Wardell Leroy Giles v. WARDEN RICK KEARNEY, ET AL. On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4140
_____________
WARDELL LEROY GILES,
Appellant
v.
WARDEN RICK KEARNEY, ET AL.
_____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 02-cv-01674)
District Judge: Honorable Sue L. Robinson
_____________
Argued March 10, 2009
_____________
Before: FUENTES, CHAGARES and ALDISERT, Circuit
Judges
(Filed July 15, 2009)

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2
Kathryn J. Gainey (Argued)
Steptoe & Johnson LLP
1330 Connecticut Avenue, N.W.
Washington, DC 20036-1795
Counsel for Appellant
Judy Oken Hodas (Argued)
Deputy Attorney General
820 North French Street, 6 Floorth
Wilmington, DE 19801
Counsel for Appellees
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal arises from a pro se action brought by
Appellant Wardell Leroy Giles, who suffered injuries including
a broken rib and punctured lung after being forcibly subdued
and kicked or “kneed” in the side by correctional officers while
he was incarcerated at Sussex Correctional Institution (“SCI”).
Giles filed claims under 42 U.S.C. § 1983 against the officers

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The District Court had jurisdiction pursuant to 281
U.S.C. §§ 1331 and 1343. We have jurisdiction pursuant to 28
U.S.C. § 1291.
3
and other parties, alleging excessive force and deliberate
indifference to medical needs in violation of the Eighth
Amendment. Giles appeals from the District Court’s order
granting summary judgment based on qualified immunity for
three officers in their individual capacities, and from the District
Court’s judgment in favor of the remaining Appellees.
Because Giles testified that he was kicked and punched
while fully restrained on the ground, after he ceased to resist,
Giles alleges conduct in violation of his Eighth Amendment
rights that a reasonable officer would have known was a
violation under the circumstances, and we will reverse the
District Court’s grant of summary judgment for the three
correctional officers in their individual capacities. We will
affirm the judgment of the District Court with regard to the
other Appellees.1
I.
Giles contends that the District Court did not accept his
factual allegations as true or adequately address the defendants’
use of force in its summary judgment analysis. Giles also
contends that the District Court did not properly consider the
five factors established in Whitley v. Albers, 475 U.S. 312, 322

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4
(1986), in its conclusion that the force used against him was not
excessive, and that the District Court erred in finding that the
correctional officers were not deliberately indifferent to his
serious medical needs and did not adequately address conflicting
testimony as to whether Giles had requested medical treatment.
On an appeal from a grant or denial of summary
judgment, our review is plenary and we apply the same test the
district court should have utilized initially. See Alexander v.
Nat’l Fire Ins., 454 F.3d 214, 219 (3d Cir. 2006); Brooks v.
Kylar, 204 F.3d 102, 105 n.5 (3d Cir. 2000). A court may grant
summary judgment only when the record “shows that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Rule 56(c), Federal
Rules of Civil Procedure. In this analysis, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor” in determining whether there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). The mere existence of some evidence in
support of the nonmovant is insufficient to deny a motion for
summary judgment; enough evidence must exist to enable a jury
to reasonably find for the nonmovant on the issue. Id. at 249.
Where the plaintiff is a pro se litigant, the court has an
obligation to construe the complaint liberally. See Haines v.
Kerner, 404 U.S. 519, 520-521 (1972); Gibbs v. Roman, 116
F.3d 83, 86 n.6 (3d Cir. 1997).

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5
A district court’s findings of fact under Rule 52(a) are
reviewed for clear error. United States v. U.S. Gypsum Co., 333
U.S. 364, 394-395 (1948). Rule 52(a) requires that the district
court’s ultimate decision be supported by subordinate factual
findings. O’Neill v. United States, 411 F.2d 139, 146 (3d Cir.
1969). However,
In reviewing the decision of the District Court,
our responsibility is not to substitute findings we
could have made had we been the fact-finding
tribunal; our sole function is to review the record
to determine whether the findings of the District
Court were clearly erroneous, i.e., whether we are
“left with a definite and firm conviction that a
mistake has been committed.” It is the
responsibility of an appellate court to accept the
ultimate factual determination of the fact-finder
unless that determination either (1) is completely
devoid of minimum evidentiary support
displaying some hue of credibility, or (2) bears no
rational relationship to the supportive evidentiary
data.
Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972) (internal
citation omitted). In bench trials, a district court’s application of
the deliberate indifference and excessive force legal standards
to a set of facts is also guided by the clear error standard. See
Goffman v. Gross, 59 F.3d 668, 671-672 (7th Cir. 1995)
(deliberate indifference); Quezada v. County of Bernalillo, 944

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6
F.2d 710, 715 (10th Cir. 1991) (excessive force); Jacobs v. City
of New Orleans, 484 F.2d 24, 26 (5th Cir. 1973) (excessive
force).
Clear error review is deferential: “If the district court’s
account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.” Anderson v.
Bessemer City, 470 U.S. 564, 573 (1985). When a district
court’s findings are based on credibility determinations, Rule
52(a) demands even greater deference. Id. Nevertheless, a court
may not insulate its findings from review by “denominating
them credibility determinations, [because] factors other than
demeanor . . . go into the decision whether or not to believe a
witness.” Id. at 575.
II.
The relevant evidence concerns two related use-of-force
incidents at SCI after Giles had been transferred there, as well
as the medical aftermath of those incidents. One incident
occurred in a prison shower during Giles’ intake process; the
second occurred several hours later in a cell in the prison
infirmary.
A.
Giles was transferred to SCI from another facility on

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November 27, 2001. On that day, he was brought to the
receiving and processing area for new inmate intake procedures
including a strip search and shower. Present in the intake area
were Corporal Dean Blades, Sergeant Charles Steele and
Sergeant Bob Cassase.
Giles was wearing a red religious cap called a kufi, which
Blades asked him to remove and informed him was in violation
of a new SCI policy that permitted only white kufis. Giles
became angry and refused to hand over his kufi, cursing at
Blades and arguing that he did not believe there was such a
policy. After repeated orders, Giles eventually relinquished his
kufi. Cassase then ordered Giles to strip down to be searched.
Giles initially refused to remove his boxer shorts or expose
himself for inspection, but complied after the orders were
repeated.
Giles was then ordered to take a shower. He cursed at the
guards and argued that he had already taken a shower that day,
but ultimately complied. After he entered the shower, Giles had
trouble turning on the water, and Blades entered to show Giles
how to operate the shower. A verbal altercation ensued, with
Giles resisting Blades’ assistance and cursing him. When Giles
cursed Blades in the shower, Blades pulled out his cannister of
capstun–a potent form of pepper spray–and sprayed Giles,
temporarily blinding him. After being capstunned, Giles swung
his arm and struck Blades in the mouth. For hitting Blades, Giles
later was found guilty of assault on a staff member, in an

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administrative hearing on December 7, 2001. On July 29, 2002,
Giles also pled no contest to misdemeanor assault in the third
degree for the same conduct, in the Superior Court of Delaware
in Sussex County, pursuant to Del. Code Ann., tit. 11 § 611.
State of Delaware v. Wardell L. Giles, Crim. No. 02-06-0330
(Del. Super. Ct. July 29, 2002).
Blades called for reinforcement to subdue Giles, and
Steele, Cassase and Sergeant Gary Campbell responded to the
scene. The officers tackled Giles, Blades and Campbell wrestled
Giles to the floor of the shower, and Blades sat on Giles’ middle
back and held his legs. The record reflects that Giles is 5 feet 7
inches tall and weighed 195 pounds, and Blades weighed 275
pounds. The officers testified that Giles continued struggling
and pushing against Blades and did not comply with orders to
put his hands behind his back to be handcuffed, shaking his head
“no” in response to requests to do so. Giles testified that he
stopped resisting once on the ground but was unable to put his
hands behind him because Blades was sitting on his back. Giles
explained that he was shaking his head to indicate that he was
unable to present his hands. Giles stated that the officers kicked
him in the ribs and punched him in the head after he had stopped
resisting, while he was prostrate on the ground with Blades
sitting on him. Campbell’s incident report stated that Campbell
“hit [inmate] Giles in his side with my knee to try to make him
give up his arms to be cuffed.” App. 108.
After the officers finally had him cuffed, Giles had a

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bloody nose and complained of other injuries. He was assessed
by nurse Amy Whittle, who reported that Giles complained of
pain in his left side and told her that he had heard one of his ribs
snap. Giles also insisted that he could not breathe and
complained of shortness of breath. Nurse Whittle observed a
large red area under Giles’ left nipple and a slightly elevated
respiratory rate. She concluded that Giles did not have a
punctured lung, and spoke with a doctor by phone who arranged
an order for X-rays the following day and instructed that Giles’
condition should be monitored. Giles was then transferred to a
security cell in the infirmary.
B.
Around 2:00 a.m., Giles started banging forcefully on his
cell door, shouting and cursing and demanding pain medication.
The parties dispute whether Giles also requested medical
attention or requested to see a physician at this time, and they
dispute whether any of the officers on duty were informed of
Giles’ possible injuries when their shift began. Correctional
officers on duty ordered Giles to stop shouting and beating on
the door; he did not comply. Officer Michael Ackenbrack
responded to Giles’ cell and told Giles he would check about his
request for medication. The nurse on duty informed Ackenbrack
that no medicine was prescribed for Giles, so Ackenbrack told
Giles that he would not receive any medication. Giles became
even more agitated and continued hitting and shaking the cell
door. Sergeant Keith Lloyd, Officer Michael Milligan and

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The District Court properly held that under these2
circumstances, Giles “exhausted” his administrative remedies
prior to filing the underlying action, in accordance with the
Prison Litigation Reform Act, 47 U.S.C. § 1997e(a). App. 55.
10
Officer Rick Justice joined Ackenbrack outside the cell. Lloyd
opened the cell, and Ackenbrack capstunned Giles with a single
spray from about two to four feet away. A nurse on duty
examined Giles after this second capstunning and found his
breathing and blood oxygen levels to be normal.
The next day, November 28, 2001, Giles received X-rays
that revealed he had a broken rib and collapsed lung. He was
transferred by ambulance to a local hospital where he had
surgery and received treatment, more than 24 hours after his
initial injury. Giles was returned to SCI on December 2, 2001.
C.
On December 11, 2001, Giles was transferred to
Delaware Correctional Center (“DCC”). On June 24 and June
25, 2002, Giles filed internal grievances while at DCC for his
injuries caused by the correctional officers’ use of force at SCI.
On August 20, 2002, Giles was transferred to a facility in
Maryland. Giles received no response to his grievance, and
prison records state that the grievance was “resolved” at “Level
5,” which means it was closed when Giles was transferred out
of state to Maryland, on August 20, 2002. The sequence of2

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Giles’ subsequent transfers is unclear, but at the time he filed the
underlying complaint in this case, on November 13, 2002, he
was incarcerated in Delaware again, at Morris Community
Correction Center.
On November 13, 2002, Giles filed the underlying pro se
complaint pursuant to 42 U.S.C. § 1983 in the District Court for
the District of Delaware, against Warden Richard Kearny, Nurse
Whittle, and correctional officers Campbell, Cassase, Steele,
Lloyd, Blades, Milligan, Justice and Ackenbrack.
On June 24, 2006, the District Court granted Whittle’s
motion to dismiss for failure to state a claim and granted
summary judgment in favor of: (1) Kearney; (2) Campbell,
Cassase, Steele, Lloyd, Blades, Milligan, Justice and
Ackenbrack in their official capacities; and (3) Cassase, Steele
and Campbell in their individual capacities. The District Court
held that officials of reasonable competence could disagree as
to whether the force used was reasonable under the
circumstances, and found it significant that Giles had pled no
contest to misdemeanor assault related to the incident. Summary
judgment was denied to Blades, Lloyd, Justice, Milligan and
Ackenbrack in their individual capacities.
Giles was provided with court-appointed counsel through
the Federal Civil Panel on April 19, 2006. A two-day bench trial
was held on November 29, 2006, and December 8, 2006, on the
remaining claims. Giles’ medical expert gave unrebutted

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“In an action tried on the facts without a jury or with an3
advisory jury, the court must find the facts specially and state its
conclusions of law separately.” Rule 52(a), Federal Rules of
Civil Procedure.
12
testimony that Giles was subject to the risk of a life-threatening
injury due to the delay of over 24 hours in his diagnosis and
transfer to the hospital. The District Court made findings of fact
and conclusions of law pursuant to Federal Rule of Civil
Procedure 52(a), and held that Giles had not demonstrated by3
a preponderance of the evidence that the defendants had violated
his rights under 42 U.S.C. § 1983. The District Court also stated
that with respect to its factual determinations, it found the
testimony of Giles to be less credible than that of defense
witnesses. Judgment was entered in favor of the defendants on
September 28, 2007.
Giles timely filed a pro se notice of appeal on October
16, 2007, and a notice of appeal was filed on his behalf on
October 24, 2007. Giles moved for appointment of counsel by
this Court on November 16, 2007. The Appellees moved for
summary affirmance on December 14, 2007. Giles was given
leave to appeal in forma pauperis on January 23, 2008. On May
12, 2008, a motions panel of this Court determined that Giles’
appeal had arguable merit and would not be dismissed under 28
U.S.C. § 1915(e)(2), denied Appellees’ motion for summary
affirmance, and appointed appellate counsel for Giles.

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III.
Giles contends that Cassase, Steele and Campbell were
improperly granted summary judgment on the basis of qualified
immunity. Government officials are immune from suit in their
individual capacities unless, “taken in the light most favorable
to the party asserting the injury, . . . the facts alleged show the
officer’s conduct violated a constitutional right” and “the right
was clearly established” at the time of the objectionable conduct.
Saucier v. Katz, 533 U.S. 194, 201 (2001). For a right to be
clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Id. at 202 (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “If officers
of reasonable competence could disagree on th[e] issue,
immunity should be recognized.” Malley v. Briggs, 475 U.S.
335, 341 (1986). The Supreme Court recently held that the
sequence of the two-part Saucier analysis is no longer
mandatory; trial courts are now permitted to use discretion as to
which prong of the analysis to apply first. See Pearson v.
Callahan, 129 S. Ct. 808, 818, 172 L. Ed. 2d 565 (2009).
Qualified immunity is a complete immunity from suit, not
just a defense to liability, and is considered at the earliest
possible stage of proceedings, apart from the analysis of the
underlying claim itself. Saucier, 533 U.S. at 194. The issue of
qualified immunity is generally a question of law, although a
genuine issue of material fact will preclude summary judgment

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on qualified immunity. See Deary v. Three Un-Named Police
Officers, 746 F.2d 185, 192 (3d Cir. 1984); Czurlanis v.
Albanese, 721 F.2d 108 n.8 (3d Cir. 1983).
The Appellees contend that Cassase, Steele and Campbell
were properly awarded qualified immunity because Giles was a
belligerent, uncooperative, unrestrained inmate who did not
respond to capstun and who struck an officer. The Appellees
contend that no constitutional violation was alleged on the facts,
and that under the circumstances, it was not clearly established
that it was a violation of Giles’ constitutional rights to exercise
the force used to subdue him.
The primary step in assessing the constitutionality of the
officers’ alleged actions is to determine the relevant facts. Scott
v. Harris, 550 U.S. 372, 378 (2007). The District Court was
required to view the facts in the light most favorable to the
plaintiff. See Saucier, 533 U.S. at 201; see also Scott, 550 U.S.
at 378 (“In qualified immunity cases [on summary judgment],
this usually means adopting . . . the plaintiff’s version of the
facts.”). Also, “‘an inmate who is proceeding pro se, is in a
decidedly difficult position from which to generate “record
evidence” on his behalf . . . under these circumstances, his
affidavits . . . are about the best that can be expected from him
[at the summary judgment phase of] the proceedings.’” Brooks
v. Kyler, 204 F.3d 102, 109 (3d Cir. 2000) (quoting Norman v.
Taylor, 25 F.3d 1259, 1265 (4th Cir. 1994) (Hall, J.,
dissenting)). Giles testified that he was kicked in the ribs and

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punched in the head while restrained on the ground, after he
ceased to resist. Accepting Giles’ version of the events as true,
he has alleged facts showing that Cassase, Steele and Campbell
violated his Eighth Amendment rights during the shower
incident.
The test for whether a claim of excessive force is
constitutionally actionable is “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.” Whitley
v. Albers, 475 U.S. 312, 319 (1986). The relevant factors for a
court to consider are: (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. Id.; see also Brooks, 204 F.3d 106
(same).
Although the qualified immunity inquiry is not a merits
analysis, the Whitley test serves as a touchstone of the
established law of which a reasonable officer may be presumed
to have been aware. Additionally, at the time of the incident in
2001, it was established that an officer may not kick or
otherwise use gratuitous force against an inmate who has been
subdued. See, e.g., Skrtich v. Thornton, 280 F.3d 1295, 1303
(11th Cir. 2002) (“By 1998, our precedent clearly established

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that government officials may not use gratuitous force against
a prisoner who has already been subdued or, as in this case,
incapacitated.”). The Skrtich court, for example, affirmed denial
of qualified immunity where “a non-compliant inmate who had
been restrained by the guards and no longer posed a threat”
sustained injuries, including rib fractures, as a result of force
applied by prison guards after the inmate had been electrically
shocked by guards and had fallen to the floor of his cell. Id. at
1300, 1304.
In holding that no constitutional right was clearly
established at the time of the incident and in granting qualified
immunity to the officers in their individual capacities, the
District Court noted Giles’ factual allegations. But, the District
Court emphasized that Giles had been found guilty in an
administrative hearing of assaulting a correctional officer for
hitting Blades, and that Giles had pled no contest in state court
to assault in the third degree for the same conduct. Because
correctional officers may use force against an inmate to preserve
order, the District Court concluded that “[a]n objective review
of the record demonstrates that officials ‘of reasonable
competence could disagree’ as to whether the force used by
these defendants against plaintiff, an assaultive inmate, was
excessive under the circumstances.” App. 61. The District Court
did not mention or address the Whitley test.
Although the District Court may be correct in its
conclusion of law, that reasonable officers dealing with an

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The Appellees note, correctly, that qualified immunity4
analysis and summary judgment legal standards for a
constitutional claim are not susceptible to fusion, and that
denying summary judgment because a material issue of fact
remains on an excessive force claim is improper on a qualified
immunity inquiry. See Saucier, 533 U.S. at 194. However, in the
instant case, the disputed facts are material to the qualified
immunity analysis. The question of whether Giles was fully
subdued or not once he was on the ground with Blades sitting on
him makes a difference as to whether a reasonable official
would have considered the force used reasonable and necessary
under the circumstances. Denying summary judgment on the
17
undisputedly assaultive inmate could disagree as to whether
force of the type used against Giles was excessive, such a legal
conclusion in this case rests on a factual presumption that is
inappropriate on summary judgment. A dispute of material fact
exists as to whether Giles had ceased resisting at the point at
which he was kicked or “kneed” in the side. Giles submits that
he was on the ground, no longer struggling and fully restrained
by the much heavier Blades sitting on his back–although unable
to get his hands behind him because of Blades’ presence–when
he was kicked and punched in the head. Campbell’s undisputed
incident report states that Campbell hit Giles with his knee in the
side when Giles was on the ground. The Appellees contend that
Giles was still struggling and refusing to give up his hands to be
cuffed at this point, or at least that a reasonable officer could
perceive that to be the case based on his behavior, but we must
accept Giles’ version of the facts. The administrative assault4

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basis of this factual dispute, therefore, is not an improper
“fusion” of qualified immunity analysis and the merits analysis
of Giles’ constitutional claim.
18
determination and state court no contest plea for Giles’ hitting
Blades, before he was wrestled to the ground, do not provide a
blank check justification for correctional officers’ excessive use
of force thereafter.
Because Giles testified that he was hit and kicked while
restrained on the ground, after he ceased to resist, Giles alleges
conduct by the officers in violation of his Eighth Amendment
rights that a reasonable officer would have known was a
violation under the circumstances. No reasonable officer could
agree that striking and kicking a subdued, nonresisting inmate
in the side, with force enough to cause a broken rib and
collapsed lung, was reasonable or necessary under established
law. Accordingly, because accounts of this critical event were
controverted, on summary judgment it was improper to dismiss
Giles’ complaints against Cassase, Steele and Campbell on the
basis of qualified immunity.
IV.
Giles also contends that the District Court clearly erred
in finding that the use of force by Blades in the shower incident,
and by Lloyd, Ackerman, Milligan and Justice in the infirmary
cell incident, was not excessive. Again, the test for excessive

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force is the Whitley test recited above: “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.” Whitley, 475 U.S. at 319. The relevant factors for a court
to consider are: (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. Id.; see also Brooks, 204 F.3d 106 (same). Under
Whitley and Brooks, whether force was applied in a good faith
effort to restore discipline turns in part on the extent of the threat
as reasonably perceived by the officers on the basis of facts
known to them. Force that exceeds that which is reasonable and
necessary under the circumstances is actionable. Davidson v.
O’Lone, 752 F.2d 817, 827 (3d Cir. 1984), aff’d, 471 U.S. 1134
(1986). Deference is given to prison officials’ adoption and
execution of policies to preserve internal order, discipline and
security. Bell v. Wolfish, 441 U.S. 520, 547 (1979).
“In an action tried on the facts without a jury or with an
advisory jury, the court must find the facts specially and state its
conclusions of law separately.” Rule 52(a), Federal Rules of
Civil Procedure. In reviewing the judgment of a trial court, an
appellate court may vacate the judgment and remand the case for
findings if the trial court has failed to make findings when they
are required or if the findings it has made are not sufficient for

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a clear understanding of the basis of the decision. H. Prang
Trucking Co., Inc. v. Local Union No. 469, 613 F.2d 1235,
1238-1239 (3d Cir. 1980). Rule 52(a) is not satisfied “by the
statement of the ultimate fact without the subordinate factual
foundations for it which also must be the subject of specific
findings.” O’Neill v. United States, 411 F.2d 139, 146 (3d Cir.
1969). If subordinate findings were reached in the process of
arriving at the ultimate factual conclusion, they must be
articulated. Id.
Giles contends that the District Court erred by not
articulating the precise relation of its findings to each Whitley
factor and in not conducting a written weighing analysis. The
Appellees contend that the District Court’s findings exceed the
requirements of Rule 52(a) and conform to the Eighth
Amendment standard of Whitley.
The District Court made its findings of fact and
conclusions of law separately, pursuant to Rule 52(a). The
District Court made detailed findings of fact regarding both the
shower and infirmary incidents, and stated that with respect to
its factual determinations, it found the testimony of Giles to be
less credible than that of the defense witnesses. In its legal
conclusions regarding Giles’ excessive force claims, the District
Court accurately recited the Whitley test and factors. The
District Court stated: “Considering the five Whitley factors
against the findings of fact, the court concludes the force used,

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Giles also contends that the District Court erred by not5
considering Blades’ actions in the context of all the officers’
conduct in the entire, consecutive shower incident; even if
Blades did not kick Giles or otherwise strike the injurious blow
he should be liable for any unconstitutionally inflicted injuries.
See, e.g. Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)
(defendant with “personal involvement in the alleged wrongs”
may be liable in a civil rights action); Rode v. Dellarciprete, 845
F.2d 1195, 1207 (3d Cir. 1988) ( “personal direction of or actual
knowledge and acquiescence” may constitute personal
21
on each occasion in dispute, was not maliciously and sadistically
applied to cause harm.” App. 42. The District Court then
proceeded to elaborate on its conclusion.
With respect to Blades’ use of capstun on Giles in the
shower, the District Court concluded that the use of capstun
instead of physical force was a proportionate and reasonable
response to the situation. Blades was alone with Giles, an
increasingly belligerent inmate, and Giles was aggressive and
repeatedly refused to obey orders. With respect to the physical
force used in the shower incident after Giles struck Blades,
when correctional officers attempted to physically subdue Giles
and Blades helped wrestle Giles down to the floor and then sat
on Giles’ back holding his legs, the District Court concluded
that the force was not excessive because physical handling was
necessary to control Giles after capstun failed to subdue him and
the situation escalated. The second use of capstun on Giles, by5

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knowledge, although allegations of such must be made with
appropriate particularity). The District Court made no finding
that Blades was not “personally involved” when other officers
kicked or hit Giles in the ribs. The District Court, however, did
discuss Blades’ conduct in the context of “the unfolding
situation” and the fact that additional “correctional officers
responded and attempted to subdue Giles” after Giles struck
Blades and “physical handling [became] necessary.” App. 43.
The District Court stated that “the force used after Giles struck
Blades was not excessive considering the evolving series of
events.” Id. We thus cannot conclude from the record that the
District Court failed to consider Blades’ actions in light of all
the officers’ conduct. To the extent that Giles argues that Blades
should have intervened, this issue is raised for the first time on
appeal and thus may not be considered. See Harris v. City of
Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).
22
officers in the infirmary cell, was held to be a proportionate
response to Giles repeatedly refusing to obey orders to stop
shouting and banging on his cell door at 2:00 a.m.
On clear error review, this Court has limited power to
disturb the decision below. The District Court’s findings need
only be “sufficient to indicate the factual basis for the ultimate
conclusion.” Kelley v. Everglades Drainage Dist., 319 U.S. 415,
422 (1943). We give deference to the district court’s account of
the evidence if plausible in light of the entire record, even if as
the trier of fact we might have weighed it differently. Anderson,

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470 U.S. at 573. When, as here, a district court’s findings are
based on a credibility determination, Rule 52(a) demands even
greater deference. Id. at 573. Although a more particularized
analysis might have been helpful, the record reflects that the
District Court considered the Whitley factors, and we determine
that the findings made by the District Court were sufficient for
a clear understanding of the basis of the decision. We find no
clear error.
V.
Finally, Giles contends that the District Court erred in
finding that the correctional officers were not deliberately
indifferent to his serious medical needs when he was denied
pain medication and capstunned in the prison infirmary.
To act with deliberate indifference to serious medical
needs is to recklessly disregard a substantial risk of serious
harm. Estelle v. Gamble, 429 U.S. 97, 104-105 (1976); Farmer
v. Brennan, 511 U.S. 825, 836 (1994). Deliberate indifference
may be shown by “intentionally denying or delaying medical
care.” Estelle, 429 U.S. at 104. “The question under the Eighth
Amendment is whether prison officials, acting with deliberate
indifference, exposed a prisoner to a sufficiently substantial
‘risk of serious damage to his future health,’” Farmer, 511 U.S.
at 843 (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)).
Under a recklessness standard, “prison officials who actually

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knew of a substantial risk to inmate health or safety may be
found free from liability if they responded reasonably to the
risk.” Farmer, 511 U.S. at 844.
Giles’ medical expert presented unrebutted testimony that
Giles was subjected to the risk of a life-threatening injury due to
the delay of over 24 hours in diagnosis and transfer to the
hospital. When a rib is broken and a lung punctured, the lung
collapses and outside air pressure increases in the chest cavity
outside of the collapsed lung. The pressure can cause internal
organs to move, cutting off blood flow to the heart and
increasing the risk of death. The delay in medical care thus
exposed Giles to a substantial risk of serious damage to his
future health. But it is not clear that the correctional officers
who responded in the infirmary incident recklessly disregarded
this risk or intentionally denied or delayed medical care under
the circumstances.
The District Court concluded that deliberate indifference
by the correctional officers was not shown in the infirmary
incident because there was no evidence that the responding
officers knew of Giles’ medical condition and because Giles
received medical care and assessment following each event.
Giles counters with the deposition of Officer Justice, who stated
in his deposition that it was customary to be informed at shift
changes whether there had been fights with inmates, and that
“[w]e heard . . . when we came on shift” that Giles had

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“something wrong with one of his ribs, punctured lung, or
something like that.” App. 493, 268-269. Justice recanted his
deposition testimony at trial, calling it a “misstatement.”
However, in any event, the fact that Giles was either sick or
injured could be inferred from him being in the infirmary, and
we conclude that even if the responding officers had known of
the risk the evidence is sufficient to support the District Court’s
determination that they responded reasonably.
Correctional officers responded to a loud disturbance by
an inmate shouting and beating on his cell door at the wee hour
of 2:00 in the morning. When Giles requested medication,
Ackenbrack checked with the nurse on duty and found that no
medication was prescribed. It accordingly could be found
reasonable for Giles’ request to be refused. Giles contends that
he also requested additional medical attention at this time, but
the District Court in its discretion found his testimony less
credible than that of the officers. Giles became even more
agitated and continued shouting and hitting and shaking the door
even harder, so hard that officers feared that the door could
break from its hinges. After Giles ignored repeated requests to
calm down, the officers administered a single spray of capstun
to subdue him. This could be found to be a proportionate and
reasonable response to an inmate’s disturbing conduct late at
night, even a potentially injured inmate. Given our deference to
the District Court’s factual findings and credibility
determinations, we cannot conclude that the District Court

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clearly erred in holding that there was no deliberate indifference
to Giles’ serious medical needs.
*****
For the foregoing reasons, we will reverse and remand
the June 24, 2006, order of the District Court granting summary
judgment for Cassase, Steele and Campbell. We will affirm the
September 27, 2007, judgment of the District Court in favor of
the remaining Appellees.

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