USCA1 Opinion

April 13, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2139
DONALD J. MCCLAIN,
Plaintiff, Appellant,
v.
GORDON CLARK, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Boudin and Stahl, Circuit Judges.
______________
____________________
Donald J. McClain on brief pro se.

_________________
Marc J. Miller and Bernstein, Golder & Miller, P.A. on brief
_______________
_________________________________
appellee Gordon Clark.
____________________
____________________

Per Curiam.
___________
action in the district

Appellant

Donald

McClain

court under 42 U.S.C.

filed an

1983 against

Gordon Clark, a correctional officer, and John McGonigle, the

Middlesex

County

excessive force

Sheriff.
by Clark

from the jail in which he

for

transportation to

Clark's

McClain
in the

alleged

process of

the

use

of

moving McClain

was housed to a van in preparation

court.

The

motion for summary judgment.

district court

granted

In so doing, it relied

on Clark's affidavit to find that the force used by Clark was

reasonable and necessary to

fulfill his duties under Whitley

_______

v. Albers, 475 U.S. 312 (1986).

______
On appeal,
received the

the

denial

had

been

Hornby.

In

light

received notice

McClain's

transferred from
of

the

of Judge

recommendation,

prejudiced.
file

of

never

which had earlier

motion

for

summary

McClain also states that he was not notified that

the case

judge's

complains that he

report of a magistrate judge

recommended
judgment.

McClain first

Even if he

objections to

submitted

his

fact that

Wolf

McClain

Wolf's adoption of
it

is

hard

to

was deprived of

the report,

equivalent opportunity when

for summary judgment.

Judge

That

see

and

the

apparently

how

he

was

the opportunity to
received an

to Clark's

is, he wrote

medical records

Judge

the magistrate

he essentially

he responded

to

motion

a memorandum

and

affidavits of

two

witnesses to some of the events in question.

Second, McClain argues that he met the requirements

for summary

judgment because

he suffered an

right hand when Clark smashed his

injury to

his

hand by stepping on it and

when Clark, in double-handcuffing him, placed the cuffs on so

tightly that circulation

was cut

off to his

hands.

Also,

prison officials allegedly applied excessive force in the way

they

carried him

actions of

to

the van.

McClain asserts

the prison officials, especially

warranted because

he (McClain)

that

the

Clark, were not

never presented a

threat to

any officers.
To

prevail on

motion for

summary judgment,

moving party must "show that there is no genuine

any material

movant has met this

non-moving party to
issue that

is

United States,
_____________
omitted);

Fed.

submit

the

Fed. R. Civ. P. 56(c).

standard, the burden

Once

shifts to the

establish the existence of "at least one

both `genuine'
924 F.2d 355,
R. Civ.

noted, McClain did not

did

issue as to

fact and that the moving party is entitled to a

judgment as a matter of law."

the

and

`material.'"

357 (1st Cir.

P. 56(e).

Kelly
_____

v.

1991) (citation

Here, as

Judge Hornby

file his own affidavit.

However, he

affidavits

of the

two

inmates;

he

also

submitted medical records.

To show an Eighth Amendment violation when force is
used, an inmate must

demonstrate "the unnecessary and wanton

infliction of pain."

See Whitley, 475 U.S. at 320.

___ _______

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That is,

that the

force was not

"`applied in a good

faith effort to

maintain or restore discipline [but was used] maliciously and

sadistically
320-21

for the very purpose of causing harm.'"

(quoting Johnson
_______

Cir.), cert. denied,

____________
this
the

v. Glick, 481
_____

F.2d 1028,

414 U.S. 1033 (1973)).

question, courts must take into

1033 (2d

In considering

account "the extent of

threat to the safety of staff and inmates, as reasonably

perceived

by the responsible

facts known to them. . . . "

officials on the

basis of the

Id. at 321.
___

Upon reviewing the affidavits of the two

and

Id. at
___

comparing

them

to

Clark's

undisputed scenario emerges.

McClain refused

he

be voluntarily

policy.

There

and in which he

following

handcuffed

prepare him for

denied the requests

as

required by

prison

Although one of the inmates asserts in his affidavit

that McClain "appeared" not to be putting

Clark nonetheless
stick.

the

was an argument in which

to let the prison officials

transportation to court
that

affidavit,

prisoners

forced McClain onto

up any resistance,

a table with

a night

However, this inmate also states that he (the inmate)

was taken

out to

the van immediately

after this

occurred.

Thus, he did not see, nor

what

did the other inmate claim to see,

happened next when Clark

put the leg

and began patting down McClain.

Clark inflicted
the

Because McClain claims that

the force (smashing his

handcuffs) during

irons on McClain

this period

hand and tightening

of time,

we

think that

-4-

Clark's version of what happened in the course of the ensuing

process remains
to his

uncontradicted.

resistance and

That is,

that McClain, due

combativeness, presented a

threat to

Clark which required the use of force by Clark.

Once this is established, the question then becomes
whether

the

force

sadistically for

employed

the very

Clark asserts in his

keep McClain in
this

standard

subjective
1440,

used

purpose of

"maliciously

causing harm" or,

affidavit, in a "good faith"

custody and
is

was

on

the

under control.
detention

intent to punish."

as

effort to

"The focus

facility

and

of

official's

Valencia v. Wiggins, 981 F.2d

________
_______

1449 (5th Cir.), cert. denied, 113 S. Ct. 2998 (1993).

____________

Further, the

Whitley Court recognized that

_______

be

prison

accorded

officials

practices they believe

in the

are necessary

deference should

choice

and

to maintain

use

of

security.

See 475 U.S. at 321-22.

___
Given the
had

situation facing Clark

to be transported to

voluntarily
some

-- Clark

force

Moreover,

would
once

potentially
from

Clark's

reasonably could
be

needed

McClain

dangerous, one

hurting

handcuffs.

court but was

others

In the

was

to

became

have

this

and

subdue and
use

of

absence of any evidence to

assertion that, based on

perceived that

combative,

the

McClain

refusing to proceed

accomplish

way to
by

-- that

goal.

therefore

keep McClain

leg

irons

and

the contrary,

the facts then before him,

-5-

he

acted in good faith during

true.

this process must be taken as

See Whitley, 475 U.S. at 321.

___ _______
Because

the use

of

force in

this

case was

not

constitutionally

excessive,

suffered become

irrelevant.

We therefore need

not address

McClain's claim

that Clark

committed perjury by

stating in

his affidavit that McClain

the

alleged

injuries

McClain

had not received any "significant

injury."
The judgment of the district court is affirmed.
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