NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN M. MCCLAM II, No. 21-35426

Plaintiff-Appellant, D.C. No. 2:19-cv-00096-RAJ

v.

MEMORANDUM*

FRANZ VERHELST, Correctional Officer, King County Jail; RACHEL WILKS, IIU Sergeant; JOHN DOES, 1-50, employees of King County Jail; JANE DOE I, King County Jail medical employee who initially provided medical attention to the plaintiff's injury; JANE DOES, 2-50, employees of King County Jail,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted March 9, 2022 Seattle, Washington

Before: NGUYEN, MILLER, and BUMATAY, Circuit Judges. Dissent by Judge MILLER.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Plaintiff Steven McClam II appeals from the district court’s grant of

summary judgment in favor of defendant Franz Verhelst on the ground of qualified

immunity. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see

Gordon v. County of Orange, 6 F.4th 961, 967 (9th Cir. 2021), we reverse and

remand.

McClam, a pretrial detainee at King County Jail, brought this § 1983

excessive force action against Verhelst, a correctional officer.1 Verhelst has

qualified immunity from suit unless his conduct violated one of McClam’s clearly

established constitutional rights. See id. at 967–68. In determining whether

Verhelst was entitled to summary judgment, we view the evidence and draw all

inferences in the light most favorable to McClam, the non-moving party. See id. at

967.

Due process guarantees that “pretrial detainees (unlike convicted prisoners)

cannot be punished at all, much less ‘maliciously and sadistically.’” Kingsley v.

Hendrickson, 576 U.S. 389, 400 (2015) (quoting the Eighth Amendment standard

from, e.g., Whitley v. Albers, 475 U.S. 312, 320 (1986)). Thus, a pretrial detainee

can show that a correctional officer used excessive force against him without

delving into the officer’s subjective intent. See id. at 398 (“[A] pretrial detainee

1 McClam conceded that the other defendants he sued were entitled to summary judgment.

2 can prevail by providing only objective evidence that the challenged governmental

action is not rationally related to a legitimate governmental objective or that it is

excessive in relation to that purpose.”). But the pretrial detainee can also prevail

by showing that the defendant’s action was “taken with an ‘expressed intent to

punish.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 538 (1979)).

Though McClam and Verhelst offer competing versions of the incident at

issue, for purposes of this appeal we accept as true McClam’s version of events. In

January 2016, McClam asked the correctional officer on duty for his unit, Haiko

Postma, for permission to take two paper towels from a box on the floor. Postma

authorized him to do so. McClam took the first paper towel without incident, in

full view of Verhelst, who was standing directly behind the box outside of

McClam’s reach.

As McClam reached into the box a second time, Verhelst moved forward

and “stomped aggressively and with great force” on McClam’s hand, causing

McClam “extreme pain.” McClam “[a]t no time” reached for Verhelst “or even

[got] close to him with [his] hand.”

McClam repeatedly pleaded with Verhelst to get off his hand. Verhelst

pinned McClam’s hand to the concrete floor with his boot “for a few seconds”

while trying to kick the paper towel box away, out of McClam’s reach. As a result

3 of this incident, McClam experienced some loss of function in his hand and, after

four years, continued to suffer regular shooting pain.

From this evidence, a jury could reasonably conclude that Verhelst stomped

on McClam’s hand to punish him with physical pain rather than for any

penological purpose. It was clearly established in 2016 that a correctional officer

who gratuitously assaults an inmate for the purpose of inflicting pain commits

constitutionally excessive force—even if the inmate is not seriously injured. See

Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (per curiam) (holding that inmate stated

claim for excessive force by alleging that prison guards assaulted him without

provocation, including by kicking him, causing him to suffer a bruised heel and

back pain).

Verhelst contends that “no case . . . would have alerted a reasonable officer

in [his] situation that putting his boot down on an inmate’s extended hand, when he

feared for his personal safety, would violate the inmate’s constitutional rights.”

We agree with this statement as a matter of law but not with its factual predicate.

When viewed most favorably to McClam and drawing every inference in his

favor—as we must at this stage of the litigation—the evidence supports a finding

that Verhelst employed considerably more force than “putting his boot down.”

More importantly, the evidence supports a finding that Verhelst did not fear for his

personal safety but rather acted out of annoyance with McClam. See Estate of

4 Aguirre v. County of Riverside, No. 19-56462, 2022 WL 871286, at *5 (9th Cir.

Mar. 24, 2022) (“We cannot assume the jury’s role to resolve the disputed question

whether [the plaintiff] presented an immediate threat.”).

While Verhelst claims that he was unaware Postma gave McClam

permission to take two paper towels, a jury could infer otherwise. Verhelst was

standing directly behind the box and Postma was standing directly next to

McClam. Verhelst did not react when McClam took the first paper towel but only

after McClam reached into the box for another. Moreover, a jury could draw a

negative credibility inference from Verhelst’s false log entry stating that he used

no force at all; when the jail’s internal investigation unit subsequently questioned

him, “[h]e admitted to applying pressure on McClam’s hand.” If so, that would

undermine his claim to be acting out of fear for his own safety.

Similarly, a jury could infer that Verhelst’s aggressive reaction reflected an

intent to punish McClam for taking a second paper towel rather than to protect

himself. Although Verhelst was not within McClam’s immediate reach and had

the ability to step back, he instead moved forward and stomped on McClam’s hand

with great force. According to Postma, Verhelst “obviously did not want

[McClam] to take [the paper towel].” Even “[a]ssuming” that Verhelst was

unaware McClam had permission, Postma thought Verhelst overreacted and that a

physical response “seemed unnecessary.” Postma believed “[i]t would have been

5 more appropriate [for Verhelst] to verbalize” that he did not want McClam to take

the paper towel. And the jail’s policy manual authorized uniformed staff to use

reasonable force only when necessary, as relevant here, to protect themselves or

enforce a lawful order.

Because a jury could reasonably conclude that Verhelst’s actions expressed

an intent to punish McClam rather than to protect himself, as he claimed, the

district court erred in granting summary judgment.

REVERSED and REMANDED.

6

FILED

McClam v. Verhelst, No. 21-35426 APR 7 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MILLER, Circuit Judge, dissenting:

The general principle is well established: Correctional officers may not

gratuitously attack inmates. See Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir.

1991). But the Supreme Court has “repeatedly told courts—and the Ninth Circuit

in particular—not to define clearly established law at a high level of generality.”

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (citation omitted). Thus, except in an

“obvious case,” a plaintiff seeking to overcome an assertion of qualified immunity

“must identify a case that put [the defendant] on notice that his specific conduct

was unlawful.” Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8 (2021) (per curiam).

No case or “robust consensus of cases” clearly establishes any right in these

circumstances. al-Kidd, 563 U.S. at 742 (internal quotation marks and citation

omitted). The most closely analogous cases are not analogous at all. See, e.g.,

Wilkins v. Gaddy, 559 U.S. 34, 38–40 (2010) (per curiam) (holding that a pretrial

detainee who was “punched, kicked, kneed, choked, and body slammed

‘maliciously and sadistically’ and ‘[w]ithout any provocation’” and who was left

with “a bruised heel, back pain, and other injuries requiring medical treatment”

need not allege some greater degree of force, though ultimately “express[ing] no

view on the underlying merits of his excessive force claim”); Felix, 939 F.2d at

701–02 (clearly established violation where prison guards threw a handcuffed

1 inmate across a room in response to a verbal disagreement); Lolli v. County of

Orange, 351 F.3d 410, 416–18, 421–22 (9th Cir. 2003) (clearly established

violation where pretrial detainee was brutally beaten by guards after notifying them

that he was diabetic).

Even viewing the facts in the light most favorable to McClam, this case

differs from those in two significant ways. First, Officer Verhelst’s action was not

completely unprovoked. Officer Verhelst stepped on McClam’s hand when

McClam reached for a paper towel near the officer’s feet. No evidence suggests

that Officer Verhelst was aware that McClam had permission to grab anything.

And although Officer Verhelst’s leg was not McClam’s target, it is undisputed that

McClam reached in that direction. In responding to what he perceived to be an

unauthorized movement toward his leg, Officer Verhelst may have acted

unreasonably—and perhaps even maliciously—but not entirely without

provocation. Second, the level of force employed was far lower than in the cited

cases; there is no medical evidence that Officer Verhelst’s action caused any

injury.

Although McClam’s Fourteenth Amendment right to be free from excessive

force may have been violated, the district court correctly determined that the right

was not clearly established and that Officer Verhelst is entitled to qualified

immunity. I would affirm the grant of summary judgment.

2