The United States Constitution protects prison inmates from

the infliction of “cruel and unusual punishments.” Fourth

(1)

Amend., United States Const’n. The Eighth Amendment is violated

(2)

when a prison corrections officer imposes “. . . unnecessary and

wanton infliction of pain.” Whitley V. Albers, Jr., 475 United

States Rpts. 312,320 (U.S. 1986). The question of whether

unnecessary and wanton infliction of pain occurs during

officers’ attempts to calm a prison disturbance

depends on whether “force was applied in a good faith effort to

maintain or restore discipline or maliciously and

(3)

sadistically for the very purpose of causing harm.” Id at 320-

321

The United States Supreme Court developed the Whitley

test, based on its analysis in Whitley, to assess whether force

(4)

was used in bad faith. see id at 321; see, also, Virginia v.

Thomson, 475 Southeast. R. 732, 735,738 (VA 1998)(applying the

Whitley test). This test considers five factors: (1) the extent

of the injury inflicted; (2) the need for the application of

force; (3) the relationship between the need and the amount of

force that was used; (4) the extent of the threat to the safety

of staff and inmates, as reasonably perceived by the responsible

officers on the basis of the facts known to them; and (5) any

(5)

efforts to temper the severity of a forceful response. Id at

321.

The totality of the circumstances shows that Brian Wilson’s

Eighth Amendment right to be free from cruel and unusual

punishment was violated. Thus, the district court erred in

granting summary judgment in favor of Officer Ragosa on the

grounds of qualified immunity, and the order should be reversed.

Ragosa inflicted serious injuries on Wilson, which fulfills the

objective component of an Eighth Amendment excessive force

violation. See Hudson v. McMillian, 503 US 1,7-8 (U.S. 1992);

(6)

Atkins v. B.J. Michaels, 473 Fed.Rptr. 3rd 1207, 1211-213 (en

banc)(Ninth Circ. 2008). The United States Supreme Court

deemphasizes this component because contemporary standards of

` (7)

decency can be violated without serious injury. see id at 8-9.

As a result, the objective component is merged with the extent

(8)

of injury factor. see id at 7.