Steven McDowell v. Administrator Lydell Sheerer

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-4435
STEVEN MCDOWELL
Appellant
v.
ADMINISTRATOR LYDELL SHEERER; SCO. OFF. C. SEARS;
SCO. OFF. C. WALLACE; SCO. OFF. C. CARSON;
SCO. OFF. D. ROBINSON; SCO. OFF. M. WILLIAMS;
DOMINGO RIVERA; SCO BRIAN WILLIAMS;
SCO DESIREE ROBERTSON; SCO KEVIN SEARCY;
SCO ARNALDO BELO; SCO PEDRO LARACUENTE;
SCO CESAR DE LA CRUZ; SCO CARNELL CARTRELL;
SCO EDWARD BONET; SCO RONALD TUCKER;
SCO LEONARD WHEELER; SGT. DAVID ABDUS-SABUR;
SGT. MARQUIS OWENS; LT. MONIQUE HERNANDEZ;
JOHN DOE; SCO DEBORAH BARNES-ROBERTS
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civil Action No. 2-04-cv-06089)
District Judge: Hon. Katharine S. Hayden
Argued January 14, 2010
BEFORE: AMBRO, CHAGARES and
STAPLETON, Circuit Judges
(Opinion Filed March 24, 2010 )

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The defendants that remain in the lawsuit are Administrator Lydell B. Sherrer,1
Sergeant Craig Sears, Sergeant David Abdus-Sabur, Senior Corrections Officer (“SCO”)
Charlie Wallace, SCO Christopher Carson, SCO Dennis Robinson, SCO Marc Williams,
SCO Domingo Rivera, SCO Brian Williams, SCO Kevin Searcy, SCO Arnaldo Belo,
SCO Domingo Rivera, Sergeant Cesar De La Cruz, SCO Carnell Cartrell, SCO Edward
Bonet, SCO Ronald Tucker, and SCO Leonard Wheeler.
2
Steven Yarusinsky
Harris S. Freier (Argued)
Proskauer Rose LLP
One Newark Center - 18th Floor
Newark, NJ 07102
Attorneys for Appellant
Thomas E. Kemble (Argued)
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
P.O. Box 112
25 Market Street
Trenton, NJ 08625
Attorney for Appellees
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Steven McDowell filed this civil action pursuant to 42 U.S.C. § 1983 and New
Jersey state law, alleging that certain prison officials at Northern State Prison
(collectively, “Defendants”) violated the First, Fourth, Eighth, and Fourteenth1

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Amendments and Article One of the New Jersey Constitution. The events giving rise to
the lawsuit occurred during and in the aftermath of a prisoner extraction in November of
2004.
The District Court granted summary judgment to Defendants on all of McDowell’s
federal claims and dismissed his state constitutional claim without prejudice. McDowell
only appeals the District Court’s order with respect to his Eighth Amendment excessive
force and deliberate indifference claims. Because we write only for the benefit of the
parties, we assume familiarity with the facts of this civil action and the proceedings in the
District Court. We will reverse the judgment of the District Court and remand for further
proceedings.
I.
McDowell is an inmate at Northern State Prison (“NSP”) in New Jersey, serving a
twenty-year sentence for armed robbery and weapon offenses. In November 2004, he
was housed in a security threat group management unit in Delta 300 East. At some point
late at night on November 7 or in the early morning of November 8, 2004, McDowell and
his cellmate, Carlos Cruz, were able to exit their cell. The parties dispute the
circumstances of how the inmates got out of their cell. McDowell claims that Cruz was
sick and seeking medical attention and that he was assisting Cruz when they were both
locked out of their cell. Defendants assert that McDowell and Cruz pretended to need
medical treatment, and that, once the cell door was opened so that one of them could be

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When an inmate is outside of his cell under these circumstances, officers perform an2
“extraction” to return the inmate to his cell. During an extraction, teams of five officers
work together to restrain and then secure an inmate’s arms and legs. One officer uses a
large body shield while the four other officers are responsible for securing each of the
inmate’s extremities. Here, there was one extraction team per inmate.
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escorted to the infirmary, the two inmates left the cell and refused to submit to
handcuffing or to return to their cell, as they were required to do. It is undisputed that
McDowell and Cruz were not handcuffed and that they were able to walk around the
fenced-in tier to the cells of other inmates.
Two teams of five officers each then arrived to perform extractions of
McDowell and Cruz in order to return them to their cells. The officers on the extraction2
teams wore protective gear, including vests, pads, and helmets with face masks, and
carried body shields for use in restraining the inmates. The extraction of McDowell was
videotaped by an NSP official and by an inmate who had smuggled a video-recorder into
prison, and both recordings are part of the record before us.
Before the extraction began, members of the extraction team used pepper spray in
an attempt to subdue McDowell and Cruz. This effort, however, was unsuccessful
because the inmates used plastic bags, which another inmate had given them, to shield
their faces from the spray. The officers then began the extraction by entering the tier in
which McDowell and Cruz were standing. McDowell and Cruz moved toward one of the
teams of officers. The parties dispute the events that occurred thereafter.
McDowell testified in his deposition that he was pushed to the floor as soon as the

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5
officers converged on him. He claimed that he did not resist and the officers were able to
handcuff him quickly. Nevertheless, they continued to punch or kick him after he was
restrained. He also testified that he was repeatedly hit in the face with a nightstick and
that an officer grabbed and twisted his testicles after he was on the ground. McDowell
stated that the officers shackled his ankles so tightly that he lost circulation in his feet. He
further testified that one officer exerted force on his wrist, in what he believed was an
effort to break his hand. McDowell insisted that throughout the extraction he kept yelling
that he was not resisting. He stated that after he was handcuffed and shackled, he was
picked up and then walked into another part of the unit. According to him, his face was
slammed into a wall and an officer choked him until he lost consciousness. McDowell
stated that he was then returned to his cell, and was denied clothing and medical treatment
for his injuries for two weeks. As a result of the extraction, McDowell claims that he
suffered cuts above his right eye, bruises on his skull, and an injury to his hand. He also
claims that the incident left him with permanent injuries, including vision loss in his right
eye, scarring above his eye, lumps on his skull, weakness in his hand, and that he now
sometimes experiences dizziness. He also claims that he was emotionally damaged by the
incident.
Defendants testified to a different version of events. The officers testified that
McDowell approached the officers aggressively, resisted being handcuffed and shackled,
and continued to struggle once he was on the floor. One officer testified that the officers

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ceased using force as soon as McDowell was restrained, and another testified that
nightsticks were not used on McDowell during the extraction. Once McDowell was
restrained, they contend that he was taken to a nearby hallway where he was given
medical treatment. Defendants state that McDowell’s clothing was removed so that he
could be searched for weapons and then showered to remove any remaining pepper spray.
After this occurred, they assert that he was returned to his cell. Defendants claim that
McDowell was not left naked in his cell for two weeks, but, instead, insist that their
evidence shows that his personal property was returned to him the next day.
As a result of the extraction and the events following it, McDowell filed a pro se
complaint in the United States District Court for the District of New Jersey. Counsel was
appointed to represent McDowell. He sought declaratory and injunctive relief,
compensatory damages, punitive damages, and attorneys’ fees and costs.
After discovery, Defendants filed a motion for summary judgment. After oral
argument and supplemental briefing, the District Court granted summary judgment in
favor of Defendants on all of McDowell’s federal claims and dismissed his state
constitutional claim without prejudice. With respect to the Eighth Amendment excessive
force and deliberate indifference claims at issue in this appeal, the Court determined that
Defendants were entitled to qualified immunity because none of McDowell’s
constitutional rights was violated. McDowell filed a timely notice of appeal.
On appeal, McDowell first argues that the District Court erred by concluding that

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the video evidence blatantly contradicted McDowell’s version of events and, therefore,
deciding not to view the facts in the light most favorable to McDowell. Second, he
contends that when the facts are viewed in the light most favorable to him, there is a
genuine issue of material fact as to whether Defendants used excessive force during the
extraction and whether Defendants acted with deliberate indifference in its aftermath.
II.
We exercise plenary review over a District Court’s decision to grant summary
judgment. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is
appropriate when the record establishes that “there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
In making this determination, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). However, in a case such as this one, where there are video
recordings of the incident in question, we need not adopt the non-movant’s version of the
facts if the recording “blatantly contradict[s]” the non-movant’s version “so that no
reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).
III.
Government officials are protected by the doctrine of qualified immunity “insofar
as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 129 S. Ct. 808,

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815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When deciding
whether an official is entitled to qualified immunity, a court must determine if the facts
alleged establish that the official violated a constitutional right of the plaintiff and if that
constitutional right was clearly established at the time the officer acted. See id. at 815-16
(citing Saucier v. Katz, 533 U.S. 194, 200-02 (2001)).
A. Excessive Force
To recover on a claim of excessive force under the Eighth Amendment, a plaintiff
must show that his treatment amounted to an “unnecessary and wanton infliction of pain.”
Whitley v. Albers, 475 U.S. 312, 320-21 (1986). Whether the use of force rises to such a
level is determined by “whether the force was applied in a good faith effort to maintain or
restore discipline or maliciously and sadistically for the very purpose of causing harm.”
Hudson v. McMillan, 503 U.S. 1, 6 (1992) (quoting Whitley, 475 U.S. at 320-21 (quoting
Johnson v. Glick, 481 F.3d 1028, 1033 (2d Cir. 1973))). In resolving this question, a
court must evaluate “(1) the need for the application of force; (2) the relationship between
the need and the amount of force that was used; (3) the extent of injury inflicted; (4) the
extent of the threat to the safety of staff and inmates, as reasonably perceived by the
responsible officials on the basis of the facts known to them; and (5) any efforts made to
temper the severity of a forceful response.” Giles, 571 F.3d at 328. “Force that exceeds
that which is reasonable and necessary under the circumstances is actionable.” Id.
Thus, we must evaluate whether McDowell has raised a genuine issue of material

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9
fact regarding his claim that the officers used force “maliciously and sadistically for the
very purpose of causing harm.” Hudson, 503 U.S. at 6. In making this determination, the
District Court refused to accept McDowell’s version of events, as it is generally required
to do when ruling on a motion for summary judgment, because it concluded that the
videos of the extraction “‘blatantly contradict[ed]’ the story spun by McDowell.”
McDowell v. Sherrer, No. 04-6089, 2008 WL 4542475, at *12 (D.N.J. Oct. 7, 2008).
After carefully reviewing both of the videos in the record, we conclude that the
District Court should have accepted McDowell’s version of events when ruling on this
question because neither of the videos “blatantly contradict[s]” McDowell’s account such
that no reasonable jury could believe it. The videos do show that McDowell and Cruz
were yelling and challenging the officers before the extraction began, and they also
establish that the inmates used plastic bags to avoid pepper spray used by the officers.
However, once the extraction begins, we are unable to determine from the videos whether
McDowell is resisting the officers or to determine the amount of force used on him. We
cannot make this determination because McDowell is forced to the ground early in the
confrontation, and the view of his body is completely obstructed by the bodies of at least
five officers while they handcuff and shackle him. After he was moved outside of the
unit, McDowell claims that he was slammed against a wall and choked until he was
rendered unconscious. Again, we are unable to conclude that the NSP video contradicts

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The video recording made by the inmate ends after McDowell and Cruz are3
restrained and taken off the tier floor.
10
McDowell’s account because officers’ bodies block the view of the camera. Because the3
videos simply do not show what happened during these crucial moments, we do not
believe they blatantly contradict McDowell’s account.
In fact, portions of the videos are consistent with McDowell’s account. In both
videos, McDowell can be heard yelling “I am not resisting” when he is underneath the
officers. Second, the video recorded by the inmate shows that an officer who was
standing near McDowell’s body did have a nightstick in his hand — consistent with
McDowell’s testimony that he was hit in the head repeatedly by nightsticks. Additionally,
when McDowell is led away from the tier, his face is covered with blood, suggesting that
he suffered an injury during the extraction. As McDowell is led off the tier floor, an
officer has his arm around McDowell’s neck and McDowell is pressed against the wall.
The officers thereafter lay McDowell to the ground, as if he is not able to stand on his
own. These events are consistent with McDowell’s testimony that he was choked until he
was unconscious.
Accordingly, we believe that the District Court erred when it concluded that the
videos contradicted McDowell’s version of events and then refused to accept his
testimony when ruling on the motion for summary judgment.
Accepting McDowell’s account, as we must in this posture, we conclude that he
did raise a genuine issue of material fact on his excessive force claim. His testimony that

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he was restrained and not resisting directly contradicts that of Defendants, and resolution
of this factual issue is material to deciding whether McDowell has established that his
constitutional rights were violated. Certainly, Defendants had wide discretion in
determining how to appropriately return the two inmates to their cells. See, e.g., Hudson,
503 U.S. at 6-7; Whitley, 475 U.S. at 320-22. However, if McDowell is able to establish
that Defendants punched, kicked, hit him in the head with nightsticks, and twisted his
testicles, when he was restrained and not resisting, he will have established a violation of
the Eighth Amendment. See Giles, 571 F.3d at 327. Similarly, if McDowell is able to
establish that the officers choked him until he lost consciousness – when he was
restrained, not resisting, and not presenting any threat to the officers – he will have
shown a violation of his constitutional rights. See id. Additionally, by 2004, “it was
established that an officer may not . . . use gratuitous force against an inmate who has
been subdued.” See id. at 326.
Thus we conclude that the District Court erred by granting summary judgment to
Defendants on McDowell’s Eighth Amendment excessive force claim.
B. Deliberate Indifference
Next, McDowell argues that the District Court erred by granting summary
judgment on his Eight Amendment deliberate indifference claim because it improperly
resolved disputed factual matters in favor of Defendants. We again agree that the District
Court so erred.

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Before us, McDowell has not claimed that he was deprived of medical care for a4
serious medical need for two weeks.
12
As Defendants acknowledge, “prison officers are under a constitutional obligation
to ‘ensure that inmates receive adequate clothing, shelter and medical care.’” Appellees’
Br. at 19 (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). In order to recover, a
plaintiff alleging a violation of this obligation must show 1) that the deprivation alleged
was “sufficiently serious,” such that it “result[ed] in the denial of the minimal civilized
measure of life’s necessities” and 2) that prison officials “[knew] of and disregard[ed] an
excessive risk to inmate health and safety.” See Farmer, 511 U.S. at 834, 837 (internal
quotations omitted). Here, McDowell alleged that prison officials acted with deliberate
indifference to his health and safety when they removed his clothes as part of the
extraction and did not return them for two weeks. His claim was supported by his own4
deposition testimony and that of his cellmate, Cruz. Defendants moved for summary
judgment on this claim, arguing that prison records and the deposition testimony of a non-
party prison official established that McDowell’s personal belongings were returned to
him the day after the extraction.
The District Court granted summary judgment on this claim after concluding that
McDowell had clothes the day after the extraction and was not deprived of clothing for
approximately two weeks. In reaching this conclusion, the District Court apparently did
not credit McDowell’s or Cruz’s testimony that they were left without clothing for two
weeks. The Court relied on its own interpretation of arguably ambiguous testimony from

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The District Court did not rely on prison records to support its finding that McDowell5
received his clothes back on the day after the extraction.
13
a defense witness to support its conclusion. Even if we agreed with District Court’s5
interpretation of that witness’s testimony, however, it erred by acting as a finder of fact
rather than accepting all inferences in favor of McDowell and then determining whether
there was a genuine issue of material fact for trial.
In this appeal and in its summary judgment briefing, Defendants did not argue that
the claimed deprivation of clothing for a two week period was not “sufficiently serious,”
or that McDowell failed to present evidence tending to show that prison officials “[knew]
of and diregard[ed] an excessive risk to inmate health and safety” created by the claimed
deprivation of clothing for two weeks. See Farmer, 511 U.S. at 834, 837. Moreover,
because of its factual finding that McDowell received his clothes one day after the
extraction, the District Court did not address these issues. For that reason, we express no
opinion with respect to them.
IV.
For these reasons, we will reverse the District Court’s judgment with respect to
McDowell’s Eighth Amendment claims and remand for further proceedings.

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