Scott Emerson Felix v. Daniel J. McCarthy Dir. of the Dep't of Corr. P.J. Morris J. Campoy Daniel Vasquez Morris, Lt., 939 F.2d 699 (9th Cir. 1991). · Go Syfert
Scott Emerson Felix v. Daniel J. McCarthy Dir. of the Dep't of Corr. P.J. Morris J. Campoy Daniel Vasquez Morris, Lt., 939 F.2d 699 (9th Cir. 1991). Cases Citing This Book View Copy Cite
78 citation events (69 in the last 25 years) across 15 distinct courts.
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Cited for
At page 702 Defining eighth amendment violations through intentional force32 citing cases“an unprovoked and unjustified attack by a prison guard.”3 citing courts quote it · 30 listed here
  • (PC) Gerez v. Castro, No. 1:21-cv-01431 (E.D. Cal. Jan. 28, 2022).
    (Sexual harassment or abuse of an inmate by a corrections officer is a violation of 14 the Eighth Amendment.)
  • Collins v. Warden, No. 1:18-cv-02189 (D. Md. Aug. 19, 2019).
    (Because sexual abuse by a corrections officer may constitute serious harm inflicted by an officer with a sufficiently culpable state of mind, allegations of such abuse are cognizable as Eighth Amendment claims.)
  • Harbert v. Miller, No. 2:18-cv-00072 (D. Or. Aug. 8, 2019).
    ([I]t is not the degree of injury which makes out a violation of the eighth amendment. Rather, it is the use of official force or authority that is ‘intentional, unjustified, brutal[,] and offensive to human dignity.’)
  • Dunn, No. 3:26-cv-04641 (S.D. Cal. Sept. 8, 2026).
    Cal. Mar. 8, 2023) (citing Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 3 1991)). 4 Dunn, however, fails to state a plausible Eighth Amendment claim against Officer 5 Costello, whom Dunn alleges only “placed [him] in handcuffs, using dis…
  • Miranda, No. 3:26-cv-04121 (S.D. Cal. Aug. 27, 2026).
    Cal. March 8, 2023) (citing Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 21 1991)). 22 Miranda alleges Amaya violated his Eighth Amendment rights on January 29, 2025, 23 by striking him numerous times in the face.
  • Blake, No. 3:26-cv-03286 (S.D. Cal. Aug. 3, 2026).
    Cal. 23 March 8, 2023) (citing Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991)). 24 As currently pleaded against Saucedo and Hernandez, Blake’s complaint is 25 sufficient to survive the low threshold set for sua sponte screening as re…
  • Demetrize Hamilton v. Robert Gluna, et al., No. 2:25-cv-07211 (C.D. Cal. June 30, 2026).
    Still, the extent of injury factor is not what makes out a 5 violation of the Eighth Amendment, rather “it is the use of official force or authority that 6 is ‘intentional, unjustified, brutal and offensive to human dignity.’” Felix v. McC…
  • Taylor, No. 2:23-cv-02525 (D. Ariz. Apr. 22, 2026).
    Specifically, 2 unprovoked attacks on passive prisoners (Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 3 1991)), deliberate use of weapons on completely motionless prisoners (Changamu v. Lamb, 4 No. CV-22-01598-PHX-DGC (JFM), 2025 WL 4609…
  • Otter, No. 2:24-cv-00924 (D. Ariz. Nov. 20, 2025).
    (holding that “an unprovoked and 12 unjustified attack by a prison guard . . . violated clearly established constitutional rights of 13 which a reasonable officer would have known)
  • Townsend v. Fisher, No. 1:23-cv-03137 (D. Md. Mar. 4, 2025).
    To be sure, an inmate who is the victim of sexual assault at the hands of prison guards suffers “grave deprivation of her Eight Amendment rights.” Woodford v. Ngo, 548 U.S. 81, 118 (2006) (Breyer, J., dissenting); Farmer v. Brennan, 511 U.…
Show 20 more citing cases
  • Hearn v. Warden, No. 3:22-cv-00255 (S.D. Cal. Dec. 11, 2024). 2 cites
    (noting there is no legitimate 23 need to use any force against an inmate who is neither violating prison rules nor reasonably 24 believed to pose a security threat)
  • (PC) Tillman v. State of California, No. 2:22-cv-01997 (E.D. Cal. June 18, 2024).
    A sexual assault on an inmate by a guard—regardless of the gender of the guard or of 13 the prisoner—is deeply “offensive to human dignity.” Felix v. McCarthy, 939 F.2d 699, 702 (9th 14 Cir. 1991).
  • Blake v. Moreno, No. 3:23-cv-02310 (S.D. Cal. Jan. 11, 2024).
    Cal. 12 March 8, 2023) (citing Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991)). 13 Here, Blake alleges Moreno was in the control booth when she arrived in the rotunda 14 and opened the door for her and another inmate.
  • (PC) Dekharn v. Rojas, No. 2:23-cv-00706 (E.D. Cal. Nov. 2, 2023).
    Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (citing Hudson v. McMillian, 13 503 U.S, 939 F.2d 699, 702 (9th Cir. 1991).
  • (PC) Windham v. Pike, No. 2:22-cv-02007 (E.D. Cal. Nov. 21, 2022).
    Schwenk v. 16 Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (citing Hudson v. McMillian, 503 U.S. 1 , 8 17 (1992)); Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991).
  • (PC) Harrison v. Hernandez, No. 1:22-cv-01143 (E.D. Cal. Sept. 30, 2022).
    Cal. May 4, 2012) (“A sexual assault on an inmate by a guard—regardless 25 of the gender of the guard or of the prisoner—is deeply ‘offensive to human dignity.’ ”) (quoting 26 Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991)). 27 /// 2…
  • (PC) Sierra v. Spearman, No. 1:17-cv-01691 (E.D. Cal. Aug. 30, 2021).
    (denying qualified immunity in case involving 23 “unprovoked and unjustified attack [on an inmate] by [] prison guard[s])
  • Samuell v. Owens, No. 2:18-cv-00111 (D. Nev. Mar. 11, 2021). 2 cites
    (stating that “it is not the 16 degree of injury which makes out a violation of the eighth amendment. Rather, it is the use of 17 official force or authority that is intentional, unjustified, brutal and offensive to huma…)
  • Robert Johnson v. Robert Heins, No. 17-56799 (9th Cir. Feb. 9, 2021).unpublished
    Defendants are not entitled to qualified immunity on this claim, as it was clearly established at the time of their alleged conduct that “an unprovoked and unjustified attack by a prison guard” violates the Eighth Amendment, even if the gu…
  • Matheis v. CDCR, No. 3:20-cv-02100 (S.D. Cal. Jan. 5, 2021).
    A prisoner need not show any lasting physical injury. 26 “Rather, the only requirement is that the officer’s actions be ‘offensive to human dignity.’ 27 Sexual assault on an inmate by a guard . . . is deeply ‘offensive to human dignity.’”…
  • (PC) Gradford v. Baez, No. 1:20-cv-00858 (E.D. Cal. Sept. 23, 2020).
    Id. (quoting Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991)). 24 The Supreme Court determined that "[n]ot every malevolent touch by a prison guard gives rise 25 to a federal cause of action." Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)…
  • Ortiz v. City & Cnty. of San Francisco, No. 4:18-cv-07727, 2020 WL 2793615 (N.D. Cal. May 29, 2020).
    Plaintiff 21 cites to Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991), and Lolli v. Cty. of Orange, 351 22 F.3d 410 , 421–22 (9th Cir. 2003), in arguing that existing precedent clearly established that the 23 actions taken in the dres…
  • Miller v. Straks, No. 2:18-cv-01126 (E.D. Wis. Feb. 7, 2020).
    “A sexual assault on an inmate by a guard—regardless of the gender of the guard or of the prisoner—is deeply ‘offensive to human dignity.’” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (quoting Felix v. McCarthy, 939 F.2d 699,…
  • Dewayne Bearchild v. Kristy Cobban, 947 F.3d 1130 (9th Cir. 2020).published 2 cites
    Schwenk, 204 F.3d at 1196 (observing that sexually abusive conduct is “offensive to human dignity,” and violates the Eighth Amendment (quoting Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991))).
  • Atencio v. Arpaio, 161 F. Supp. 3d 789 (D. Ariz. 2015).published
    See Lolli v. County of Orange, 851 F.3d 410, 421 (9th Cir.2003); Felix v. McCarthy, 939 F.2d 699, 701-02 (9th Cir.1991) (the law of this circuit as of 1985 put reasonable officers on notice that an “unprovoked and unjustified attack by a p…
  • Douglas W. Schwenk v. James Hartford Steve Sinclair Robert Mitchell,opinion, 204 F.3d 1187 (9th Cir. 2000).published
    Rather, the only requirement is that the officer’s actions be “offensive to human dignity.” 6 Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir.1991). *1197 A sexual assault on an inmate by a guard — regardless of the gender of the guard or of…
  • Douglas A. Hirano, Plaintiff-Appellee-Cross-Appellant. v. Glenn Kakuda, Defendant-Appellant-Cross-Appellee, 15 F.3d 1085 (9th Cir. 1994).published
    “it is not the degree of injury which makes out a violation of the eighth amendment”
  • Steven McClam, II v. Franz Verhelst, No. 21-35426 (9th Cir. Apr. 7, 2022).unpublished
    See Felix v. McCarthy, 939 F.2d 699, 702 (9th Cir. 1991).
  • Renteria v. Williams, 340 F. App'x 382 (9th Cir. 2009).unpublished
  • Clay (ID 102093) v. Hydro, No. 5:19-cv-03245 (D. Kan. Mar. 25, 2021).
At page 701 Analyzing qualified immunity and excessive force claims22 citing casesby 1985, the law of this circuit would have put reasonable officers on notice that an "unprovoked and unjustified attack by a prison guard" violated clearly established constitutional rights4 citing courts put it this way · 21 listed here
  • Bowman v. LV Metro. Police Dept., No. 2:22-cv-01481 (D. Nev. Aug. 19, 2024).
    In Felix v. McCarthy, the 4 Ninth Circuit affirmed a district court’s denial of summary judgment based on 5 qualified immunity for correctional officers who used minor force against a 6 prisoner resulting in minor injury. 939 F.2d 699, 701…
  • Motley v. State of Nevada, No. 2:21-cv-02075 (D. Nev. Nov. 20, 2023).
    (holding that strong blows 7 to a prisoner for no purpose can be force characterized as intentional and offensive to human 8 dignity)
  • Smith v. Zavala, No. 5:21-cv-03426 (N.D. Cal. Feb. 27, 2023).
    (it is not degree of injury which makes 19 out violation of Eighth Amendment but use of official force or authority that is intentional, 20 unjustified, brutal and offensive to human dignity)
  • Kemp Sr v. Hugh Hardy (LVMPD), No. 2:18-cv-00169 (D. Nev. Mar. 31, 2022).
    Appx. 449 , 450 (9th Cir. 2019) 11 12 (citing Felix v. McCarthy, 939 F.2d 699, 701 (9th Cir. 1991)). 13 Further, the facts as alleged could not support a reasonable belief that the conduct in 14 question conformed to the established law.
  • Drevdahl v. City of Fairfield, No. 2:20-cv-00859 (E.D. Cal. Feb. 2, 2022).
    (since 1985 law would have 27 put reasonable officer on notice that an “unprovoked and unjustified attack” violated clearly 28 established constitutional rights)
  • Jack Smith v. Harry Oreol, No. 19-55855 (9th Cir. Nov. 24, 2020).unpublished
    (holding that a reasonable officer in 1985 would have known that “an unprovoked and unjustified attack by a prison guard” that caused bruising, soreness, and emotional damage would violate constitutional rights)
  • William Fletcher v. Marquardt, No. 17-35862 (9th Cir. Feb. 15, 2019).unpublished
    Felix v. McCarthy, 939 F.2d 699, 701 (9th Cir. 1991).
  • Atencio v. Arpaio, 161 F. Supp. 3d 789 (D. Ariz. 2015).published
    (the law of this circuit as of 1985 put reasonable officers on notice that an “unprovoked and unjustified attack by a prison guard” violated clearly established constitutional rights)
  • Araujo v. Cnty. of Los Angeles, No. B236138 (Cal. Ct. App. Oct. 11, 2013).unpublished
    (prison guards not entitled to qualified immunity for unprovoked physical attack of prisoner, which included throwing prisoner against a wall, because attack was clearly unlawful even though attack resulted in minor inju…)
  • W. Watersheds Proj. v. United States Dep't of the Interior, 677 F.3d 922 (9th Cir. 2012).published
    (finding no waiver where the appellant’s trial brief referenced the issue on appeal, the appellee responded to that issue, and the district court ruled on it)
Show 11 more citing cases
  • Moore v. Thomas, 653 F. Supp. 2d 984 (N.D. Cal. 2009).published
    (it is not degree of injury which makes out violation of Eighth Amendment but use of official force or authority that is intentional, unjustified, brutal and offensive to human dignity)
  • Fuller v. Cnty. of Orange, 276 F. App'x 675 (9th Cir. 2008).unpublished
    (throwing a prisoner against a wall without provocation, causing bruising and soreness, constitutes unconstitutionally excessive use of force)
  • United States v. Vincent Franklin Bennett, 363 F.3d 947 (9th Cir. 2004).published
    (deciding issue was preserved for appellate review when referenced in defendants’ motion for summary judgment and considered by the district court)
  • Jones v. Cunningham, 94 F. App'x 447 (9th Cir. 2004).unpublished
    We agree with the district court that Jones’s “initial refusal to exit his cell does not justify the alleged physical force used against the plaintiff during the escorts to the medical facility, administrative segregation, and other areas…
  • Jimenez v. California Dep't of Corr., 139 F. App'x 806 (9th Cir. 2005).unpublished
    See Lolli v. County of Orange, 351 F.3d 410, 421-22 (9th Cir.2003) (citing Felix v. McCarthy, 939 F.2d 699, 701-02 (9th Cir.1991)).
  • Lolli v. Cnty. Of Orange, 351 F.3d 410 (9th Cir. 2003).published
    (by 1985, the law of this circuit would have put reasonable officers on notice that an "unprovoked and unjustified attack by a prison guard" violated clearly established constitutional rights)
  • In Re Frontier Props., Inc., 979 F.2d 1358 (1st Cir. 1992).published
    (issue briefed and considered in district court is properly before court on appeal)
  • Elliott v. Four Seasons Props. (In re Frontier Props., Inc.), 979 F.2d 1358 (9th Cir. 1992).published
    (issue briefed and considered in district court is properly before court on appeal)
  • Vernon Dewitt v. Francisco Silva, Officer, 974 F.2d 1341 (9th Cir. 1992).unpublished
    See Felix v. McCarthy, 939 F.2d 699, 701-02 (9th Cir.1991), cert. denied, 112 S.Ct. 1165 (1992). 6 Dewitt alleges that after he reached the ground on the outside of the prison fence and clearly surrendered, Silva, contrary to prison traini…
  • Donald K. Nelson v. Penn, Cso Marshall, Cso, 951 F.2d 361 (9th Cir. 1991).unpublished
    See Felix v. McCarthy, 939 F.2d 699, 701-02 (9th Cir.1991); Meredith v. Arizona, 523 F.2d 481, 482-84 (9th Cir.1975). 7 Nelson alleges that he complied with the guards' initial request to conduct a post-visit body cavity search, but that t…
  • Grant v. Multnomah Cnty. Jail, No. 3:24-cv-00772 (D. Or. Sept. 30, 2025).
    See, e.g., Fletcher v. Marquardt, 753 F. App’x 449 , 450 (9th Cir. 2019) (holding that “the district court did not err in denying [the defendant’s] motion for summary judgment based on qualified immunity” because “[t]he law is clearly esta…
Retrieving the full opinion text from the archive…
Scott Emerson FELIX, Plaintiff-Appellee,
v.
Daniel J. McCARTHY, Director of the Department of Corrections; P.J. Morris; J. Campoy; Daniel Vasquez; Morris, Lt., Et Al., Defendants-Appellants
89-16020.
Court of Appeals for the Ninth Circuit.
Jul 10, 1991.
Published opinion
939 F.2d 699
91 Cal. Daily Op. Serv. 5349
1991 U.S. App. LEXIS 14206
1991 WL 120675
Susan Duncan Lee, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellants., Alfred C. Peiffer, Jr., McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for plaintiff-appellee.
Sneed, Schroeder, Canby.
Cited by 55 opinions  |  Published
CANBY, Circuit Judge:

Appellants Luis S. Lemos, Gregory Max-ie and Paul Ward, prison guards at San Quentin, appeal the district court’s denial of their motion for summary judgment on the basis of qualified immunity. Scott Felix, a prisoner at San Quentin, brought a civil rights action against the guards alleging that the guards used excessive force against him in March 1985. The guards assert that they are entitled to the defense of qualified immunity because it was not clearly established in March 1985 that the guards’ conduct would violate Felix’s clearly established constitutional rights. We affirm.

BACKGROUND

Felix brought a section 1983 action against the prison guards alleging violation of his eighth amendment right not to be subject to cruel and unusual punishment. Accepting Felix’s deposition testimony and all reasonable inferences drawn from it as true, the facts show the following:

Felix was employed in the prison hospital. In March 1985, while Felix was mopping the floors in the hospital, Officer Max-ie approached Felix, deliberately spat on the floor at Felix’s feet, and ordered Felix to clean it up. When Felix refused, Maxie handcuffed Felix, pushed him into a wall, then led him to Sergeant Ward’s office. On the way to the office, Maxie verbally assaulted Felix with insults and threatened to take Felix’s job away.

While Felix and Maxie waited for Ward to become available, Felix leaned against the wall in the hallway outside of Sergeant Ward’s office. When Sergeant Ward approached, Officer Maxie told him that Felix was refusing to work. Felix disagreed and told Ward that Maxie was crazy and that he was lying. In response, Maxie threw the handcuffed prisoner across the hallway into the wall on the opposite side, about seven to nine feet away. Felix's left shoulder and left side of his face made contact[*701] with the wall. Then Officer Lemos joined Officer Maxie. The two officers grabbed Felix, one on each side, and took him into Sergeant Ward’s office. There, one of the officers pushed Felix, who was still handcuffed, one more time.

Felix testified that he suffered bruises, soreness, and emotional distress from the incident. He was afraid to seek medical attention for his injuries and quit his job because he was afraid of the guards in the hospital.

The guards moved for summary judgment on the ground that they did not violate Felix’s constitutional rights. The district court denied the motion. The court concluded that the defendants were not entitled to summary judgment on the basis of qualified immunity and that the defendant’s qualified immunity argument merely restated their argument that Felix’s rights were not violated.

ANALYSIS

1. Jurisdiction

Felix argues that we lack jurisdiction over the guards’ claims because the guards failed to raise the qualified immunity defense in the district court. We disagree. The guards’ motion for summary judgment, based on their contention that they did not use unreasonable force, includes a reference to qualified immunity. Felix responded to this motion by arguing that qualified immunity was not available to the guards. The district court addressed the issue and concluded that the guards were not entitled to the defense. We conclude that the matter is properly before us on appeal.

2. Qualified Immunity

The guards argue that they are entitled to qualified immunity because they did not violate any clearly established constitutional right of which a reasonable person would have known. According to the guards: “In light of pre-existing law, reasonable correctional officers would believe that minor force resulting in minor injury (i.e., a ‘m,ere [sic] push or shove’) was constitutional.”

Although the principle cited by appellants may often be correct, its application to the facts of the present case is not. Felix does not allege that he was merely pushed. Rather, he asserts first, that Officer Maxie used his position of authority intentionally and gratuitously to degrade his dignity, and second, that Maxie, with Sergeant Ward’s apparent approval, threw him across a hallway and against a wall, causing bruising, soreness, and emotional damage. Moreover, Felix contends that Officers Maxie and Lemos pushed him yet another time in Sergeant Ward’s office. Again, the conduct was stated to be unprovoked. Thus, the principle offered by the appellants does not govern Felix’s claim.

Under the state of the law in 1985, reasonable officers should have been on notice, with the specificity required by Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), that this type of conduct would violate a prisoner’s constitutional rights. In their brief, the appellants concede that:

Early in 1985, a reasonable correctional officer in California would have understood that he would violate the Constitution by delivering strong blows upon a prisoner for no purpose, using force that could be characterized as “intentional, unjustified, brutal, and offensive to human dignity.” Meredith v. Arizona, 523 F.2d at 484.

Meredith v. Arizona, 523 F.2d 481 (9th Cir.1975), provides the standard in this circuit for determining whether an officer’s conduct constitutes excessive force. Although the force allegedly used against Felix was not maximum, it properly falls within the description of “strong blows ... for no purpose.”

Meredith was decided in 1975. In Meredith, we concluded that a prisoner had stated a cause of action where he alleged that a prison guard, without provocation, struck him in the solar plexus while he was suffering from an emphysema attack, rendering[*702] him “totally handicapped” for a period. [1] Meredith was treated with oxygen for four hours; he suffered no lasting injury.

By March 1985, other circuits had reached comparable conclusions. For example, in 1980, the Fourth Circuit held that “the unjustified striking, beating, or infliction of bodily harm upon a prisoner gives rise to liability under 42 U.S.C. § 1983.” King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980) (emphasis added). In Blankenship, the court concluded that the prisoner stated a cause of action where a guard grabbed the prisoner’s beard and threw him to the floor, causing a portion of the beard to be torn from the prisoner’s face and inflicting some cuts and bruises. Similarly, on facts resembling the present case, a district court in 1976 found a cause of action when a guard initiated an unprovoked altercation with a prisoner and used force maliciously, causing some injury to the prisoner’s face and neck. Vargas v. Correa, 416 F.Supp. 266 (S.D.N.Y.1976). See also Wilson v. White, 656 F.Supp. 877, 879 (S.D.N.Y.1987) (attack on prisoner “which is not part of an attempt to maintain or restore discipline violates the inmate’s due process right to be free from unprovoked attack”). These cases demonstrate that it is not the degree of injury which makes out a violation of the eighth amendment. Rather, it is the use of official force or authority that is “intentional, unjustified, brutal and offensive to human dignity.” Meredith, 523 F.2d at 484.

The appellants cite numerous cases in support of their assertion that the guards could not have known that the infliction of minor injuries would violate a clearly established constitutional right. See e.g., Hines v. Boothe, 841 F.2d 623 (5th Cir.1988); Marquez-DeJesus, 1989 U.S. Dist. Lexis 716 (S.D.N.Y.1989). These cases, however, did not involve an unprovoked and unjustified attack by a prison guard; the prisoners were either violating prison rules or the guards were acting on a reasonable but mistaken belief that the prisoner posed a security threat. On Felix’s evidence, no such situation existed here.

Because we conclude that Felix has made a sufficient showing that the appellant-guards violated clearly established constitutional rights of which a reasonable officer would have known, we affirm the district court’s denial of summary judgment based on qualified immunity.

3. Sanctions

Felix requests that we sanction the guards for bringing a frivolous appeal. Felix asserts that the appeal is frivolous because the issue of qualified immunity was not raised below and is not appealable. Because we conclude that the issue was raised below and is appealable, we deny Felix’s request for sanctions.

The order is AFFIRMED.

1

. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1352 (9th Cir.1981), aff'd sub nom. Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983), does not acknowledge, as the guards assert, that the Meredith analysis rested on the severity of the injury alleged. Rutledge repeats our statement in Meredith that we would not decide whether less reprehensible conduct would suffice to state a claim. Rutledge, 660 F.2d at 1352.