Jason Poindexter v. Jeff Sandy, personally

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6638
JASON POINDEXTER,
Plaintiff – Appellant,
v.
JEFF SANDY, personally and in his official capacity as the Secretary of the West
Virginia Department of Military Affairs and Public Safety; BETSY JIVIDEN,
personally and in her official capacity as the Commissioner of the West Virginia
Division of Corrections and Rehabilitation; JOSEPH WOOD, personally and in his
official capacity as Superintendent of the Western Regional Jail; MAJOR ROBERT
BERRY, personally and in his official capacity as a correctional officer with the West
Virginia Division of Corrections and Rehabilitation; SERGEANT PAUL
DIAMOND, personally and in his official capacity as a correctional officer with the
West Virginia Division of Corrections and Rehabilitation; CORRECTIONAL
OFFICER STANLEY JARVIS, personally and in his official capacity as a
correctional officer with the West Virginia Division of Corrections and
Rehabilitation,
Defendants – Appellees,
and
WESTERN REGIONAL JAIL,
Defendant.
Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:18-cv-01511)
Submitted: March 25, 2022 Decided: May 25, 2022

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Before NIEMEYER and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
Jason Poindexter, Appellant Pro Se. Samantha J. Fields, Perry W. Oxley, David Edward
Rich, OXLEY RICH SAMMONS, Huntington, West Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jason Poindexter, a former prisoner of the Western Regional Jail (“WRJ”), appeals
the district court’s order awarding summary judgment to three correctional officers
employed by the WRJ on his claims for excessive force under the Eighth Amendment to
the United States Constitution and Article III, Section 5 of the West Virginia Constitution,
and assault and battery under West Virginia law.1 Poindexter’s claims were predicated on
three separate incidents that occurred on the same day while he was a prisoner at the WRJ.
After reviewing video evidence, the district court determined that there was no genuine
dispute of material fact and awarded summary judgment to the three correctional officers—
Major Robert Berry, Sergeant Paul Diamond, and Correctional Officer Stanley Jarvis.
For the reasons that follow, we affirm the district court’s award of summary
judgment to Berry on Poindexter’s claims related to all three incidents and to Jarvis on
Poindexter’s claims related to one incident (i.e., the medical unit incident). We vacate,
however, the district court’s award of summary judgment to Diamond on Poindexter’s
claims related to all three incidents, and to Jarvis on Poindexter’s claims related to two of
1 Poindexter’s operative complaint alleged additional claims against the three
correctional officers plus claims against other named defendants. The district court also
denied relief on those claims. Poindexter has forfeited appellate review of that portion of
the district court’s summary judgment order by failing to challenge it in his opening brief.
See 4th Cir. R. 34(b) (“The Court will limit its review to the issues raised in the informal
brief.”); Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an
important document; under Fourth Circuit rules, our review is limited to issues preserved
in that brief.”). Accordingly, any reference to Poindexter’s “claims” in this opinion means
his claims for excessive force under the Eighth Amendment and the West Virginia
Constitution and for assault and battery under West Virginia law.

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the incidents (i.e., the inmate bathroom and Gate 2 incidents). We remand for further
proceedings on those claims.
I.
“We review the district court’s grant of summary judgment de novo, drawing
reasonable inferences in the light most favorable to the non-moving party.” Butler v. Drive
Auto. Indus. of Am., Inc., 793 F.3d 404, 407 (4th Cir. 2015) (internal quotation marks
omitted). “Summary judgment is properly awarded only if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Gordon v. Schilling, 937 F.3d 348, 356 (4th Cir. 2019) (internal quotation marks
omitted). The relevant inquiry is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
II.
On appeal, Poindexter challenges the district court’s award of summary judgment
to Berry, Diamond, and Jarvis on his excessive force claims under the Eighth Amendment
and West Virginia Constitution and his assault and battery claims under West Virginia law.
We start with Poindexter’s claims under the Eighth Amendment and then address
Poindexter’s West Virginia law claims.
A.
“[T]he Eighth Amendment’s prohibition against ‘cruel and unusual punishments’
[extends] to the treatment of prisoners by prison officials . . . [,] forbid[ding] ‘the
unnecessary and wanton infliction of pain.’” Hill v. Crum, 727 F.3d 312, 317 (4th Cir.

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2013) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). “An inmate’s Eighth
Amendment excessive force claim involves both an objective and a subjective component.”
Brooks v. Johnson, 924 F.3d 104, 112 (4th Cir. 2019). “The objective component asks
whether the force applied was sufficiently serious to establish a cause of action.” Id. “This
is not a high bar, requiring only something more than de minimis force.” Id. (internal
quotation marks omitted).
The subjective component asks whether the correctional officer “acted with a
sufficiently culpable state of mind.” Id. (internal quotation marks omitted). To prevail on
an excessive force claim, a plaintiff is obliged to show that a correctional officer acted with
“wantonness in the infliction of pain.” Id. (internal quotation marks omitted). Wantonness
exists if the force was applied “maliciously and sadistically for the very purpose of causing
harm.” Id. at 113 (internal quotation marks omitted). But wantonness does not exist if the
force “was applied in a good faith effort to maintain or restore discipline.” Id. (internal
quotation marks omitted).
A correctional officer need not face an “immediate risk[] to physical safety” to
justify the use of force; he may also use appropriate force “to preserve internal order by
compelling compliance with prison rules and procedures.” Id. (internal quotation marks
omitted). A correctional officer may not, however, “inflict pain . . . to punish an inmate
for intransigence or to retaliate for insubordination.” Id. A federal court ultimately “owe[s]
officers wide-ranging deference in their determinations that force is required to induce
compliance with policies important to institutional security.” Id. (internal quotation marks
omitted).

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The Supreme Court has identified four nonexclusive factors (known as the Whitley
factors) that should be considered in assessing the subjective component of an Eighth
Amendment excessive force claim:
(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 any reasonably
perceived threat that the application of force was intended to quell; and
(4) “any efforts made to temper the severity of a forceful response.”
Iko v. Shreve, 535 F.3d 225, 239 (4th Cir. 2008) (quoting Whitley, 475 U.S. at 321).
In these proceedings, Poindexter’s Eighth Amendment claims are based on three
separate incidents that occurred within an approximate 30-minute span: (1) a use of force
in the inmate bathroom, (2) a use of force near Gate 2, and (3) uses of force in the medical
unit. We address each incident below.
1.
Starting with the inmate bathroom incident, we conclude that the district court erred
in awarding summary judgment to Diamond and Jarvis on Poindexter’s Eighth
Amendment claim. Poindexter testified during his deposition that Berry, Diamond, and
Jarvis escorted him into the inmate bathroom where—without provocation—Diamond and
Jarvis struck Poindexter in the stomach, knee, arm, and side of the head, causing Poindexter
to drop to the floor. Diamond and Jarvis delivered several more blows while Poindexter
was on the ground. According to Poindexter, Berry looked on during the beating and
commented that the beating “was to teach [Poindexter] a lesson.” Poindexter explained
that he had argued with Berry and another correctional officer earlier that day.

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The district court used the video evidence to disregard Poindexter’s description of
the bathroom incident. The court reasoned that the video depicts Poindexter without any
visible injuries shortly after the bathroom incident. The court expected that someone who
endured a beating such as that described by Poindexter would have suffered injuries that
could be seen on the video.
At the summary judgment stage, a district court may only disregard the nonmoving
party’s version of the facts if video evidence “blatantly contradict[s]” it. Scott v. Harris,
550 U.S. 372, 380 (2007). Here, we are satisfied that the video does not “blatantly
contradict[]” Poindexter’s description of the beating in the bathroom. Id. Although a
reasonable juror might expect that Poindexter would exhibit some sign of injury in the
video recorded just after the beating, Poindexter’s description of the incident is not so
farfetched that it is impossible to believe when compared to the video. See Wilkins v.
Gaddy, 559 U.S. 34, 38 (2010) (“An inmate who is gratuitously beaten by guards does not
lose his ability to pursue an excessive force claim merely because he has the good fortune
to escape without serious injury.”).
Moreover, Poindexter’s testimony describing the bathroom incident is enough to
create a genuine issue of material fact on both the objective and subjective parts of the
excessive force inquiry as to Diamond and Jarvis. See Thompson v. Virginia, 878 F.3d 89,
105 (4th Cir. 2017) (recognizing that the Eighth Amendment forbids a correctional officer
from “maliciously harm[ing] a prisoner on a whim or for reasons unrelated to the
government’s interest in maintaining order”). We thus conclude that the district court’s

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award of summary judgment to Diamond and Jarvis on Poindexter’s Eighth Amendment
claim related to the bathroom incident should be vacated.
As for Berry’s involvement in the bathroom incident, the operative complaint
alleged that Berry directly participated in the use of force. But Poindexter testified that
only Diamond and Jarvis struck him in the bathroom as Berry watched. See Williamson v.
Stirling, 912 F.3d 154, 171 (4th Cir. 2018) (“To establish personal liability under [42
U.S.C.] § 1983 . . . the plaintiff must affirmatively show that the official charged acted
personally in the deprivation of the plaintiff’s rights.” (alteration and internal quotation
marks omitted)). And Poindexter did not allege in the operative complaint any facts to
support a bystander liability theory against Berry under § 1983. See Stanton v. Elliott, 25
F.4th 227, 237 (4th Cir. 2022) (recognizing that bystander liability exists under § 1983);
Stevenson v. City of Seat Pleasant, Md., 743 F.3d 411, 419 (4th Cir. 2014) (ruling that
plaintiff adequately alleged bystander theory of liability under § 1983 where complaint
alleged that defendants “allowed” constitutional violation to be committed). We thus
conclude that the district court’s summary judgment award to Berry on Poindexter’s Eighth
Amendment claim related to the bathroom incident should be affirmed. See United States
v. Riley, 856 F.3d 326, 328 (4th Cir. 2017) (“[W]e may affirm on any grounds apparent
from the record.” (internal quotation marks omitted)).
2.
Turning the to the Gate 2 incident, we are again satisfied that the district court erred
in awarding summary judgment to Diamond and Jarvis on Poindexter’s Eighth

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Amendment claim. The entire Gate 2 incident is caught on video, and we will describe the
events in detail.
Just before Poindexter, Diamond, Jarvis, and two other correctional officers enter
the frame, a correctional officer can be heard instructing Poindexter to “Stop tensing up!
Stop!” and another correctional officer commands, “Don’t do it. Don’t do it.” Poindexter
and the four correctional officers enter the frame, with Diamond holding Poindexter’s left
arm and Jarvis holding Poindexter’s right arm in an escort position, and the other two
officers trailing behind. Diamond tells Poindexter to “Stop tensing up!” but it is unclear
whether Poindexter is actually tensing his left arm. About two seconds later, Diamond
knees Poindexter in the back of his left leg twice, causing that leg to buckle. Diamond uses
Poindexter’s left arm to drag him to the floor, and Jarvis helps Diamond push Poindexter
to the floor. Poindexter lands facedown on his chest and shoulder. Both Diamond and
Jarvis land on top of Poindexter, and Diamond twists Poindexter’s left arm and wrist.
Poindexter screams that he was not doing anything wrong and that his shoulder is injured.
At this point, a third correctional officer helps place wrist restraints on Poindexter while a
fourth correctional officer holds down Poindexter’s legs. Diamond, Jarvis, and another
correctional officer help Poindexter to his feet, and Jarvis and Poindexter calmly walk out
of the frame together.
As to the objective component of Poindexter’s Eighth Amendment claim related to
the Gate 2 incident, the video shows that Diamond and Jarvis exerted more than de minimis
force against Poindexter. See Brooks, 924 F.3d at 112.

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Turning to the subjective component, and considering the first Whitley factor—the
need for the application of force—the video shows that the correctional officers repeatedly
commanded Poindexter to stop tensing his arm while he was being escorted, but the video
does not establish beyond debate that Poindexter was doing so. And Poindexter testified
that he did not tense his arm during the escort from the inmate bathroom to Gate 2. Viewing
the facts in the light most favorable to Poindexter, it is thus unclear whether any application
of force was necessary.
As for the second Whitley factor—the relationship between the need and the amount
of force that was used—again it is debatable whether any force was necessary. See
Thompson, 878 F.3d at 100 (“[B]ecause there was no need to use force, the force used was
necessarily excessive in relation to the need.”). But even assuming that Poindexter was
tensing his arm, a reasonable juror could conclude that Diamond kneeing Poindexter twice
in the back of his left leg, and Diamond and Jarvis together performing a takedown was
disproportionate to the amount of force needed to ensure that Poindexter complied with the
correctional officers’ commands.
As to the third Whitley factor—the extent of any reasonably perceived threat that
the application of force was intended to quell—we cannot say that the Gate 2 video
conclusively depicts Poindexter as an immediate threat to the safety of the correctional
officers or to the order of the institution such that this factor should weigh in Diamond’s
and Jarvis’ favor at this stage. See Brooks, 924 F.3d at 116 (concluding that third Whitley
factor did not weigh in officers’ favor where prisoner was handcuffed, surrounded by

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officers, and presented no immediate physical safety risk at time force was used against
him).
The fourth Whitley factor—any efforts made to temper the severity of a forceful
response—perhaps weighs in Diamond’s and Jarvis’ favor on this record. That is, they (or
other correctional officers with them) warned Poindexter to stop resisting before they used
force. See Brooks, 924 F.3d at 117 (considering whether officers first attempted “to secure
. . . compliance without using violent force” in assessing fourth Whitley factor). And just
after Poindexter was taken down and placed in wrist restraints, Jarvis helped him to his feet
and took him to the medical unit. See Iko, 535 F.3d at 240 (analyzing officer’s actions after
applying force in considering fourth Whitley factor). Nevertheless, we are satisfied that the
fourth Whitley factor alone weighing in Diamond’s and Jarvis’ favor at this stage would
not support an affirmance of the district court’s summary judgment award on this claim.
See Brooks, 924 F.3d at 117 (“[W]e have . . . held that verbal attempts to reason with and
calm an unruly detainee before resort to force do not preclude an inference that force was
applied maliciously, in order to punish this continued intransigence.” (internal quotation
marks omitted)).
At bottom, we conclude that a factfinder must determine whether Diamond and
Jarvis used excessive force during the Gate 2 incident. It also bears mentioning that
Poindexter identified a potential impermissible motive for Diamond and Jarvis to use
excessive force against him that day: they were angered that Poindexter had argued with
other officers earlier in the day and elected to retaliate by force. See id. at 113 (recognizing
that Eighth Amendment prohibits officer from inflicting pain on inmate in retaliation for

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insubordination). Because the record contains evidence from which a reasonable jury
could find that Diamond and Jarvis engaged in a “malicious and therefore excessive use of
force” when they performed the takedown near Gate 2, the district court’s award of
summary judgment to Diamond and Jarvis on Poindexter’s Eighth Amendment claim
related to the Gate 2 incident will be vacated. Id. at 118.
As for Berry’s involvement in the Gate 2 incident, Berry can be seen watching the
events unfold on the opposite side of Gate 2 from Poindexter, Diamond, and Jarvis. And
Berry never uses any force against Poindexter during the incident. See Williamson, 912
F.3d at 171 (explaining personal involvement requirement for liability under § 1983).
Moreover, the operative complaint did not allege any facts to support bystander liability
for Berry related to the Gate 2 incident. We thus affirm the district court’s summary
judgment award to Berry on Poindexter’s Eighth Amendment claim related to the Gate 2
incident.
3.
We also conclude that the district court erred in awarding summary judgment to
Diamond on Poindexter’s Eighth Amendment claim related to the medical unit incident.
Much of that incident is recorded on video, though there is no accompanying audio.
Poindexter and Jarvis enter the frame in the medical unit, and Jarvis places Poindexter in a
chair across from a desk. Poindexter soon begins speaking in an animated fashion with
Berry, who is seated behind a desk and cannot be seen on video, and an unidentified
correctional officer who can be seen on video. Poindexter stands up, and Diamond appears,
immediately and repeatedly commanding Poindexter to sit down. Poindexter refuses and

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leans in closer to Diamond, who places his hands near the front of Poindexter’s neck and
pushes him back toward the chair, slamming his back on the wall above the chair. Diamond
then knees Poindexter in the right hip and forces Poindexter to sit down.
While seated and still in Diamond’s grasp, Poindexter seems to start yelling and
trying to break free. Poindexter kicks his legs, and Diamond lifts him up by his right arm
to a standing position and knees him in the back of the right leg three times. Diamond
sweeps Poindexter’s right leg causing Poindexter to fall to the ground on his left side.
Berry rushes into the scene and helps Diamond place Poindexter back in the chair.
Jarvis takes Berry’s place and helps Diamond hold down Poindexter while he
continues to yell and struggle. Diamond and Jarvis link their arms behind Poindexter’s
back to hold him down. Jarvis assists Poindexter to his feet to put him in a restraint chair,
and Poindexter persists in yelling. Diamond and Jarvis, along with two other correctional
officers, place Poindexter in the restraint chair while Berry observes. Diamond appears to
intermittently apply pressure to Poindexter’s hypoglossal nerve (under his jaw) while the
restraints are being fastened as Poindexter continues to resist. Poindexter calms down for
a short time but then struggles against the restraints and bangs his head against the back of
the chair. Diamond subsequently wheels Poindexter out of view of the camera.
According to Poindexter’s deposition testimony, after he was wheeled out of view
and while he was fully restrained, Diamond applied pressure to his hypoglossal nerve for
about a minute without justification. Poindexter explained that this caused him
excruciating pain.

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We are satisfied that, at the very least, a genuine issue of material fact exists as to
whether Diamond employed excessive force by striking Poindexter with his knee,
performing the second takedown, and applying pressure to Poindexter’s hypoglossal nerve
for about one minute after Poindexter was fully restrained. Those uses of force satisfy the
objective component of an excessive force claim. See Brooks, 924 F.3d at 112.
As to the subjective component, beginning with the knee strikes and second
takedown that occurred in rapid succession, while some use of force was perhaps proper
(the first Whitley factor) because Poindexter was acting aggressively and attempting to
evade Diamond’s grasp, a reasonable juror might question whether multiple knee strikes
and another takedown was proportional to the amount of force needed (the second Whitley
factor). Indeed, Diamond appears to have a firm grip on Poindexter and is ably holding
him down in the chair before lifting him, striking him, and performing the takedown. As
for the third Whitley factor, because Diamond appears in control of Poindexter’s person
before using that force, a reasonable juror could find that Poindexter did not pose a serious
threat to Diamond’s safety. Turning to the fourth Whitley factor, it perhaps favors
Diamond—he tried to hold Poindexter down in the chair and resorted to the knee strikes
and the takedown only after Poindexter continued to struggle. Diamond also did not again
strike Poindexter after taking him to the ground and helped him back to the chair after the
takedown. We conclude, however, that a jury must ultimately decide whether Diamond’s
lifting of Poindexter from the chair, striking him, and taking him down was malicious and
thus an excessive use of force.

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As for Diamond’s application of pressure to Poindexter’s hypoglossal nerve after
Poindexter was wheeled away in the restraint chair, a genuine issue of material fact exists
as to whether any use of force was necessary under the first Whitley factor because
Poindexter was fully restrained when Diamond employed that tactic. And if there was no
need to use force, then the use of the tactic “was necessarily excessive in relation to the
need” under the second Whitley factor. Thompson, 878 F.3d at 100. There is also a genuine
factual dispute on the third Whitley factor because, viewing the evidence in the light most
favorable to Poindexter, he would not have threatened the safety of WRJ personnel when
Diamond used the pressure point tactic given that he was fully restrained. On the fourth
Whitley factor, nothing in this record suggests that Diamond sought to temper any force
that he used. We thus conclude that a jury must decide whether Diamond’s application of
pressure to Poindexter’s hypoglossal nerve while he was fully restrained was malicious
and thus an excessive use of force. We therefore vacate the district court’s award of
summary judgment to Diamond on Poindexter’s Eighth Amendment claim related to the
incident in the medical unit.
Turning to Jarvis and Berry, we conclude that the district court correctly awarded
them summary judgment on Poindexter’s Eighth Amendment claim related to the medical
unit incident. Starting with Jarvis, the video evidence proves that he did not act with
wantonness when he helped Diamond hold Poindexter down in the chair as Poindexter
struggled to break free. Jarvis also did not use excessive force when placing Poindexter in
the restraint chair and fastening some of the restraints. As for Berry, he did not act with
wantonness in assisting Poindexter to his feet after Diamond performed a takedown and

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escorting Poindexter back to the chair. Although Berry perhaps observed the takedown in
the medical unit and the use of the pressure point tactic, the operative complaint did not
allege any facts to support bystander liability for Berry in relation to the medical unit
incident. We thus affirm the district court’s award of summary judgment to Jarvis and
Berry on Poindexter’s Eighth Amendment claim related to the medical unit incident.
B.
We next consider Poindexter’s excessive force and assault and battery claims under
West Virginia law. The district court ruled that Berry, Diamond, and Jarvis were entitled
to summary judgment on those claims for the same reasons that it awarded them summary
judgment on the Eighth Amendment claims. Given the district court’s use of the same
reasoning for the federal and state law claims, and given our vacatur of the summary
judgment award to Diamond and Jarvis on certain federal law claims, we will also vacate
the district court’s award of summary judgment to Diamond and Jarvis on the
corresponding state law claims for excessive force and assault and battery.2 Specifically,
we vacate the award of summary judgment to Diamond on Poindexter’s state law claims
related to all three incidents and the award of summary judgment to Jarvis on Poindexter’s
state law claims related to the bathroom incident and the Gate 2 incident.
2 There may be some question about the existence of a private right of action for
monetary damages under Article III, Section 5 of the West Virginia Constitution. See
Fields v. Mellinger, 851 S.E.2d 789, 790 (W. Va. 2020). We leave that issue to the district
court to resolve in the first instance on remand, if necessary. See United States v. Frank, 8
F.4th 320, 333 (4th Cir. 2021) (explaining that this court is “a court of review, not first
view” (internal quotation marks omitted)).

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III.
Pursuant to the foregoing, we affirm the district court’s award of summary judgment
to Berry on Poindexter’s claims related to all three incidents and to Jarvis on Poindexter’s
claims related to the medical unit incident. We vacate, however, the district court’s award
of summary judgment to Diamond on Poindexter’s claims related to all three incidents, and
to Jarvis on Poindexter’s claims related to the inmate bathroom and Gate 2 incidents. We
remand for further proceedings on those claims. We also deny Poindexter’s motion to
appoint counsel. We dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED

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