Brazier v. Wisniewski et al
Filing
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OPINION AND ORDER: The Court GRANTS the defendants' motion for summary judgment 36 and DIRECTS the Clerk of the Court to enter judgment in favor of the defendants and against Kevin Brazier and to close this case. Signed by Magistrate Judge John E Martin on 3/25/2024. (rmf)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KEVIN BRAZIER,
Plaintiff,
v.
JASON WISNIEWSKI, et al.,
Defendants.
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CAUSE NO.: 3:22-CV-587-JEM
OPINION AND ORDER
Kevin Brazier, a prisoner without a lawyer, is proceeding in this case “against Deputy Alexander
Baker, Corporal Brent Rose, and Lieutenant Jason Wisniewski in their individual capacities for
compensatory and punitive damages for using objectively unreasonable force against him on January 12,
2022, in violation of the Fourteenth Amendment.” [DE 15 at 6]. Specifically, Brazier alleges that the
defendants sprayed an excessive amount of OC 1 spray in J-Pod in every direction for more than ten
minutes, which limited his ability to breathe. On October 12, 2023, the defendants filed a motion for
summary judgment. [DE 36]. With the motion, the defendants provided Brazier the notice required by
Northern District of Indiana Local Rule 56-1(f). [DE 40]. Attached to the notice were copies of Federal
Rule of Civil Procedure 56 and Northern District of Indiana Local Rule 56-1.
Pursuant to Local Rule 56-1(b), a party opposing a summary judgment motion must, within 28
days after the movant serves the motion, separately file (1) a response brief; and (2) a Response to
Statement of Material Facts, which includes a citation to evidence supporting each dispute of fact. The
Court extended Brazier’s deadline to December 20, 2023. [DE 49]. This deadline passed over three months
ago, but Brazier has not responded. Therefore, the Court now rules on the defendants’ summary judgment
motion. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922 (7th Cir. 1994) (noting that the Seventh
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OC spray is oleoresin capsicum spray and is commonly known as pepper spray.
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Circuit Court of Appeals has routinely sustained “the entry of summary judgment when the non-movant
has failed to submit a factual statement in the form called for by the pertinent rule and thereby conceded
the movant’s version of the facts”).
Summary judgment must be granted when “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material
fact exists when “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). Not every dispute between the parties
makes summary judgment inappropriate; “[o]nly disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.” Id. To determine
whether a genuine issue of material fact exists, the Court must construe all facts in the light most favorable
to the non-moving party and draw all reasonable inferences in that party’s favor. Ogden v. Atterholt, 606
F.3d 355, 358 (7th Cir. 2010). However, a party opposing a properly supported summary judgment motion
may not rely merely on allegations or denials in its own pleading, but rather must “marshal and present
the court with the evidence she contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc., 621
F.3d 651, 654 (7th Cir. 2010).
To establish an excessive force claim under the Fourteenth Amendment, the plaintiff must show
that “the force purposefully or knowingly used against him was objectively unreasonable.” Kingsley v.
Hendrickson, 576 U.S. 389, 396-97 (2015). In determining whether force was objectively unreasonable,
courts consider such factors as the relationship between the need for force and the amount of force that
was used, the extent of any injuries the plaintiff suffered, the severity of the security problem, the threat
the officer reasonably perceived, and whether the plaintiff was actively resisting. Id. at 397.
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The defendants provide affidavits from themselves, which show the following facts: 2 On January
12, 2022, Deputy Servin was conducting chow pass in the J-Pod when she noticed an inmate had a black
and swollen eye. Servin Aff. at 1-2 [DE 38-2]. The inmate refused to tell Deputy Servin what happened
to his eye, so she called for assistance and ordered all inmates in the J-Pod to lock down so she could
conduct an investigation. Id. at 2. She made loud clear commands for the pod to lock down, but numerous
inmates in the pod refused to lock down. Id. Deputy Baker arrived and also ordered the inmates to lock
down, but more than half the inmates refused to lock down and became hostile and aggressive and
challenged the staff to enter the dayroom. Id.; Baker Aff. at 1-2 [DE 38-1]. Deputy Baker removed his can
of OC spray and gave several more commands for the inmates to lock down, but they refused. Baker Aff.
at 2 [DE 38-1]. Deputy Baker opened the food slot to deploy a burst of OC spray into the dayroom, but
several inmates placed a trash can over the food slot to prevent the OC spray from having an effect. Id.
Deputy Baker was unable to remove the trash can, so he deployed a controlled burst of OC spray under
the dayroom door, which was partially effective at moving the inmates away from the door. Id. Inmates
continued to refuse orders to lock down, so Deputy Baker opened the food slot and deployed a second
controlled burst of OC spray into the dayroom. Id. at 2-3. The inmates moved away from the door and
toward the back of the dayroom. Id. at 3. Deputy Baker and other officers entered the dayroom and gave
more orders for inmates to go to their cells and lock down, but the inmates still refused. Id. Deputy Baker,
Lt. Wisniewski, and Corporal Rose deployed additional bursts of OC spray in the direction of inmates
who were out of their cells and making threats. Id.; Rose Aff. at 2 [DE 38-3 at 2]. Once the inmates
complied with the orders to lock down in their cells, no further OC spray was dispersed. Baker Aff. at 4
Because Brazier did not respond to the defendants’ summary judgment motion, the accepts the defendants attestations as
undisputed. See Fed. R. Civ. P. 56(e) (“If a party . . . fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion .”)
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[DE 38-1]. The correctional officers were able to secure all cell doors, and removed the inmate with the
black eye so he could be evaluated by medical staff. Id. at 3-4.
Here, there is no evidence by which a reasonable jury could conclude the defendants used
objectively unreasonable force against Brazier by deploying OC spray in the J-Pod. Specifically, there is
no evidence any defendant intentionally deployed OC spray against Brazier. Rather, the undisputed
evidence shows the defendants deployed controlled bursts of OC spray in areas of the dayroom where
inmates were threatening officers and refusing orders to lock down. Considering the factors laid out in
Kingsley, Brazier provides no evidence that he was injured by the application of OC spray, that the
defendants exaggerated the extent of the security problem, or that the defendants used more OC spray than
was reasonably necessary to restore order in the dayroom. See Kingsley, 576 U.S. at 398; Musgrove v.
Detella, 74 F. App’x 641, 646 (7th Cir. 2003) (OC spray “can be used in limited quantities when
reasonably necessary to subdue or maintain control over an inmate,” and “violates the Eighth Amendment
only if it is used ‘in quantities greater than necessary or for the sole purpose of punishment or the infliction
of pain’”) (citing Soto v. Dickey, 744 F.2d 1260, 1270–71 (7th Cir. 1984)). Therefore, summary judgment
is warranted in favor of the defendants.
For these reasons, the Court:
(1) GRANTS the defendants’ motion for summary judgment [DE 36]; and
(2) DIRECTS the Clerk of the Court to enter judgment in favor of the defendants and against
Kevin Brazier and to close this case.
SO ORDERED this 25th day of March, 2024.
cc:
All counsel of record
Plaintiff, pro se
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
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