Terry v. Dycus

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

DELTA DIVISION

JARELL D. TERRY PLAINTIFF

ADC #149998

v. No: 2:21-cv-00056 LPR-PSH

MORIENO KELLY DEFENDANT

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge

Lee P. Rudofsky. You may file written objections to all or part of this

Recommendation. If you do so, those objections must: (1) specifically explain the

factual and/or legal basis for your objection, and (2) be received by the Clerk of this

Court within fourteen (14) days of this Recommendation. By not objecting, you

may waive the right to appeal questions of fact.

DISPOSITION

Plaintiff Jarell Terry, an inmate at the Arkansas Division of Correction’s East

Arkansas Regional Unit, filed a pro se civil rights complaint on May 17, 2021 (Doc.

No. 2), and an amended complaint on June 28, 2021 (Doc. No. 8). After screening

Terry’s amended complaint, his claims were limited to individual capacity claims

against Defendants Sergeant Morieno Kelly and Assistant Warden Emmer Branch

based on his allegations that Kelly sprayed him in the face with chemical agents on

May 29, 2019, and that Branch failed to intervene. See Doc. Nos. 13 & 38. His

claims against Branch were dismissed for failure to exhaust administrative remedies.

See Doc. No. 61.

Kelly filed a motion for summary judgment, a brief in support, and a statement

of facts asserting that he is entitled to judgment as a matter of law on the merits of

Terry’s claims (Doc. Nos. 94-96). Terry filed several responsive pleadings,

including a response to Kelly’s statement of facts (Doc. Nos. 114-115). For the

reasons set forth in this Recommendation, the undersigned recommends that Kelly’s

motion for summary judgment be granted.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is

proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.

P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for

summary judgment, the court must view the evidence in a light most favorable to

the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, and must instead

demonstrate the existence of specific facts that create a genuine issue for trial. Mann

v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations

must be supported by sufficient probative evidence that would permit a finding in

his favor on more than mere speculation, conjecture, or fantasy. Id. (citations

omitted).

An assertion that a fact cannot be disputed or is genuinely disputed must be

supported by materials in the record such as “depositions, documents, electronically

stored information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other materials

. . .”. Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact is disputed or

undisputed by “showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). A dispute is genuine if

the evidence is such that it could cause a reasonable jury to return a verdict for either

party; a fact is material if its resolution affects the outcome of the case. Othman v.

City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not

genuine or that are about facts that are not material will not preclude summary

judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

In Reed v. City of St. Charles, Mo., 561 F.3d 788 (8th Cir. 2009), the Eighth

Circuit Court of Appeals discussed the requirement that facts be viewed in the light

most favorable to the nonmoving party when considering a motion for summary

judgment. The Court stated, “[i]f ‘opposing parties tell two different stories,’ the

court must review the record, determine which facts are material and genuinely

disputed, and then view those facts in a light most favorable to the non-moving

party—as long as those facts are not so ‘blatantly contradicted by the record . . . that

no reasonable jury could believe’ them.” Id. at 790 (quoting Scott v. Harris, 550

U.S. 372, 380 (2007)).

III. Facts

On May 29, 2019, Plaintiff Terry was sprayed with three bursts of MK-9

chemical agent by Defendant Lieutenant Morieno Kelly at the ADC’s East Arkansas

Regional Unit. Declaration of Morieno Kelly (“Kelly Declaration”) & Incident

Report Summary (Doc. No. 94-1); Terry’s Responses to Defendants Statement of

Material Undisputed Facts (“Terry’s Disputed Facts”) (Doc. No. 115). Kelly went

to Terry’s cell on that day because he had received a call from Corporal K. Wilson

notifying him that Terry was suicidal.1 Kelly Declaration at ¶ 2. Kelly explained in

his declaration that his objective was to relocate Terry from his cell and to an area

where Terry could be more closely monitored. Id. He further explained that inmates

who are believed to be suicidal are required to strip off their clothes and are given a

paper gown so that they cannot use clothing to hurt themselves. Id. Kelly maintains

1 In his deposition, Terry testified that he had asked to speak to mental health, and

“they said I was suicidal.” Deposition Testimony of Jarrell D. Terry (Doc. No. 94-4) at

37.

he administered chemical spray because Terry refused his repeated requests to

submit to restraints so that he could be relocated. Id.

The incident was recorded on a handheld video, which has been submitted to

the Court under seal (Doc. No. 93).2 Kelly states in his declaration that the video

accurately reflects the May 29, 2019 chemical spray incident with Terry. Kelly

Declaration at ¶ 3. Terry agrees. Terry’s Disputed Facts at ¶ 3.

The video footage shows Kelly at Terry’s cell giving Terry his “first direct

order to turn around and submit to restraints.” Video (MVI_0213.MP4) at 00:00 –

00:09. The door to Terry’s barred cell has a rectangular opening at waist-level

through which a meal tray can be passed; an inmate’s hands can also be placed

through this opening so that they may be handcuffed. After Kelly directed to submit

to restraints, Terry did not turn around or attempt to place his hands through the

opening in his door. Id. Kelly then gave Terry second and third direct orders to

submit to restraints, warning Terry that chemical agents would be used against him

if he did not comply. Id. at 00:15 – 00:24. Terry argued with him, did not turn

around, and did not place his hands through the opening. Id. At that time, Kelly

administered a short burst of chemical spray in Terry’s face. Id. at 00:25. After he

2 Three videos files were submitted. The ones labeled 36_190529091000_1000.

n3r and 36_190529092000_0600.n3r show the hallway outside Terry’s cell during the

incident in question. The one labeled MVI_0213.MP4 is the handheld video of the

pepper spray incident.

was sprayed, Terry briefly backed up to the cell door, holding his hands near, but

not through the opening for two to three seconds. Id. at 00:29 – 00:31. It is unclear

whether Terry’s hands were close enough to the opening for an officer to reach them.

In any event, Kelly does not appear to be close enough to the cell door to handcuff

Terry during those two to three seconds. Kelly continued to instruct Terry many

times to “put your arms through the bars and submit to restraints.” Id. at 00:42 –

00:54. Terry still refused to turn around and put his hands through the opening. At

one point, he stuck his arms through the bars (but not through the opening) while

facing forward; had he been handcuffed then, he would have been attached to the

cell door. Id. at 00:53 – 00:59. Kelly repeatedly told Terry to turn around and submit

to restraints while Terry continued to face his cell door, jumping up and down, and

claiming he needed help. Id. at 01:00 – 01:28. Kelly again warned Terry that a

chemical agent would be used against him if he did not comply. Id. at 01:24 – 01:25.

Terry again did not comply. Instead, he removed his boxer shorts, yelling and

coughing. Id. at 01:26 – 01:32. Kelly then sprayed Terry a second time. Id. at

01:40. Terry did not back up to the cell doors or place his hands through the opening

to be handcuffed. Id. at 01:41 – 02:05. He knelt for a few seconds and continued

yelling and coughing. Id. at 02:06 – 02:16. Terry next stood back up, and Kelly

stated, “Inmate Terry, I need you to turn around and come to the bars and submit to

restraints.” Id. at 02:18 – 02:24. Terry did not comply but instead continued talking

and yelling, while Kelly told him again to turn around and submit to restraints. Id.

at 02:25 – 02:49. Kelly warned him again that a chemical agent would be used

against him if he did not turn around and submit to restraints. Id. at 02:50. Terry

did not turn around. Id. at 02:51 – 03:01. Kelly sprayed him a third time. Id. at

03:02. He still did not turn around or back up to the cell doors while Kelly continued

to instruct him to back up to the bars to submit to restraints. Id. at 03:03 – 03:50.

Other officers arrived and attempted to reach Terry’s arms, and Kelly continued to

tell Terry to turn around and submit to restraints. Id. at 3:51 – 04:26. The video does

not show Terry finally being handcuffed. The hallway video labeled

36_190529092000_0600.n3r shows a handcuffed Terry escorted out of his cell by

two officers at 09:24:41. Terry testified that the officers escorting him were

Sergeants Norment and Franklin. Deposition Testimony of Jarrell D. Terry (“Terry

Deposition”) (Doc. No. 94-4) at 21-22.

In his deposition, Terry testified that he did not remember hearing Kelly give

him three direct orders to turn around and submit to restraints before he was sprayed

the first time. Terry Deposition at 37. Terry stated:

Well, I wouldn’t say I didn’t hear him, but I didn’t remember it vividly

that day as far as the whole incident together. That day it happened,

that’s why I had to see the actual camera footage because the day it

happened, like I say, I was mentally disturbed and I didn’t remember

the whole incident.

Id. He acknowledged he did not comply with Kelly’s orders. Id. Terry claimed that

Kelly never made an attempt to handcuff him, even when he briefly held his hands

behind him near the opening for approximately three seconds. Id. at 39-44. Terry

claims that once he was sprayed, he could not tell where he was in his cell in order

to comply with Kelly’s orders. Id. at 46. While it is difficult to understand Terry’s

words in the video, there is no indication he complained that he was unable to tell

where he was or that he attempted to back up to the opening in the door to be

handcuffed, apart from those three seconds after Kelly first sprayed him.

Terry also testified that after he was escorted to the shower, an unknown

officer forcefully pushed him into the shower; he acknowledged that he had no

knowledge of the name of the officer who pushed him.3 Terry Deposition at 23. He

claimed that he hit his head on the ground and lost consciousness. Id. He stated he

suffered from scraped knees and headaches, but attempted to treat those himself. Id.

at 24. Terry admitted he had no permanent or ongoing physical injury as a result of

this incident other than scars on his knees. Id. at 65.

3 Video footage of Terry being placed in the shower was not produced. Terry

complains that the loss of this video footage “may well trigger a spoliation instruction.”

Doc. No. 114 at 4. Terry prematurely moved for sanctions regarding the loss of this

video, see Doc. No. 66, but he did not subsequently move for sanctions alleging bad faith

on the part of the defendant in the loss of the video. See Sherman v. Rinchem Co., 687

F.3d 996 (8th Cir. 2012) (a spoliation instruction requires a finding that the party

intentionally destroyed relevant evidence in bad faith).

Shelly Byers, the ADC’s Assistant Medical Services Manager and custodian

of inmate medical records, provided a declaration and attached a copy of Terry’s

electronic medical record for May 29, 2019. Declaration of Shelly Byers (Doc. No.

94-3). This record notes that “Patient was pepper sprayed” and reflects that he had

“no complaints,” “has been decontaminated in the shower and refused all vitals &

medical attention,” and was “[r]eleased to security sick call prn” [as needed]. Id. at

3. Terry disputes that he refused medical treatment. Terry’s Disputed Facts at ¶ 17.

ADC Director Dexter Payne provided a declaration describing the ADC’s

Internal Affairs Division and its investigation into Kelly’s use of force on Terry on

May 29, 2019. Declaration of Dexter Payne (Doc. No. 94-2). Kelly was exonerated

and his use of force found “within policy.”4 Id. at 2, 13-17.

IV. Analysis

Kelly asserts that he is entitled to qualified immunity with respect to Terry’s

excessive force claim. Qualified immunity protects government officials from

4 Terry submitted a copy of an ADC policy governing the use of chemical agents.

Doc. No. 115 at 8-9. It provides, in relevant part:

It shall be the policy of the Department of Correction to ensure that the use

of chemical agents and other non-lethal weapons against an inmate be

undertaken with a minimum amount of force. Only when the inmate

threatens bodily harm to himself/herself, other inmates, or individuals, will

not produce an item(s), or will not relocate, may chemical agents or other

non-lethal weapons issued by the Department be employed.

Code Ark. R. 004.00.2-410 (emphasis added).

liability for damages “insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person [in their positions]

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity is a question of law and is appropriately resolved on summary judgment.

McClendon v. Story County Sheriff’s Office, 403 F.3d 510, 515 (8th Cir. 2005);

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). To determine whether a defendant is

entitled to qualified immunity, the Court must consider two questions: (1) do the

facts alleged by plaintiff establish a violation of a constitutional or statutory right;

and (2) if so, was that right clearly established at the time of the defendant’s alleged

misconduct. Wright v. United States, 813 F.3d 689, 695 (8th Cir. 2015). Courts may

exercise “their sound discretion in deciding which of the two prongs of the qualified

immunity analysis should be addressed first in light of the circumstances of the

particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The unnecessary and wanton infliction of pain violates the Eighth

Amendment’s prohibition on cruel and unusual punishment. “Whenever prison

officials stand accused of using excessive physical force in violation of the Eighth

Amendment, the ‘core judicial inquiry’ is whether the force was applied in a good

faith effort to maintain or restore discipline, or maliciously and sadistically to cause

harm.” Jones v. Shields, 207 F.3d 491, 495 (8th Cir. 2000) (quoting Hudson v.

McMillian, 503 U.S. 1, 6–7). See also Whitley v. Albers, 475 U.S. 312, 322 (1986)

(holding that, in an excessive force case, there must be “a reliable inference of

wantonness,” and not “a mere dispute over the reasonableness of particular use of

force or the existence of arguably superior alternatives”). Factors which inform this

inquiry include the need for the application of physical force; the relationship

between the need for physical force and the amount of force applied; and the extent

of injury suffered by the inmate. Jones v. Shields, 207 F.3d at 495. Unless “‘it

appears that the evidence, viewed in the light most favorable to the plaintiff, will

support a reliable inference of wantonness in the infliction of pain . . . the case should

not go to the jury.’” Johnson v. Bi-State Justice Ctr./Arkansas Dep’t of Corr., 12

F.3d 133, 136 (8th Cir. 1993) (citing Whitley, 475 U.S. at 322).

A plaintiff need not allege significant injuries to state an excessive force

claim.5 However, the extent of a plaintiff’s injuries may constitute evidence of the

amount and type of force used, and a greater than de minimis use of force is required.

“Even where the force is unjustified, ‘not every push or shove violates the

Constitution, but any use of force greater than de minimis, or any use of force that is

5 See Wilkins v. Gaddy, 130 S.Ct. 1175, 1178-79 (2010) (abrogating the de

minimis injury rule in excessive force cases, and clarifying that the extent of the

injury is only one factor to be considered when resolving the “core judicial injury”

of “whether force was applied in a good faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm”); Williams v. Jackson, 600 F.3d 1007,

1012 (8th Cir. 2010) (holding that “the extent of any resulting injury, while material

to the question of damages and informative as to the likely degree of the force

applied, is not in and of itself a threshold requirement for proving” an excessive

force claim).

‘repugnant to the conscience of mankind,’ does.” Burt v. Nurse R.N., No. 4:19-CV-

00040-SMR-CFB, 2019 WL 8752341, at *2 (S.D. Iowa Mar. 27, 2019) (citing Irving

v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008)).

The limited use of mace or chemical spray to control a recalcitrant inmate has

been held not to constitute excessive force. Jones v. Shields, 207 F.3d 491, 496 (8th

Cir. 2000) (finding a limited application of chemical spray a “tempered response” to

control a recalcitrant inmate who had refused and questioned a direct order from his

supervisor and refused to return to his barracks); Treats v. Morgan, 308 F.3d 868,

873 (8th Cir. 2002) (“The test is whether the officer’s use of force was reasonable

under the circumstances, or whether it was punitive, arbitrary, or malicious.”).6 In

Burns v. Eaton, the Eighth Circuit Court of Appeals affirmed a grant of summary

judgment in favor of an officer where the prisoner-plaintiff was warned that he

would be pepper sprayed if he did not “catch the cuffs” so he could be returned to

his cell from a shower cell. 752 F.3d 1136, 1138-1140 (8th Cir. 2014). The prisoner

did not comply but instead threw objects and spit at the officer, and the officer

6 In Jones, the Eighth Circuit distinguished its cases finding the use of chemical

spray punitive or arbitrary, stating “the few cases where we denied summary judgment in

Eighth Amendment excessive force claims based on pepper spraying have involved no

warning this force would be used, no apparent purpose other than inflicting pain, use of

unnecessary ‘super-soaker’ quantities of the chemical, refusal to allow the victim to wash

off the painful chemical for days, and/or use of additional physical force.” 752 F.3d at

1140 (citing Walker v. Bowersox, 526 F.3d 1186, 1189 (8th Cir. 2008); Treats v. Morgan,

supra; and Lawrence v. Bowersox, 297 F.3d 727, 730, 732 (8th Cir. 2002)).

sprayed him with a small amount of pepper spray after “each aggressive act of

defiance.” Id. at 1138. The Court rejected the prisoner’s argument that the force

was excessive because he was locked in a shower cell and posed no threat to the

officer, explaining:

At that point, [officer] Eaton no longer faced the relatively simple task

of cuffing [prisoner] Burns and escorting him back to his cell. Eaton

now faced a recalcitrant inmate. He could not simply leave Burns in

the Isolation Unit shower cell, where he did not belong. Either Burns

must be persuaded to comply with the command to return to his cell, or

someone must enter the shower cell and forcibly remove him. Thus,

Burns’s contention that he posed no threat because he was alone in a

locked cell ignores the reality of what was required “to maintain or

restore discipline” in this situation.

Id. at 1139. The Court further noted that there was no evidence of a “malicious

motive to harm,” or “evidence that the force used was so greatly in excess of that

needed to restore and maintain order.” Id. at 1140.

The Court has carefully reviewed the video recordings of the May 29 incident.

It is undisputed that Kelly sprayed Terry three times on May 29, 2019, when he

attempted to relocate Terry to a different cell. It is undisputed that Kelly gave clear

and simple instructions to Terry numerous times. It is undisputed that Kelly warned

Terry he was going to spray Terry before doing so. In response, Terry simply would

not comply, instead talking and yelling. Kelly could not leave Terry in his cell

because he was responsible for relocating him to a cell where he could be watched.

Kelly understood Terry was on suicide watch. Terry disputes that he refused to

comply with Kelly’s instructions.

As stated above, if opposing parties tell two different stories, as is the case

here, the Court is required to view genuinely disputed material facts in a light most

favorable to the nonmoving party, as long as those facts are not so blatantly

contradicted by the record that no reasonable jury could believe them. The Court

finds that the facts alleged by Terry are so blatantly contradicted by the record that

no reasonable jury could believe them. The Court is therefore not required to view

the facts in a light most favorable to Terry, and declines to adopt his version of the

facts for purposes of ruling on this motion. See Boude v. City of Raymore, 855 F.3d

930, 933 (8th Cir. 2017). In these circumstances, Kelly’s use of chemical spray did

not constitute excessive force but instead constituted a good faith effort to maintain

or restore discipline. And because there was no constitutional violation, Kelly is

entitled to qualified immunity on Terry’s excessive force claim as it relates to the

use of chemical spray.

Kelly is also entitled to qualified immunity on Terry’s claim that Kelly shoved

him in the shower after the use of chemical spray. Terry acknowledged in his

deposition testimony that he did not know if Kelly was the person who shoved him.

(Terry also admitted in his deposition testimony that he does not even clearly

remember the May 29 incident.) In his responsive pleadings, he argues that Kelly

should be held responsible simply because he was there and did not intervene. To

succeed on a failure-to-protect claim, Terry must show that there was a substantial

risk of serious harm to him and that Terry was deliberately indifferent to that risk.

See Irving v. Dormire, 519 F.3d 441, 447 (8th Cir. 2008). Terry has not come

forward with any evidence that Kelly was aware another ADC employee was going

to push Terry into the shower or would have even had an opportunity to intervene.

In sum, Terry has come forward with no evidence to support his claim that Kelly

failed to protect him from excessive force when pushed in the shower, and

accordingly, Kelly is entitled to qualified immunity on that claim.

V. Conclusion

Kelly’s motion for summary judgment (Doc. No. 94) should be granted.

Judgment should be awarded in favor of Kelly.

IT IS SO RECOMMENDED this 16th day of May, 2023.

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