Thomas v. Byrd et al

Filing 78

RECOMMENDED DISPOSITION recommending that 67 Defendants' Motion to Dismiss and 73 Defendants' Motion for Summary Judgment be denied. In addition, this Court recommends an award of $500.00 for Plaintiff regarding the use of excessive force by Defendant Roberson. This Court further recommends that all other pending claims be dismissed with prejudice. Signed by Magistrate Judge Beth Deere on 10/30/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION A N T H O N Y JAMES THOMAS, Jr V. K A R L BYRD, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District C o u rt Judge Susan Webber Wright. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of y o u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the recommended disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 C A S E NO. 4:08CV03840 SWW/BD DEFENDANTS P L A IN T IF F II. I n t r o d u c t io n : P la in tiff Anthony James Thomas, Jr., previously a pretrial detainee in the Faulkner C o u n ty Detention Facility (FCDF), filed this 42 U.S.C. 1983 action pro se (docket entry # 2 ) alleging constitutional violations by FCDF employees. Plaintiff raised additional a lle g a tio n s in an amended complaint (#8), second amended complaint (#11), and third a m e n d e d complaint (#20). Plaintiff sued Defendants in their personal capacities only (# 1 1 ). There is no jury demand. C u rre n tly pending are Defendants' Motion to Dismiss (#67), regarding Plaintiff's a lle g e d failure to respond to discovery, and Defendants' Motion for Summary Judgment (# 7 3 ). The Court recommends that the Motion to Dismiss (#67) and the Motion for S u m m a ry Judgment (#73) be DENIED. After holding an Evidentiary Hearing on September 2, 2009, this Court re c o m m e n d s an award of $500.00 for Plaintiff regarding the use of excessive force by D e fe n d a n t Roberson. This Court recommends that all other pending claims be D IS M IS S E D WITH PREJUDICE. III. B ackground: P la in tiff alleged that, while detained at the FCDF, he was: (1) pepper sprayed w ith o u t cause; (2) chained to a hitching post; (3) subjected to unconstitutional conditions o f confinement; (4) given blended meals instead of regular meals; (5) threatened with a ta s e r; (6) denied regular showers; (7) denied use of the grievance process; (8) placed in " lo c k -d o w n " for no reason; and (9) denied timely legal mail. Plaintiff named Karl Byrd, 2 Bobby Brown, John Randall, Todd Shock, Brianna Pickard, Blake Roberson, Wade, Glen W ilc o x , Shaun Thomas and Danny Lewis as Defendants. The Court screened Plaintiff's complaint (#2), amended complaint (#8), second a m e n d e d complaint (#11) and third amended complaint (#20), and dismissed the blended m e a ls , taser threat, grievance process, and legal mail claims. In addition, part of P la in tiff's Due Process claim was dismissed. As a result, Defendants Brown, Randall, a n d Wade were dismissed from the lawsuit. After screening, the remaining claims allege that: (1) Defendants Shock, Thomas, L e w is, and Roberson used excessive force against Plaintiff by pepper spraying him w ith o u t sufficient cause; (2) Defendants Shock and Thomas chained Plaintiff to a hitching p o s t; (3) Defendants Byrd, Wilcox, Shock, and Pickard exposed Plaintiff to u n c o n stitu tio n a l conditions of confinement by placing him in an overcrowded cell, d e n y in g him the use of a sleeping mat, and denying him regular showers; and (4) Defendants Byrd, Shock, and Roberson violated Plaintiff's Due Process rights by p la c in g him in "lock-down" without cause. IV. P e n d in g Motions: A . Motion to Dismiss Defendants filed a motion to dismiss (#67) under Rule 41(b) for Plaintiff's alleged fa ilu re to respond to discovery and a Court Order. Defendants moved to compel Plaintiff to respond to discovery requests (#63), and Plaintiff was ordered to respond to that m o tio n (#65). After Plaintiff failed to file a response, Defendants filed the pending 3 motion to dismiss (#67). The Court ordered Plaintiff to respond to the motion to dismiss (# 6 9 ), but that same day, Plaintiff responded to the motion to compel stating that he had " s e n t answers to Defendants several months ago and [had] called and requested several c o p ie s of [his] answers to defendants questions/discovery." (#71, p. 1) Defendants did n o t reply to Plaintiff's assertion that he had answered Defendants' discovery requests. Based on this record, Defendants' motion to dismiss cannot be granted. Accordingly, the Court recommends that Defendants' motion to dismiss (#67) be D E N IE D . B . Motion for Summary Judgment Defendants also have filed a motion for summary judgment (#73) contending that th e y are entitlement to qualified immunity and judgment based on that immunity. In a d d itio n , Defendants contend that Plaintiff's case is subject to dismissal because he failed to exhaust his administrative remedies regarding several conditions-of-confinement c la im s (#74, p. 6-7). In fact, Defendants' primary argument regarding Plaintiff's claims b a s e d on unconstitutional conditions of confinement is that Plaintiff failed to exhaust his a d m in is tra tiv e remedies. Since failure to exhaust is an affirmative defense, Defendants b e a r the burden of proof on this defense. They have not met that burden. Furthermore, th e y misapprehend Supreme Court precedent on the issue of exhaustion. 1 . Exhaustion D e fe n d a n ts argue that "[w]hen all claims have not been exhausted, the case is s u b je c t to dismissal." (#74, p. 7) They state further that "[d]ismissal of the case is proper 4 when at least some of the claims are unexhausted." (#74, p. 7) In 2007, the Supreme C o u rt rejected the total exhaustion approach argued by Defendants. Jones v. Bock, 549 U .S . 199, 220-224, 127 S.Ct. 910, 923-926 (2007). Thus, this argument for dismissal is n o t supported by existing law. Even had the Supreme Court's 2007 precedent not mandated denial of the motion, D e fe n d a n ts failed to provide any evidence of Plaintiff's alleged failure to exhaust. The m o tio n does not contain a single affidavit or declaration from an official at the FCDF w ith knowledge of Plaintiff's grievance history. Furthermore, no one at the evidentiary hearing was able to testify about Plaintiff's g rie v a n c e history. To the contrary, when Defendant Shock testified, he admitted that he h a d not reviewed the history of Plaintiff's grievances and did not know whether Plaintiff h a d exhausted his administrative remedies. Because failure to exhaust is an affirmative d e fe n s e , Defendants appear to have abandoned this argument. Id. at 216. To the extent th e y have not, it has no merit given the lack of evidence presented in support of this d e fe n se . 2. D e fic ie n c ie s in Motion for Summary Judgment It is important and disturbing to note that some of the Defendants' contentions in th e ir motion for summary judgment lack factual support, even when viewed in a light m o s t favorable to Defendants. For example, in the excessive force section of Defendants' b rie f in support of their motion, Defendants argue for dismissal of Plaintiff's excessive fo rc e claim based on Officer Lewis's alleged use of pepper spray (mace): 5 Plaintiff has alleged that Officer Thomas used mace on him and that Officer L e w is used (2 cans) of mace on him. There is no indication that either of th e s e events ever happened as described by the Plaintiff. Plaintiff's a lle g a tio n is only supported by his own self-serving testimony. By this M o tio n , the burden of proof has shifted to the Plaintiff to come forward w ith more than just bare allegations. Plaintiff has not and cannot present s u ffic ie n t evidence to support his claims of excessive force. (#73, p. 4-5) Defendants' statement leaves the distinct impression that they are arguing Defendant L e w is did not use pepper spray on the Plaintiff (although Defendants did not provide any a ffid a v its, deposition testimony, or declarations in support of this assertion). D u rin g the evidentiary hearing, however, instead of denying that Defendant Lewis h a d used pepper spray, Defendants presented three separate incident reports documenting D e fe n d a n t Lewis's use of pepper spray on Plaintiff (Defendants' Ex. 2). In addition, D e fe n d a n t Lewis testified in detail regarding the incident about which the Plaintiff c o m p la in e d . This undisputed evidence that Defendant Lewis did indeed use pepper spray p la c e s the assertions in Defendants' brief perilously close to the line of misrepresenting to th e Court, in violation of Rule 11(b)(4) of the Federal Rules of Civil Procedure. Defendants' motion for summary judgment was further deficient in its reliance s o le ly on Defendants' "belief" rather than on evidence. Plaintiff alleged that the c o n d itio n s of his confinement were unconstitutional. Defendants asked for summary ju d g m e n t because they "believe[d], however, that the Plaintiff's conditions of c o n fin e m e n t were not unconstitutional." (#74, p. 6) Such a belief, without the support of a n y evidence as to the actual conditions of confinement, was insufficient to shift the b u rd e n of production to Plaintiff and rendered Defendants' motion for summary 6 judgment, essentially, a request to dismiss for failure to state a claim. The Court had a lre a d y determined that Plaintiff had stated a claim for relief (#25, 39). Plaintiff also alleged that his Due Process rights were violated by his placement in lo c k -d o w n without cause. Defendants' motion for summary judgment and supporting b rie f discuss vandalism at the FDCF: "It is reasonable, under the conditions described by th e Plaintiff, that officials in Faulkner County were charged with attempting to shift the in m a te population immediately in order to accommodate the increased need for space c a u s e d by the inmate vandalism." (#74, p. 12) The administrative need to house Plaintiff temporarily in a certain area of the jail w o u ld justify Defendants' placement of Plaintiff and would defeat his due process claim. Defendants could have prevailed on this issue in their motion for summary judgment. Defendants failed to provide any evidence in support of their motion, however, that there w a s an administrative reason for Plaintiff's temporary placement in lock-down. They did p re s e n t such evidence at the hearing, so it is puzzling why they did not include it in their m o tio n for summary judgment. It is black-letter law that courts cannot assume facts fa v o ra b le to the moving party when assessing the merits of a motion for summary ju d g m e n t. In fact, Defendants could have prevailed on most of the claims in this case had th e y provided evidence to support their motion for summary judgment. They did not. There were no depositions, no affidavits, no declarations, no answers to interrogatories or re q u e s ts for admission, and no documentary support for most of Defendants' assertions in 7 the motion for summary judgment. If conclusory statements, general denials, and factual a s s e rtio n s not based on personal knowledge are insufficient to avoid summary judgment, it is axiomatic that they are insufficient to grant summary judgment. Accordingly, D e fe n d a n ts ' motion for summary judgment (#73) must be DENIED. V. E v id e n c e Presented at the Hearing: D u rin g the evidentiary hearing, Plaintiff testified that if he could go back in time, h e likely would not file the lawsuit. He testified that most of the Defendants were "just d o in g their jobs." He declined, however, to voluntarily dismiss this action. Plaintiff m a in ta in e d that several of the alleged incidents violated his constitutional rights. A. Conditions of Confinement C o n d itio n s of confinement claims for pretrial detainees are analyzed under the Due P ro c e s s Clause of the Fifth Amendment (as made applicable to states under the F o u rte e n th Amendment), and not under the Eighth Amendment, which applies to c o n v ic te d persons. Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009) (citing Johnson-El v . Schoemehl, 878 F.2d 1043, 1048 (8th Cir.1989); Bell v. Wolfish, 441 U.S. 520, 535, 99 S .C t. 1861, 60 L.Ed.2d 447 (1979)). In spite of this technical distinction, conditions of c o n fin e m e n t claims asserted by pretrial detainees are analyzed under the same "deliberate in d iffe re n c e " standard as conditions of confinement claims made by convicted persons. Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). 8 Pretrial detainees and convicted inmates, like all persons in custody, have the same rig h t to basic human needs of food, clothing, shelter, medical care, and reasonable safety. Id. Accordingly, the same standard of care is appropriate. The Eighth Amendment's " c ru e l and unusual punishment" standard, however, does not apply. Instead, the injuries d e ta in e e s suffer must be necessarily incident to administrative interests in safety, security a n d efficiency. Constitutionally infirm practices are those that are punitive in intent, th o s e that are not rationally related to a legitimate purpose, and those that are rationally re la te d , but are excessive, in light of their purpose. Bell, 441 U.S. at 538, n. 20. In Bell, the Supreme Court explained that the Eighth Amendment protects a c o n v ic te d inmate from "cruel and unusual" punishment, whereas the Due Process Clause re s tric ts punishing a detainee prior to an adjudication of guilt. Therefore, the proper in q u iry is whether the conditions imposed amount to punishment of the detainee. Bell, 441 U.S. at 535. "The infliction of punishment is a deliberate act intended to chastise or d e te r." Butler, 465 F.3d at 344 (quoting Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2 3 2 1 (1991)). Plaintiff alleged that he spent four or five days in a two-man cell filled with fifteen in m a te s , that he was deprived of a bunk or sleeping mat, and that he was forced to sleep o n the concrete floor that was covered in urine and feces. He alleged that as a result this e x p o s u re , he developed hemorrhoids and an open sore caused by exposure to raw sewage. Plaintiff did not present any evidence of exposure-related injury during the 9 evidentiary hearing. He stated that during this time, Defendants Shock and Wilcox d e n ie d his multiple requests for a mat and blanket and that Defendant Pickard would not a llo w Plaintiff to take showers. In addition, Plaintiff alleged Defendants Byrd and Shock re fu s e d to remove Plaintiff from lock-down. Testimony during the evidentiary hearing showed that Plaintiff was placed in lockd o w n at about 8 p.m. on October 10, 2008.1 Other inmates in lock-down had vandalized a n d flooded the cell where Plaintiff was housed. Due to the vandalism, Plaintiff was m o v e d to a large holding cell at about 2:00 a.m. This holding cell was the two-man cell P la in tiff described that he shared with fourteen other inmates. The toilet in the holding c e ll overflowed twice, with the overflow draining into a hole in the middle of the cell flo o r. At some point, trusties2 were sent in to clean the cell. P la in tiff alleged that he remained in the holding cell for four days (#2, p. 4-5). It is u n d is p u te d from the evidence presented at the hearing that Defendants moved Plaintiff to th e large holding cell out of necessity. Furthermore, Defendants kept the inmates in the 1 This placement in "lockdown" is also the basis of Plaintiff's Due Process claim A "trusty" is a prisoner who has gained the "trust" of officers and is given various re s p o n s ib ilitie s in a jail or prison. 2 10 holding cell for a limited period of time. Although the conditions described by Plaintiff w e re deplorable, the evidence presented demonstrated that Plaintiff's placement was the re s u lt of administrative necessity. When the toilet overflowed, trusties were sent in to c le a n the cell. See Smith v. Copeland, 87 F.3d 265, 268 (8th Cir.1996) (exposure to raw s e w a g e from an overflowed toilet for four days did not violate the Constitution where P la in tiff was not exposed to disease and did not suffer any adverse consequences as a re s u lt of the exposure). There was no evidence that any of the Defendants placed and left P la in tiff in the holding cell as punishment. See Bell, 441 U.S. at 539 (where a particular c o n d itio n or restriction of pretrial detention is reasonably related to a legitimate g o v e rn m e n ta l objective, it does not, without more, amount to punishment). Accordingly, th e claim against Defendants Shock and Byrd for leaving Plaintiff in the holding cell s h o u ld be DISMISSED WITH PREJUDICE. Plaintiff alleged that Defendants Shock and Wilcox denied his multiple requests fo r a mat and blanket during the four days he spent in the large holding cell. Plaintiff did n o t clearly testify as to whether he was denied a mat during both night and day, or just d u rin g the day. Defendant Shock testified that he did not have the authority to give P la in tiff a day mat. Defendant Wilcox testified that the use of a daytime mat was a m e d ic a l issue. Plaintiff did submit a request for a day mat, but the nurse, who is not a party to this la w s u it, denied the request. Plaintiff did not demonstrate the need for, or entitlement to, 11 use of a day mat at the hearing. Regardless, none the medical personnel with authority to is su e a day mat are parties to this lawsuit. Defendant Wilcox testified that a night mat and blanket are mandatory. Further, h e was not aware of any instances when an inmate did not receive a night mat. Defendant W ilc o x did concede that it was possible that Plaintiff did not have a night mat when he w a s moved to the large holding cell at 2:00 a.m. This instance of temporary deprivation, a s s u m in g it occurred, is insufficient to show a constitutional violation. Plaintiff's allegation that he was denied a mat and blanket for the entire four days h e was in the large holding cell is not credible. Based on Plaintiff's testimony, there w o u ld be fourteen inmate witnesses to corroborate this allegation, and there is no s u p p o rtin g testimony in the record. In any event, even if the allegation were s u b s ta n tia te d , there is no evidence that either Defendant Wilcox or Defendant Shock was a w a re of the denial of a night mat and blanket. If Defendants Wilcox and Shock were not a w a re of this alleged depravation, they were not deliberately indifferent, as a matter of la w . See Lenz v. Wade, 460 F.3d 991, 995 (8th Cir. 2007) (official cannot be liable for d e n y in g inmate humane conditions of confinement unless the official knows of and d is re g a rd s as excessive risk to inmate health or safety). Accordingly, the denial of a mat a n d blanket claim against Defendants Shock and Wilcox should be DISMISSED WITH P R E JU D IC E . 12 Plaintiff alleged that Defendant Pickard would not allow him to take showers w h ile in lock-down. At the evidentiary hearing, Defendant Pickard testified that she was n o t responsible for taking the detainees to shower. In fact, Defendant Pickard did not w o rk the shift during which inmates showered, according to her undisputed testimony. After this testimony, Plaintiff apologized to Defendant Pickard for naming her in this la w s u it. Plaintiff explained that when Defendant Pickard's shift began, he was frustrated b e c a u s e he had not been allowed to shower earlier. Plaintiff did not name any other D e fe n d a n t who might have been responsible for denying him showers. Accordingly, the c la im against Defendant Pickard should be DISMISSED WITH PREJUDICE. B . Due Process P re tria l detainees may not be punished, and whether a particular restriction or c o n d itio n accompanying pretrial detention is punishment turns on whether the restriction o r condition is reasonably related to a legitimate governmental objective. Martinez v. T u rn e r , 977 F.2d 421, 423 (8th Cir.1992) cert. denied, 507 U.S. 1009, 113 S.Ct. 1658 (1 9 9 3 ). Regarding disciplinary segregation, a plaintiff must receive advance notice of the c la im e d violations, have an opportunity to present evidence on his behalf at the d is c ip lin a ry proceeding, including the right to call witnesses, and receive a written s ta te m e n t by the disciplinary committee of its findings. Wolff v. McDonnell, 418 U.S. 5 3 9 , 564-66, 94 S.Ct. 2963 (1974). 13 Plaintiff alleged that Defendant Roberson placed him in lock-down without just c a u s e . Although not clearly explained by Plaintiff, this allegation appears to relate to two s e p a ra te incidents. The first incident occurred around October 10 or 12, 2008 (#2, p. 4).3 O n this occasion, it appears that Defendant Roberson cited Plaintiff and another inmate fo r kicking a cell door (#75-6, p. 1). Plaintiff stated that he was disciplined for knocking o n the cell window. It appears Plaintiff received notice of the charges and a review (#756 , p. 2, 4). The reviewing officer gave Plaintiff credit for time served. Plaintiff in te rp re te d this action as a sentence of zero days in lock-down. Defendants agree that Plaintiff "prevailed" on his appeal of this disciplinary, but th e y contend that Plaintiff was left in isolation after this to "accommodate the increased n e e d for space caused by the inmate vandalism," and not as punishment (#74, p. 12). Testimony during the evidentiary hearing supports Defendants' assertion that a d m in is tra tiv e need, not intent to punish, was the cause of Plaintiff's stay in lock-down a fte r he prevailed in his appeal. Plaintiff has not provided any evidence to the contrary. The second incident occurred around November 22, 2008. Plaintiff alleged that he w a s placed in the "hole" even after the reviewing officer, Officer Hall, declined to s e n te n c e Plaintiff to any days in lock-down (#20, p. 1). It appears that Plaintiff admitted a t least one disciplinary infraction related to this incident (#75-6, p. 6). It also appears The incident report lists the incident date as October 12, 2008 (#75-6, p. 1). P la in tiff's allegations and the incident review state Plaintiff began his time in lock-down o n October 10, 2008 (#2, p. 4; #8, p. 2-3; #75-6, p. 2). There is no evidence to indicate th a t two separate disciplinary issues arose during this time. 14 3 that officials at the FCDC did not strictly comply with the requirements of Due Process. See Wolff v. McDonnell, 418 U.S. 539, 564-66, 94 S.Ct. 2963 (1974) (due process in p riso n disciplinary proceeding require advance notice of the claimed violations, a written s ta te m e n t by the disciplinary committee of its findings, and the right to call witnesses). Regardless, Plaintiff has failed to show that any one of the named Defendants was re s p o n s ib le for the inadequate review process. Neither of the officers reviewing P la in tiff's alleged disciplinary violations are Defendants in this matter. Because Plaintiff h a s failed to connect any of the named Defendants to a violation of his Due Process rig h ts , the claims against these Defendants should be DISMISSED WITH PREJUDICE. C . Excessive Force W h e n reviewing an excessive force claim, courts should consider the objective n e e d for applying force, the relationship between the need and the degree of force used, th e threat the officials reasonably perceived, any other efforts used to diminish the s e v e rity of a forceful response, and the extent of the injury inflicted. Walker v. Bowersox, 5 2 6 F.3d 1186, 1188 -1189 (8th Cir. 2008) (citing Hudson v. McMillian, 503 U.S. 1, 7, 1 1 2 S.Ct. 995 (1992)). The use of force against Plaintiff, a pretrial detainee, must have been necessary to fu rth e r some legitimate institutional interest such as safety, security, or efficiency. Furthermore, the force used must not have exceeded the degree to which a reasonable o ffic e r would have believed necessary to achieve those goals. Johnson-El v. Schoemehl, 8 7 8 F.2d 1043, 1048 (8th Cir. 1989). Force may be justified to make an inmate comply 15 with a lawful prison regulation or order, but only if the inmate's noncompliance also p o s e s a threat to other persons or to prison security. Treats v. Morgan, 308 F.3d 868, 875 (8 th Cir. 2002). P la in tiff alleged in his unverified, amended complaint (#8) that Defendant Shock o rd e re d Officer Thomas to pepper spray him without sufficient cause. Plaintiff alleged th a t Defendant Shock then refused to allow Plaintiff to wash off the pepper spray. During th e evidentiary hearing, however, Plaintiff testified that Defendant Shock did not use e x c e s s iv e force against him and that Defendant Thomas had not pepper sprayed him. Defendants Shock and Thomas both testified that they had not participated in a peppers p ra y incident involving Plaintiff. The only allegation of excessive force presented d u rin g the evidentiary hearing against Defendants Shock and Thomas was that Defendant T h o m a s grabbed and escorted Plaintiff roughly. This allegation falls far short of a c o n s titu tio n a l violation. Accordingly, the excessive force claims against Defendants S h o c k and Thomas should be DISMISSED WITH PREJUDICE. P la in tiff alleged in his verified complaint (#2) that on one occasion, Officer Lewis d o u s e d him with two cans of pepper spray simply because Officer Lewis was upset. Both P la in tiff and Defendant Lewis testified that Plaintiff was not the intended target of the p e p p e r spray in that incident. The testimony largely reflected the information included in in c id e n t reports Defendants provided at the evidentiary hearing (Defendants' Ex. 2). O n that occasion, Plaintiff was in a large holding cell with an inmate who was c a u s in g a disturbance. While Defendant Lewis attempted to remove the rowdy inmate 16 from the holding cell, the inmate began swinging his arms and resisting. At that point, D e fe n d a n t Lewis attempted to pepper spray the inmate. The pepper spray canister m a lfu n c tio n e d , resulting in pepper spray on the right side of Defendant Lewis's face.4 D e fe n d a n t Lewis then took pepper spray from another guard and used it against the u n ru ly inmate (not the Plaintiff). At some point during the scuffle, as Defendant Lewis either was entering or le a v in g the holding cell, he pushed Plaintiff out of his way. Plaintiff and the other in m a te s in the holding cell were removed from the cell and handcuffed to a bench until th e cell could air out.5 After removing the other inmates from the holding cell, an officer re m o v e d the offending inmate. This incident does not provide the basis for a claim of a constitutional violation. Defendant Lewis's de minimis use of force when pushing Plaintiff is insufficient to s u p p o rt a finding of excessive force. Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2 0 0 5 ) (citations omitted). Regarding the use of pepper spray, Plaintiff himself acknowledged that Defendant L e w is was defending himself against a violent inmate. He also agreed that Defendant L e w is did not intend to spray the Plaintiff. Thus, Defendant Lewis's actions were Plaintiff disputed the assertion that Defendant Lewis had pepper spray on his fa c e . Regardless, the record is clear that Defendant Lewis and Plaintiff were in a d v e rte n tly exposed to similar amounts of pepper spray. 5 4 This allegation provided the basis for Plaintiff's "hitching post" claim. 17 reasonable and in furtherance of the legitimate need to maintain security within the F D C F . Accordingly, this excessive force claim against Defendant Lewis should be D IS M IS S E D WITH PREJUDICE. L ik e w is e , Plaintiff's temporary confinement to a bench (labeled a "hitching post" in the complaint) after he was evacuated from the cell where pepper spray had been d is c h a rg e d , did not violate his constitutional rights. Plaintiff stated there was no need to h a n d c u ff him to the bench because there were secure doors outside of the holding cell that w o u ld have kept Plaintiff and the other inmates from escaping. Defendants, however, w e re under no obligation to allow Plaintiff to wander freely about during a disturbance. Defendants Shock and Thomas temporarily handcuffed Plaintiff to a bench to a llo w the holding cell to air out. In addition, they allowed Plaintiff to shower off any re s id u a l pepper spray when requested. This incident does not evidence a constitutional v io la tio n . Accordingly, the "hitching post" claim against Defendants Shock and Thomas s h o u ld be DISMISSED WITH PREJUDICE. Plaintiff's final allegation regarding excessive force involves an incident that o c c u rre d on November 22, 2008, when Defendant Roberson pepper sprayed Plaintiff. Defendant Roberson completed an incident report regarding this use of pepper spray (# 7 5 -6 , p. 5). Neither party disputes the essential facts leading up to the incident, a lth o u g h their versions of the events vary slightly. Defendant Roberson took Plaintiff to a room to change his uniform before going to " lo c k -d o w n ." While Defendant Roberson accompanied Plaintiff into the changing room, 18 two other officers waited outside. Defendant Roberson testified that Plaintiff was d re s s in g slowly. Defendant Roberson threatened Plaintiff with the use of pepper spray e ith e r because Plaintiff was refusing to dress, or because he was dressing too slowly. Plaintiff eventually dressed, as ordered. When Plaintiff was finished changing clothes, he picked up either a bar of soap, or m u ltip le bars of soap. He refused an order from Defendant Roberson to drop the soap, a n d Defendant Roberson pepper sprayed Plaintiff in the face. Plaintiff testified that Defendant Roberson had no reason to spray him because he w a s only trying to keep soap in order to shower. Defendant Roberson testified that P la in tiff disregarded three warning, and that when Defendant Roberson moved toward P la in tiff to forcibly remove the soap from Plaintiff's hand, Plaintiff clenched his fist a ro u n d the soap. At that point, Defendant Roberson pepper sprayed Plaintiff and notified th e two officers standing outside the room that he had just used pepper spray. Although Plaintiff's fist-clenching could be construed as threatening, Defendant R o b e rso n testified precisely to the contrary. He testified at the hearing that did not feel th re a te n e d and further testified that Plaintiff had not made any threatening movements to w a rd him. Instead, Defendant Roberson testified that he pepper sprayed Plaintiff for n o n c o m p lia n c e with his order to put the soap down. Noncompliance, standing alone, is an insufficient justification to pepper spray a n o n th re a te n in g , though disobedient, pretrial detainee in the face and eyes. Defendant R o b e rso n 's use of pepper spray against Plaintiff is the only claim on which Plaintiff can 19 prevail. Although Defendants argue that Roberson's use of pepper spray was justified, th e facts do not allow such a conclusion. Although Plaintiff had previous disciplinary issues, none were for violent b e h a v io r. More important, Defendant Roberson testified that he sprayed Plaintiff solely fo r noncompliance with an order to drop the soap Plaintiff was holding. Although D e fe n d a n t Roberson warned Plaintiff, he did not attempt any less forcible means to gain P la in tiff's compliance before dousing him with pepper spray. At the time of the incident, th e re were two other officers just outside the changing room, and Defendant Roberson did n o t request assistance from the two other officers until after he had sprayed Plaintiff. Noncompliance alone is an insufficient justification to pepper spray a n o n th re a te n in g pretrial detainee in the face and eyes. Defendant Roberson's actions were e x c e s s iv e in light of the need to use force, the type of force used, and the rationale for the u s e of force. D. Qualified Immunity D e fe n d a n ts raised qualified immunity in their answer and in their motion for s u m m a ry judgment (#73). Qualified immunity shields public officials "from liability for c iv il damages insofar as their conduct does not violate clearly established statutory or c o n s titu tio n a l rights of which a reasonable person would have known." Harlow v. F itz g e ra ld , 457 U.S. 800, 818, 102 S.Ct. 2727 (1982). The purpose of qualified immunity is to ensure that officers are on notice that their conduct is unlawful before they are s u b je c te d to suit. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508 (2002). 20 Courts are no longer required to use a two-step sequential analysis when a d d re s s in g qualified immunity. Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808 (2009) (a b ro g a tin g the sequential analysis requirement in Saucier v. Katz, 533 U.S. 194, 201, 121 S .C t. 2151(2001)). The analysis still requires two steps, however. Id. Courts must d e te rm in e , in no particular sequence: (1) whether the offending conduct violated a c o n s titu tio n a l or statutory right; and (2) whether such a right was clearly established at the tim e of the alleged conduct. Krout v. Goemmer, __ F.3d __, 2009 WL 3172180 (8 th Cir. 2 0 0 9 ) (citations omitted). In 2001, the Supreme Court significantly narrowed the meaning of "clearly e s ta b lis h e d constitutional or statutory rights" in the context of qualified immunity. The C o u rt directed lower courts to analyze a defendant's conduct "in light of the specific c o n te x t of the case, not as a broad general proposition." Saucier, 533 U.S. at 201, 121 S .C t. 2151. The Supreme Court has rejected, however, the argument that cases must have fu n d a m e n ta lly or materially similar facts to the case at hand in order to clearly establish a rig h t or proscribe certain conduct. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508 (2 0 0 2 ). Instead, the question is whether the state of the law at the time of the incident gave th e state actors fair warning that their conduct was unconstitutional. Id. "Officials are n o t liable for bad guesses in gray areas; they are liable for transgressing bright lines." Davis v. Hall, 375 F.3d 703, 712 (8th Cir.2004). "This standard `gives ample room for m ista k e n judgments by protecting all but the plainly incompetent or those who knowingly 21 violate the law.'" Stufflebeam v. Harris, 521 F.3d 884, 888-889 (8th Cir. 2008) (quoting H u n te r v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534 (1991)). U n d e r the Due Process Clause, jail personnel cannot punish a pretrial detainee p rio r to conviction. Williams-El v. Johnson, 872 F.2d 244, 228 (8th Cir. 1989). The law is clearly established that force in excess of what is necessary to achieve institutional in te re s ts such as safety, security or efficiency constitutes punishment of a pretrial d e ta in e e . Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989). The analysis cannot end there, however. Qualified immunity must be assessed m o re narrowly. The precise question for purposes of deciding whether excessive force w a s used in this case is whether Defendant Roberson's application of pepper spray to P la in tiff's face after only verbal orders to drop the soap, when there was no actual or p e rc e iv e d threat of harm, was a violation of Plaintiff's rights. If it was a violation, the C o u rt must determine whether the law clearly established at the time of the incident. U n d e r the undisputed facts, the use of pepper spray was excessive in this instance. "It is . . .clearly established that force may be justified to make an inmate comply with a la w fu l prison regulation or order, but only if the inmate's noncompliance also poses a th r e a t to other persons or to prison security." Treats v. Morgan, 308 F.3d 868, 875 (8th C ir. 2002) (emphasis added) (citing Lawrence v. Bowersox, 297 F.3d 727, 732 (8th Cir. 2 0 0 2 ); Jones v. Shields, 207 F.3d 491, 496-497 (8th Cir. 2000); Hickey v. Reeder, 12 F.3d 7 5 4 , 759 (8th Cir. 1993); Stenzel v. Ellis, 916 F.2d 423, 426-427 (8th Cir. 1990)). Based o n clearly established law in the Eighth Circuit, using pepper spray to make an inmate 22 obey an order, in the absence of any threat to people or prison security, and before any o th e r means are used to force compliance, constitutes excessive force. Accordingly, D e fe n d a n t Roberson is not immune from liability for his excessive use of force against P la in tif f . E . Damages T h e re are three categories of monetary damages which a prevailing party may re c o v e r in cases filed under 42 U.S.C. 1983: nominal, actual (compensatory), and p u n itiv e . Nominal damages are appropriate when it is not possible to place a monetary v a lu e on Plaintiff's damages. Cowans v. Wyrick, 862 F.2d 697 (8th Cir. 1988). Actual or c o m p e n s a to ry damages are to compensate a person for injuries caused by the deprivation o f constitutional rights. Memphis Community School Dist. V. Stachura, 477 U.S. 299 (1 9 8 6 ). Punitive damages are awarded for the sole purpose of punishing a defendant and d e te rrin g future misconduct. The sum of damages that will fairly and justly compensate Plaintiff in this case is d iffic u lt to ascertain. That does not mean only nominal damages are warranted. Plaintiff h a s presented sufficient evidence of pain and suffering to warrant actual damages, even th o u g h he did not present evidence of medical expenses or lost wages. Plaintiff has fa ile d , however, to present sufficient evidence to consider an award of punitive damages. D e fe n d a n ts argue that Plaintiff suffered only de minimus injuries that would not ju s tify an award of damages (#74, p. 13). The Eighth Circuit Court of Appeals has re p e a te d ly held that not all applications of pepper spray result in merely de minimus 23 injury. Treats, 308 F.3d at 872 (citing Lawrence v. Bowersox, 297 F.3d 727, 731 (8th Cir. 2 0 0 2 )). In the present case, Defendant Roberson pepper sprayed Plaintiff at around 5:20 p .m . on November 22, 2008 (Defendants' Ex. 1). Plaintiff suffered pain and burning that la s te d beyond the initial pepper spray to the face. On November 23, 2008, Plaintiff in fo rm e d FCDF officials: My eyes are still burning a day later after being maced. My vision is c u rre n tly still blurry and I can't stop twitching my eyes, and I still haven't re c e iv e d soap nor a towel to shower and dry off. I don't understand why I'm being treated like this. (#20, p. 26 and 29) A n unidentified officer receiving the grievance responded, "Sir towels are given out at 0 6 0 0 in 204 Lockdown. The others need to be in medical grievance." (#20, p. 26 and 29) It appears from this response that the official recognized that Plaintiff needed medical a tte n tio n as the result of pepper spray to the face. Defendants presented Plaintiff's jail medical file, and there is no evidence in the file that Plaintiff received soap or a towel, or anything to alleviate the burning, blurry v is io n , or twitching (#75-3, p. 1-37). It appears Plaintiff was forced to wait until six o 'c lo c k the next morning to receive soap and a towel to wash the residual pepper spray fro m his face. This two days of burning could be considered an extension of the use of fo rc e against Plaintiff. Regardless, it shows Plaintiff suffered sufficient pain to warrant a n award of actual damages. 24 Plaintiff should receive $500.00 to fairly and justly compensate him for pain and s u ffe rin g caused by the initial pepper spray in the face and eyes, and the two days of b u rn in g , blurred vision, and twitching. While more than nominal damages, this is by no m e a n s a large award. Considering that Plaintiff suffered no permanent injury, $500.00 is a reasonable sum. See Hill v. McKinley, 311 F.3d 899 (8th Cir. 2002) (bruising caused by re s tra in ts during violation of Plaintiff's privacy sufficient for $2,500.00 award of c o m p e n s a to ry damages); Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997) (two hours of p a in and suffering caused by delay in transporting Plaintiff to hospital while in labor was s u ffic ie n t for compensatory award of $1,000.00); Jackson v. Crews, 873 F.2d 1105 (8th C ir. 1989) ($5,231.75 award in compensatory damages and $50,000.00 award in punitive d a m a g e s warranted where officer slammed Plaintiff's face into the pavement, causing P la in tiff to incur $231.75 in medical expenses); Williams v. Omodt, 640 F. Supp. 120 (D .M in n . 1986) ($5,000.00 award in compensatory damages proper where Plaintiff s u ffe re d bruises, contusions, swelling, and considerable pain, but no permanent physical in ju ry , as the result of excessive force). VI. C o n c lu s io n : T h e Court recommends that Defendants' Motion to Dismiss (#67) and Motion for S u m m a ry Judgment (#73) be DENIED. In addition, this Court recommends an award of $ 5 0 0 .0 0 for Plaintiff regarding the use of excessive force by Defendant Roberson. This C o u rt further recommends that all other pending claims be DISMISSED WITH P R E JU D IC E . 25 Dated this 30th day of October, 2009. ____________________________________ U N IT E D STATES MAGISTRATE JUDGE 26

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