Kitt v. Bailey et al
Filing
72
MEMORANDUM OPINION AND ORDER granting 66 MOTION for Summary Judgment with Brief in Support. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LEONARD WAYNE KITT,
TDCJ NO. 655955,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
TRACY H. BAILEY, et al.,
Defendants.
CIVIL ACTION NO. H-14-0368
MEMORANDUM OPINION AND ORDER
Plaintiff Leonard Wayne Kitt
(TDCJ No.
Complaint Under the Civil Rights Act,
655955)
42 U.S.C.
§
has filed a
1983
(Docket
Entry No.1), alleging that his civil rights were violated while he
was
in custody at
the
Texas
Department
of
Correctional Institutions Division ("TDCJ").
claim
is
that
Lieutenant
Billy McCreary
Criminal
Justice
Kitt's only remaining
used
excessive
force
against him by spraying him unnecessarily with a chemical agent.
Pending before the court is Defendant McCreary's Motion for Summary
Judgment with Brief in Support
No.
66).
("Defendant's MSJ")
(Docket Entry
Kitt has filed Plaintiff's Memorandum in Response to
Defendant's Motion for Summary Judgment/His Request Questioning the
Sufficiency of the Evidence Fed. R. Civil P. 52(5) and Affidavit in
Support
(Docket
Entry
No.
70,
p.
3),
and
McCreary
has
filed
Defendant McCreary's Reply to Plaintiff's Response to Defendant's
Motion for Summary Judgment
No. 71)
("Defendant's Reply")
(Docket Entry
After considering all of the pleadings, the exhibits, and
the applicable law,
the court will grant the Defendant's MSJ and
will dismiss this case for the reasons explained below.
I.
Background
The facts underlying the claims in this case have been set
forth at length in the court's Memorandum Opinion and Order entered
on April 10, 2015, and will not be repeated in full.
Entry No.
64.)
(See Docket
What follows is a summary of Kitt's allegations
pertaining to his sole remaining claim against McCreary for the
excessive use of force.
A.
Kitt's Allegations
This case stems
from a use of
Estelle Unit on October 30, 2013.
force
that occurred at the
Kitt alleges that he was waiting
in line with other inmates for his turn to take a shower when an
officer (Captain Vincent) approached him and told him he was out of
place.
(Docket Entry No.7, p. 16)
When Kitt insisted he had a
right to take a shower because he worked in the kitchen, Captain
Vincent moved him to a shower cellon the A-line while he verified
Kitt's story.
Approximately fifteen minutes later, Captain Vincent
ordered Kitt's release after confirming that Kitt was a kitchen
worker who was authorized to take a shower.
-2-
rd.
Captain Vincent's order to release Kitt to take a shower was
conveyed to Officer David W. Allmon who in turn informed Officer
Kristy Cooper that Kit t shoul·d be released.
p.
16)
(Docket Entry No. 16,
Kitt alleges that instead of releasing him,
Cooper went
into the stall where Kitt was being held and ordered him to submit
to handcuffs or suffer the consequences.
Id.
Kitt, believing he
had done nothing wrong, refused to comply and protested that he was
supposed to be released.
comply,
Cooper summoned Lt.
When Kitt refused repeated orders to
McCreary,
who arrived wearing a gas
mask and carrying a large cannister of gas.
Id.
Kitt alleges that Lt. McCreary shouted something at him that
he could not understand because McCreary was wearing the gas mask.
Id. at 17.
Kitt states that he did not want to have his hands
cuffed because guards routinely assault inmates in small shower
stalls like the one in which he was confined.
When Kitt
refused to submit McCreary allegedly sprayed his face,
head, and
body with gas although Kitt made no threatening moves, gestures, or
statements.
(Docket
Entry No.7,
p.
17)
Ki t t
alleges
that
Lt. McCreary continued to spray him well after he collapsed and
showed no resistance and made no movement other than to shield
himself from the gas.
Id. at 15, 17.
Kitt alleges that a video record of the incident substantiates
his allegation that Lt. McCreary took no reasonable steps to lessen
his use of force after it was apparent that Kitt was incapacitated.
Id. at 17.
He also states that the video record will show that he
-3-
did not do anything that could be interpreted as a threat.
Ki t t
complains
that he suffered skin,
nose,
throat,
irritations and burns as a result of the gas attack.
Id.
and sinus
Id. at 18.
He also states that he experienced coughing, nasal drip, tightness
in the chest, and difficulty breathing.
Id.
Kitt alleges that he
suffered a heart attack approximately three or four weeks before
the incident and that a stint was implanted in his right coronary
artery.
Id.
He states that he now takes atorvastatin (Lipitor),
nitroglycerin,
Id.
clopiddogrel
(Plavix), and aspirin for his heart.
He also states that he has been treated for Hodgkins lymphoma.
Kitt claims that his medical restrictions clearly prohibit exposure
to environmental pollutants,
Id.
For these reasons,
including chemicals and irritants.
Kitt contends that the force used was
excessive in violation of the Eighth Amendment.
B.
Defendant McCreary's Motion for Summary Judgment
McCreary now moves for summary judgment,
cannot
demonstrate
a
constitutional
arguing that Kitt
violation
of
the
Eighth
Amendment and that he is entitled to qualified immunity from suit.
In support of that motion McCreary provides a copy of the TDCJ Use
of
Force
Report
October 30, 2013.
the
report,
concerning
the
incident
that
(Docket Entry No. 66-1, Exhibit A)
which contains
statements
occurred
on
According to
from McCreary and other
officers who were present at the time of the incident, McCreary
encountered Kitt in the A-line shower where Kitt was refusing to
-4-
submit to a strip search and the application of hand restraints for
purposes of a cell move.
Id. at 14.
McCreary issued two orders
for Kitt to submit to a strip search and the application of hand
restraints or chemical agents would be utilized.
Id.
When Kitt
refused to comply McCreary administered a short burst of chemical
agent into the shower "in an at tempt to gain compliance.
/f
Id.
Kitt immediately turned around and placed his hands into the food
tray slot to be handcuffed.
Id.
A nurse who examined Kitt after
the use of force noted no injuries.
Id. at 25.
TDCJ officials conducting an Administrative Review of
incident concluded that the use of force was "justified./f
5,
In particular,
6.
the
Id. at
a TDCJ Regional Coordinator observed that
Kitt refused to comply with all orders and that authorization was
given for the use of chemical agents,
compliance.
McCreary
/f
Id.
at 5.
received
a
which were used "to gain
A procedural violation was noted and
Letter
of
Training
because
he
failed
to
instruct Kitt on decontamination procedures following the use of
force.
Id. at 6,
8.
The use of force was found to comply with
prison policies and procedures in all other respects.
Id. at 5, 6.
In addition to the Use of Force Report, McCreary provides a
digital video
(DVD)
October 3D, 2013.
depicting the use of force that occurred on
(Docket Entry No. 69)
The video refutes Kitt's
claim that McCreary sprayed him with gas in the face and continued
to spray him after he collapsed on the ground or was otherwise
-5-
incapacitated.
The video begins by showing McCreary preparing to
go to the A-line shower area because Kitt had refused to obey
orders to submit to a strip search and hand restraints for purposes
of a cell move.
McCreary explains that it was his intention to
give two orders directing Kitt to submit to a strip search and hand
restraints or chemical agents would be utilized.
The video next
shows McCreary and two other officers wearing gas masks standing in
front of the shower.
McCreary, who is also wearing a gas mask, is
then heard giving two orders in rapid succession.
The orders are
garbled because of the gas mask that McCreary is wearing, but he
clearly warns Kitt to comply or "chemical agents will be utilized."
When Kitt failed to comply,
McCreary sprayed Kitt with a short
burst (no more than five seconds) of chemical agent.
spray hit Kitt in the upper torso,
The chemical
primarily in the back area.
Kitt immediately placed his hands through the food tray slot of the
cell to be handcuffed.
Kitt promptly removed his clothing and
submitted to an abbreviated strip search.
He was then placed in
hand restraints and was escorted to his cell.
Shortly afterward,
medical personnel arrived to examine Kitt, who was complaining of
chest pain and shortness of breath.
to the infirmary,
gurney.
When Kitt was unable to walk
guards carried him on a backboard and then a
Kitt arrived at the infirmary moments later and the video
ends as he is being examined by medical personnel.
McCreary also supplies Kit t' s
(Docket Entry No. 67)
medical
records
under seal.
The records reflect that Kitt arrived at the
-6-
Estelle Unit
infirmary following
the use of
force
in
"stable"
condition, complaining of chest pain and difficulty breathing.
at 60, 62, 73.
rd.
Medical providers noted that Kitt had a history of
"cardiac problems," including a heart attack on September 3, 2013.
rd.
at 60,
73.
Kitt denied having any physical injury and no
injuries were visually noted.
rd. at 62.
Kitt's blood pressure
initially was 151/82, but within fifteen minutes it had lowered to
139/79.
rd.
An EKG was done and oxygen was administered.
Kitt's heart rate decreased and within thirty minutes of arriving
at the infirmary he was released to return to his cell.
rd.
The
medical records disclose that no further treatment was required
following the use of force.
Kitt's
medical
records
contain
a
"Health
Summary
for
Classification" form, which shows that in October of 2013 Kitt was
restricted
from
"chemicals
or
No.
67-1, p.
exposure
irritants"
80)
to
in
"environment [al]
the
work
pollutants"
setting.
Contrary to Kitt's contention,
(Docket
and
Entry
the form shows
that officials were not required to contact the medical department
before
instituting
Likewise,
disciplinary
measures
against
Kitt.
rd.
Kitt had no restrictions for disciplinary actions and
nothing that would otherwise prohibit the use of a chemical agent
for disciplinary purposes.
II.
rd.
Standard of Review
Defendant's MSJ is governed by Rule 56 of the Federal Rules of
Civil Procedure.
Under this rule a reviewing court "shall grant
-7-
summary judgment if
dispute as
the movant shows that
there is no genuine
to any material fact and the movant is entitled to
judgment as a matter of law."
Fed.
R.
Civ.
P.
56 (a)
see also
i
Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).
A fact is
"material" if its resolution in favor of one party might affect the
outcome of
the suit under governing law.
Lobby, Inc., 106 S. Ct. 2505, 2510 (1986).
Anderson v.
Liberty
An issue is "genuine"
if the evidence is sufficient for a reasonable jury to return a
verdict for the nonmoving party.
Id.
In deciding a summary judgment motion the reviewing court must
"construe all facts and inferences in the light most favorable to
the nonmoving party."
Dillon v. Rogers,
Cir.
citation
2010)
However,
(internal
and
596 F.3d 260,
quotation
marks
266
(5th
omitted).
the non-movant cannot avoid summary judgment simply by
presenting
"conclusory
allegations
and
denials,
speculation,
improbable inferences, unsubstantiated assertions, and legalistic
argumentation."
Jones v.
344, 348 (5th Cir. 2012)
Lowndes County,
Mississippi,
678 F.3d
(quoting TIG Ins. Co. v. Sedgwick James of
Washington, 276 F.3d 754, 759 (5th Cir. 2002))
i
see also Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)
(en banc)
(a
non-movant cannot demonstrate a genuine issue of material fact with
conclusory
allegations,
scintilla of evidence).
a
genuine
issue
of
unsubstantiated
assertions,
or
only
a
If the movant demonstrates the absence of
material
fact,
-8-
the
burden
shifts
to
the
non-movant to provide "specific facts showing the existence of a
genuine issue for trial."
Matsushita Elec.
Indus.
Co.,
Ltd. v.
zenith Radio Corp., 106 S. Ct. 1348, 1356 (1986).
The plaintiff proceeds pro se in this case.
Courts construe
pleadings filed by pro se litigants under a less stringent standard
than those drafted by lawyers.
594,
596
(2007)
(1972);
("A
See Haines v.
see also Erickson v.
document
filed
pro
construed [.] '") (quotation omitted).
Kerner,
Pardus,
se
is
551 U.S.
'to
be
1995).
"
89,
Ct.
94
liberally
Nevertheless, "pro se parties
must still brief the issues and reasonably comply with
procedural rules]
92 S.
[federal
Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.
The Fifth Circuit has held that "the notice afforded by the
Rules of Civil Procedure and the local rules" is "sufficient" to
advise a pro se party of his burden in opposing a summary judgment
motion.
See Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th
Cir. 1992).
III.
Discussion
Defendant McCreary argues that Kitt fails to show that he used
excessive force in a malicious or sadistic manner for the purpose
of inflicting pain in violation of the Eighth Amendment.
argues
further
violation or
unreasonable.
that
to
show
Kitt
that
fails
to
establish
McCreary's
actions
a
McCreary
constitutional
were
objectively
McCreary maintains, therefore, that he is entitled
to qualified immunity.
-9-
A.
Qualified Immunity
Public officials acting within the scope of their authority
generally are shielded from civil liability by the doctrine of
qualified immunity.
2738 (1982).
See Harlow v.
Fitzgerald,
102 S.
Ct.
2727,
"Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct."
(2015)
Taylor v. Barkes, 135 S. Ct. 2042, 2044
(quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)).
In doing
so,
"[q] ualified
immunity gives
government
officials
breathing room to make reasonable but mistaken judgments about open
legal questions."
(2011)
Ashcroft v.
al-Kidd,
131 S.
Ct.
2074,
2085
Thus, the doctrine of qualified immunity "protects all but
the plainly incompetent or those who knowingly violate the law."
Id.
(quoting Malley v. Briggs, 106 S. Ct. 1092, 1096 (1986)).
To
determine
whether
a
public
official
is
entitled
to
qualified immunity for an alleged constitutional violation reviewing courts engage in a two-step inquiry.
129 S. Ct. 808, 815
(2009).
See Pearson v. Callahan,
The first step of the analysis asks
whether, taken in the light most favorable to the party asserting
the injury,
the facts alleged show that the official's conduct
violated a constitutional right that was "clearly established" at
that time.
whether
Id. at 815-16.
qualified
immunity
The second step of the analysis asks
is
appropriate,
-10-
notwithstanding
an
alleged violation, because the defendant's actions were objectively
reasonable "in light of clearly established law at the time of the
conduct
in
question./I
Tunica County,
Hampton
Mississippi,
543
Co.
Nat'l
Surety,
F.3d 221,225
(quoting Freeman v. Gore, 483 F.3d 404, 410-11
L.L.C.
(5th Cir.
v.
2008)
(5th Cir. 2007)).
A reviewing court may consider these steps in any sequence.
See
Pearson, 129 S. Ct. at 818; see also Tolan v. Cotton, 134 S. Ct.
1861,
1866
(2014).
In this case the court begins by examining
whether the plaintiff establishes a constitutional violation of the
Eighth Amendment to the United States Constitution.
B.
Eighth Amendment Excessive Use of Force
Claims of excessive use of force in the prison context are
governed by the Eighth Amendment, which prohibits cruel and unusual
punishment, i.e., the "unnecessary and wanton infliction of pain./I
Wilson v.
Seiter,
III S.
quotation marks omitted).
Ct.
2321
(1991)
(citation and internal
Not every malevolent touch by a prison
guard gives rise to a constitutional violation under the Eighth
Amendment.
See Hudson v. McMillian,
112 S. Ct.
995, 1000 (1992)
(citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)
("Not
every push or shove, even if it may later seem unnecessary in the
peace of a judge's chambers, violates a prisoner's constitutional
rights./I)).
The constitution excludes from recognition de minimis
uses of physical force, provided that the use of force is not of a
-11-
sort
'" repugnant
to
the
conscience of mankind.'"
Hudson,
112
S. Ct. at 1000 (citation and quotation omitted) .
To prevail on an excessive-use-of-force claim under the Eighth
Amendment, a plaintiff must establish that force was not "applied
in a good- fai th effort to maintain or restore discipline,
maliciously and sadistically to cause harm."
F.3d 600, 601-02 (5th Cir. 1996)
Eason v.
[but]
Holt,
73
(citing Hudson, 112 S. Ct. at 998;
and Jackson v. Culbertson, 984 F.2d 699 (5th Cir. 1993)).
Relevant
factors to consider in evaluating an excessive-use-of-force claim
include:
(1) the extent of the injury suffered,
the application of force,
(2) the need for
(3) the relationship between the need and
the amount of force used,
(4)
the threat reasonably perceived by
the responsible officials, and (5) any efforts made to temper the
severity of a forceful response.
See Hudson,
Gomez v.
923
Chandler,
163 F.3d 921,
112 S. Ct. at 999;
(5th Cir.
1999).
Each of
these factors is considered briefly below.
1.
Extent of Injury
Kitt sustained no physical injuries as a result of the use of
force, but complained of chest pain and shortness of breath due to
the chemical spray.
The medical records reflect that he arrived at
the infirmary in "stable" condition and that his blood pressure was
elevated.
(Docket Entry No.
67, pp. 60,
62)
However, his heart
rate soon decreased, returning to normal, and he was released from
the
infirmary after approximately thirty minutes.
-12-
Id.
at
62.
While arguably more than de minimis,l Kitt's discomfort was not
significant
for purposes of
the
Eighth Amendment and does not
demonstrate that excessive force was deployed in this instance.
2.
Need for Force
McCreary argues that the application of force was needed in
this case because Kitt refused repeated orders to submit to a strip
search and hand restraints so that he could be moved to another
cell.
Kitt admits that force was used only after he "would not
(Docket Entry No.7, p. 17; Docket
submit to being handcuffed."
Entry No. 21, p. 7)
Use of a chemical agent in limited quantities
to gain compliance is considered an appropriate response where an
inmate refuses to obey repeated orders.
F.2d 1260, 1267 (7th Cir. 1984)
See Soto v. Dickey,
744
("If it is an order that requires
action by the institution, and the inmate cannot be persuaded to
obey the order, some means must be used to compel compliance, such
as a chemical agent or physical force.").
Kitt argues that force was not needed because his refusal to
obey the orders given by Officer Cooper was
argument is without merit.
legitimate.
This
Preserving institutional order and
lThe Prison Litigation Reform Act ("PLRA") precludes recovery
of monetary damages for "mental or emotional injury suffered while
in custody without a prior showing of physical injury." 42 U.S.C.
§
1997e(e).
To be actionable an inmate's injury need not be
significant, but must be more than de minimis.
See Siglar v.
Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (holding that a
sore, bruised ear lasting for three days was de minimis and did not
meet the physical injury requirement found in the PLRA) .
-13-
discipline is a central objective of sound prison administration.
See Bell v. Wolfish,
99 S. Ct. 1861, 1878
(1979)
("[M]aintaining
institutional security and preserving internal order and discipline
are essential goals that may require limitation or retraction of
the retained constitutional rights of both convicted prisoners and
pretrial detainees.").
As an inmate confined in a high security
prison facility, Kitt did not have the right to decide whether to
obey the orders he was given.
See Minix v. Blevins, Civil Action
No. 6:06-306, 2007 WL 1217883, at *24
(E.D. Tex. April 23, 2007)
{citing Meadows v. Gibson, 855 F. Supp. 223, 225 (W.D. Tenn. 1994)
{prisoners cannot pick and choose which prison rules to obeY))i
see also Soto,
decide
which
them." )
744 F.2d at 1267
orders
they
will
("Inmates cannot be permitted to
obey,
and
when
they
will
obey
Based on this record Kitt fails to show that the use of
force was unnecessary.
3.
Need for Force and the Amount of Force Used
Kitt claims that the amount of force was excessive because
McCreary continued to spray him with chemical agent well after he
had collapsed to the floor and was incapacitated.
No.7,
p.
17i
Docket
Entry No.
assertion is refuted by the video,
70,
pp.
17,
20,
(Docket Entry
21)
Kitt's
which confirms that McCreary
administered only a short burst of chemical spray to Kitt's upper
back,
lasting no more than five seconds.
(Docket Entry No.
69)
The video further confirms that Kitt did not collapse or fall to
-14-
the
ground
administered.
at
any
time
while
the
chemical
agent
was
being
The video shows that McCreary did not continue to
spray Kitt after he became incapacitated, as Kitt contends.
Noting that he had suffered a heart attack in early September
of 2013, Kitt argues further that the amount of force was excessive
because
his
chemicals.
medical
restrictions
(Docket Entry No.
70,
prohibited
p.
his
This
15)
exposure
to
contention is
refuted by Kitt's Health Summary for Classification form in place
for October of 2013 when the use of force occurred.
No.
67-1, p.
80)
(Docket Entry
That form shows that Kitt was restricted from
exposure to chemicals in the work setting, but that officials were
not required to contact the medical department before instituting
disciplinary
measures
and
that
he
had
no
restrictions
for
disciplinary purposes.
rd.
The record does not contain evidence
that the amount of force used was unauthorized or excessive to the
need.
4.
Reasonably Perceived Threat
The fourth factor looks at the threat reasonably perceived by
the responsible official, which in this case was Lt. McCreary.
The
video shows that McCreary was aware that Kitt had refused repeated
orders to be handcuffed so that he could be moved to another cell.
When McCreary approached Kitt's cell wearing a gas mask and armed
with chemical spray, Kitt did not comply with orders to submit to
a strip search and hand restraints.
-15-
Kitt argues that force was not
necessary because he was secured in a cell and did not pose any
threat.
Acknowledging that Kitt did not pose a physical threat,
per se, McCreary contends that Kitt's actions posed a threat to the
order and security of
th~
institution.
Kitt correctly notes that his case is distinguishable from
those involving an uprising or disturbance by inmates.
In that
context, it is well established that the use of tear gas to prevent
riots
or escapes or to subdue
recalcitrant prisoners does not
constitute cruel and unusual punishment.
509 F.2d 1338, 1340 (5th Cir. 1975)
137 F.3d 836, 841 (5th Cir. 1998)
i
See Clemmons v. Greggs,
see also Baldwin v. Stalder,
(holding that the use of mace to
quell a disturbance on a prison bus was not an excessive use of
force) .
While
Kitt's
recalcitrance
did not
rise
to
the
level
of
creating a disturbance, Kitt does not dispute that his misconduct
frustrated efforts by correctional officers to move him to another
cell.
per se,
Although Kitt's actions did not pose a physical threat,
courts have recognized that disobeying orders poses a
threat to the order and security of the prison as an institution.
See Minix v. Blevins, Civil Action No. 6:06-306, 2007 WL 1217883,
at *25 (E. D. Tex. April 23, 2007)
1260, 1270-71 (7th Cir. 1984)).
his cell is of no moment.
unruly or
\ recalci trant'
(citing Soto v. Dickey, 744 F. 2d
The fact that Kitt was secured in
In that respect, "the use of mace on an
prison inmate,
-16-
though confined in his
cell, is not plainly per se unconstitutional" as cruel and unusual
punishment.
Bailey v. Turner, 736 F.2d 963, 970 (4th Cir. 1984)
i
see also Soto, 744 F.2d at 1270 ("The Supreme Court has never held,
nor have we or any other court of
appeals,
so
far as we
can
determine, that the use of tear gas or a chemical agent is a per se
violation of the Eighth Amendment, whether an inmate is locked in
his
cell
or not.")
WL 1026192,
at *7
i
Rios
v.
McBain,
Civil
(E.D. Tex. April 28,
2005)
No.
A504CV84,
2005
(noting that "open
defiance of orders plainly poses a threat to the security of the
institution, regardless of whether or not the defiance is emanating
from within a locked cell") .
Kitt has not refuted McCreary's contention that his actions
were reasonably perceived as a threat to institutional order and
security.
Therefore,
this
factor
does
not
weigh
in
favor
of
finding that excessive force was used in this instance.
5.
Efforts to Temper the Forceful Response
The fifth factor asks the court to determine if any efforts
were made to temper the severity of the forceful response.
Kitt
admits that he refused to obey repeated orders to submit to hand
restraints and that he was warned of the consequences,
chemical agents would be utilized if he did not comply.
i.e, that
After Kitt
refused to comply with repeated orders, Lt. McCreary assembled a
team of officers,including a video camera,
to execute a use of
force pursuant to the TDCJ Use of Force Plan.
Lt. McCreary clearly
-17-
warned Kitt that he was about to use a chemical agent if he did not
submit.
The use of chemical spray was short in duration, lasting
no more than five seconds.
agent,
If officers had not used a chemical
it is likely that physical force would have been used to
extract Kitt from his cell, risking physical injury to staff and to
Kitt.
Had Kitt complied at any point with the orders to submit to
hand restraints,
the use of force would not have been necessary.
Under. these circumstances, steps were plainly taken to eliminate or
reduce the need for force.
A review of the five above-referenced factors from Hudson v.
McMillian
shows
that
McCreary
applied
limited
force
after
he
reasonably perceived that Kitt had disobeyed repeated orders and
that he did so in a
good faith effort
to maintain or restore
discipline and not maliciously or sadistically to inflict pain or
to use force in excess of the need.
Consideration of these same
factors supports a finding that McCreary's actions were objectively
reasonable in light of clearly established law found in Hudson.
Kitt does not otherwise point to admissible evidence showing that
McCreary violated the Eighth Amendment by using excessive force in
a manner that was cruel and unusual.
Under these circumstances,
Kitt has not established a constitutional violation of the Eighth
Amendment or overcome McCreary's entitlement to qualified immunity.
Absent a genuine issue of material fact for trial, Defendant's MSJ
will be granted.
-18-
IV.
Accordingly,
Conclusion and Order
it is ORDERED that Defendant McCreary's Motion
for Summary Judgment (Docket Entry No. 66) is GRANTED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 24th day of June, 2015.
7
SIM LAKE
UNITED STATES DISTRICT JUDGE
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