Allen v. Mills et al

Filing 81

MEMORANDUM AND ORDER re: 60 MOTION for Summary Judgment filed by Defendant Gregory Hancock, Defendant Matthew Schaefer, Defendant Jerry Walls, Defendant Jeremiah Brown, Defendant Charles Wilson, Defendant Claude Bagby - IT IS HEREBY ORDERED that defendants' motion for summary judgment is GRANTED on plaintiffs failure-to-protect, excessive force, and inhumane conditions of confinement claims against defendant Bagby. IT IS FURTHER ORDERED that defendant's motion for sum mary judgment is DENIED on plaintiff's failure-to-protect claim against defendant Brown." IT IS FURTHERED ORDERED that defendant's motion for summary judgment is DENIED on plaintiff's failure-to-protect claim against defendant Wal ls. IT IS FURTHERED ORDERED that defendant's motion for summary judgment is GRANTED on plaintiff's failure-to-protect and inhumane conditions of confinement claims against defendant Schaefer. IT IS FURTHERED ORDERED that defendant's mo tion for summary judgment is DENIED IN PART AND GRANTED IN PART on plaintiff's claims against defendant Wilson.Summary judgment is GRANTED on plaintiff's claims for excessive force and inhumane conditions of confinement against Wilson. Summ ary judgment is DENIED on plaintiff's failure-to-protect claim against Wilson. IT IS FURTHER ORDERED that defendant's motion for summary judgment is DENIED on plaintiff's failure-to-protect claim against defendant Hancock. Signed by District Judge Stephen N. Limbaugh, Jr on 11/26/2018. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RONNIE ALLEN,
Plaintiff,
v.
JOHN MILLS, et al.,
Defendant.

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Case No. 1:16-cv-00026-SNLJ

MEMORANDUM AND ORDER
This matter, a prisoner action under 42 U.S.C. § 1983, comes before the Court on
the six remaining defendants’ motion for summary judgment. (#60). Their motion has
been fully briefed and is ready for disposition. For the reasons set forth below,
defendants’ motion will be GRANTED IN PART AND DENIED IN PART.
I. BACKGROUND
Plaintiff Ronnie Allen, proceeding pro se and in forma pauperis, filed this prisoner
civil rights action on February 8, 2016, naming 22 defendants spanning 5 different
incidents. Pursuant to frivolity review under 28 U.S.C. § 1915(e)(2)(B), the vast majority
of defendants and claims were dismissed. All that currently remains are claims for failure
to protect, excessive force, and inhumane conditions of confinement involving three
separate incidents and the six remaining defendants seeking summary judgment. The

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facts of each incident, and each defendant’s individualized involvement, are set forth
below.1
1. The March 20, 2015, Incident Involving Defendant Bagby
Plaintiff alleges that, on March 20, 2015, he told defendant Claude Bagby, a
correctional officer, that his cellmate, Timothy Rucker, had threatened to harm him. This
prompted plaintiff to seek “protective custody” from Bagby, which is a request to be
moved to a different housing area called the “protective custody unit” that provides
continuous monitoring of prisoners who demonstrate a sufficiently serious fear for their
safety. According to plaintiff, Bagby refused to place him in protective custody and,
instead, used a racial slur while stating that Rucker and plaintiff could “kill each other for
all we care.” When plaintiff would not move away from the cell’s food port door—
instead hanging his arms out to plead for Bagby to reconsider—Bagby allegedly slammed
the door on plaintiff’s hands and wrists. Another correctional officer then pepper sprayed
plaintiff, who says he “collapsed,” “passed out,” and was eventually “revived” by a nurse
taking his vitals inside his cell. Plaintiff alleges he was then placed on a restraint bench,
where Bagby refused to allow plaintiff to wash the pepper spray off his body and face—
contributing to additional injuries.

The Court notes plaintiff did not specifically respond to defendants’ statement of uncontroverted
material facts as is required by Local Rule 7-4.01(E). Defendants argue their statement should, therefore,
be deemed admitted. This would have the practical effect of rendering a fatal blow to plaintiff’s claims.
While it is true that “pro se litigants are not excused from compliance with relevant rules of the
procedural and substantive law,” Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983), the Court finds
plaintiff did, at least, attempt to controvert defendants’ statement by proffering a number of affidavits that
tend to refute it. These affidavits would, of course, be the evidentiary backbone of plaintiff’s denials had
he submitted a traditional response to defendants’ statement. In this narrow circumstance, the Court
declines defendants’ invitation to punitively apply Local Rule 7-4.01(E).
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Bagby tells a different story. He avers that he never slammed the food port door on
plaintiff’s hands and wrists. He also explains that plaintiff had access to a nearby wash
station while waiting on the restraint bench and, moreover, could have used the sink in
the cell after being reassigned. Furthermore, Bagby says he never heard plaintiff request
protective custody nor did he hear plaintiff say that he feared for his safety.
Uncontroverted medical and investigative records provide some clarification.
They indicate that plaintiff was pepper sprayed by another officer at approximately 4:44
PM to compel plaintiff to back away from the food port, followed by a medical
assessment at 5:05 PM that took place by nurse Cody Stanley who reported “no injuries
at the time of assessment” and no symptoms of acute distress. Stanley’s notes indicate
plaintiff did complain of difficulty breathing (the notes reference asthma), but did not
complain of burning eyes or “other injuries.” The notes further indicate that plaintiff was
directed to flush his eyes and mouth and that his eyes were checked for visual acuity after
flushing.
2. The March 23, 2015, Incident Involving Defendants Brown, Schaefer, and
Walls.
Following the events on March 20, 2015, plaintiff was reassigned to a new cell
with cellmate Jackie Payne. According to plaintiff, on March 23, 2015, defendant
Matthew Schaefer—another correctional officer—approached plaintiff’s cell and told
him if he wanted to eat he would have to “go to the back of the cell[,] face the bunk[,] get
on [his] hands and knees[,] and put [his butt] in the air, and if [he] didn’t follow
[Schaefer’s] directives[,] he [and his] cellmate wouldn’t eat.” Plaintiff admits he refused

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Schaefer’s directives, instead asking to speak with the sergeant on duty. Ultimately,
neither plaintiff nor Payne were provided food and, as a result, Payne apparently grew
angry with plaintiff and asked defendants Jerry Walls and Jeremiah Brown, fellow
correctional officers working with Schaefer that day, for protective custody so that he
wouldn’t “punch [plaintiff] in the face.” Walls allegedly responded “you can’t get
[protective custody] with a threat” and walked away; thereafter, Payne punched plaintiff
in the face and a fight ensued, causing Brown to pepper spray both plaintiff and Payne
until they ceased. Once again, plaintiff was placed on a restraint bench and, again, he was
allegedly denied the ability to clean the pepper spray off his body—this time by Schaefer.
Schaefer and Walls tell a different story (Brown is apparently on leave and,
therefore, was unable to provide an affidavit). According to them, Payne never threatened
plaintiff and never requested protective custody. Schaefer acknowledges, however, that
plaintiff failed to follow his directive in order to receive food; according to Schaefer,
policy requires a prisoner to go “toward the back of the cell and away from the food port
door,” particularly for prisoners—like plaintiff—who had recently violated prison rules
that, therefore, raise additional safety and security concerns. Schaefer does not mention
whether or not he instructed plaintiff to get on his hands and knees and put his butt in the
air. Schaefer does mention, however, that upon placing plaintiff on the restraint bench,
nothing indicated to him that plaintiff needed a “decontamination shower” to wash off
pepper spray—to the contrary, Schaefer explains that plaintiff never requested to take a
shower but, had he done so, Schaefer would have sought permission from his sergeant or
lieutenant.
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Uncontroverted medical and investigative records, again, provide some
clarification. They indicate that plaintiff was pepper sprayed by Brown at approximately
6:35 PM to stop a quarrel with Payne, followed by a medical assessment at 6:44 PM that
took place by nurse Megan Aters who reported “no injuries” and provided “no
treatment.” Aters’s notes indicate plaintiff did complain of burning eyes, but did not
complain of difficulty breathing or “other injuries.” The notes do not indicate whether
plaintiff’s eyes were flushed.
3. The April 7, 2015, Incident Involving Defendants Wilson and Hancock
A few weeks later, after indicating that he was suicidal, plaintiff was moved to yet
another cell to be observed under so-called “suicide watch,” this time with cellmate
Marquise Lockhart. Both had declared they were suicidal and, though they would
typically be celled individually under these circumstances, they were instead celled
together because of “organized civil disobedience” within the housing unit—apparently a
mass declaration of suicidal ideations by multiple prisoners at the same time—that
“caused a lack of suicide cells to be available.” Lockhart was involved in his own
litigation surrounding the same incident and was found by this Court to have documented
bipolar disorder. See Lockhart v. Reese, 2018 WL 690989 at *1 (E.D. Mo. Feb. 2, 2018)
(Limbaugh, J.). In any event, plaintiff states Lockhart told several officers that “he would
kill me then himself if [the officers] placed us in a cell together.” Apparently both
defendants Charles Wilson and Gregory Hancock, the correctional officers on duty that
day, were told by plaintiff that Lockhart was “going to try to kill me” and, again, plaintiff
requested protective custody. However, neither permitted plaintiff to be moved to a
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different cell. In fact, Hancock purportedly told plaintiff that “since both of you are
suicidal you should just kill each other.” Later that night, plaintiff and Lockhart engaged
in an altercation for “about five minutes” when another officer pepper sprayed both of
them until the fighting stopped. Once more, plaintiff was placed on a restraint bench and
was purportedly refused by Wilson to wash the pepper spray off. Upon returning to his
cell (Lockhart was reassigned to a different cell), plaintiff allegedly told Wilson that “he
needed to call haz-mat to clean the cell” because there was pepper spray, blood, and spit
“all over.” Wilson ignored plaintiff’s request, prompting plaintiff to refuse to relinquish
his handcuffs in protest, which led Wilson to push plaintiff against the door and pepper
spray him so that he was incapacitated enough that the handcuffs could be removed.
Later, plaintiff states he was in so much pain from the pepper spray that he attempted to
hang himself with the strings of his boxers but was unsuccessful after Wilson saw him
and, again, placed him on the restraint bench until the next shift arrived.
Wilson and Hancock tell a different story. Neither recall plaintiff asking for
protective custody, and both indicate there were no signs that plaintiff and Lockhart were
enemies or otherwise a threat to each other. Both were being monitored several times an
hour. Hancock does not recall saying that plaintiff and Hancock should have harmed each
other. However, Wilson admits he sprayed plaintiff with pepper spray after trying to
place plaintiff back into his cell following the altercation with Lockhart; Wilson states
that plaintiff resisted his attempts to remove plaintiff’s wrist restraints, which necessitated
a short burst of spray in order to briefly disable plaintiff long enough to remove the
restraints.
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Again, uncontroverted medical and investigative records are informative. They
indicate that plaintiff was pepper sprayed by another officer at approximately 9:35 PM to
stop a quarrel with Lockhart, followed by a medical assessment at 9:52 PM that took
place by nurse Lisa Taber who reported “no injuries” and provided “no treatment.”
Taber’s notes indicate plaintiff did complain of “other injuries” (rib and wrist pain), but
did not complain of burning eyes or difficulty breathing. The notes indicate the presence
of acute distress, and encouraged plaintiff to flush his eyes. Allegedly, plaintiff was seen
by a nurse three days later, on April 10, 2015, who noted no signs of trauma, no existing
medical complaints, and indicated that plaintiff denied any medical problems.2
II. LEGAL STANDARDS FOR SUMMARY JUDGMENT
Courts repeatedly recognize that summary judgment is a harsh remedy that should
be granted only when the moving party has established his or her right to judgment with
such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null,
554 F.2d 896, 901 (8th Cir. 1977). Summary judgment motions, however, “can be a tool
of great utility in removing factually insubstantial cases from crowded dockets, freeing
courts’ trial time for those that really do raise genuine issues of material fact.” Mt.
Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir. 1988).

For this particular nurse visit, defendants cite “Defendants’ Exhibit H” at bates number 0481. This
particular record does not appear to be in Exhibit H, which begins at bates number 0517. In any event—as
explained in footnote 1 above—plaintiff did not specifically respond to defendants’ statement of
uncontroverted material facts as is required by Local Rule 7-4.01(E). Because plaintiff’s proffered
affidavits do not controvert this particular factual allegation, it will be deemed admitted under Rule 74.01(E). See McDonald, 2013 WL 121430 at *2 (E.D. Mo. Jan. 9, 2013) (applying Local Rule 7-4.01(E)
and deeming defendants’ statement as fully admitted only after finding pro se plaintiff’s pleadings and
affidavit—even when construed broadly—did not actually rebut the assertions made in defendants’
statement).
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Pursuant to Federal Rule of Civil Procedure 56(c), a district court may grant a
motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to material fact and the moving party is entitled to judgment
as a matter of law.” Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 467
(1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the
moving party discharges this burden, the non-moving party must do more than show
there is some doubt as to the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, the non-moving party bears the burden of setting forth
specific facts showing that there is sufficient evidence in its favor to allow a jury to return
a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986).
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d
844, 846 (8th Cir. 1983). The court is required to resolve all conflicts of evidence in favor
of the non-moving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d
207, 210 (8th Cir. 1976).
III. ANALYSIS
Defendants move for summary judgment on plaintiff’s Eighth Amendment claims
under Section 1983 in their individual capacities. Defendants maintain there is no
genuine issue of material fact and that plaintiff cannot demonstrate any violation of his
Eight Amendment rights. They also argue that they are entitled to qualified immunity
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because no constitutional rights were violated. The Court notes that three unique claims
are being made against these various defendants: excessive force; inhumane conditions of
confinement; and failure to protect. All three implicate the Eighth Amendment, though
the particular standards vary somewhat. These standards are set forth below.
When a prison official is responding to a disturbance and is charged with the use
of excessive force, a deferential “malicious and sadistic” standard applies under the
Eighth Amendment. Taylor v. Dormire, 690 F.3d 898, 903 (8th Cir. 2012); see also
Jackson v. Gutzmer, 866 F.3d 969, 976 n. 3 (8th Cir. 2017) (explaining the subtle
differences in a conditions-of-confinement case versus an excessive force case as relates
to the use of passive restraints). Under this standard, the court “inquire[s] whether the
force was applied in a good-faith effort to maintain or restore discipline, or used
maliciously and sadistically for the purpose of causing harm.” Taylor, 690 F.3d at 903. A
prison official exhibits sadism by “delighting in cruelty,” by inflicting pain “for one’s
own pleasure,” or by engaging in conduct “so brutal, demeaning, and harmful as to
literally shock the conscience.” Parkus v. Delo, 135 F.3d 1232, 1234 (8th Cir. 1998);
Davis v. Forrest, 768 F.2d 257, 258 (8th Cir. 1985). While the extent of injury is material
to the question of damages, the “core judicial inquiry” is narrowly focused on whether
force was applied in good faith or in an effort to cause harm. Wilkins v. Gaddy, 559 U.S.
34, 37 (2010). However, “not every malevolent touch by a prisoner guard gives rise to a
federal cause of action” and, therefore, where there is a lack of discernable injury, this
may be enough to show “a de minimis application of force [that] will not give result in a
constitutional violation.” Williams v. Jackson, 600 F.3d 1007, 1012 (8th Cir. 2010)
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(quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992)); see also Wilkins, 559 U.S. at 38
(“An inmate who complains of a push or shove that causes no discernible injury almost
certainly fails to state a valid excessive force claim.”). Ultimately, the “malicious and
sadistic” standard is a high bar that provides necessary deference to prison officials
responding to a disturbance. See Taylor, 690 F.3d at 903; Davis, 768 F.2d at 258.
When there are no exigent circumstances involving threats to safety and security
that necessitate the use of force, but instead the claim revolves around prison conditions
generally such as the adequacy of food, clothing, shelter, and access to medical care, a
less-deferential “deliberate indifference” standard applies under the Eighth Amendment.
Taylor, 690 F.3d at 903 (noting that “the subjective requirement of the Eighth
Amendment inquiry becomes less exacting” in a condition-of-confinement case). Under
this standard, “the plaintiff must allege prison officials acted with deliberate indifference
to the inmate’s health or safety.” Id. This is shown when the official subjectively “knows
of and disregards an excessive risk to [the] inmate[‘s] health or safety” and where the
complained-of-conditions were objectively serious or else caused objectively serious
injury. Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)); Berryhill v. Schriro,
137 F.3d 1073, 1076 (8th Cir. 1998). Thus, most critically, a showing of actual
knowledge of an excessive risk of harm is required and, without it, the “prison official
who lacked knowledge of a risk cannot be said to have inflicted punishment.” Taylor, 690
F.3d at 903; see also Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017) (noting “mere
negligence or inadvertence does not rise to the level of deliberate indifference” and,

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instead, “deliberate indifference requires a highly culpable state of mind approaching
actual intent”).
Finally, a failure-to-protect claim is a derivative of the more generalized prisonconditions claim. It, too, adopts the deliberate indifference standard under the Eighth
Amendment. Thus, like the typical prison-conditions case, “[a] failure-to-protect claim
has an objective component, whether there was a substantial risk of harm to the inmate,
and a subjective component, whether the prison official was deliberately indifferent to
that risk.” Jones, 641 Fed.Appx. at 666 (quoting Curry v. Crist, 226 F.3d 974, 977 (8th
Cir. 2000)). The objective prong is satisfied where an assailant’s conduct demonstrates a
concrete potential for violence and aggression towards the plaintiff. See Nelson v.
Shuffman, 603 F.3d 439, 447 (8th Cir. 2010) (assailant’s history of sexual assault, violent
behavior, and relentless barrage of physical and sexual threats made it “readily apparent”
that plaintiff faced an objectively serious risk of harm by being placed in the same room
as assailant). However, the mere possibility of violent and aggressive tendencies based on
generic observations of a prisoner’s past has generally been held insufficient standing
alone. See Blades v. Schuetzle, 302 F.3d 801, 803-804 (8th Cir. 2002) (noting that prisons
“are not required to segregate indefinitely all inmates whose original crimes suggest they
might be capable of further violence” and concluding prison officials had “good objective
reason” to believe assailant, serving a life sentence that suggests generally an effort to
“avoid trouble,” was sufficiently incentivized to behave).
The subjective prong of a failure-to-protect claim is demonstrated by showing the
prison official “actually knows of the substantial risk and fails to respond reasonably to
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it.” Young v. Selk, 508 F.3d 868, 873 (8th Cir. 2007). Thus, the focus is on whether there
was an actual awareness of a concrete risk and a deliberate failure to respond to it. Id.
However, given how common threats and puffery are between prisoners, it is generally
insufficient to base a claim on a threat without some other corroborative conduct
indicating concreteness to that threat. See Pagels v. Morrison, 335 F.3d 736, 740-741 (8th
Cir. 2003). Critically, because a failure-to-protect claim ultimately lies in tort, a plaintiff
must suffer some actual injury that is greater than a de minimis injury. Irving v. Dormire,
519 F.3d 441, 448 (8th Cir. 2008). And of course, under the subjective prong, prison
officials must actually be aware of an assailant’s proclivity for violence and aggression.
See Patterson v. Kelley, 902 F.3d 845, 852 (8th Cir. 2018).
1. Claims for Failure to Protect, Excessive Force, and Inhumane Conditions
of Confinement Against Bagby Related to the March 20, 2015, Incident
Summary judgment will be granted on plaintiff’s failure-to-protect claim against
Bagby. The record does not reveal that Rucker ever actually injured or even attempted to
injure plaintiff. Rather, all the record demonstrates—when viewed in a light most
favorable to plaintiff as the non-movant—is that plaintiff feared for his life, sought
protective custody, was denied, and later was sprayed with pepper spray in protest of this
denial. While the use of pepper spray without cause might cross the de minimis injury
threshold, see Foulk v. Charrier, 262 F.3d 687, 692 (8th Cir. 2001), the pepper spray
used against plaintiff on March 20, 2015, had nothing to do with Rucker’s threats—there
is no causal relation between the pepper spray and plaintiff’s failure-to-protect claim.
Because plaintiff cannot point to how he was injured as a consequence of Bagby’s denial

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of plaintiff’s request for protective custody, plaintiff’s failure-to-protect claim fails as a
matter of law.
Summary judgment will also be granted on Plaintiff’s excessive force claim
against Bagby. Again, though the parties disagree on whether or not Bagby “slammed”
the food port door on plaintiff’s hands and wrists, it is clear that whatever physical
interaction may have resulted between plaintiff and prison officials was as a result of
Bagby’s self-created disturbance in refusing to back away from the food port. Plaintiff
may prefer the verb “slam” to something less inflammatory, but, regardless of the word
used, what is clear from the medical evidence is that no meaningful injury resulted.
Indeed, upon seeing the nurse mere minutes later, plaintiff made no mention of his hands
and wrists—nor did the nurse appear to find them a concern—and plaintiff mentioned
nothing more than a difficulty breathing. Of course, the focus in an excessive force claim
is squarely on the nature of the force used and not the extent of an injury, see Wilkins,
559 U.S. at 34. But, even so, the lack of discernable injury coupled to circumstances that
permitted the use of reasonable force by Bagby and his fellow officers to compel
plaintiff’s compliance indicates a lack of both maliciousness and sadism. Simply put,
there is no suggestion in the evidence, even if viewed in a light most favorable to
plaintiff, that Bagby’s actions were for the mere purpose of causing injury or that
Bagby’s actions rose to the level of excessive cruelty. The use of an inflammatory verb,
whatever strategic effect may be gained from it, cannot overcome these high bars.
Moreover, because plaintiff appears unable to show the existence of any actual injury

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resulting from Bagby’s alleged actions—a distinction from Wilkins’s admonishment not
to focus on the particualr extent of injury—summary judgment is appropriately granted.
Summary judgment will also be awarded to Bagby on plaintiff’s inhumane
conditions of confinement claim. The Eighth Circuit has clarified that the failure to
permit a prisoner to wash off pepper spray invokes the “deliberate indifference” standard
and not the “malicious and sadistic” because a “delayed decontamination claim … is not
an excessive force claim.” Burns v. Eaton, 752 F.3d 1136, 1140 (8th Cir. 2014). In
essence, the use of pepper spray must be distinguished from a later refusal to allow it to
be washed off. Thus, under the deliberate indifference standard, plaintiff is required to
demonstrate an objectively “serious medical need” resulting from the inability to wash
off the pepper spray. Id.
Here, plaintiff has not demonstrated an objectively serious medical need for which
to base his delayed decontamination claim against Bagby. Even if Bagby did, in fact,
refuse plaintiff’s request to decontaminate while sitting on the restraint bench, the
evidence demonstrates that plaintiff was seen by a nurse roughly twenty minutes after
being sprayed who reported no acute distress, no burning eyes, and no skin-related
conditions such as a rash. The nurse’s notes appear to indicate plaintiff’s eyes and
mouth—if not his entire body—were flushed with water. And while Plaintiff did
complain of a difficulty breathing (apparently from asthma), there is no indication
whatsoever that a full-body shower would have remedied that complaint—nor does
difficulty breathing appear to be the focus of plaintiff’s complaint or his affidavit. It is
also noteworthy that plaintiff does not deny he had access to running water upon being
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returned to his cell. All in all, plaintiff has not identified an objectively serious medical
need that resulted from Bagby’s alleged refusal to permit plaintiff to shower; plaintiff
fails to point to any medical record, for example, that demonstrates harm was caused
specifically as a result of Bagby’s refusal.
In addition to the lack of an objectively serious medical need, plaintiff failed to
demonstrate that Bagby had actual knowledge of any such need by plaintiff’s mere
request for a shower—there is no evidence that, in requesting a shower, plaintiff made
known to Bagby any particular serious medical need outside of general discomfort.
2. Claim for Failure to Protect Against Brown Related to the March 23,
2015, Incident
Summary judgment will not be granted on plaintiff’s failure-to-protect claim
against Brown. Objectively speaking, plaintiff sufficiently demonstrates that he suffered a
serious injury. “Assault at the hands of fellow inmates … is a serious harm.” Jensen v.
Clarke, 94 F.3d 1191, 1198 (8th Cir. 1996). And, somewhat uniquely here, plaintiff’s
assaulter—Payne—admits by way of affidavit that he did, in fact, assault plaintiff by
punching him in the face. The objective element has been met. That leaves the subjective
element: did Brown know he was creating a substantial risk of bodily harm by summarily
denying protective custody? Notably, this is not the sort of case where protective custody
was sought over a diffuse, generalized fear that militates against the existence of
subjective awareness—this was not a case of a prison official being forced to guess or
postulate as to what, specifically, a prisoner may have feared. In this case, construing the
facts in a light most favorable to plaintiff, Payne specifically announced he was going to

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assault his cellmate, and Brown called Payne’s bluff by taking no action—presumptively
because he believed Payne’s statements to be mere bluster. In this scenario, a factual
dispute exists that does not permit summary judgment. Unanswered questions remain, for
example, about the obviousness of the risk and what information Brown possessed about
Payne at the time (i.e. reasons why he did or did not believe Payne); and nothing has been
said about the practical limitations, if any, Brown confronted in choosing a course of
action. Instead, Brown supplies an affidavit that, in essence, says plaintiff’s story is false,
that simply does not suffice for purposes of summary judgment.
3. Claim for Failure to Protect Against Walls Related to the March 23, 2015,
Incident
For the same reasons expressed above in relation to plaintiff’s failure-to-protect
claim against Brown, summary judgment will not be granted to Walls. In fact, construing
the facts in a light most favorable to plaintiff once more, Walls took the additional step of
telling Payne “you can’t get [protective custody] with a threat.” That, again, seems to be
an attempt to call Payne’s bluff; Walls was aware of the threat, but did not treat it as a
credible one—factual issues remain as to whether that response was appropriate.
Moreover, Walls’s comment is simply erroneous: it is the threat itself which precipitates
the need for protection. Farmer, 511 U.S. at 845 (noting a prisoner need not “await a
tragic event such as an actual assault before [seeking] relief”). Of course protective
custody can (and should) be given when there is a legitimate threat of violence; the
question, then, is whether, subjectively speaking, Walls knew of an actual risk and simply
did not care enough to respond to it, or whether Walls did not fully appreciate the reality

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of that risk based on his unique understanding of the situation. Ultimately, questions of
fact remain as to, for example, the obviousness of the risk, information known by Walls
about Payne, Walls’s past experiences with both Payne and plaintiff, and any limitations
he may have faced in making a decision to refuse protective custody.
4. Claims for Failure to Protect and Inhumane Conditions of Confinement
Against Schaefer Related to March 23, 2015, Incident
Summary judgment will be granted on plaintiff’s failure-to-protect claim against
Schaefer. Both plaintiff and Payne state in their affidavit that protective custody was
sought only from Brown and Walls. There is no indication in either affidavit that
Schaefer was personally asked by either prisoner for protective custody related to
potential violence between them. Rather, Payne—for example—states that Schaefer “left
the cell” before Payne grew angry from not being fed, which prompted his request for
protective custody so that he would not be tempted to punch plaintiff in the face. Because
Schaefer was not involved in the failure-to-protect aspect of plaintiff’s claim, summary
judgment will be granted to Schaefer on that claim.
Summary judgment will also be granted to Schaefer on plaintiff’s inhumane
conditions of confinement claim. As was identified in Bagby’s analysis above, plaintiff
must demonstrate an objectively “serious medical need” resulting from the inability to
wash off pepper spray. But, again, even if Schaefer refused plaintiff’s request to
decontaminate while sitting on the restraint bench, the evidence demonstrates that
plaintiff was seen by a nurse roughly ten minutes after being sprayed who reported no
injuries other than burning eyes. Medical notes are unclear whether plaintiff’s eyes were

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flushed on this occasion, but there is no indication that complications resulted from
Schaefer’s refusal or that Schaefer refused whatever recommendation was made by the
nurse. Moreover, plaintiff had access to running water upon returning to his cell and the
records do, at least, indicate plaintiff was assessed for any subjective complaints of pain
while sitting on the restraint bench that, in the nurse’s judgment, required no treatment.
Most importantly, though, and in the addition to the lack of clear, objectively serious
medical needs that went unaddressed, plaintiff fails to demonstrate Schaefer had any
actual knowledge of an unaddressed medical need; while plaintiff requested to
decontaminate citing general discomfort, Schaefer was not made aware of specific,
serious medical needs that required immediate attention.
5. Claims for Failure to Protect, Excessive Force, and Inhumane Conditions
of Confinement Against Wilson Related to the April 7, 2015, Incident
Summary judgment will not be granted on plaintiff’s failure-to-protect claim
against Wilson. This claim is quite similar to plaintiff’s failure-to-protect claim against
Brown and Walls. Plaintiff was assaulted by a fellow inmate, satisfying the objective
component. And Lockhart appears, perhaps, to be more of an aggressor than was Payne.
Lockhart has a documented history of bipolar disorder. Unlike Payne, who threated to
punch plaintiff, Lockhart threatened to outright kill plaintiff. Notably, both were on
suicide watch at the time, which itself raises some concern that they were celled together.
And, of course, there was a recent prior altercation—the March 23rd incident with
Payne—that could reasonably suggest that plaintiff was at heightened risk for ending up
in fights with other inmates. Again, this is not a case of diffuse, generalized fear; rather,

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Wilson was put on notice of Lockhart’s intention to harm plaintiff and he simply chose
not to act upon it. Ultimately, questions of fact once again remain as to the obviousness
of the risk, the information known by Wilson about Lockhart, Wilson’s past experiences
with both Lockhart and plaintiff, and any limitations he may have faced in making a
decision to refuse protective custody.
However, summary judgment will be granted on plaintiff’s excessive force claim
against Wilson. This claim is based on Wilson’s use of pepper spray when trying to
return plaintiff to his cell following the fight with Lockhart. Plaintiff acknowledges he
refused Wilson’s directives and does not refute Wilson’s claims that he provided several
directives to comply, which were ignored, that led to a “short burst of pepper spray”
causing plaintiff to release his hold on the food port. Again, there is no showing that
Wilson lacked just cause to use the pepper spray or intended to harm plaintiff for his own
pleasure; nor do these facts suggest Wilson engaged in extreme or excessive cruelty.
Moreover, there appears to be no discernable injury. Plaintiff argues the pain was so bad
that he tried to hang himself with his underwear strings; but, that appears to have more to
do with plaintiff’s suicidal mindset at the time than it does actual pain related to being
pepper sprayed. In the prior situations involving pepper spray, for example, plaintiff
never referenced such an extreme level of pain—nor does plaintiff explain why, this time,
it was that much worse.
Summary judgment will also be granted to Wilson on plaintiff’s inhumane
conditions of confinement claim. As was identified in Bagby and Schaefer’s analysis
above, plaintiff must demonstrate an objectively “serious medical need” resulting from
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the inability to wash off pepper spray. But, again, even if Wilson refused plaintiff’s
request to decontaminate while sitting on the restraint bench, the evidence demonstrates
that plaintiff was seen by a nurse roughly seventeen minutes after being sprayed who
reported acute distress related to rib and wrist pain, but nothing at all related to burning
eyes or difficulty breathing. It is difficult to surmise how Wilson’s failure to permit
plaintiff to wash off pepper spray would alleviate plaintiff’s rib and wrist pain. Once
again, there is no indication that complications resulted from Wilson’s refusal or that
Wilson refused whatever recommendation was made by the nurse. Moreover, the records
indicate plaintiff was assessed three days later where it was noted that plaintiff had no
signs of trauma and no existing medical complaints.
Most importantly, though, and in addition to the lack of clear objectively serious
medical needs that went unaddressed, plaintiff fails to demonstrate Wilson had any actual
knowledge of an unaddressed medical need. While plaintiff requested to decontaminate
citing general discomfort, Wilson was not made aware of specific, serious medical needs
that required immediate medical attention. Finally, to the extent plaintiff’s claim instead
targets the allegedly dirty cell that he returned to—the complaint is somewhat unclear—
plaintiff yet again identifies no serious medical need that arose from this situation and
fails to identify how long his cell was in such a condition. A claim of general dirtiness,
alone, is insufficient—indeed, the Eighth Circuit has held that conditions far worse than
those alleged by plaintiff failed to rise to the level of a constitutional violation. See
Goldman v. Forbus, 17 Fed.Appx. 487, 488 (8th Cir. 2001) (six nights sleeping on a floor
while being sprinkled with urine was not a constitutional violation); Smith v. Copeland,
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87 F.3d 265, 269 (8th Cir. 1996) (no constitutional violation when pretrial detainee was
subject to raw sewage from overflowing toilet for four days).
6. Claim for Failure to Protect Against Hancock Related to the April 7, 2015,
Incident
Summary judgment will not be granted on plaintiff’s failure-to-protect claim
against Hancock for the same reasons it was not granted to Wilson. The analysis is
identical, with the added caveat that Hancock apparently even encouraged Lockhart and
plaintiff to kill each other—a fact that, if true, would tend to demonstrate deliberate
disregard for either person’s safety. Hancock’s affidavit, which does little more than
refute plaintiff’s story, creates, at best, a genuine factual dispute for the jury. And,
ultimately, questions of fact once again remain as to the obviousness of the risk, the
information known by Hancock about Lockhart, Hancock’s past experiences with both
Lockhart and plaintiff, and any limitations he may have faced in making a decision to
refuse protective custody.
IV. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment is
GRANTED on plaintiff’s failure-to-protect, excessive force, and inhumane conditions of
confinement claims against defendant Bagby.
IT IS FURTHER ORDERED that defendant’s motion for summary judgment is
DENIED on plaintiff’s failure-to-protect claim against defendant Brown.

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IT IS FURTHERED ORDERED that defendant’s motion for summary judgment
is DENIED on plaintiff’s failure-to-protect claim against defendant Walls.
IT IS FURTHERED ORDERED that defendant’s motion for summary judgment
is GRANTED on plaintiff’s failure-to-protect and inhumane conditions of confinement
claims against defendant Schaefer.
IT IS FURTHERED ORDERED that defendant’s motion for summary judgment
is DENIED IN PART AND GRANTED IN PART on plaintiff’s claims against
defendant Wilson.
Summary judgment is GRANTED on plaintiff’s claims for excessive force
and inhumane conditions of confinement against Wilson.
Summary judgment is DENIED on plaintiff’s failure-to-protect claim
against Wilson.
IT IS FURTHER ORDERED that defendant’s motion for summary judgment is
DENIED on plaintiff’s failure-to-protect claim against defendant Hancock.
So ordered this 26th day of November 2018.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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