Toney (ID 71755) v. Harrod et al
Filing
140
MEMORANDUM AND ORDER denying 113 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Eric F. Melgren on 3/13/2019. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL M. TONEY,
Plaintiff,
vs.
Case No. 15-3209-EFM-TJJ
GORDON HARROD, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Michael Toney is an inmate who at all times relevant to this litigation was held at
the El Dorado Correctional Facility (“EDCF”), in El Dorado, Kansas. Toney alleges that during
his incarceration an EDCF officer, Zocory Sullivan, used excessive force against him in violation
of the Eighth Amendment. Sullivan filed this present Motion to Dismiss, arguing that Toney
alleged insufficient facts to support a constitutional violation and that Sullivan is entitled to
qualified immunity. For the reasons explained below, Defendant Zocory Sullivan’s Motion to
Dismiss Plaintiff’s Third Amended Complaint (Doc. 113) is denied.
I.
Factual and Procedural Background1
Although the Court has discussed in some detail the factual and procedural history of this
case in prior orders,2 this is the first time Sullivan’s role in this litigation has been brought for the
Court’s consideration. Toney has just one claim against Sullivan—an Eighth Amendment claim
for excessive force—arising from a single incident.
Given the discrete nature of Toney’s
allegations against Sullivan, the Court will not reiterate all the facts relevant to this lawsuit, but
will limit itself to just the facts pertinent to Toney’s Eighth Amendment claim against Sullivan.
On June 13, 2016, Toney was in his prison cell when Sullivan and another EDCF officer
approached Toney’s cell. Toney informed Sullivan that his dinner was served cold and that he
still needed the rest of his meal and his medication. Toney claims that Sullivan angrily yelled back
“your food was not cold, we just got it out of the warmer. We gave you all your meal. You have
to wait until I’m done passing out the rest of the trays before you get meds. I’m training the new
guy.” Sullivan’s co-worker told Sullivan that they still needed to give Toney his breakfast sack
for the following morning. Toney began speaking with an EDCF medical staff member when
Sullivan interrupted their conversation, asking “You done? You done?” Toney did not respond
to Sullivan’s question. Sullivan then opened the food port to Toney’s cell, and Toney placed a cup
outside the food port to receive his medication. Toney looked out the food port and told Sullivan:
“you better watch how you talk to me.” Sullivan immediately slammed the food port door shut
1
The facts are taken from Toney’s Third Amended Complaint and are accepted as true for the purposes of
this ruling.
2
See Toney v. Harrod, 2019 WL 529294, at *1–3 (D. Kan. 2019); Toney v. Harrod, 2017 WL 4758962,
at *1–2 (D. Kan. 2017).
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onto the back of Toney’s right hand. Toney pushed the food port door open, freeing his hand;
Sullivan then reached inside Toney’s cell and sprayed Toney with mace. Toney alleges that “[t]his
incident took place in about thirty seconds from the time the food port came open.”
Toney claims that his Eighth Amendment right to be free of cruel and unusual punishment
was violated when Sullivan slammed the food port door on his hand, causing a cut on the back of
his hand, and when Sullivan sprayed him with mace, burning Toney’s skin and irritating his eyes,
nose, mouth, and throat. Sullivan filed this Motion to Dismiss Toney’s Eighth Amendment claim.
II.
Legal Standard
Under Fed. R. Civ. P. 12(b)(6), a party may move for dismissal of “a claim for relief in any
pleading” that fails “to state a claim upon which relief can be granted.” Upon such motion, the
Court must decide “whether the complaint contains ‘enough facts to state a claim to relief that is
plausible on its face.’ ”3 “[T]he mere metaphysical possibility that some plaintiff could prove some
set of facts in support of the pleaded claims is insufficient;” rather, the pleading “must give the
court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support
for these claims.”4 The Court does not “weigh potential evidence that the parties might present at
trial,” but assesses whether the complaint “alone is legally sufficient to state a claim for which
relief may be granted.”5 In determining whether a claim is facially plausible, the Court must draw
on its judicial experience and common sense.6 All well-pleaded facts are assumed to be true and
3
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
4
Ridge at Red Hawk, 493 F.3d at 1177 (emphases in original).
5
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation omitted).
6
Iqbal, 556 U.S. at 679.
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are construed in the light most favorable to the non-moving party.7 Although a plaintiff need not
allege every element of his action in specific detail, he cannot rely on conclusory allegations.8
III.
Analysis
The Eighth Amendment of the United States Constitution prohibits cruel and unusual
punishments. An inmate’s Eighth Amendment rights are implicated when a prison official subjects
the inmate to excessive force.9 To determine if an act of force is excessive under the Eighth
Amendment, courts undergo a two-part inquiry. The first part “asks if the alleged wrongdoing was
objectively harmful enough to establish a constitutional violation.”10 The second part is a
subjective question that asks whether the alleged offender “acted with a sufficiently culpable state
of mind.”11 Under the objective prong, an excessive force claim cannot succeed if the use of force
is both de minimis and “not of a sort repugnant to the conscience of mankind.”12 The focus is on
the “nature of the force” used, not merely the seriousness of the inmate’s injury.13 Under the
subjective prong, “[a]n official has a culpable state of mind if he uses force maliciously and
sadistically for the very purpose of causing harm, rather than in a good faith effort to maintain or
restore discipline.”14
7
Albers v. Bd. of Cty. Comm’rs of Jefferson Cty., 771 F.3d 697, 700 (10th Cir. 2014).
8
See Hall v. Bellmon, 935 F.2d 1106, 1113 (10th Cir. 1991) (internal citations omitted).
9
See Hudson v. McMillian, 503 U.S. 1, 4 (1992).
10
Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018) (citation omitted).
11
Id. (citation omitted).
12
Brosh v. Duke, 616 F. App’x 883, 888 (10th Cir. 2015) (citation omitted).
13
Graham v. Sherriff of Logan Cty., 741 F.3d 1118, 1123 (10th Cir. 2013) (quoting Wilkins v. Gaddy, 559
U.S. 34, 37 (2010)).
14
Sayed v. Virginia, 744 F. App’x 542, 549 (10th Cir. 2018) (citation and quotations omitted).
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Here, Sullivan argues he is entitled to qualified immunity on Toney’s claims; he also
challenges the legal sufficiency of Toney’s allegations. When a defendant raises a qualified
immunity defense, the burden then shifts to the plaintiff to show: “(1) that the defendant’s actions
violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly
established at the time of the defendant’s unlawful conduct.”15 Therefore, “[t]o survive a motion
to dismiss based on qualified immunity, the plaintiff must allege sufficient facts that show—when
taken as true—the defendant plausibly violated his constitutional rights, which were clearly
established at the time of violation.”16 If a prison official is entitled to qualified immunity, that
official is shielded from liability for monetary damages.17
A.
Constitutional Violation for Slamming the Food Port Door
Turning first to the allegation that Sullivan slammed the food port door onto Toney’s hand.
Toney certainly alleges that Sullivan used force against him; however, the Eighth Amendment is
not implicated every time a prison official uses force against an inmate. The Supreme Court
instructs that not every “malevolent touch by a prison guard gives rise to a federal cause of action”
and that the Eighth Amendment necessarily excludes all de minimis uses of force that are not
repugnant to mankind.18
Tenth Circuit caselaw further illuminates this principle. In Rhoten v. Werholtz,19 the circuit
determined that a prisoner’s allegations that a prison official slammed the inmate against the wall,
15
Davis v. Clifford, 825 F.3d 1131, 1135 (10th Cir. 2016) (citation and quotations omitted).
16
Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012) (citation omitted).
17
Iqbal, 556 U.S. at 672.
18
Hudson, 503 U.S. at 9–10 (1992) (citation omitted).
19
243 F. App’x 364 (10th Cir. 2007).
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squeezed his nipples and buttocks, and pulled on his testicles firmly, causing great pain,
constituted de minimis force and were insufficient to state an excessive force claim.20 In Norton
v. The City of Marietta,21 the Tenth Circuit held that grabbing and twisting an inmate's neck was
not objectively harmful enough to establish an Eighth Amendment excessive force claim.22 And
in Marshall v. Mulyard,23 the Tenth Circuit held that it was de minimis use of force when a prison
official grabbed an inmate and dug his fingernails into the inmate’s arm.24 Additionally, courts
outside the Tenth Circuit have found uses of force highly similar to what was alleged here not to
run afoul of the Eighth Amendment.25 The weight of authority from these cases persuades the
Court that Toney’s allegation falls into the de minimis use of force category, which is necessarily
excluded from Eighth Amendment consideration.
B.
Constitutional Violation for Use of Pepper Spray
The Court next considers Toney’s allegation that Sullivan discharged pepper spray into his
prison cell. Similar to the first allegation, Sullivan asserts that discharging pepper spray is a de
minimis use of force. To support this assertion, Sullivan relies on the Tenth Circuit’s decision in
20
Id. at 365, 367.
21
432 F.3d 1145 (10th Cir. 2005).
22
Id. at 1156.
23
415 Fed.App’x. 850.
24
Id. at 853.
25
See Johnson v. Moody, 206 F. App’x 880, 885 (11th Cir. 2006) (holding that a prison official pushing or
kicking a food tray door onto an inmate’s hand was a “relatively minor amount of force” that did give rise to an Eighth
Amendment claim); Hill v. Kelly, 1997 WL 638402, at *1 (E.D. Pa. 1997) (holding that when a prison official quickly
closed a cell block door on an inmate’s hand, causing a cut and crushing bruise on the back of the inmate’s thumb,
this was “the kind of de minimis imposition with which the Constitution is not concerned”).
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Gargan v. Gabriel.26 But Sullivan’s reliance on Gargan is unpersuasive. In Gargan, an inmate
alleged that prison officials sprayed the inmate with pepper spray during a cell extraction. The
Tenth Circuit affirmed dismissal of the inmate’s Eighth Amendment claim because the inmate’s
complaint contained no facts discussing the need, or lack thereof, of using pepper spray during the
extraction. Without allegations explaining the context surrounding the use of force, the Tenth
Circuit could not conclude that the use of pepper spray was excessive under the circumstances.
Gargan’s holding supports the position that utilizing pepper spray may be a valid use of force
under certain circumstances. It does not, however, state that using pepper spray is a de minimis
use of force that would never implicate Eighth Amendment protections.
That the use of pepper spray is not inherently a de minimis use of force is supported by
additional Tenth Circuit caselaw. In Norton v. The City of Marietta, OK,27 the Tenth Circuit stated
that “pepper spray is an instrument with which prison officers wield their authority, or force, and
thus its use implicates the excessive use of force.”28 And in DeSpain v. Uphoff29 the Tenth Circuit
held that an inmate could bring his Eighth Amendment claim to a jury when he presented evidence
that a prison official discharged pepper spray in the prison as a practical joke.30 Whether the use
of pepper spray is objectively harmful under the Eighth Amendment “turns in part on how long
26
50 F. App’x 920 (10th Cir. 2002).
27
432 F.3d 1145 (10th Cir. 2005).
28
Id. at 1154 (alteration omitted).
29
264 F.3d 965 (10th Cir. 2001).
30
Id. at 979–80.
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[the inmate] was sprayed and whether he was adequately irrigated afterwards or left to suffer
unnecessarily.”31
Here, Toney provides no insight into the extent of Sullivan’s use of pepper spray or whether
Toney was deprived the opportunity to properly irrigate himself after he was sprayed. He merely
states that “Sullivan pulled his mace out, stuck it inside [Toney’s] cell and sprayed [Toney] with
chemicals.” Toney states that he experienced a burning sensation on his skin and irritation of his
eyes, nose, mouth, and throat. Although it is possible Sullivan’s use of pepper spray was so minor
that it would not meet the Eighth Amendment’s objectively harmful test, the Court concludes that
Toney’s allegations plausibly state a claim that Sullivan’s actions were objectively harmful enough
to violate Toney’s Eighth Amendment rights.
The next question is whether Toney adequately alleged that Sullivan possessed the
requisite subjective intent when he discharged the pepper spray into his cell. The core inquiry here
is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.”32 The following factors should be considered in deciding if force
was applied in good-faith or to cause harm: (1) the extent of the inmate’s injury, (2) the
need for application of force, (3) the relationship between that need and the amount of force used,
(4) the threat reasonably perceived by the responsible officials, (5) and any efforts made to temper
the severity of a forceful response.33
31
Norton, 432 F.3d at 1154.
32
Lewis v. Carrell, 2013 WL 593663, at *6 (D. Kan. 2013) (citing Hudson, 503 U.S. at 5–7).
33
Green v. Denning, 465 F. App’x 804, 807 (10th Cir. 2012) (citations omitted).
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Under the first factor, Toney’s alleged injuries from the discharge of pepper spray are that
his skin was burning and his eyes, nose, mouth, and throat were irritated. Toney does not indicate
how long these symptoms lasted. Based simply on the limited nature of Toney’s injuries, the Court
cannot conclude that Sullivan must have acted maliciously or sadistically. So, this factor does not
weigh in Toney’s favor.
The second factor, however, does weigh in Toney’s favor. Sullivan argues that he used
pepper spray as a compliance measure to force Toney to leave the food port door closed. But
Sullivan never ordered Toney to leave the food port door closed, and Toney alleges he only opened
the door to free his trapped hand. Unless Sullivan ordered Toney to leave the food port door closed
and Toney was noncompliant with that order, Sullivan’s assertion that force was necessary to
coerce Toney into compliance is unfounded.
The third factor requires the Court to consider the relationship between the need to use
force and the amount of force used. Because it is doubtful this incident required Sullivan to use
any amount of force, Sullivan’s use of pepper spray exceeded what was necessary under the
circumstances. Thus, this factor weighs in Toney’s favor.
The fourth factor likewise favors Toney. Toney told Sullivan—after the two had a verbal
disagreement over the temperature of Toney’s food— “you better watch how you talk to me.”
When Sullivan responded by shutting the food port door, Toney pushed the food port door back
open to free his trapped hand. It was at that point that Sullivan discharged pepper spray into
Toney’s cell. Even if Sullivan interpreted Toney’s words as a serious threat, and understood Toney
pushing the food port door open as an act of aggression, Toney was locked in his cell during the
entire altercation. Because Toney was confined in his cell at the time of the incident, it would not
be reasonable for Sullivan to believe that Toney posed an immediate threat to anyone’s safety.
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Finally, under the fifth factor, the Court considers any efforts made by Sullivan to temper
the severity of a forceful response. This factor also weighs in Toney’s favor. Sullivan never
attempted to diffuse the situation or ensure compliance using tactics other than force. This
incident—an inmate, who was confined in his cell, pushing a food port door open—was not so
serious to warrant an immediate forceful response without first attempting a more peaceful
resolution.
Four of the five factors suggest that Sullivan did not act in good-faith to maintain or restore
discipline, but with a deliberate intent to cause harm. None of this is to say that Sullivan
necessarily acted in bad-faith. But the Court holds that Toney’s allegations—when accepted as
true—make a plausible showing that Sullivan acted with a sufficiently culpable state of mind to
state an excessive force claim. The Court therefore holds that Toney has met his burden under the
first prong of the qualified immunity test.
C.
Clearly Established Law
Under the second prong of the qualified immunity test, Sullivan is entitled to immunity
unless his alleged actions violated a clearly established right. “To qualify as clearly established, a
constitutional right must be sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.”34 In determining whether a right is clearly
established, the Court looks for a Supreme Court or Tenth Circuit case that is sufficiently on point,
or the clearly established weight of authority from other courts.35 “Ultimately, existing precedent
34
Stevenson v. Cordova, 733 F. App’x 939, 943–44 (10th Cir. 2018) (citation omitted).
35
Id. at 944 (citation omitted).
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must have placed the statutory or constitutional question beyond debate.”36 The facts of the cases
compared need not be identical, but they must be “sufficiently analogous to satisfy the
particularized context necessary to support liability.”37
Toney argues that the right to be free from excessive force involving pepper spray has been
clearly established since 2001, relying on the Tenth Circuit’s DeSpain decision. In DeSpain the
plaintiff alleged, among other things, that a prison guard intentionally and indiscriminately
discharged pepper spray as a practical joke while walking outside the prison tier that housed the
plaintiff. The Tenth Circuit stated it would “not require inmates to be subjected to the malicious
whims of prison guards” and that the unwarranted use of pepper spray against an inmate is
unlawful under the Eighth Amendment.38
Sullivan argues that DeSpain is not sufficiently on point with this case to clearly establish
that Sullivan’s alleged conduct was unlawful. There are certainly factual differences between
Toney’s allegations against Sullivan and the prison guard’s conduct in DeSpain. Most notably,
the guard in DeSpain discharged the pepper spray as a practical joke. No such accusation exists
here. DeSpain is sufficiently analogous, however, that any reasonable prison official would have
known that the unwarranted and malicious use of pepper spray against an inmate in a locked cell
would violate the Eighth Amendment. Because Toney has sufficiently alleged as much, the Court
holds that Sullivan is not entitled to qualified immunity at the motion to dismiss stage.
36
Id. (citation and quotations omitted).
37
Mecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (internal quotation omitted).
38
Id. at 978.
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D.
Failure to State a Claim
As a final matter, Sullivan also argues that Toney’s complaint fails to state an Eighth
Amendment claim. Sullivan’s argument is based on his contention that discharging pepper spray
constitutes a de minimis use of force and, accordingly, does not implicate Eighth Amendment
protections. For reasons the Court has already discussed above, this argument fails.
IT IS THEREFORE ORDERED that Defendant Sullivan’s Motion to Dismiss Plaintiff’s
Third Amended Complaint (Doc. 113) is DENIED.
IT IS SO ORDERED.
Dated this 13th day of March, 2019.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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