Ellis v. Arron et al
Filing
64
MEMORANDUM OPINION AND ORDER-Based on the foregoing, defendant Officer Gunns motion for summary judgment 55 is GRANTED. Defendant Sgt. Aarons motion for summary judgment 51 is DENIED. Counsel for Ellis and counsel for Sgt. Aaron should file a joint status report by August 17, 2020, informing the court whether they believe this case would benefit from mediation or if they are ready to begin pretrial proceedings. Signed by Magistrate Judge John H England, III on 08/03/2020. (AKD)
FILED
2020 Aug-03 PM 12:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVON L. ELLIS,
Plaintiff,
v.
SGT. L. AARON, et al.,
Defendants.
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Case No.: 2:17-cv-01726-JHE
MEMORANDUM OPINION AND ORDER1
Plaintiff Davon L. Ellis (“Ellis”) filed a pro se complaint seeking monetary damages and
injunctive relief pursuant to 42 U.S.C. § 1983 for violations of his civil rights during his
incarceration at Donaldson Correctional Facility in Bessemer, Alabama. (Doc. 1). The plaintiff
named Sgt. L. Aaron (“Aaron”) and Officer J. Gunn (“Gunn”) as defendants.2 (Id.). In accordance
with the usual practices of this court, on October 30, 2017, the undersigned entered an Order for
Special Report directing the Clerk to forward copies of the complaint to each of the named
defendants and directing the defendants to file a special report addressing the plaintiff’s factual
allegations. (Doc. 6). After receiving the defendants’ special report, on April 30, 2018, the
undersigned notified the parties that he would construe the special report as a motion for summary
judgment and notified the plaintiff that he had twenty-one days to respond to the motion for
summary judgment by filing affidavits or other material. (Doc. 26).
On August 24, 2018, the undersigned issued a Report and Recommendation that the motion
1
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 38).
2
In their response, the defendants provide their full names as Samuel Aaron and Justin
Gunn. (Doc. 25 at 1).
1
for summary judgment be granted as to the claims against the defendants in their official capacity
and denied as to the claims against the defendants in their individual capacities; and that Ellis’s
claim for injunctive relief be dismissed. (Doc. 32). Thereafter, United States District Judge Abdul
K. Kallon entered a Memorandum Opinion and Order adopting the report and accepting the
recommendation. (Doc. 33).
In accordance with 28 U.S.C. § 636(c), on November 7, 2018, the parties unanimously
consented to magistrate judge jurisdiction. (Doc. 38). Thereafter, the undersigned granted Ellis’s
motion for appointment of counsel (doc. 40), and, after a telephone conference with the parties,
entered a scheduling order outlining limited discovery and a dispositive motion deadline (doc. 48).
On January 21, 2020, defendant Aaron and defendant Gunn each filed a motion for summary
judgment seeking to have the claims asserted against them dismissed. (Docs. 51 & 55). Those
motions are fully briefed. (Doc. 52, 56, 60, 62, & 63). For the reasons stated below, the defendant
Gunn’s motion for summary judgment (doc. 55) is GRANTED, and defendant Aaron’s motion
for summary judgment (doc. 51) is DENIED.
I. Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
2
establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat
a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)
(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
II. Summary Judgment Facts
Prior to the July 16, 2017 incident (discussed below), Ellis, who was an inmate at
Donaldson Correctional Facility (doc. 1), was involved in a basketball game where he and Officer
Gunn made a bet, which they would often do. (Doc. 53-1 at 8 (24:4-22)). According to Ellis,
Gunn lost the bet and there was an argument. (Id. (24:13-25:23). Gunn told Ellis, “I’m [a] Blood,
I will get you. (Id. at 9 (26:2-3)).
3
A. Incident Inside Ellis’s Cell with Officer Gunn
On July 16, 2017, around 6:00 AM, Ellis was in his cell with two other inmates. (Doc. 531 at 9 (26:10-20); doc. 62-2 at 15 (14:3-8)). Ellis saw about forty officers enter his unit and
immediately suspected the officers were there to confiscate contraband.
(Doc. 53-1 at 9
(26:14:27:4)). Sgt. Aaron and Officer Gunn, along with the other officers, were conducting a cell
block “shakedown” in D-Unit. (Doc. 62-2 at 15 (14:13-15:1)). Sgt. Aaron and Lt. Joshua
Murphree were in charge of the cell searches. (Doc. 62-1 at 27-28 (27:20-28:1)). According to
Aaron, there were approximately eighteen to twenty officers involved in the search of ninety-six
inmates in D-Unit. (Id. at 28 (28:5-9)). The officers were instructed to inspect each cell in groups
of two. (Id. at 4-5).
When he saw the officers, Ellis grabbed his cell phone (which he knew was contraband),
then, according to Ellis, Officer Gunn entered his cell. (Doc. 53-1 at 9,12 (27:4-8, 38:5-13)). Ellis
testifies that, without order or instruction, Gunn snatched the cell phone out of Ellis’s hand, then
started “swing[ing] on” Ellis, and they started fighting. (Id. (27:9-14)). According to Ellis, while
he and Gunn were fighting, another officer drug him out of the cell by the hem of his pants; Gunn
was trying to stomp on his face, and the other officer got Ellis up and sitting on a bench. (Id.
(27:15-28:6)).
Officer Gunn tells a different story. According to Gunn, he approached cell D-6, which
was occupied by three inmates: Ellis, Centoria Smith, and Travon Washington. (Doc. 62-2 at 19
(18:5-22)). As he entered, Gunn opened the door and saw Washington and Ellis with two cellular
phones. (Id. at 19-20 (18:23-19:2). Gunn testifies that he instructed them to give him the phones,
but Washington rushed and tackled Gunn out of the cell. (Id. (19:2-5)). According to Gunn, Ellis
was attempting to do the same, but Gunn was able to apprehend Ellis and tackle him to the bottom
4
rack of the cell. (Id. (19:5-8)). Then, Gunn, believing Ellis was apprehended by Officer Fox, went
after Washington (outside of the cell), admitting he stomped Washington two times in the face.
(Id. (19:9-14)).
Officer Gunn contends he did not punch, kick, or otherwise strike Ellis at any time during
the cell search, instead testifying that he tackled Ellis to the bottom bunk of the cell because Ellis
attempted to flee the cell. (Doc. 62-2 at 20 (19:2-20)). Officer Murphree also testified that he did
not witness Gunn hit, punch, kick, or otherwise strike Ellis at anytime during the cell search. (Doc.
57-4 at ¶ 5).
B. Continuation of Incident Outside of the Cell with Sgt. Aaron
According to Ellis, he sat on the bench, unsecured, for about five minutes before Sgt. Aaron
arrived. (Doc. 53-1 at 13 (44:13-21)). Aaron then walks up to Ellis, and, based on Aaron’s
“aggressive” approach, Ellis believes that Aaron knew he fought with Gunn. (Id. at 17 (58:6-18)).
As Aaron approaches, he orders Ellis to stand up, and Ellis stands. (Id. at 17-18 (60:6-62:8)).
Even though Ellis stood up, Aaron hits Ellis in the legs and buttocks with a baton and immediately
sprays him in the face with mace. (Id.). Aaron then orders Ellis to get on the wall. (Id. at 19
(69:10-16)). Ellis did not comply with the order and testified he was “still tripping off [Aaron]
spraying me” and asked Aaron “why are you spraying me man” and why are you “hitting and
spraying me[?]” (Id. (69:16-19)). Officer Tillman approached Ellis and escorted him to the wall,
placing Ellis in handcuffs. (Id. at 21 (74:9-12)).
Sgt. Aaron testified that, while Gunn and Washington were scuffling, he saw an inmate
coming out of his cell, then noticed it was Ellis. (Doc. 62-1 at 37 (37:5-11). According to Aaron,
he told Ellis to “stop,” but Ellis would not stop blurting out obscenities to Aaron and the rest of
the Block, trying to get them “hyped up.” (Id. (37:13-17)). Aaron then told Ellis to “calm down”
5
and ordered him to face the wall. (Id. (37:17-18)). Aaron testifies that Ellis would not listen and
that Ellis threw his hands up still saying stuff, so Aaron sprayed Ellis and told him to turn around
to be handcuffed. (Id. at 18-22).
After being sprayed, Ellis was handcuffed and taken to the
infirmary for decontamination. (Id. at 37-38 (37:21-38:1)).
C. Ellis’s July 16, 2017 Visit to the Infirmary
According to the body chart from Ellis’s visit to the infirmary, although Ellis stated “[h]e
jumped me,” the only injuries documented as a result of the cell search were red eyes with swelling
under the left eye and left shoulder pain. (Doc. 62-4). According to Officer Murphree, who
observed Ellis after he was restrained, Officer Murphree did not notice any physical injuries to
Ellis, the absence of which was confirmed by medical records. (Doc. 57-4 at ¶ 7).
D. Additional Testimony from Ellis
Ellis further testified that the officers at Donaldson know that if they “pull up” on him, he
will fight the officers” and that he “ain’t the one to be pulling up on.” (Doc. 53-1 at 26 (97:1119)). Ellis explained that “[t]hat’s why they are quick to spray me with the mace and they quick
to hit me with the stick.” (Id.). Ellis also testified that he did not suffer any injuries from Aaron
hitting him with the baton because Aaron did not hit him that hard. (Id. at 29, 33 (109:1-12;
124:19-20)).
After the incident, Ellis wrote a letter to Commissioner Mosley characterizing his
altercation with Aaron as “sexual assault.” (Doc. 1 at 8). Ellis then testified that he really didn’t
feel that Aaron sexually assaulted him but said that to get the Commissioner to act more quickly.
(Doc. 53-1 at 27 (98:17-99:1)). Ellis then explained that if he felt Aaron had sexually assaulted
him, he would have stabbed Aaron in the face. (Id.).
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III. Analysis
A. Excessive Force Claim Against Officer Gunn
1. Qualified Immunity
“[Q]ualified immunity protects government officials performing discretionary functions
from suits in their individual capacities unless their conduct violates ‘clearly established statutory
or constitutional rights of which a reasonable person would have known.’” Dalrymbple v. Reno,
334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). In
determining whether it is appropriate to apply qualified immunity to a particular case, “[t]he court
must first ask the threshold question whether the facts alleged, taken in the light most favorable to
the Plaintiff[], show that the government official’s conduct violated a constitutional right.”
Dalrymbple, 334 F.3d 995 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the summary
judgment facts do not establish a constitutional violation, “there is no necessity for further inquiries
concerning qualified immunity.” Saucier, 533 U.S. at 201. Officer Gunn argues that there is no
need for further inquiry because Ellis has failed to present sufficient evidence to establish a
constitutional violation. (Doc. 56 at 7). Specifically, Gunn contends the evidence shows that
Ellis’s injuries are de minimus in nature and insufficient to support a §1983 claim and that the force
he (Officer Gunn) applied during the cell search was reasonable under the circumstances given the
dangerous situation present at the time and was not applied wantonly for the purpose of inflicting
pain. (Id. at 7-8).
2. Excessive Force
The Eighth Amendment’s prohibition against cruel and unusual punishment is triggered
when a prisoner is subjected to an “unnecessary and wanton infliction of pain.” Whitley v. Albers,
475 U.S. 312, 319 (1986). However, maintaining institutional security and preserving internal
7
order and discipline are essential goals of a prison administration and may require curtailment of
prisoners’ constitutional rights. Bell v. Wolfish, 441 U.S. 520, 546-47 (1979). Prison officials
must therefore be free to take appropriate action to insure the safety of inmates and staff, and courts
normally do not second-guess prison officials on matters involving internal security. Wilson v.
Blankenship, 163 F.3d 1284, 1295 (11th Cir. 1998). When disciplinary action is taken by a prison
official to prevent a security threat or to restore official control, the Eighth Amendment inquiry
focuses on whether force was applied in a good faith effort to maintain or restore discipline or was
undertaken maliciously or sadistically to cause harm. Sims v. Mashburn, 25 F.3d 980, 984 (11th
Cir. 1994).
To determine whether the use of force was wanton and unnecessary, courts consider: (1)
the need for the application of the force; (2) the relationship between that need and the amount of
force used; (3) the threat reasonably perceived by the responsible officials; and (4) any efforts to
temper the severity of the response. Hudson v. McMillian, 503 U.S. 1, 7 (1992). The court should
also consider a fifth factor, the extent of the injury suffered. Whitley v. Albers, 475 U.S. 312, 321
(1986). These are referred to as the Hudson factors.
To create a genuine issue of fact, the plaintiff must come forward with evidence from which
a reasonable inference can be drawn that the defendant acted maliciously and sadistically. Courts
“do not generally second-guess prisoner officials on matters that they are better equipped to handle
under the exigencies of an internal disturbance.”
Wilson v. Blankenship, 163 F.3d 1284, 1295
(11th Cir. 1998).
1. Officer Gunn’s Use of Force Was Not Unreasonable
Ellis testifies Officer Gunn repeatedly punched and kicked him in the head while he was
dragged out of the cell by another, unnamed correctional officer. (Doc. 53-1 at 9 (27:9-28:6)). He
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argues that Gunn has failed to show that this use of force was reasonable, and that the evidence
Ellis has presented shows the use of force was “malicious” and “sadistic” because Ellis was not a
threat. (Doc. 62 at 5). At first glance, there appears to be a material factual dispute regarding how
the physical altercation between Officer Gunn and Ellis unfolded in Ellis’ cell. Ellis testified that,
without order or instruction, Gunn snatched the cell phone out of Ellis’s hand, then started
“swing[ing] on” Ellis, and they started fighting. (Doc. 53-1 at 9 (27:9-14)). According to Ellis,
while he and Gunn were fighting, another officer drug him out of the cell by the hem of his pants;
Gunn was trying to stomp on his face, and the other officer got Ellis up and sitting on a bench. (Id.
(27:15-28:6)). Gunn’s testimony tells a different story. According to Gunn, he approached cell
D-6, which was occupied by three inmates: Ellis, Centoria Smith, and Travon Washington. (Doc.
62-2 at 19 (18:5-22)). As he entered, Gunn opened the door and saw Washington and Ellis with
two cellular phones. (Id. at 19-20 (18:23-19:2). Gunn testifies that he instructed them to give him
the phones, but Washington rushed and tackled him out of the cell. (Id. (19:2-5)). According to
Gunn, Ellis was attempting to do the same, but Gunn was able to apprehend Ellis and tackle him
to the bottom rack of the cell. (Id. (19:5-8). Then, Gunn, believing Ellis was apprehended by
Officer Fox, went after Washington (outside of the cell), admitting he stomped Washington two
times in the face. (Id. (19:9-14)).
Officer Gunn contends he did not punch, kick, or otherwise strike Ellis at any time during
the cell search, instead testifying that he tackled Ellis to the bottom bunk of the cell because Ellis
attempted to flee the cell. (Doc. 62-2 at 20 (19:2-20)). Officer Murphree also testified that he did
not witness Gunn hit, punch, kick, or otherwise strike Ellis at any time during the cell search.
(Doc. 57-4 at ¶ 5).
At first glance, it appears Ellis and Gunn have presented conflicting stories regarding what
9
happened inside Ellis’s cell, differences which could change the outcome of the analysis of the
Hudson factors depending on which story the trier of fact believed. However, as the Eleventh
Circuit has held, a plaintiff’s conclusory allegations regarding the injuries he sustained, when
“unsupported by any physical evidence, medical records or [] corroborating testimony of
witnesses,” should be “discount[ed]” in considering a motion for summary judgment on an
excessive force claim. Bennett v. Parker, 898 F.2d 1530, 1534 (11th Cir. 1990). Specifically,
Ellis presents no other testimony or evidence to corroborate that Officer Gunn punched or kicked
him. To the contrary, the body chart conducted shortly after the incident shows only redness and
some swelling to his eyes, which are clearly attributable to the mace Sgt. Aaron deployed, and pain
to Ellis’ left shoulder. (Doc. 62-4). There is no evidence Ellis further complained about or sought
medical treatment for his shoulder. There are no documented bruises or cuts on Ellis’s body chart
that would be expected after being punched and kicked, as he alleges. As such, Ellis’s version of
the events that took place in his cell is insufficient to defeat Officer Gunn’s motion for summary
judgment.
The lack of physical injuries (other than from the mace) also supports the conclusion that
any force Officer Gunn deployed was not the sort that is “repugnant to the conscience of mankind,”
as required to state a claim for excessive force. Hudson, 503 U.S. at 9-10. Considering the first
of the Hudson factors, the need for the application of the force, Officer Gunn and one other officer
were responsible for conducting a cell block shakedown of Ellis’s cell. Ellis, an inmate admittedly
known to fight officers, was seen with contraband. There were three inmates in the cell that was
supposed to have only two inmates; the officers were outnumbered. Washington went after Gunn.
Even considering only these facts, it is reasonable to conclude some use of force to restrain Ellis
would have been needed. The next Hudson factor to consider is the relationship between that need
10
and the amount of force used. As discussed above, Ellis’s testimony that Officer Gunn started
punching, kicking, and stomping his head without warning is belied by the medical evidence.
Instead, the record establishes that, at most, the altercation between Ellis and Gunn caused Ellis
some shoulder pain that was documented on his body chart, but that he did not complain of again.
That amount of force is not out of proportion to the need of an officer who was outnumbered during
a shakedown, facing a known violent inmate, and who had already been attacked by one of the
inmates in the cell. The third Hudson factor requires consideration of the threat reasonably
perceived by the responsible official. The shakedown involved twenty correctional officers
searching a unit with ninety-six inmates. Although shakedowns are routinely performed, they are
dangerous and pose known risks to the officers performing them. (Doc. 57-2 at 10 (36:5-15)
(discussing prioritizing officer safety and maintaining control of inmates during shakedowns as
being necessary to prevent a major incident). As noted above, Officer Gunn was with one other
officer when he was sweeping Ellis’s cell, that had an extra inmate inside. Washington had already
come at Officer Gunn, and Ellis, a known fighter, had contraband. Officer Gunn reasonably
perceived Ellis as a threat. The fourth Hudson factor requires evaluation of any efforts to temper
the severity of the response, if any, then the court will look at the extent of the injury suffered by
the inmate.
Applying these factors to the present case, Officer Gunn’s use of force was reasonable and
not excessive as a matter of law. The lack of any evidence of injury other than minor shoulder
pain that Ellis never complained of again shows that there was no great use of force. Furthermore,
the incident occurred during a shakedown where Ellis was discovered to have contraband. Ellis
admitted that he has a tendency to fight correctional officers and that he “ain’t the one to be pulling
up on.” (Doc. 53-1 at 26 (97:11-19)). This was a high-risk situation where Ellis was found to be
11
violating rules, creating a disturbance, and being aggressive. It was reasonable for Officer Gunn
to use the amount of force he did to maintain order and recover contraband.
B. Excessive Force Claim Against Sgt. Aaron
1. Qualified Immunity
Like Officer Gunn, Sgt. Aaron argues there is no need for further analysis because Ellis
has failed to present evidence that Sgt. Aaron violated Ellis’s constitutional rights by using
excessive force following the cell search on July 16, 2017. (Doc. 52 at 5-6).
2. Excessive Force
Applying the Hudson factors, Sgt. Aaron’s use of the baton was not excessive. First, Ellis
did not suffer an injury that was objectively harmful enough to establish a constitutional violation.
Ellis does not claim he was injured when Aaron hit him with a baton because Aaron did not hit
him hard. (Doc. 53-1 at 29, 33 (109:1-12; 124:19-20)). Thus, the primary use of force Ellis
complains of is Sgt. Aaron’s use of mace.3 The use of chemical agents on recalcitrant prisoners is
not per se unconstitutional. Thomas v. Bryant, 614 F.3d 1288, 1310 (11th Cir. 2010). Thus, as to
Sgt. Aaron’s use of mace, the remaining Hudson factors must be considered. Ellis argues that any
force was unreasonable because he followed orders, he did not hit an officer, and he was not a
threat to any officer. (Doc. 60 at 7).
According to Ellis, he sat on the bench outside of his cell, unsecured, for about five minutes
before Sgt. Aaron arrived. (Doc. 53-1 at 13 (44:13-21)). Aaron then walks up to Ellis, and, based
on Aaron’s “aggressive” approach, Ellis believes that Aaron knew he fought with Gunn. (Id. at
17 (58:6-18)). As Aaron approaches, he orders Ellis to stand up, and Ellis stands. (Id. at 17-18
3
Although Ellis testified that Aaron hit him with his baton, Ellis also testified that he did
not suffer any injuries from Aaron hitting him with the baton because Aaron did not hit him that
hard. (Doc. 53-1 at 29, 33 (109:1-12; 124:19-20)).
12
(60:6-62:8)). Even though Ellis stood up, Aaron hits Ellis in the legs and buttocks with a baton
and immediately sprays him in the face with mace. (Id.). Aaron then orders Ellis to get on the
wall. (Id. at 19 (69:10-16)). Ellis did not comply with the order and testified he was “still tripping
off [Aaron] spraying me” and asked Aaron “why are you spraying me man” and why are you
“hitting and spraying me[?]” (Id. (69:16-19)). Officer Tillman approached Ellis and escorted him
to the wall, placing Ellis in handcuffs. (Id. at 21 (74:9-12)).
Sgt. Aaron testified that, while Gunn and Washington were scuffling, he saw an inmate
coming out of his cell, then noticed it was Ellis. (Doc. 62-1 at 37 (37:5-11). According to Aaron,
he told Ellis to “stop,” but Ellis would not stop blurting out obscenities to Aaron and the rest of
the Block, trying to get them “hyped up.” (Id. (37:13-17)). Aaron then told Ellis to “calm down”
and ordered him to face the wall. (Id. (37:17-18)). Aaron testifies that Ellis would not listen and
that Ellis threw his hands up still saying stuff, so Aaron sprayed Ellis and told him to turn and
around to be handcuffed. (Id. at 18-22). After being sprayed, Ellis was handcuffed and taken to
the infirmary for decontamination. (Id. at 37-38 (37:21-38:1))
Comparing the parties’ versions of events, there remains a genuine issue of material fact
as to whether Sgt. Aaron’s use of the mace constituted excessive force. Ellis contends that,
although unsecured, he was complying with Sgt. Aaron’s command to stand and not posing a
threat, but Sgt. Aaron sprayed him with the mace and hit him with the baton without warning.
Although Ellis did not comply with additional orders to get on the wall, Ellis does not complain
of any additional force before Officer Tillman took over. However, if Sgt. Aaron’s version of
events is believed, then Ellis was causing a disturbance and not obeying any of Sgt. Aaron’s orders.
In that case, Sgt. Aaron would have been justified in using some force to get Ellis to comply.
Construing this evidence in Ellis’s favor, a reasonable finder of fact could conclude that
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the force Sgt. Aaron applied was not a good faith effort to maintain or restore discipline.
According to Ellis, he had complied with Sgt. Aaron’s order to stand and had received no other
instructions when Sgt. Aaron decided to hit him with the baton and spray him with mace.
However, because questions of fact remain, summary judgment is not appropriate on this claim.
IV. Conclusion
Based on the foregoing, defendant Officer Gunn’s motion for summary judgment (doc. 55)
is GRANTED. Defendant Sgt. Aaron’s motion for summary judgment (doc. 51) is DENIED.
Counsel for Ellis and counsel for Sgt. Aaron should file a joint status report by August 17, 2020,
informing the court whether they believe this case would benefit from mediation or if they are
ready to begin pretrial proceedings.
DONE this 3rd day of August, 2020.
_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE
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