by Douglas Ankney

On July 8, 2024, the United States Court of Appeals for the Fourth Circuit reversed a grant of summary judgment to Defendant officials at Virginia’s Hampton Roads Regional Jail (HRRJ) in a detainee’s suit alleging that they manhandled him while he was restrained in handcuffs.

Johnnie R. Simmons was held at HRRJ awaiting trial on February 8, 2019, when he visited the medical unit and on the way back asked to be reassigned to another housing unit because fellow detainees had allegedly put him in fear for his life. Two guards escorting him refused. Simmons then sat on the floor and refused to walk farther.

Other jailers arrived. They lifted Simmons and carried him toward his cell. As Simmons began to fall, surveillance video captured what happened next, which Simmons recalled in his complaint. His “left leg dropped to the ground and his right leg remained in [guard Derrick] Brown’s grasp.” Then guard R. Whitaker “wrapped his right arm around [Simmons’] neck and locked him in a chokehold.” Simmons alleged that Whitaker then dragged him to the floor and “held the chokehold while keeping his bodyweight on [Simmons’] back.”

Simmons further alleged “[d]espite his pleas that he could not breathe,” Whitaker applied additional pressure, choking Simmons for at least a minute until Simmons lost consciousness. Guard Benjamin Hull allegedly stood by and failed to intervene. When Simmons came to, he “noticed that he had urinated on himself,” his complaint continued. Moreover, he was in handcuffs during the entire incident, “basically harmless,” and not resisting, he said.

In the complaint he filed in federal court for the Eastern District of Virginia, pursuant to 42 U.S.C. § 1983, Simmons accused the three guards of using excessive force in violation of his civil rights. He sought to hold Whitaker directly liable and Brown and Hull liable under a bystander liability theory.

Defendant jail officials disputed Simmons’ account, of course, denying that Whitaker choked him. Rather, they said that the guard merely “placed his right arm across the right side of [Simmons’] neck.” They claimed Whitaker never received service of process and did not respond to the suit. Hull and Brown moved for summary judgment, arguing that the video footage and multiple officer affidavits established that neither officer knew Whitaker was violating Simmons’ rights. Simmons responded by filing a two-part affidavit recounting his version of events.

The district court dismissed Whitaker due to lack of service. Simmons failed to provide an address for the guard and failed to respond to a show-cause order warning him that Whitaker would be dismissed unless one was provided. Simmons’ affidavit was also dismissed in its entirety because it “contain[ed] primarily hearsay from non-parties” and “numerous unsworn pleadings repeatedly representing facts based upon hearsay,” the district court opined. It then “determined the relevant facts by crediting the video footage and the officers’ affidavits over Simmons’ version of events,” as the Fourth Circuit recalled. The district court also granted summary judgment to Hull and Brown upon finding their actions did not show any “ill will.” Simmons timely appealed.

The Fourth Circuit first found no error in Whitaker’s dismissal. Simmons initially claimed that he had not received the show-cause order. But at oral argument, his counsel conceded that it was properly delivered. Counsel made new arguments, but the Court said they must be waived since they were raised for the first time on appeal, pointing to Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307 (4th Cir. 2017).

Moving on to Simmons’ second objection—that the district court failed to properly apply the summary judgment standard—the Fourth Circuit conceded that he had a point. Under Fed. R. Civ. P. 56(a), summary judgment is appropriate only when “there is no genuine dispute as to any material fact,” the Court noted. But it must “view all facts, and reasonable inferences taken therefrom, in the light most favorable to the nonmoving party”—in this case, Simmons. A review of surveillance video did not clearly confirm that Whitaker didn’t choke the detainee, the Court said. Consequently, the district court erred in not making “the reasonable inference” to the contrary and send the dispute to a jury to resolve.

The Court also found error in the district court’s dismissal of Simmons’ affidavit. Along with hearsay, it contained “admissible evidence … based on personal knowledge.” So only the former should have been disregarded, not the latter.

Finally, as to Simmons’ third argument, the Court agreed that “[e]xcessive force allegations are subject to different reviewing standards based on the status of the plaintiff.” For pretrial detainees like Simmons, the proper standard comes from the Fourteenth Amendment and requires a showing that the force “was objectively unreasonable,” as held in Kingsley v. Hendrickson, 576 U.S. 389 (2015). But for those convicted and sentenced, an Eighth Amendment standard applies, requiring “a subjective showing that the officer acted ‘maliciously and sadistically for the very purpose of causing harm,’” as held in Whitley v. Albers, 475 U.S. 312 (1986). Here, the district court’s determination that the guards showed no “ill will” indicated that it applied the wrong standard, the Court said.

Accordingly, summary judgment for the two guards was reversed and the case remanded. Before the Court, Simmons was represented by Supervising Attorney Steven J. Alagna and student attorneys from the Washington University School of Law Appellate Clinic in St. Louis. See: Simmons v. Whitaker, 106 F.4th 379 (4th Cir. 2024).  

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