Burns v. Eaton et al

Filing 78

OPINION AND ORDER ADOPTING IN PART 75 Partial Report and Recommendations; therefore, defts' 58 Motion for Summary Judgment is GRANTED in its entirety, and this action is dismissed with prejudice; judgment will be entered accordingly. Signed by Judge Susan Webber Wright on 1/29/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
ROY D. BURNS,
ADC #091713
Plaintiff,

vs.

SERGEANT EDWARD D. EATON and
CORPORAL RENITA WHITE,
Defendants.

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No. 2:11-cv-00049-SWW-BD

OPINION AND ORDER
Plaintiff Roy D. Burns, an inmate confined in the Maximum Security Unit of the
Arkansas Department of Correction (ADC), brings this 42 U.S.C. § 1983 action against
Defendants Edward D. Eaton, a Sergeant with the ADC, and Renita White, a Corporal
with the ADC, alleging that Eaton used excessive force against him on July 2, 2010, by
spraying him with an excessive amount of pepper spray and by preventing him from
promptly decontaminating himself, and that White violated his constitutional rights when
she witnessed this incident, failed to intervene, and turned the shower water off so that
Burns could not rinse off the pepper spray. Defendants move for summary judgment
[doc.#58] arguing that (1) Burns’s claims against Defendants for money damages are
barred by sovereign immunity; (2) Burns failed to exhaust his claim against White; (3)
Defendants did not use excessive force against Burns; and (4) Eaton is entitled to
qualified immunity.

On January 8, 2013, the Court received a Partial Recommended Disposition
[doc.#75] from Magistrate Judge Beth Deere in which she recommends that Defendants’
motion for summary judgment be granted in part and denied in part. Specifically, the
Magistrate Judge recommends (1) that Burn’s claims for money damages against Eaton
and White in their official capacities be dismissed with prejudice; (2) that Burns’s claim
regarding Eaton’s use of force in applying pepper spray and his claim that White failed to
intervene in the application of pepper spray be dismissed with prejudice; and (3) that
Burns be permitted to proceed on his claim that Eaton and White, in their individual
capacities, prevented him from decontaminating himself for at least ten minutes after
Burns had been subdued with the pepper spray. In so recommending, the Magistrate
Judge concludes that Burns exhausted his claim against White and that Eaton is not
entitled to qualified immunity.
Defendants have filed objections to the Magistrate Judge’s Partial Recommended
Disposition [doc.#’s 76, 77]. After careful review of the Partial Recommended
Disposition and objections, as well as a de novo review of the record, the Court concludes
that the Partial Recommended Disposition should be, and hereby is, approved and
adopted as this Court’s findings with respect to the Magistrate Judge’s recommendation
(1) that Burn’s claims for money damages against Eaton and White in their official
capacities be dismissed with prejudice, and (2) that Burns’s claim regarding Eaton’s use
of force in applying pepper spray and his claim that White failed to intervene in the
application of pepper spray be dismissed with prejudice. The Court respectfully declines
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to adopt the remainder of the Magistrate Judge’s Partial Recommended Disposition,
however, and finds that Defendants’ motion for summary judgment should be, and hereby
is, granted in its entirety.
I.
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). The moving party “bears the initial responsibility of informing the
district court of the basis for its motion,” and must identify “those portions of [the record]
... which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properly
supported its motion for summary judgment, the nonmoving party must “do more than
simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The nonmoving party must
respond by submitting evidentiary materials that set out “‘specific facts showing ... a
genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The
inferences to be drawn from the underlying facts must be viewed in the light most
favorable to the party opposing the motion. Matsushita, 475 U.S. at 587 (citations
omitted). Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (citation and quotation marks
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omitted). However, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita,
475 U.S. at 587 (citation omitted). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
II.
The Court first declines to adopt that portion of the Magistrate Judge’s Partial
Recommended Disposition finding that Burns did not exhaust his claim against White. In
finding that Burns did exhaust his claim against White, the Magistrate Judge states as
follows:
Prisoners who want to file a lawsuit under 42 U.S.C. § 1983 must
first exhaust all “available” remedies. 42 U.S.C. § 1997e(a); Booth v.
Churner, 532 U.S. 731, 738, 121 S.Ct. 1819 (2001) (holding that available
remedies “must be exhausted before a complaint under § 1983 may be
entertained”). For purposes of § 1983, an “available remedy” is one that is
“capable of use for the accomplishment of a purpose; immediately utilizable
[and] accessible.” Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001). And
it does not matter that the prisoner subjectively believed that there was no
point in pursuing his administrative remedies. Lyon v. Vande Krol, 305
F.3d 806, 808–09 (8th Cir. 2002); Chelette v. Harris, 229 F.3d 684, 688
(8th Cir. 2000), cert. denied 531 U.S. 1156 (2001). If exhaustion is not
complete by the time a lawsuit is filed, the Court must dismiss all claims
that have not been exhausted. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.
2003).
Here, Defendants argue that Mr. Burns failed to exhaust his claims
against Defendant White because Defendant White is not mentioned in Mr.
Burns’s fully exhausted grievance relating to the claims giving rise to this
lawsuit. However, the failure of an inmate to name a prison official
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specifically in the grievance procedure does not preclude exhaustion.
Rather, if prison officials address the merits of an inmate’s grievance, even
if the grievance is procedurally flawed, the exhaustion requirement is
satisfied. See Bower v. Kelley, Case No. 12-678 (8th Cir. Dec. 13, 2012)
(per curiam) and Hammett v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012)
(per curiam).
Here, it is undisputed that Mr. Burns fully exhausted his claim
regarding Defendant Eaton’s alleged use of excessive force. Although
Defendant White was not named in that grievance, the merits of Mr.
Burns’s claim were addressed in grievance EAM10-02858. (#58-5 at pp.13) Accordingly, although the grievance was procedurally flawed, the
statutory exhaustion requirement was satisfied, and Defendants are not
entitled to judgment as a matter of law on that basis.
Partial Recommended Disposition at 4-5 (footnote omitted).
A.
The Court finds that Burns cannot be said to have exhausted his claim against
White as he did not name White in his grievance papers (EAM10-02858). Pursuant to
ADC Administrative Directive 09-01 – Inmate Grievance Procedure – “[g]rievances must
specifically name each individual involved for a proper investigation and response to be
completed by the ADC” and “[i]nmates who fail to name all parties during the grievance
process may have their lawsuit or claim dismissed by the court or commission for failure
to exhaust against all parties.” While the Prison Litigation Reform Act (PLRA) itself
does not require that all defendants be specifically named in an administrative grievance,
“it is the prison’s requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). By failing to name White in his
grievance papers, Burns has failed to properly exhaust his claim against her and White is

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thus entitled to judgment as a matter of law. See Jones v. Hobbs, No. 12-2002 (8th Cir.
Jan. 22, 2013) (per curiam) (finding that inmate failed to exhaust his administrative
remedies against two ADC employees because he did not name either of them in his
grievance papers, as required by the grievance policy of the ADC).
The Court recognizes that “the PLRA’s exhaustion requirement is satisfied if
prison officials decide a procedurally flawed grievance on the merits.” Hammett v.
Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (per curiam). It is not clear, however, how
Burns’s failure to name White in his grievance papers constitutes a “procedural flaw[]”
that can satisfy “the statutory exhaustion requirement[s],” Partial Recommended
Disposition at 5, given that Burns also failed to include in his grievance papers his
allegations that White or anyone else witnessed the incident of which he complains, failed
to intervene, and turned the shower water off so that Burns could not rinse off the pepper
spray. Those allegations simply were not raised by Burns in his grievance papers and,
thus, cannot be said to have been considered on the merits for purposes of possibly
satisfying the exhaustion requirements. See AD-09-01 (an inmate must be “specific as to
the substance of the issue or complaint to include the date, place, personnel involved or
witnesses...” in order to exhaust administrative remedies prior to filing a lawsuit).
B.
In a footnote, the Magistrate Judge states that “[b]ecause Defendant White is not
entitled to judgment as a matter of law based on Mr. Burns’s failure to exhaust, the Court
will not address the issue of whether Mr. Burns received notice of the ADC policy
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governing exhaustion.” Partial Recommended Disposition at 5 n.1. The Court must
therefore address this issue in the first instance, having found that White is entitled to
judgment as a matter of law based on Burns’s failure to exhaust his claim against her.
The Court does not find any genuine issue of material fact concerning whether
Burns received notice of the ADC policy governing exhaustion as Defendants assert in
their Statement of Facts in Support of their Motion for Summary Judgment that
“[i]nmates are informed that failure to name all parties involved may result in a dismissal
of their claims for failure to exhaust administrative remedies,” Defs.’ St. of Mat. Facts in
Supp. of their Mot. for Summ. J. at ¶ 52 [doc.#59], and Burns does not controvert this
assertion in his Statement of Facts in Support of his Response to Defendant’s Motion for
Summary Judgment [doc.#67]. Accordingly, Defendants’ assertion that “[i]nmates are
informed that failure to name all parties involved may result in a dismissal of their claims
for failure to exhaust administrative remedies” is deemed admitted. See Rule 56.1 of the
Local Rules of the United States District Court for the Eastern and Western Districts of
Arkansas (providing that all material facts set forth in the statement of material facts filed
by the moving party shall be deemed admitted unless controverted by the statement filed
by the non-moving party). The Court therefore finds that Burns was aware of the ADC
policy governing exhaustion.1

1

Burns states that “[d]ue to the State’s deliberate intervention to deny this Attorney’s
access to client, this attorney does not possess the knowledge sufficient to refute this allegation
[that Burns knew or should have known of the obligations and consequences of failure to exhaust
administrative remedies] except to state that the State has failed to show that the Plaintiff was in
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III.
The Court now turns to Eaton’s use of pepper spray on Burns. The Magistrate
Judge describes the circumstances surrounding the use of pepper spray on Burns as
follows:
According to the allegations in Mr. Burns’s verified complaint, on
July 2, 2010, he was taking a shower in isolation. Around 3:20 in the
afternoon, Defendant Eaton came to his shower and instructed him to “catch
the cuffs” so that he could be returned to his cell. (#2 at p.8) Mr. Burns
refused. Defendant Eaton again instructed Mr. Burns to “catch the cuffs”;
he again refused. At that time, Defendant Eaton pulled out his can of
pepper spray and cautioned Mr. Burns that if he again refused to obey a
direct order, he would be sprayed.
After engaging in a brief conversation, Defendant Eaton allegedly
stated “catch the cuffs or I’ll spray you.” (#2 at p.9) Then Mr. Burns,
realizing that the situation was “serious,” threw a shampoo bottle at
Defendant Eaton. (#2 at p.9) Defendant Eaton sprayed Mr. Burns with a
two-to-three second burst of pepper spray. Mr. Burns responded by
throwing a soap dish at Defendant Eaton. Defendant Eaton again sprayed
Mr. Burns with a two-to-three second burst of pepper spray. Mr. Burns
responded by spitting on Defendant Eaton. Defendant Eaton then sprayed
Mr. Burns’s face and genital area with his third, and final, burst of pepper
spray. Mr. Burns claims that Defendant White witnessed this series of
events and failed to assist him.
After the final burst of pepper spray, Mr. Burns began to scream and
attempted to turn on the shower. According to Mr. Burns, Defendant Eaton
instructed Defendant White to turn the shower water off so that Mr. Burns
would not be able to rinse off the chemical agent from his face and body.
Defendant White turned off the shower. About ten or fifteen minutes later,
receipt of a copy of the administrative rules or had knowledge of the consequences of failing to
exhaust administrative remedies against Defendant White.” Br. in Supp. of Pl.’s Resp. to Def.s’
Mot. for Summ. J. at 4-5 [doc.#68]. It is not explained, however, how Burns and his attorney
were unable to communicate about any notice Burns had about the exhaustion procedures. The
Court finds that Burns has not created a genuine issue of material fact with respect to this notice
issue.
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Lieutenant Walker (not a party to this lawsuit) turned the shower water on
so that Mr. Burns could decontaminate himself.
Partial Recommended Disposition at 6-7.
The Court agrees with the Magistrate Judge that
[b]ased on this information, it appears that Defendant Eaton was justified in
using the chemical agent to force Mr. Burns to comply. Mr. Burns refused
to obey multiple direct orders and continued to grow increasingly
combative. Even after Defendant Eaton applied pepper spray, Mr. Burns
continued to throw various items at Defendant Eaton and began spitting on
him. Based on these undisputed facts, the force used was not excessive.
Further, Defendant White is not liable for her failure to assist Mr. Burns.
Because Defendant Eaton was justified in using force, Defendant White had
no obligation to intervene. Accordingly, these claims should be dismissed,
with prejudice.
Partial Recommended Disposition at 7.
The Court, however, respectfully declines to adopt that portion of the Magistrate
Judge’s Partial Recommended Disposition (1) that Burns be permitted to proceed on his
claim that Eaton and White (who the Court has already determined is entitled to judgment
as a matter of law), in their individual capacities, prevented him from decontaminating
himself for at least ten minutes after Burns had been subdued with the pepper spray and
that important facts remain in dispute as to whether Eaton or White thereby acted
maliciously,2 and (2) that Eaton is not entitled to qualified immunity. Partial
Recommended Disposition at 7, 10-11.
2

This allegation arguably was not properly exhausted as Burns does not allege in his
grievance papers that Eaton or anyone else prevented him from decontaminating himself for at
least ten minutes after he had been subdued with the pepper spray. Nevertheless, the Court
addresses this allegation as Defendants apparently do not claim that Burns failed to exhaust this
allegation.
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A.
“It is ‘well established that a malicious and sadistic use of force by a prison official
against a prisoner, done with the intent to injure and causing actual injury, is enough to
establish a violation of the Eighth Amendment's cruel and unusual punishment clause.’”
Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2012) (quoting Foulk v. Charrier, 262
F.3d 687, 702 (8th Cir. 2001)). “‘[T]he ‘core judicial inquiry’ ... [is] not whether a certain
quantum of injury was sustained, but rather ‘whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’” Id.
(quoting Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 1177-1178 (2010) (per curiam)).
“Qualified immunity shields a government official from liability and the burdens
of litigation unless his conduct violates ‘clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Loch v. City of Litchfield, 689
F.3d 961, 965 (8th Cir. 2012) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“An official is entitled to qualified immunity unless (1) the evidence, viewed in the light
most favorable to the plaintiff, establishes a violation of a constitutional or statutory right,
and (2) the right was clearly established at the time of the violation.” Id. (citing Pearson
v. Callahan, 555 U.S. 223, 232 (2009)).
B.
In his affidavit, Burns states in pertinent part as follows:
3. The subject of the suit involves an incident in which Sgt. Eaton sprayed
me with a chemical agent while in the shower. Sgt. Eaton sprayed me three
times all over the front part of my body and face and ears. Each spraying
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was about a 2-3 second burst and the entire spraying period took between
one and one and a half minutes.
4. The immediate effect of the spraying was an intense burning pain,
especially on my face and genital areas. the burning lasted about 3 days and
was exacerbated everytime I scratched my face, ears or genital area.
5. When I was first sprayed, I turned on the water to attempt to wash it off.
I was under the water about 5 seconds when Sgt. Eaton told Cpl. White ‘I
didn’t tell that bitch he could wash that off, so turn the water off.’ She (Cpl.
White) then jumped up and turned off the water. Between 10 and 15
minutes later Lt. Walker came in and made them turn the water back on.
Burns Aff. at ¶ 5 [doc.#69].3
The Magistrate Judge states that Eaton has failed to offer any explanation as to
why he did not allow Burns to decontaminate himself after being sprayed with three
separate bursts of pepper spray, or why he instructed White to turn the shower water off
to prevent Burns from decontaminating himself. Partial Recommended Disposition at 10.
She states that based on the evidence presented, after the third burst of pepper spray was
administered, Burns no longer posed a threat to either Defendant’s safety, and Eaton thus
is not entitled to qualified immunity. Id. The Court disagrees.
In his affidavit, Eaton states that “the length of time between the last spray and
when Burns would have been allowed to shower would have been dependent on Burns’s
actions” and that “[o]nce he calmed down and discontinued his aggressive and assaultive

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In stating in ¶ 5 of his affidavit that Eaton instructed White to turn off the water when
he “was first sprayed,” it is not clear if Burns is referring to the first burst of pepper spray after
which there were two others or if, as stated in his complaint, Burns is referring to the time period
following the third and final burst of pepper spray.
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behavior, then he would have been allowed to shower.” Eaton Aff. at ¶ 15. Burns does
not dispute that after he spit at Eaton (resulting in the final burst of pepper spray), Eaton,
“[p]er practice, ... left the isolation shower area after being instructed to do so by his
supervisor, and was not allowed back in the area where inmate Burns was since he was
involved in the incident with Burns” and that having “immediately exited the area to
notify his supervisor, Lieutenant Walker, of the incident,” it “[t]herefore, ...would not
have been Eaton’s responsibility to monitor inmate Burn’s decontamination shower once
the supervisor was called.” Def.s’ St. of Facts in Supp. of their Mot. for Summ. J. at ¶¶
21-25 [doc.#59]. Indeed, Burns acknowledged that after Eaton pepper-sprayed him,
Eaton “just walk[ed] away to get a supervisor.” Br. in Supp. of Pl.’s Resp. to Def.s’ Mot.
for Summ. J. at 5. Eaton may have refused to allow Burns to wash off the pepper spray
prior to his immediately leaving the area to report the incident to Lieutenant Walker but
Burns does not dispute that following the final burst of pepper spray, he threatened to stab
Eaton the first chance he got, Def.s’ St. of Facts in Supp. of their Mot. for Summ. J. at ¶¶
20-21 [doc.#59], and he acknowledges that he was “really mad” after being peppersprayed the second time, that he was screaming following the final burst of pepper spray,
and that he “ran to the back of the shower to turn the water on to wash [the pepper spray]
off” (to continue his combativeness?). Compl. at ¶¶ 10-11 [doc.#2]; Am. Compl. at ¶¶ 78 [doc.#6]. It is clear, then, that Burns, rather than having been “subdued from the
chemical agent” and “no longer pos[ing] a threat to either Defendant’s safety” after the
third burst of pepper spray, Partial Recommended Disposition at 10-11, was still agitated
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and combative when Eaton immediately left the area to report the incident to Lieutenant
Walker. Given the uncontroverted facts, the Court disagrees with the Magistrate Judge
that important facts remain in dispute as to whether Eaton or White acted maliciously.
Rather, the Court determines that Eaton’s use of pepper spray and the 10-15 minute lapse
between the final burst of pepper spray and the decontamination shower cannot in these
circumstances be considered a malicious and sadistic use of force by a prison official
against a prisoner, done with the intent to injure and causing actual injury, thereby
violating a clearly established constitutional or statutory right of which a reasonable
person would have known. Cf. Jones v. Shields, 207 F.3d 491, 493 (8th Cir. 2000) (Eighth
Circuit found that inmate failed to prove a violation of the Eighth Amendment by use of
pepper spray to his face and noted that upon being pepper-sprayed, inmate was
immediately pushed against the wall and handcuffed by Officer and “remained against the
wall for 10 or 15, maybe 20 minutes[,] .... just standing there .... drooling ... snot and
everything.”); Perry v. Gray, No. 07-cv-4013, 2009 WL 2413292, *4 (W.D. Ark. Aug. 4,
2009) (officer acknowledged that after receiving report of problem with inmate at
approximately 14:45, he pepper-sprayed inmate and reported his actions to other officers
but his shift ended at 15:00 and he “left for the day,” instructing a lieutenant that inmate
would need a shower; court found use of force was reasonable and dismissed action).4
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Burns claims in his response to Defendants’ motion for summary judgment (and in his
original complaint) that only extremely hot water was provided making it impossible for him to
get the chemical agents off his body when water was provided. Burns, however, does not allege
that Eaton (or, for that matter, White) was in any way responsible for the temperature of the
water. Burns cites to “Ex. 11, 12" in ¶ 10 of his Statement of Facts in Support of his Response to
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Accordingly, Eaton is entitled to qualified immunity.5
IV.
For the foregoing reasons, the Court adopts as this Court’s findings the Magistrate
Judge’s Partial Recommended Disposition with respect to her recommendation (1) that
Burn’s claims for money damages against Eaton and White in their official capacities be
dismissed with prejudice, and (2) that Burns’s claim regarding Eaton’s use of force in
applying pepper spray and his claim that White failed to intervene in the application of
pepper spray be dismissed with prejudice. The Court respectfully declines to adopt the
remainder of the Magistrate Judge’s Partial Recommended Disposition, however. Rather,

Defendant’s Motion for Summary Judgment [doc.#67] but the Court is unable to locate those
exhibits in the record.
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The Magistrate Judge found “particularly disturbing” Defendants’ question, “‘What
good would chemical agents be to law enforcement officers if the effects could be immediately
flushed down the drain?’” Partial Recommended Disposition at 8 (quoting Def.s’ Reply to Pl.’s
Resp. to Def.s’ Mot. for Summ. J. at 3 [doc.#73]). The Magistrate Judge then posed the
question, “Do the Defendants suggest that such behavior is appropriate or, even more troubling,
that such conduct should be encouraged?” Id. Defendants, however, state in their objections
that “[t]aken in context, ... the entire portion of Defendants’ reply demonstrates that the purpose
for which chemical agent was used and the relationship between its use and the decontamination
shower was made in good faith to restore order.” Def.s’ Objections to the Recommended
Disposition at ¶ 54 [doc.#76]. Defendants’ full quote in their reply is as follows:
Assuming for the purpose of this Reply that Plaintiff’s allegation that he was
initially prohibited from removing the chemical agent and that he was permitted
after 10 minutes to shower, this fact alone does not create a triable issue. To the
contrary it would support the fact that chemical agent was appropriately used to
prevent injury and force compliance with orders where Plaintiff was behaving
belligerently and in a hostile manner. What good would chemical agents be to law
enforcement officers if the effects could be immediately flushed down the drain?
Def.s’ Reply to Pl.’s Resp. to Def.s’ Mot. for Summ. J. at 3 [doc.#73].
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the Court finds that (1) Burns did not exhaust his claim against White, (2) no important
facts remain in dispute as to whether Eaton or White acted maliciously in Eaton’s use of
pepper spray and the 10-15 minute lapse between the final burst of pepper spray and the
decontamination shower, and (3) Eaton is entitled to qualified immunity. Accordingly,
the Court grants Defendants’ motion for summary judgment [doc.#58] in its entirety and
hereby dismisses this action with prejudice. Judgment will be entered accordingly.
IT IS SO ORDERED this 29th day of January 2013.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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