, 1114 (5th Cir.1993) (quoting Salas, 980 F.2d at 310). Because this matter was resolved by

summary judgment, "[o]ur review is plenary accepting the facts in t he light most favorable to the

nonmoving party." Salas, 980 F.2d at 304.

Appellee has alleged that Pinkins used excessive force against him, thereby violating his

Eighth and Fourteenth Amendment rights. R. 7. At the outset, we note that Appellee, at the time

of his incarceration, had not yet been convicted of the crime with which he was charged (forgery).

Generally, t his would require us to review his claim as one alleging a Fourteenth Amendment due

process violation, in light of his status as a pretrial detainee. S ee, e.g. Bell v. Wolfish, 441 U.S. 520,

535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979) (pretrial conditions or restrictions that amount to

"punishment" implicate due process concerns). However, at the time of his arrest, Rankin was on

parole from the Texas Department of Corrections, where he was serving his sentence for an earlier

burglary conviction. S ee R. 108-09 (Rankin deposition). This would seem to warrant review under

the Eighth Amendment's prohibition against cruel and unusual p unishment. S ee, e.g. Whitley v.

Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986) (Eighth Amendment is

primary source of protection against the official use of force on convicted prisoners).

In Valencia v. Wiggins, 981 F.2d 1440 (5th Cir.), cert. denied,

--- U.S.

----, 113 S.Ct. 2998,

125 L.Ed.2d 691 (1993), we were confronted with a an excessive force claim brought by a pretrial

detainee who had been confined for three weeks. The plaintiff-detainee was involved in a small-scale

disturbance, and alleged that a guard used excessive force on him in attempting to squelch the ruckus.

The Valencia court, in a thorough and well-reasoned opinion, concluded:

[W]hen a court is called upon to examine the amount of force used on a pretrial detainee for

the purpose of institutional security, the appropriate analysis is that announced in Whitley and

Hudson: whether the measure taken inflicted unnecessary and wanton pain and suffering

depends on "whether force was applied in a good faith effort to maintain or restore discipline,

or maliciously and sadistically for the very purpose of causing harm."

Valencia, 981 F.2d at 1446 (quoting Hudson v. McMillian,

--- U.S. ----, ----, 112 S.Ct. 995, 998,

117 L.Ed.2d 156 (1992)).3 634 F.2d 263 (5th Cir.1981). Shillingford applied the due process provision of the

Fourteenth Amendment to an excessive force claim. Id. at 264. The court held that a valid claim

for excessive force required showing (1) a severe injury, which was (2) "grossly disproportionate" Both Whitley and Hudson are Eighth Amendment cases invo lving convicte d prisoners;

however, the Valencia court concluded that these cases provided the proper framework for analyzing

a pretrial detainee's excessive force claim, when the force was appl ied in an effort to preserve

institutional security: "[I]t is impractical to draw a line between convicted prisoners and pretrial

detainees for the purpose of maintaining jail security." 981 F.2d at 1446. The court found further

guidance from Hudson 's intimation "that many of [the Supreme Court's] concerns in Whitley were

not limit ed to Eighth Amend ment claims but "arise w henever guards use force to keep order.' "

Valencia, 981 F.2d at 1446 (emphasis in original) (quoting Hudson,

--- U.S. at ----, 112 S.Ct. at

996)).

The instant case fits squarely into the holding of Valencia. We are reviewing a detainee's

claim stemming from force applied when a jailer attempted to restore institutional order. Even if our

review hinged upon Appellee's parolee status, the same standards would govern our analysis.

Appellee had been detained for approximately two weeks when the incident with Deputy Pinkins

occurred. Additionally, at the time of the incident Pinkins was attempting to restore order to the

holding cell area. We conclude that the Eighth Amendment is the proper benchmark against which

Rankin's claim should be analyzed.

Having identified what constitutional criteria govern Appellee's claim, we look to see if he

has alleged a constitutional violation. We must utilize currently applicable constitutional standards

to make this assessment. S ee Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.1993) (applying Fourth

Amendment excessive force standards announced in Johnson v. Morel, 876 F.2d 477 (5th Cir.1989)

(en banc), t o incident which occurred in 1987); H udson v. McMillian, 929 F.2d 1014, 1015 (5th

Cir.1990) (applying Eighth Amendment excessive force standards announced in Huguet v. Barnett,

900 F.2d 838 (5th Cir.1990), to incident which occurred in 1983), rev'd

--- U.S.

----, 112 S.Ct. 995,

117 L.Ed.2d 156 (1992)).

Pinkins urges that the district court should have applied Shillingford v. Holmes 3 in analyzingin relation to the need for action, and (3) was inspired by malice. Id. at 265; see Spann v.

Rainey, 987 F.2d 1110, 1115 (5th Cir.1993). We note that the Fourteenth Amendment no longer

provides the standard in such cases. In Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865,

1871, 104 L.Ed.2d 443 (1989), the Supreme Court held that all claims involving the use of

excessive force against free citizens are to be analyzed under the Fourth Amendment.

4 876 F.2d 477 (5th Cir.1989) (en banc).

5 The district court concluded that Rankin's summary judgment evidence at least raised an issue

of material fact on each of the following elements:

1) the use of force was clearly excessive to the need; whether or not Appellee's complaint sufficiently state d a constitutional violation. S hillingford

articulated this court's standard governing excessive force claims at the time Pinkins allegedly injured

Rankin. See Valencia, 981 F.2d at 1443.

Appellant's contention that the district court erred in its retroactive application of Hudson

to the first prong of his qualified immunity defense is without merit: "Our conclusion that Whitley

and Hudson provide the correct standard for excessive force suits brought by pretrial detainees means

that this Circuit's test in Shillingford has no continuing force." V alencia, 981 F.2d at 1447; a ccord

Shabazz v. Lynaugh, 974 F.2d 597, 598 (5th Cir.1992) (remanding dismissal of prisoner's excessive

force claim for reconsideration in light of Hudson ); T ijerina v. Plentl, 958 F.2d 133, 138 (5th

Cir.1992) (vacating judgment entered aft er jury t rial and remanding case after H udson ).

Consequently, to state an Eighth Amendment excessive force claim, a prisoner (or pretrial detainee

engaged in disrupting institutional security), must show that force was applied not "in a good faith

effort to maintain or restore discipline," but rather t hat the force complained of was administered

"maliciously and sadistically to cause harm." H udson,

--- U.S. at ----, 112 S.Ct. at 999 (citing

Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)); see Valencia 981 F.2d

at 1446.

In this case, the district court concluded that the summary judgment evidence was "at least

sufficient to raise genuine issues o f material fact on each of the post- H udson elements essential to

Rankin's claim." R. 904. The court analyzed Appellee's claim using the J ohnson v. Morel 4 factors,

sans the re quirement that the injury be "significant." I d. 5 These factors roughly parallel those we2) the excessive force was objectively unreasonable; and,

3) the action constituted an unnecessary and wanton infliction of pain.

R. 904.

6 In assessing whether force was applied in a "good faith effort to maintain or restore

discipline," and not "maliciously and sadistically" to cause harm, the Hudson court, on remand,

cited several factors which are relevant to this inquiry:

(1) the extent of the injury suffered; (2) the need for the application of force; (3)

the relationship between the need and the amount of force used; (4) the threat

reasonably perceived by the responsible officials; and, (5) any efforts made to

temper the severity of the forceful response.

Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir.1992) (citing Hudson, --- U.S. at ----,

112 S.Ct. at 999). This is not an exhaustive listing of pertinent considerations: "The

degree of force exerted and the extent of physical injury inflicted that together amount to a

constitutional deprivation must, of course, be determined by the facts of a given case."

Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). announced in Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir.1992), after that case was remanded

from the Supreme Court. 6 Because of the plenary nature of our review, we turn to an evaluation of

the Hudson factors, "accepting the facts in the light most favorable to the nonmoving party." S alas

v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992).

Hudson removed the "serious" or "signifi cant " injury requirement we previously held

necessary to show an Eighth Amendment violation. "The absence of serious injury is therefore

relevant to the Eighth Amendment inquiry, but does not end it." H udson,

--- U.S. at ----, 112 S.Ct.

at 999. Rankin claims that Pinkins' act io ns either caused or aggravated a knee injury, which

ultimately led to corrective surgery. Appellee also sought treatment for an injury to his throat, and

complains that his finger was injured in the melee. In cases post- H udson, "[c]ertainly some injury is

still required." Spann, 987 F.2d at 1115 n. 7. Appellee's injuries suffice to meet this element.

Appellant asserts that action was needed to restore order to the holding cell a rea. In hi s

deposition testimony, Pinkins stated that he ordered Rankin from the holding cell in order to squelch

t he disrupt ive activity. R. 523. He further testified that Appellee's hostile motions necessitated a

forceful response. Needless to say, Appellee paints a different picture of this encounter, and offers

evidence in support of his contentions. This factor, al ong wi th H udson 's third and fourthcomponents (the relationship between the need and force used, and the threat reasonably perceived

by Pinkins), are dependent on a fact-sensitive inq uiry and credibility determinations. Because we

must draw factual inferences in the nonmovant's favor, we agree with the district court that summary

judgment is not a proper vehicle for the resolution of these disputed issues. As for the final H udson

factor, another officer did order Rankin removed from Pinkins' con t rol, after he observed Pinkins

shove Rankin—who by this time was handcuffed—into the cement wall a second time. While t his

did "temper the severity of a forceful response," it tends to indicate that, init ially at least, unnecessary

force may have been used against Appellee.

Again, because this matter is before us following denial of summary judgment, we make no

intimations regarding the correctnes s vel non of either party's factual assertions. Reviewing these

allegations in the light most favorable to the nonmoving party, it is clear that, under the controlling

standards announced in Hudson, Appellee has stated a claim for violation of a constitutional right.

See Spann, 987 F.2d at 1115; Shabazz, 974 F.2d at 598; Hudson, 962 F.2d at 523.

Qualified immunit

y shields government o fficials performing discretionary functions from civil

liabilit y, "as long as their actions could reasonably have been thought consistent with the rights they

are alleged to have violated." A nderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97

L.Ed.2d 523 (1987); s ee Val encia, 981 F.2d at 1447. In evaluating this second prong of the

bifurcated inquiry into qualified immunit y, we part from the subjective intent standard of Hudson ( i.e.

was the for c e applied maliciously or sadistically to cause harm). "Whether a defendant asserting

qualified immunity may be personally liable turns on the objective legal reasonableness of the

defendant's actions assessed in light of clearly established law." M ouille v. City of Live Oak, 918 F.2d

548, 551 (5th Cir.1990) (citing Anderson, 483 U.S. at 638, 107 S.Ct. at 3038).

When evaluating whether a plaint iff stated a constitutional violation, we looked to currently

applicable constitutional standards. S ee Spann, 987 F.2d at 1115; H udson v. McMillian, 929 F.2d

1014, 1015 (5th Cir.1990), rev'd --- U.S. ----, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). However,

"[t]he objective reasonableness of an official's conduct must be measured with reference to the law

as it exist ed at t he time of the conduct in question." M ouille, 918 F.2d at 551 (citing Harlow v.7 The district court recognized this conundrum:

Is Rankin now to be denied a trial on his Eighth Amendment claim because the

true protection of the Eighth Amendment to which he is entitled had not been

recognized by the courts of this Circuit in 1986 when Pinkins attacked him? Or, is

Pinkins now to be denied the full force of his qualified immunity defense because

his conduct is held to a standard of objective reasonableness as measured by the

Constitution, not as it was understood by the Fifth Circuit in 1986, but as it was

recognized by the Supreme Court six years later? Some sense of inequity is

perceived in either choice. R. 903. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982)); s ee Spann, 987

F.2d at 1115; Valencia, 981 F.2d at 1448.

In July 1986, our standard for Eighth Amendment excessive force claims was Shillingford

v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). S ee Valencia, 981 F.2d at 1448. In S hillingford, we

held that to maintain an excessive force claim a plaint iff had to prove that the o fficial's actions "caused

severe injuries, was grossly disproportionate to the need for action under the circumstances and was

inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse

of official power that shocks the conscience...." Shillingford, 634 F.2d at 265; accord Johnson v.

Morel, 876 F.2d 477 (5th Cir.1989) (en banc) (replacing the "severe" injury element with "significant"

injury component).

In assessing Pin kins' qualified immunity defense, the district court retroactively applied

Hudson to both prongs of the inquiry—1) whether Appellee presented a constitutional claim, and 2)

the objective reasonableness of Appellant's conduct. As stated, the court should have reviewed the

objective reasonableness of Pinkins' conduct under the standards announced in Shillingford, which

was the constitutional benchmark for excessive force claims in 1986. Because the district court did

not make factual findings under the Shillingford standards, and beca use the outcom e of such an

inquiry is not obvious from the record on appeal, we remand this case for further proceedings.

We are not unmindful that the bifurcated qualifi ed immunity analysis leads to a somewhat

schizophrenic approach; i .e. the application of Hudson to t he quest io n of constitutional violation

coupled with the application of Shillingford to the objective reasonableness question, even though

Hudson jettisoned Shillingford 's severe injury element. 7 Nevertheless, this is the proper frameworkto apply. S ee Spann, 987 F.2d at 1114; Valencia, 981 F.2d at 1448-49; S alas v. Carpenter, 980

F.2d 299, 305 (5th Cir.1992); Mouille, 918 F.2d at 551.

III.

Accordingly, we VACATE the order denying Appellant's motion for summary judgment, and

REMAND this case for further proceedings. Specifically, the district court should evaluate the

objective reasonableness of Pinkins' actions with reference to the law that existed at the time of the

events in question.

Motions to file record excerpts in excess of 40 pages and to file supplemental letter briefs are

GRANTED; all other motions are DENIED.