Willie Williams v. VINCENT COLLIER, Cpt-Supervisor; OFFICER JACKSON; LIEUTENANT RANDLE

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6759
WILLIE WILLIAMS,
Plaintiff - Appellant,
v.
VINCENT COLLIER, Cpt-Supervisor; OFFICER JACKSON; LIEUTENANT
RANDLE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:06-cv-01043-TSE-TRJ)
Submitted: June 8, 2009 Decided: July 22, 2009
Before TRAXLER, Chief Judge, and NIEMEYER and KING, Circuit
Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Willie Williams, Appellant Pro Se. John Adrian Gibney, Jr.,
Thomas Douglas Lane, THOMPSON MCMULLAN PC, Richmond, Virginia,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Willie Williams, a Virginia prisoner, appeals the
district court’s grant of summary judgment to Vincent Collier,
Delvin Jackson, and Challoughlczilczise Randle on Williams’s 42
U.S.C. § 1983 (2006) claims for various Eighth Amendment
violations, as well as the dismissal with prejudice of
Williams’s claims against “Officer Crowin.” On appeal, Williams
reiterates the merits of his claims, argues that the district
court erred in denying his motions for discovery and appointment
of counsel, and contends that Crowin was improperly dismissed
from the complaint. Williams also requests that counsel be
appointed in this Court. Appellees reassert the facts and
arguments stated in their respective motions for summary
judgment before the district court. For the reasons that
follow, we vacate in part, affirm in part, remand for further
proceedings, and authorize the court to reconsider the issue of
appointing counsel.
We review a district court’s order granting summary
judgment de novo and view the facts in the light most favorable
to the nonmoving party. Rowzie v. Allstate Ins. Co., 556 F.3d
165, 167 (4th Cir. 2009). Summary judgment is appropriate when
no genuine issue of material fact exists and the moving party is
“entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). Summary judgment will be granted unless a reasonable
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jury could return a verdict for the nonmoving party on the
evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
A party cannot create a genuine issue of material fact
through speculation or a compilation of inferences. Emmett v.
Johnson, 532 F.3d 291, 297 (4th Cir. 2008). However, “[i]t is
not our job to weigh the evidence, to count how many affidavits
favor the plaintiff and how many oppose him, or to disregard
stories that seem hard to believe.” Gray v. Spillman, 925 F.2d
90, 95 (4th Cir. 1991). Instead, such credibility
determinations are within the province of the jury. Id.; see
Anderson, 477 U.S. at 255.
Moreover, before summary judgment may properly be
entered, the nonmoving party “must be afforded both notice that
the motion is pending and an adequate opportunity to respond.”
Portland Retail Druggists Ass’n v. Kaiser Found. Health Plan,
662 F.2d 641, 645 (9th Cir. 1981). Implicit in such an
“opportunity to respond is the requirement that sufficient time
be afforded for discovery necessary to develop facts essential
to justify a party’s opposition to the motion.” Id. (internal
quotation marks, alterations and citations omitted).
Accordingly, “summary judgment [must] be refused where the
nonmoving party has not had the opportunity to discover
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information that is essential to his opposition.” Anderson, 477
U.S. at 250 n.5.
To make out a claim of excessive force under the
Eighth Amendment, Williams must show that the Defendants
“inflicted unnecessary and wanton pain and suffering.”
Whitley v. Albers, 475 U.S. 312, 320 (1986). This question
turns 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.” Id. at 320-21 (internal
quotation marks and citation omitted). The excessive force
inquiry requires evaluation of “whether the prison official
acted with a sufficiently culpable state of mind (subjective
component) and whether the deprivation suffered or injury
inflicted on the inmate was sufficiently serious (objective
component).” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.
1996). When determining the subjective component, we consider
“such factors as the need for the application of force, the
relationship between the need and the amount of force that was
used, and the extent of injury inflicted.” Whitley, 475 U.S. at
321 (internal quotation marks, alterations and citation
omitted).
“[A]bsent the most extraordinary circumstances, a
plaintiff cannot prevail on an Eighth Amendment excessive force
claim if his injury is de minimis.” Norman v. Taylor, 25 F.3d
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1259, 1263 (4th Cir. 1994) (en banc). Extraordinary
circumstances are present when “the force used [is] of a sort
repugnant to the conscience of mankind . . . or the pain itself
[is] such that it can properly be said to constitute more than
de minimis injury.” Id. at 1263 n.4 (internal quotation marks
and citation omitted). Otherwise, in determining whether
injuries are de minimis, we generally consider the following:
the context in which the injuries were sustained; whether the
inmate sought medical care; whether the injuries were documented
in medical records; and whether the documented injuries are
consistent with the application of the amount of force necessary
under the particular circumstances. See generally Taylor v.
McDuffie, 155 F.3d 479, 484-85 (4th Cir. 1998).
It is clear from the record that genuine issues of
material fact exist regarding both the necessity of the force
used by Collier against Williams and the extent of Williams’s
injuries. Though some of Williams’s averments — that he was
calm while being escorted to administrative segregation and that
Collier’s actions were an unprovoked attack — may strain
credulity, we are not in a position “to disregard stories that
seem hard to believe.” Gray, 925 F.2d at 95. Moreover,
Williams repeatedly sought discovery in order to prove his
allegations, but was denied it by the district court. Williams
contended that the incident in question occurred directly in
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front of a mounted camera and that pictures of the incident were
held by the jail. Williams filed repeated motions to secure
these photographs. However, rather than addressing these
motions on their merits, the district court denied them, stating
that “it [was] premature to allow discovery before ruling on the
pending Motion for Summary Judgment filed by defendants.” Such
a conclusion was in error. See Anderson, 477 U.S. at 250 n.5
(noting that summary judgment may only be granted where
nonmoving party had opportunity for discovery).
Similarly, genuine issues of material fact exist
regarding the extent of injuries suffered by Williams. Though
the evidence submitted by the Defendants indicates that Williams
suffered a minor cut over his eye, Williams avers that he now
suffers from permanent nerve damage to his right eye. While a
small cut would certainly be considered a de minimis injury,
therefore barring Williams’s recovery, permanent nerve damage
may not be. Cf. Taylor, 155 F.3d at 484-85. However, because
the district court denied Williams’s motions seeking discovery
of his medical records, Williams is forced to rely solely on his
own affidavits as proof of his injury. As stated before, it is
not the province of the trial court at summary judgment to make
such determinations of credibility. See Gray, 925 F.2d at 95.
Accordingly, as genuine issues of material fact exist regarding
both the force used by Collier and the extent of Williams’s
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injuries, and Williams was not given an opportunity for
discovery, the district court erred in granting summary judgment
on this claim. Therefore, the order granting summary judgment
for Collier and Jackson is vacated, and we remand for
appropriate discovery and for such other proceedings as may be
warranted, with authorization for the district court to
reconsider its denial of the appointment of counsel.
Our review of the record indicates that the district
court did not err in granting summary judgment for Lieutenant
Randle on Williams’s claim arising out of time spent in a
restraint chair. Though issues of fact may exist regarding
Williams’s behavior while in the restraint chair, Williams
failed to present evidence of a sufficiently serious injury or
deprivation to survive summary judgment. To the extent Williams
raises an excessive force claim, the court correctly determined
that Williams “failed to establish that he suffered anything
more than a de minimis injury as the result of his restraint.”
To the extent Williams raised a more general Eighth Amendment
claim, we observe that a prisoner’s exposure to human waste may
give rise to an Eighth Amendment violation. See, e.g., DeSpain
v. Uphoff, 264 F.3d 965, 974-75 (10th Cir. 2001) (collecting
cases). Williams failed, however, to demonstrate an “extreme
deprivation” sufficient to constitute such a violation. See
Williams, 77 F.3d at 761 (recognizing that meeting objective
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component of excessive force claim — that deprivation suffered
or injury inflicted was “sufficiently serious” — “is less
demanding than that necessary for [a] conditions-of-confinement”
claim). Thus, the court did not err in granting summary
judgment to Randle on this issue.
Williams next challenges the district court’s
dismissal with prejudice of his claims against Crowin. The
record is unclear when Officer Crowin was added as a defendant.
He was mentioned once in the complaint, as the officer Williams
requested to release him from the restraint chair, but was never
named as a defendant or mentioned in the amended complaint,
filed in response to the district court’s order that Williams
“particularize and amend his complaint . . . by (i) naming every
person he wishes to include as a defendant.” As Williams failed
to include Crowin in this amended complaint, failed to allege
facts sufficient to state a constitutional claim against him,
and failed to effect service of the amended complaint upon him,
we find that the district court did not err in dismissing any
claims against him with prejudice.
We also authorize the court, on remand, to reconsider
appointing counsel to represent Williams for discovery and other
proceedings. See 28 U.S.C. § 1915(e)(1) (providing that
district court “may request an attorney to represent any person
unable to afford counsel”). Williams’s obligations on remand
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will likely involve complex issues, including discovery and
review of medical records, securing expert testimony, and the
nuances of Eighth Amendment jurisprudence — all difficult to
address and properly present without the aid of counsel. See
Whisenant v. Yuam, 739 F.2d 160, 163-64 (4th Cir. 1984)
(directing district court to appoint counsel for pro se
plaintiff in § 1983 action because “exceptional circumstances”
were present and plaintiff was “relatively uneducated generally
and totally uneducated in legal matters”), abrogated in part by,
Mallard v. United States Dist. Court, 490 U.S. 296 (1989);
Gordon v. Leeke, 574 F.2d 1147, 1153 (4th Cir. 1978) (observing
that district court should appoint counsel if “a pro se litigant
has colorable claim but lacks the capacity to present it”); see
also McEachin v. McGuinnis, 357 F.3d 197, 205 (2d Cir. 2004)
(instructing district court to consider appointing counsel on
remand to represent pro se plaintiff when action “may present
complex legal issues”).
We accordingly vacate the district court’s orders
granting summary judgment to Collier and Jackson and denying
Williams’s motions for discovery of photographs and medical
records, affirm the remainder of the district court’s orders,
and remand the case for further proceedings consistent with this
opinion. Because we remand for further proceedings, we deny as
moot Williams’s motion in this Court for appointment of counsel.
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We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court, and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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