Kevin Ward v. Bradley Smith, et al

Filing

OPINION FILED - THE COURT: Steven M. Colloton, Michael J. Melloy and Bobby E. Shepherd AUTHORING JUDGE:Bobby E. Shepherd (PUBLISHED) [4482054] [15-2583]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2583
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Kevin Ward
lllllllllllllllllllll Plaintiff - Appellant
v.
Bradley Smith; Dustin Merriett
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 22, 2016
Filed: December 21, 2016
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Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Kevin Ward sued correctional officers Bradley Smith and Dustin Merriett
under 42 U.S.C. § 1983, alleging the officers used excessive force when they
administered pepper spray to gain Ward’s compliance with orders to submit to wrist

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restraints. After conducting a two-and-a-half day bench trial, the district court1
granted judgment in favor of the officers. Ward appeals the district court’s judgment,
and we affirm.
I.
After receiving evidence in this case, the district court found the following. On
October 26, 2009, Ward was an inmate of the Missouri Department of Corrections
(MDOC) as a convicted person serving a sentence of imprisonment and was housed
in the Administrative Segregation Unit (Ad Seg) at the South Central Correctional
Center (SCCC). Officers Smith and Merriett worked at the SCCC as correctional
officers. On that date at approximately 9:20 p.m., Officer Merriett ordered Ward to
stop talking to another inmate who was housed in a different cell in Ad Seg. Ward
refused the order. Officer Smith approached Ward’s cell and ordered Ward to submit
to wrist restraints, which would require Ward to place his hands behind his back and
through a food port for an officer to apply handcuffs, in order for correctional staff
to search Ward’s cell. Ward refused the order to submit to wrist restraints.
Officer Smith contacted SCCC medical staff and confirmed that Ward had no
medical condition that would prohibit the use of pepper spray to force Ward to
comply with the order, and then Officer Smith received authorization from the shift
supervisor to use force in the form of pepper spray. Officers Smith and Merriett and
a third correctional officer approached Ward’s cell, ordered him to submit to
restraints, and when he refused administered a three-to-five second burst of pepper
spray through the food port in Ward’s cell. Approximately ten minutes later, Officer
Smith again asked Ward to comply with the order to submit to wrist restraints, and
this time Ward refused and placed his mattress in front of his food port. Officer

1

The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
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Merriett moved the mattress aside using a barricade removal assistance device, and
Officer Smith administered a second round of pepper spray into Ward’s cell. During
this second incident, Ward received a small cut on his arm.
Shortly thereafter, Ward complied with the request to submit to the wrist
restraints. He was restrained, removed from his cell, and placed in a strip-out cell in
the Ad Seg unit. The strip-out cell is approximately the size of a telephone booth.
The officers removed the wrist restraints, strip searched Ward, removed his clothing
from his possession, and provided him a security smock, which is a thin, padded
blanket that can be placed over the body to cover the front and back but is open on
the sides. Ward tied the smock around his lower body. A jail nurse treated the cut
on Ward’s arm by washing it with saline solution and placing a bandage over the cut.
After officers had completed the search of Ward’s cell and removed all personal items
as punishment for Ward’s failure to comply with an order, Officer Smith approached
Ward in the strip-out cell and ordered him to again submit to wrist restraints so that
he could be transported back to his cell. Ward responded by placing his hands over
his face, and Officer Smith administered pepper spray directly toward Ward’s face
through the grated walls of the strip-out cell. Ward began coughing and claimed that
he had asthma. The nurse returned and confirmed through an oximeter that Ward’s
oxygen levels were normal.
Officer Smith returned to the strip-out cell and ordered Ward to submit to the
wrist restraints. Ward responded by covering his head and upper body with the
security smock. Officer Smith placed the pepper spray canister at the food port of the
strip-out cell and sprayed the pepper spray for a few seconds at a distance of less than
three feet from Ward. Officer Smith claimed he was attempting to direct the spray
underneath the security smock and towards Ward’s face. At least some of the pepper
spray made contact with Ward’s bare genitals. After a few minutes, Ward agreed to
be restrained, and he was then returned to his cell where he had access to running
water but not soap.
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Ward brought this suit, claiming, as relevant, that Officers Smith and Merriett
violated his Eighth Amendment right to be free from cruel and unusual punishment,
that he sustained injuries from the administration of the pepper spray including
suffering the Hydraulic Needle Effect,2 and that their actions constituted an
intentional infliction of emotional distress under Missouri state law.
The district court conducted a bench trial, hearing testimony from Ward,
Officer Smith, Officer Merriett, other SCCC employees, and other SCCC inmates.
The court also reviewed a video that captured at least the final two administrations
of pepper spray to Ward while he was in the strip-out cell.
After the bench trial, the court entered a written judgment, holding there was
no Eighth Amendment violation in the administration of pepper spray because Ward
had been lawfully ordered to submit to wrist restraints and refused to comply with the
orders and the use of force was not disproportionate to the security concerns, and
therefore it was not cruel or unusual. As to the fourth administration of pepper spray,
the court found, based on the video evidence and Officer Smith’s testimony, that
Officer Smith did not intentionally spray Ward’s genitals; rather, Officer Smith was
attempting to direct the spray under the security smock toward Ward’s face. The
district court also rejected Ward’s claim of intentional infliction of emotional distress,
concluding Ward had not proven that the sole intent of the use of force was to cause
emotional distress.

2

At trial, Ward introduced the MDOC Training Lesson Plan on Pepper Spray
Use and Chemical Agent Awareness. That material recommends a six-foot distance
when administering pepper spray with the MK-9 canister—the canister used by
Officer Smith—because particles from the canister can penetrate layers of soft tissue
causing the person to experience the sensation of needles piercing the skin, the
Hydraulic Needle Effect.
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II.
Ward appeals the district court’s adverse judgment. Because the district court’s
decision was reached after a bench trial, this court reviews the legal questions de
novo and the factual determinations for clear error. See Schaub v. VonWald, 638
F.3d 905, 923 (8th Cir. 2011). A district court clearly errs if its findings are “not
supported by substantial evidence in the record, if the finding[s are] based on an
erroneous view of the law, or if we are left with the definite and firm conviction that
an error has been made.” Story v. Norwood, 659 F.3d 680, 685 (8th Cir. 2011)
(alterations in original) (citation and internal quotation marks omitted). “If the
district court’s account of the evidence is plausible in light of the record viewed in
its entirety, the court of appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have weighed the evidence differently.”
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
A.
“After incarceration, only the unnecessary and wanton infliction of
pain . . . constitutes cruel and unusual punishment forbidden by the Eighth
Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (alteration in original)
(quotation omitted). “The infliction of pain in the course of a prison security
measure, therefore, does not amount to cruel and unusual punishment simply because
it may appear in retrospect that the degree of force authorized or applied for security
purposes was unreasonable, and hence unnecessary in the strict sense.” Id. Instead,
when a court determines whether a correctional officer’s use of force was excessive
and in violation of the Eighth Amendment, the court must determine “whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). “Because
the use of force is sometimes required in prison settings, guards are liable only if they
are completely unjustified in using force, i.e., they are using it maliciously and
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sadistically.” Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008). “Factors to be
considered in deciding whether a particular use of force was reasonable are whether
there was an objective need for force, the relationship between any such need and the
amount of force used, the threat reasonably perceived by the correctional officers, any
efforts by the officers to temper the severity of their forceful response, and the extent
of the inmate’s injury.” Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002) (citing
Hudson, 503 U.S. at 7).
Ward raises two points of error pertaining to his claim that the use of the
pepper spray violated the Eighth Amendment. First, he claims that the district court
clearly erred when it determined that Officer Smith did not intentionally administer
the pepper spray to Ward’s genitals, inflicting severe pain. Second, he submits the
district court clearly erred when it found the officers used force to maintain order in
the prison instead of finding the use of pepper spray was merely pretext for punishing
Ward for his refusal to stop talking to another inmate.
The evidence does not clearly refute the district court’s finding that Officer
Smith was attempting to administer the fourth shot of pepper spray under the security
smock and towards Ward’s face. Ward claims that the video “indisputably belie[s]”
the district court’s finding. Ward provides a frame-by-frame print of the video in his
brief and argues that due to the position of the canister when it becomes visible it is
obvious that Officer Smith intentionally sprayed Ward’s genitals. Officer Smith
testified at the trial that he was attempting to direct the spray under the security
smock, but he did not deny that pepper spray may have gotten on Ward’s genitals.
Having reviewed the frame-by-frame photos and the video, we do not find the district
court clearly erred in its factual determination. The photos and the video do not
definitively show the position of the canister as it is blocked from the view of the
camera by Officer Smith’s body. Further, the district court was permitted to credit
Officer Smith’s testimony that he was intending to direct the spray under the smock
and toward Ward’s face, as witness credibility determinations are within the exclusive
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domain of the district court and are virtually unreviewable on appeal. See Story, 659
F.3d at 685.
Further, the district court found Officer Smith administered pepper spray only
after Ward refused the direct orders to submit to wrist restraints and the use of force
was necessary to gain Ward’s compliance and maintain the safety and security of
SCCC. Ward argues on appeal that the district court clearly erred in this factual
finding because the evidence showed the use of force was pretext to punish Ward for
his refusal to stop talking to another inmate. The district court did not clearly err in
deciding the decision to use pepper spray was not pretext to punish Ward and instead
the use of force was in direct response to Ward’s refusal to comply with the orders
to submit to restraints in preparation to be removed from and returned to his cell. The
evidence presented showed that when Ward finally complied with the orders, Officer
Smith ceased using pepper spray.
B.
Finally, Ward challenges the district court’s determination that he failed to
prove his claim of intentional infliction of emotional distress under Missouri law. To
prove intentional infliction of emotional distress in Missouri, a plaintiff must show
“(1) the defendant’s conduct was extreme and outrageous; (2) the defendant acted
intentionally or recklessly; and (3) the defendant’s conduct caused extreme emotional
distress resulting in bodily harm. Additionally, the plaintiff must establish that the
sole intent in acting was to cause emotional distress.” Cent. Mo. Elec. Coop. v.
Balke, 119 S.W.3d 627, 636 (Mo. Ct. App. 2003) (citation omitted). Again, as
discussed above, we find no error in the district court’s determination that Officer
Smith employed pepper spray against Ward for the purpose of maintaining the safety
and security of SCCC. Accordingly, we agree that Ward has failed to show Officer
Smith’s “sole intent in acting was to cause emotional distress.” Id.

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III.
We affirm the district court’s judgment in this matter.
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