Adaway v. Doe (Campbell) et al

Filing 47

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that defendants' motion for summary judgment 30 is granted. A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by Honorable Rodney W. Sippel on 6/23/11. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHARLIE J. ADAWAY,
Plaintiff,
vs.
JOHN DOE, et al.,
Defendants.

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Case No. 4:10CV890 RWS

MEMORANDUM AND ORDER
Charlie Adaway claims that he was pepper sprayed, assaulted and then
denied medical care while an inmate in administrative segregation at Missouri
Eastern Reception Diagnostic and Correction Center (ERDCC). In this pro se §
1983 complaint, Adaway brings excessive force and denial of medical care claims
against defendants Clifford Campbell, Michael Rotter, Harold Lewis, Kris Kearns,
and Debra House. Defendants move for summary judgment on all claims against
them. Adaway opposes summary judgment, and the issues have been fully
briefed. For the following reasons, defendants are entitled to judgment as a matter
of law.
Standards Governing Summary Judgment
A court may grant a motion for summary judgment only if it finds that all
the evidence before it demonstrates “no genuine issue as to any material fact” and

the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden is on the moving party. Id. The
court must view all facts and resolve all ambiguities in favor of the non-moving
party. Id. However, the non-moving party must set forth specific facts showing
that there is sufficient evidence to allow a jury to return a verdict in that party’s
favor. Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986). Under these
standards I review the facts in this case.
Background Facts
On November 14, 2009, Adaway was an inmate in administrative
segregation at ERDCC in Bonne Terre, Missouri. During the afternoon head
count, Adaway was observed masturbating by defendant House. Later that day,
Adaway was issued a conduct violation for engaging in sexual activity and
interfering with the inmate count. The conduct violation was read to Adaway by
defendant Rotter. Adaway claims that Rotter told him that he would be put on
“meal loaf”1 restriction if he received another violation. Adaway got upset, started
arguing with Rotter, and told him to “get his punk ass away from my door.”
Rotter then left and House, defendant Lewis, and defendant Kearns

1

“Meal loaf is prepared like meat loaf and consists of meat, vegetables, fruit, potatoes,
grains, dairy products and spices.” Lott v. Roper, 2006 WL 2038635, *1 n.1 (E.D. Mo. July 19,
2006).
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approached Adaway’s cell to conduct a search. While standing outside Adaway’s
cell door, Lewis ordered Adaway at least twice to “cuff-up,” or turn around and
submit to handcuffs, so that Adaway’s cell could be searched.2 In his deposition,
Adaway admitted that he told them, “No,” and then covered his cell window with
paper so that the guards could not see inside his cell. Adaway knew that refusing
to “cuff-up” when ordered and obstructing the view inside his cell were conduct
violations. Adaway testified that after he covered his window, he took the sheets
off his mattress and put it against the door’s food port to prevent the officers from
using pepper spray or “grabbing him.” Lewis told Adaway to submit to restraints
or he would use force, but he did not specify what type of force, ie., pepper spray,
would be used.
Adaway again refused to comply and claims that Lewis began to release
pepper spray into his cell through the side of the door. Adaway then stuffed his
socks into the side of the door to prevent the pepper spray from entering his cell.
Some of the spray penetrated his cell, hit the cell door and the wall and caused him
to cough. It also got on Adaway’s face, chin and chest. Using his towel and
water from the sink in his cell, Adaway was able to remove the pepper spray from

2

Inmates who are ordered to “cuff-up” are required to turn their back to the cell door,
place their hands behind their back, and then place their hands through the cell door’s food port
so that officers can handcuff them from outside of the cell.
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his face.3
Defendant Lieutenant Campbell then approached Adaway’s cell door and
ordered him to uncover his window and cuff-up. Adaway peeked through the
window, but then covered it back up again and refused to comply. Adaway then
told them to “come in here [and] take me out.” Adaway’s door was then opened
and Rotter, Lewis and Kearns rushed into his cell. Lewis pushed Adaway to the
ground, and Adaway curled into a ball on the floor of his cell in a fetal position.
Adaway claims that Lewis and Rotter punched and kicked him in his side, arm and
wrists, and in the back and elbow. Adaway testified that Campbell and House
only watched, but that he was unsure whether Kearns kicked him. Adaway was
then placed in handcuffs and taken to the restraint bench while his cell was
searched.4 Adaway was not bleeding and had a scratch on his arm. When asked
by Rotter if he was ready to return to his cell, Adaway responded, “Fuck you.”

3

In an effort to evade summary judgment, Adaway submitted an affidavit stating that he
was never told to cuff up and submit to a search before he was pepper-sprayed, and that he had
“done nothing wrong” to justify the use of force. He also claims that he had not covered up the
window into his cell or placed his mattress against the food port until after he had been peppersprayed. Adaway cannot create a sham issue of fact and evade summary judgment by
contradicting his prior testimony with a later-filed affidavit and opposition brief. Lykken v.
Brady, 622 F.3d 925, 933 (8th Cir. 2010). The Court’s recitation of events comes directly from
Adaway’s testimony, and he cannot change his story now in the hopes that the Court will permit
his case to go to trial.
4

The restraint bench is a rectangular, steel bench with slots to secure an inmate to it with
handcuffs and leg irons.
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Adaway was then placed in his cell. Once in his cell, he pulled his legs
through his arms so that his wrists were cuffed in front of him instead of behind
him. Adaway was told to stick his hands out of the food port so that his handcuffs
could be removed. Adaway refused. Campbell was called back to Adaway’s cell.
Adaway alleges that Campbell told him that he would use pepper spray if Adaway
refused to comply, and Adaway became agitated and told them, “You can’t pepper
spray me because I’m in restraints.” Adaway claims that Campbell then said that
they could “beat his ass” instead. Lewis and Kearns then entered Adaway’s cell
and pushed him against the wall and began to remove the handcuffs. Adaway was
struggling so Kearns suggested that Adaway be taken to the ground. At that point,
Adaway told them that they could take his handcuffs. The handcuffs were then
removed and Adaway was left in his cell.
Adaway claims that he asked Lewis to see the nurse, but that Lewis did not
acknowledge him or respond. Adaway admits that at the time he was yelling “all
type of stuff [because] I was mad.” Adaway claims he asked a guard on the next
shift to see the nurse, but he did not get to because he fell asleep. Adaway first
testified that never submitted a medical services request (MSR) form to see the
nurse, but then he later stated that he “turned in” an MSR but it never got

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answered, “so I used hydrocortisone cream” instead.5 Adaway alleges that he had
some bruising, swelling and a knot on his back and side that lasted about one
week. Adaway also claims that his elbow hurt for three or four days. He has no
permanent injuries from this incident, but he claims that he sometimes has bad
dreams about people laughing at him as a result. Adaway seeks $5,000 in
damages for pain and suffering, and $5,000 for “federal fees and bills.”
Discussion
All defendants move for judgment as a matter of law on Adaway’s
excessive force claim. There is no dispute that Campbell and House never used
force against Adaway, so they are entitled to summary judgment on any claims of
excessive force.6 I will assume for purposes of this motion only that Kearns,
Lewis and Rotter used force against Adaway. Defendants contend that the force
was used reasonably in a good-faith effort to maintain and restore discipline. I

5

There is no record of this alleged MSR in Adaway’s file.

6

A prisoner may assert an Eighth Amendment claim against a correctional officer who
fails to intervene on the prisoner’s behalf when the prisoner is attacked by another correctional
officer. See Estate of Davis by Ostenfeld v. Delo, 115 F.3d 1388, 1395 (8th Cir. 1997); Buckner
v. Hollins, 983 F.2d 119, 122 (8th Cir. 1993). The question is whether the officer’s inaction
amounts to deliberate indifference to a substantial risk of serious harm to the prisoner. Id. at 122.
An officer’s liability is dependent on whether there was time to intervene. Putnam v. Gerloff,
639 F.2d 415, 423-24 (8th Cir. 1981). Adaway’s complaint does not allege failure to protect
claims against Campbell and House, but even if it did these defendants would still be entitled to
summary judgment as the underlying excessive force claim fails. See id. At 423-24 (no failure to
protect claim where underlying use of force did not violate prisoner’s rights).
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agree. “The Eighth Amendment bars correctional officers from imposing
unnecessary and wanton pain on inmates, regardless of whether there is evidence
of any significant injury.” Johnson v. Blaukat, 453 F.3d 1108, 1112 (8th Cir.
2006) (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). “Officers may
reasonably use force in a good-faith effort to maintain or restore discipline but
may not apply force maliciously and sadistically to cause harm.” Johnson, 453
F.3d at 1112 (internal quotation marks and citation omitted). The test for
reasonableness or the good-faith application of force depends on the following:
whether there was an objective need for force, the relationship
between any such need and the amount of force used, the threat
reasonably perceived by the correctional officers, any efforts by the
officers to temper the severity of their forceful response, and the
extent of the inmate’s injury.

Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002). The extent of any resulting
injury, while material to the question of damages and informative as to the likely
degree of force applied, is not in and of itself a threshold requirement for proving
this type of Eighth Amendment claim. See Wilkins v. Gaddy, 130 S.Ct. 1175,
1178 (2010) (per curiam).
Here, Lewis was objectively reasonable in releasing pepper spray into
Adaway’s cell after Adaway -- who had already told Rotter to “get his punk ass

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away from my door” -- refused numerous times to cuff up and submit his cell to a
search. “Random searches of inmates, individually or collectively, and their cells
and lockers are valid and necessary to ensure the security of the institution and the
safety of inmates and all others within its boundaries.” Hudson v. Palmer, 468
U.S. 517, 529 (1984) (internal citation and quotation marks omitted). Adaway
also obstructed the view and access into his cell by covering his window with
paper and the food port with his mattress, knowing that these actions were conduct
violations. To maintain security and order, officers have a legitimate and
compelling need to view an inmate’s cell. Adaway was warned of the use of force
and had running water to wash his face after the pepper spray was used. Under
these circumstances, the use of pepper spray was an objectively reasonable and
measured way to gain Adaway’s compliance, not sadistic or malicious. See Jones
v. Shields, 207 F.3d 491, 495-96 (8th Cir. 2000). As such, Adaway’s Eighth
Amendment excessive force claim fails.
The same is true for any alleged force used by Kearns, Lewis and Rotter. At
the time the correctional officers entered the cell, Adaway had tempered the
effectiveness of the pepper spray by stuffing his socks into the side of the door and
told them to “come in here [and] take me out.” Moreover, they still could not see
into Adaway’s cell because he continued to obstruct their view. This situation
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created the highest degree of risk to the safety of institution and the correctional
officers because they were unable to verify if Adaway possessed any weapons or
posed a threat of harm to himself or others. Under these circumstances, the use of
force was an objectively reasonable and measured way to subdue Adaway, gain
his compliance and secure the safety of the institution. Moreover, the nature and
extent of force used were not greater than necessary to achieve these legitimate
objectives and resulted in only a scratch on Adaway’s arm and some bruising.7 As
such, Adaway’s Eighth Amendment excessive force claim fails as a matter of law.
Adaway also claims that defendants were deliberately indifferent to his
serious medical needs. The Eighth Amendment prohibition on cruel and unusual
punishment extends to protect prisoners from “deliberate indifference” to serious
medical needs. Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009). “Deliberate
indifference has both an objective and a subjective component.” Butler v.
Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). The objective component requires a
plaintiff to demonstrate an objectively serious medical need. Grayson v. Ross, 454
F.3d 802, 808–09 (8th Cir. 2006). A “serious medical need” is one “that has been
7

That the amount of force used was not excessive is further demonstrated by Adaway’s
continued recalcitrance after his cell was searched. He told Rotter, “Fuck you” when asked if he
would like to return to his cell. Once in his cell, Adaway continued to pose a security risk by
maneuvering his handcuffed hands in front of his body and refusing to let the guards remove the
cuffs. The guards were forced to enter Adaway’s cell a second time to gain his compliance with
their instructions.
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diagnosed by a physician as requiring treatment, or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.”
Coleman v. Rahija, 114 F.3d. 778, 784 (8th Cir. 1997) (quoting Camberos v.
Branstad, 73 F.3d. 174, 176 (8th Cir. 1995)).
To satisfy the subjective component of an Eighth Amendment medical
claim, a plaintiff inmate must show that the prison officials knew of, yet
deliberately disregarded, an excessive risk to the inmate’s health. Keeper v. King,
130 F.3d 1309, 1314 (8th Cir. 1997) (quoting Logan v. Clarke, 119 F.3d. 647, 649
(8th Cir. 1997)). “Neither differences of opinion nor medical malpractice state an
actionable Constitutional violation.” Jones v. Norris, 310 F.3d 610, 612 (8th Cir.
2002).
Defendants argue that Adaway failed to exhaust his administrative remedies
with respect to his denial of medical care claim. I agree. Section 1997e(a), as
amended by the Prison Litigation Reform Act of 1996, provides that “[n]o action
shall be brought with respect to prison conditions under [§ 1983] by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” “Congress enacted § 1997e(a) to reduce
the quantity and improve the quality of prisoner suits; to this purpose, Congress
afforded corrections officials time and opportunity to address complaints
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internally before allowing the initiation of a federal case.” Porter v. Nussle, 534
U.S. 516, 524-25 (2002). “Available grievance procedures must be exhausted
even if the relief the inmate seeks under § 1983 was not available through those
procedures.” King v. Iowa Department of Corrections, 598 F.3d 1051, 1052 (8th
Cir. 2010) (citing Booth v. Churner, 532 U.S. 731, 737-41 & n. 6 (2001)). “In
Woodford v. Ngo, 548 U.S. 81, 88 (2006), the Supreme Court held that § 1997e(a)
requires proper exhaustion, that is, a prisoner must complete the administrative
review process in accordance with the applicable procedural rules, including
deadlines, as a precondition to bringing suit in federal court.” King, 598 F.3d at
1053 (internal quotation marks omitted).
The Missouri Department of Corrections provides an administrative
grievance process for prisoners. To initiate the process, the prisoner must file an
Informal Resolution Request (“IRR”) within fifteen (15) days from the date of the
alleged incident. If a prisoner is dissatisfied with the response to an IRR and
wishes to pursue his grievance further, he must file an Offender Grievance within
seven days of receiving a response to his IRR. If the prisoner does not receive a
satisfactory response to his Offender Grievance, he must then file an Offender
Grievance Appeal. Only after the prisoner receives a response to his appeal is the
administrative grievance procedure considered exhausted.
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Although Adaway exhausted the grievance procedures with respect to his
excessive force claims, the undisputed evidence demonstrates that he did not file a
grievance alleging that he was denied medical care. Contrary to Adaway’s
argument, filing a grievance about his alleged assault by correctional officers does
not exhaust his administrative remedies with respect to his denial of medical care
claim. Because Adaway failed to exhaust his administrative remedies, defendants
are entitled to summary judgment on his denial of medical care claim. For this
reason, I need not and therefore do not consider defendants’ alternative arguments
that they are entitled to judgment as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary
judgment [#30] is granted.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.

RODNEY W. SIPPEL
UNITED STATES DISTRICT JUDGE

Dated this 23rd day of June, 2011.
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