Ausler v. Hopgood

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

MARCUS AUSLER, )

)

Plaintiff, )

)

v. ) Case No. 4:21CV644 JAR

)

PAUL HOPGOOD, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

Plaintiff Marcus Ausler, proceeding pro se, brings this action pursuant to 42 U.S.C.

§ 1983 against four correctional officers in their individual capacities, namely Javan Fowlkes,

Paul Hopgood, Randy Powell, and Che Boatman (collectively, “Defendants”). Plaintiff’s claim

arises from alleged incidents of excessive force that occurred on September 29, 2020 while

Plaintiff was a pretrial detainee in the custody of the St. Louis City Justice Center (“CJC”).

Both Plaintiff and Defendants have moved for summary judgment on Plaintiff’s claims.

Responses in oppositions by each side to the respective motions have been filed. Local Rule

4.01(E) requires that “[e]very memorandum in support of a motion for summary judgment must

be accompanied by a document titled Statement of Uncontroverted Material Facts…” Plaintiff

did not attach a Statement of Uncontroverted Material Facts to his Motion as required.

Defendants attached a Statement of Uncontroverted Material Facts [ECF No. 33] to their Motion,

which Plaintiff responded to in the form of questions. Defendants objected to Plaintiff’s

questions as he did not comply with Local Rule 4.01(E). Defendants also attached exhibits,

including affidavits and portions of Plaintiff’s deposition testimony, to their memoranda.

“All matters set forth in the moving party’s Statement of Uncontroverted Material Facts

shall be deemed admitted for purposes of summary judgment unless specifically controverted by

the opposing party.” E.D. Mo. Loc. R. 4.01(E). Because Plaintiff did not respond to Defendants’

Statement of Uncontroverted Material Facts in accordance with Local Rule 4.01(E), they are

deemed admitted. Turner v. Shinseki, 2010 WL 2555114, at *2 (E.D. Mo. June 22, 2010) (citing

Deichmann v. Boeing Co., 36 F.Supp.2d 1166, 1168 (E.D. Mo. 1999), aff'd, 232 F.3d 907 (8th

Cir. 2000), cert. denied, 531 U.S. 877)). The Court may liberally construe Plaintiff’s allegations,

but his pro se status does not excuse him from responding to Defendants' motion “with specific

factual support for his claims to avoid summary judgment,” Beck v. Skon, 253 F.3d 330, 333 (8th

Cir. 2001), or from complying with Local Rule 4.01(E). See Peterson v. Corr. Med. Servs., 2012

WL 4108908, at *1 (E.D. Mo. Sept. 18, 2012).

Facts

In 2020, Plaintiff was a pretrial detainee in the custody of the CJC. On September 29,

2020, Defendants worked as correctional officers at the CJC.

On September 29, 2020, Plaintiff threw bottles filled with a liquid out of the broken food

slot from his cell. One of the bottles thrown by Plaintiff struck Defendant Fowlkes. Defendant

Fowlkes assembled Defendants Hopgood, Powell, and Boatman to assist him with investigating

and stopping more bottles being thrown from Plaintiff’s cell. At this time, Defendants were all

aware of Plaintiff’s history of aggressive behavior, which included an incident a few months

prior when Plaintiff stabbed another detainee.

Once Defendants assembled, they approached Plaintiff’s cell. Plaintiff had covered his

upper body with a commissary bag and wrapped his face in towels. Defendant Fowlkes saw that

Plaintiff had a metallic object in his waistband, which he believed was a weapon.

Before entering his cell, Defendant Fowlkes directed Plaintiff several times to voluntarily

present his hands to be handcuffed for safety purposes, but Plaintiff assumed a fighting stance

and acted aggressively. Defendant Fowlkes then deployed pepper spray into Plaintiff’s cell

through the food port. After the pepper spray started to take effect, Plaintiff continued to display

aggressive behavior. Defendants placed Plaintiff in a restraint chair as a safety precaution due to

his aggressive behavior. A search of Plaintiff revealed a sharpened metal weapon, which was

seized and placed in a contraband locker.

Plaintiff was then taken to the Medical Unit in the restraint chair. A CJC nurse attempted

to provide Plaintiff with medical treatment, but Plaintiff refused treatment. Plaintiff also refused

to shower. After refusing medical treatment and a shower, Plaintiff was escorted back to his

assigned section of the CJC in the restraint chair. A nurse with the medical unit checked on the

Plaintiff while he remained in the restraint chair. Plaintiff eventually calmed down, and he was

released from the restraint chair.

To the extent the Court liberally construes Plaintiff’s statements in his filings as factual

allegations, they are either conclusory or do not create a genuine issue of material fact. For

instance, Plaintiff asserts “evidence on record shows” that it was a “bottle of water” that he

threw, but he does not deny or controvert throwing it or causing a disturbance. Plaintiff does not

dispute his possession of a weapon, but instead asks in his response if the weapon was found or

if Defendants took a picture of it. Plaintiff attempts to argue there is a genuine dispute of a

material fact because he eventually complied with directives to present his hands for restraints

after the pepper spray started to take effect, but Defendants admit that Plaintiff eventually

presented his hands. Plaintiff offers conclusory statements that excessive force was utilized

against him and Defendants acted maliciously and sadistically to cause him harm, but fails to

provide any factual or evidentiary support for these allegations. Even with an application of a

“plaintiff-friendly” version of the facts, Plaintiff still does not create a factual dispute to defeat

summary judgment.

Legal Standards

Summary Judgment

“Summary judgment is proper where the evidence, when viewed in a light most favorable

to the non-moving party, indicates that no genuine [dispute] of material fact exists and that the

moving party is entitled to judgment as a matter of law.” Davison v. City of Minneapolis, Minn.,

490 F.3d 648, 654 (8th Cir. 2007); Fed. R. Civ. P. 56(a). Summary judgment is not appropriate if

there are factual disputes that may affect the outcome of the case under the applicable

substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of

material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the

non-moving party. Id. “The basic inquiry is whether it is so one-sided that one party must prevail

as a matter of law.” Diesel Machinery, Inc. v. B.R. Lee Industries, Inc., 418 F.3d 820, 832 (8th

Cir. 2005) (internal quotation marks and citation omitted). The moving party has the initial

burden of demonstrating the absence of a genuine issue of material fact. Torgerson v. City of

Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (citation omitted). Once the moving party has

met its burden, “[t]he nonmovant must do more than simply show that there is some

metaphysical doubt as to the material facts and must come forward with specific facts showing

that there is a genuine issue for trial.” Id. (internal quotation marks and citation omitted).

The “nonmoving party must ‘substantiate his allegations with sufficient probative

evidence [that] would permit a finding in [his] favor based on more than mere speculation,

conjecture, or fantasy.’” Putman v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003)

(quoting Wilson v. Int'l Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)). “Simply

referencing the complaint, or alleging that a fact is otherwise, is insufficient to show there is a

genuine issue for trial.” Kountze ex rel. Hitchcock Foundation v. Gaines, 536 F.3d 813, 818 (8th

Cir. 2008). “The mere existence of a scintilla of evidence in support of the [nonmoving party's]

position will be insufficient; there must be evidence on which the jury could reasonably find for

the [nonmovant].” Anderson, 477 U.S. 242 at 252; Davidson & Associates v. Jung, 422 F.3d 630,

638 (8th Cir. 2005).

Where parties file cross-motions for summary judgment, the legal standard does not

change. Each motion must be evaluated independently to determine whether a genuine issue of

material fact exists and whether the movant is entitled to judgment as a matter of law. Jaudes v.

Progressive Preferred Ins. Co., 11 F. Supp.3d 943, 947 (E.D. Mo. 2014).

Excessive Force

Because Plaintiff was a pretrial detainee at the time of the alleged incident, his claim falls

under the Fourteenth Amendment. See Christian v. Wagner, 623 F.3d 608, 613 (8th Cir. 2010)

(“The Eighth Amendment does not apply to pretrial detainees, but the Due Process Clause of the

Fourteenth Amendment imposes analogous duties on jailers to care for detainees”). The Due

Process Clause protects pretrial detainees from the use of excessive force amounting to

punishment. Kingsley v. Hendrickson, 135 U.S. 2466, 2473 (2015). Analysis of excessive force

claims under the Due Process Clause focuses on whether the defendant's purpose in using force

was “to injure, punish, or discipline the detainee.” Edwards v. Byrd, 750 F.3d 728, 732 (8th Cir.

2014). The Fourteenth Amendment gives state pretrial detainees “rights which are at least as

great as the Eighth Amendment protections available to a convicted prisoner.” Walton v.

Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014). Indeed, pretrial detainees are afforded greater

protection than convicted inmates in the sense that the Due Process Clause prohibits the detainee

from being punished. Id.

When a prison official is accused of using excessive physical force in violation of the

Eighth Amendment, the core judicial inquiry is “whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically to cause harm.” Jackson v.

Gutzmer, 866 F.3d 969, 974 (8th Cir. 2017); See also, Ward v. Smith, 844 F.3d 717, 721 (8th Cir.

2016) (“Because the use of force is sometimes required in prison settings, guards are liable only

if they are completely unjustified in using force, i.e., they are using it maliciously and

sadistically.”). “Whether a situation justifies the use of force to maintain or restore discipline is a

fact specific issue that turns on the circumstances of the individual case or the particular prison

setting.” Johnson v. Blaukat, 453 F.3d 1108, 1113 (8th Cir. 2006) (internal quotation marks and

quoted cases omitted). Factors to be considered in deciding whether a particular use of force was

reasonable include “the objective need for force, the relationship between any such need and the

amount of force used, the threat reasonably perceived by the correctional officers,” and “the

extent of the inmate’s injury.” Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002) (citing

Hudson v. McMillian, 503 U.S. 1, 7 (1992)). In considering an excessive use of force claim, the

Court weighs the prisoner’s testimony, the extent of the prisoner’s injury, and whether the

“security threat reasonably perceived by defendants ‘[would] support a reliable inference’ of an

unnecessary and wanton infliction of pain.” Santiago v. Blair, 707 F.3d 984, 990 (8th Cir. 2013)

(quoting Johnson v. Bi-State Justice Ctr./Ark. Dep’t Corr., 12 F.3d 133, 136-37 (8th Cir. 1993)).

In weighing these factors, however, the Court is required to “avoid[] the improper resolution of

credibility issues,” which are assessments for the trier of fact and not for summary judgment. Id.

(quoting Johnson, 12 F.3d at 137).

Qualified Immunity

Qualified immunity “shields government officials from liability when their conduct does

not violate clearly established constitutional rights of which a reasonable person would have

known.” Ivey v. Audrain Cnty., 968 F.3d 845, 848 (8th Cir. 2020) (quoting Thiel v. Korte, 954 F.3d

1125, 1128 (8th Cir. 2020)). “Put simply, qualified immunity protects ‘all but the plainly

incompetent or those who knowingly violate the law.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “The party asserting immunity always has

the burden to establish the relevant predicate facts, and at the summary judgment stage, the

nonmoving party is given the benefit of all reasonable inferences.” White v. McKinley, 519 F.3d

806, 813 (8th Cir. 2008).

The court must follow a two-step inquiry in a qualified immunity analysis: “(1) whether

the facts shown by the plaintiff make out a violation of a constitutional or statutory right, and (2)

whether that right was clearly established at the time of the defendant’s alleged misconduct.”

Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009). A right is clearly established

if its contours are “sufficiently clear that a reasonable official would understand that what he is

doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). The relevant question is

whether a reasonable officer would have fair warning that his conduct was unlawful. Brown, 574

F.3d at 499; See also, Buckley v. Ray, 848 F.3d 855, 863 (8th Cir. 2017); Blazek v. City of Iowa

City, 761 F.3d 920, 922-23 (8th Cir. 2014).

The Court may address the questions in either order, but a § 1983 plaintiff can defeat a

claim of qualified immunity only if the answer to both questions is yes. Boude v. City of Raymore,

855 F.3d 930, 933 (8th Cir. 2017) (citing Pearson v. Callahan, 555 U.S. 223, 236 (2009)). “If

either question is answered in the negative, the public official is entitled to qualified immunity.”

Norris v. Engles, 494 F.3d 634, 637 (8th Cir. 2007) (quoted case omitted). Thus, to avoid summary

judgment, Plaintiff must produce sufficient evidence to create a genuine issue of fact as to whether

the Defendants violated a clearly established constitutional right. De La Rosa v. White, 852 F.3d

740, 743 (8th Cir. 2017).

Discussion

Plaintiff brings a § 1983 claim for excessive force against each Defendant in his

individual capacity. Plaintiff alleges Defendant Fowlkes used excessive force for spraying

pepper spray into his cell. Plaintiff also alleges excessive force against all Defendants for their

use of the restraint chair.

Defendant Fowlkes’s Use of Pepper Spray

Defendant Fowlkes moves for summary judgment on the grounds that the amount of

force used in the incident was objectively reasonable under all the attendant circumstances and

that he is entitled to qualified immunity. Fowlkes also argues that Plaintiff posed a security threat

through his combative behavior. Plaintiff contends in his Motion and his response to Defendants’

Motion that he posed no threat because he was alone in solitary confinement, and he complied

with Defendant Fowlkes’s orders. However, the undisputed facts show otherwise.

Plaintiff does not dispute that he was throwing a bottle with liquid from his cell and

possessed a sharpened metal object during the incident, which was later seized after a search of

Plaintiff. It is also undisputed that when Defendants approached Plaintiff’s cell, Plaintiff had

covered his upper body with commissary bags and wrapped his face in towels. When Defendant

Fowlkes directed Plaintiff several times to voluntarily present his hands to be handcuffed for

safety purposes, Plaintiff assumed a fighting stance. Defendant Fowlkes then deployed pepper

spray into Plaintiff’s cell through the food port. After the pepper spray started to take effect,

Plaintiff continued to display aggressive behavior. Defendants placed Plaintiff in a restraint chair

for safety reasons pertaining to Plaintiff’s continued aggressive behavior. Plaintiff was then

taken to the Medical Unit in the restraint chair, where he refused medical attention and a shower.

During Plaintiff’s deposition, he acknowledged that he was aware that if something was

thrown from his cell, he would be extracted from his cell, and if he refused to comply, he would

be sprayed with pepper spray [ECF No. 33-6 at 36]. Even so, Plaintiff threw a bottle from his

cell, refused to voluntarily present his hands, and assumed a fighting pose. Defendant Fowlkes

clearly faced an uncooperative inmate. Further, with the presence of a sharpened metal object,

Defendant Fowlkes could not simply leave Plaintiff with what he believed to be a weapon in his

cell. To maintain order, Fowlkes deployed pepper spray into the Plaintiff’s cell. Thus, Plaintiff’s

contention that he posed no threat because he was alone in solitary confinement ignores the

circumstances and reality of what was required “to maintain or restore discipline” in this

situation.

In Jones v. Shields, the Eighth Circuit noted that “a limited application of capstun [pepper

spray] to control a recalcitrant inmate constitutes a tempered response by prison officials when

compared to other forms of force,” citing numerous cases in which “our sister circuits have

approved the use of mace in small quantities to control a recalcitrant inmate.” 207 F.3d 491, 496

(8th Cir. 2000) (internal quotations omitted). The Eighth Circuit concluded that the plaintiff

failed to establish “malicious or sadistic” conduct when the defendant sprayed pepper spray in

the face of a large inmate who refused a work order and objected profanely when ordered to

return to his barracks. Id. at 497. By contrast, the few cases where the Eighth Circuit affirmed the

denial of 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. See

Walker v. Bowersox, 526 F.3d 1186, 1189 (8th Cir. 2008); Treats, 308 F.3d at 873; Lawrence v.

Bowersox, 297 F.3d 727, 730 (8th Cir. 2002).

There is also no evidence in this case of a malicious motive to harm Plaintiff by

Defendant Fowlkes, or that the force used was so greatly in excess of that needed to restore and

maintain order as to raise a reasonable inference of malicious motive. Considering the

circumstances here, the Court finds that Defendant Fowlkes’ did not use excessive force when he

deployed pepper spray into Plaintiff’s cell. See Burns v. Eaton, 752 F.3d 1136, 1138-40 (8th Cir.

2014) (finding Defendant did not use excessive force in violation of the Eighth Amendment

when he deployed pepper spray after Plaintiff was combative, refused orders to leave a locked

shower cell and threw a shampoo bottle at him).

Defendant Fowlkes further argues he is entitled to qualified immunity from the § 1983

excessive force claim because his conduct did not violate a clearly established constitutional or

statutory right. Under the second prong of the qualified immunity inquiry, Plaintiff has failed to

establish any violation of his clearly established constitutional rights. Qualified immunity “gives

ample room for mistaken judgments by protecting all but the plainly incompetent or those who

knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991).

Plaintiff has the burden to show that his right was clearly established at the time of the

violation. Kuessner v. Wooten, 987 F.3d 752, 755 (8th Cir. 2021). “For a right to be clearly

established, the contours of the right must be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Kelsay v. Ernst, 933 F.3d 975, 979 (8th Cir.

2019) (en banc). This means “[t]here must be precedent, controlling authority, or a robust

consensus of cases of persuasive authority.” Id. (internal quotations omitted). Existing precedent

must place the question “beyond debate.” Cole Estate of Richards v. Hutchins, 959 F.3d 1127,

1134 (8th Cir. 2020). The Court “look[s] to existing precedent that involves sufficiently ‘similar

facts’ and that ‘squarely governs’ the specific facts at issue.” Id. (quoting Kisela v. Hughes, 138

S. Ct. 1148, 1153 (2018)). There may also be the “rare obvious case where the unlawfulness of

the officer’s conduct is sufficiently clear even though existing precedent does not address similar

circumstances.” Quraishi v. St. Charles Cty., Mo., 986 F.3d 831, 835 (8th Cir. 2021).

As Defendants argued in their response, Plaintiff has failed to identify a specific case that

would put Defendant Fowlkes on notice that his conduct was unlawful in these circumstances

when Plaintiff was causing disruptions, possessed a weapon, and assumed a fighting stance after

disregarding Defendant Fowlkes directives. Indeed, no case is available since Defendant

Fowlkes’s actions were reasonable under all of the facts known to him. Consequently, the Court

finds Defendant Fowlkes is entitled to qualified immunity on Plaintiff’s use of excessive force

claim for spraying pepper spray into his cell and will grant summary judgment in Defendant

Fowlkes’s favor on this claim.

Defendants’ Use of Restraints

Defendants move for summary judgment as to Plaintiff’s excessive force claim pertaining

to their use of a restraint chair. Each Defendant argues that their actions were objectively

reasonable and that they are entitled to qualified immunity because their actions did not violate a

clearly established constitutional or statutory right. Plaintiff argues Defendants used excessive

force when he was in the restraint chair because his restraints were too tight, and he was left in

the “frigid cold” for three hours. In his deposition, Plaintiff clarified that being left in the “frigid

cold” was a reference to it being cold in the CJC all year-round [ECF No. 33-6 at 19].

The Eighth Circuit has concluded that “summary applications of force are

constitutionally permissible when prison security and order, or the safety of other inmates or

officers, has been placed in jeopardy.” Hickey v. Reeder, 12 F.3d 754, 758 (8th Cir. 1993).

Promoting prison security is “perhaps the most legitimate of penological goals.” Overton v.

Bazzetta, 539 U.S. 126, 133 (2003). “[P]rison administrators should be accorded wide-ranging

deference in the adoption and execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain institutional security.” Hudson,

503 U.S. at 6 (quotation and alteration omitted).

In this case, Plaintiff was still acting aggressively when Defendant Fowlkes sprayed

pepper spray into his cell, so Defendants placed Plaintiff in a restraint chair due to his behavior

and for safety precautions. Plaintiff was then taken to the Medical Unit for medical treatment and

a shower, which he refused. After his refusal, Plaintiff was escorted back to his assigned section

of the CJC in the restraint chair. A nurse with the medical unit continually checked on Plaintiff

and the restraints while he remained in the restraint chair. Plaintiff eventually calmed down, and

he was released from the restraint chair. It is clear from the undisputed factual record that

Plaintiff was acting aggressively before and after the pepper spray took effect. It was Plaintiff’s

own behavior that kept him in the restraint chair for a longer period. Once Plaintiff was

compliant and calmed down, he was released from the restraint chair. Defendants’ discretion to

use restraints on Plaintiff’s was necessary to maintain security within the CJC. The undisputed

facts do not suggest, nor is there is any evidence produced by Plaintiff, that Defendants’ actions

reflected a malicious and sadistic motive. See Burns, 752 F.3d at 1139; See also, Jackson, 866

F.3d at 977 (finding prison lieutenant did not violate a state inmate's Eighth Amendment right to

be free from cruel and unusual punishment by using excessive force in placing inmate on a

restraint board and leaving him there for up to four hours). Considering these circumstances, the

Court finds that the Defendants’ use of force was not excessive.

Defendants further argue they are entitled to qualified immunity from the § 1983

excessive force claim because their conduct did not violate a clearly established constitutional or

statutory right. In order for a right to be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The law must be so “particularized to

the facts of the case,” White v. Pauly, 137 U.S. 548, 552 (2017), as to have “placed the statutory

or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

Plaintiff must show that a clearly established right was violated by Defendants’

prolonged use of the restraint chair. Plaintiff does not cite to any precedent that use of a restraint

chair, even for a prolonged period or placement of restraints too tightly, are constitutional

violations or that they violate any clearly established right. There is no Eight Circuit case, nor

could the Court locate any case finding that a jail’s use of a restraint chair in similar

circumstances was unconstitutional. The use of the restraint chair in this case was reasonable

given that Plaintiff was being disruptive and combative, and Defendants needed a way to calm

Plaintiff down and transport him safely to the medical unit. Plaintiff’s arguments are further

undermined by his refusal to accept medical treatment and a shower, and the CJC nurse

continually checking on him while he was in the restraint chair.

Without any precedent, the Court cannot find Plaintiff’s right is clearly established as this

is not the “rare obvious case where the unlawfulness of the officer’s conduct is sufficiently clear

even though existing precedent does not address similar circumstances.” Quraishi, 986 F.3d at

835. The Court finds Defendants are entitled to qualified immunity on Plaintiff’s use of

excessive force claim. The Court will grant summary judgment in Defendants’ favor on this

claim.

Conclusion

For the reasons set forth above, Defendants, namely Javan Fowlkes, Paul Hopgood,

Randy Powell, and Che Boatman, are entitled to summary judgment on Plaintiffs excessive

force claims. The Court further considered Plaintiffs Motion for Summary Judgment and will

deny Plaintiff’s Motion for the reasons set forth above.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [ECF No.

31] is GRANTED.

IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment [ECF No.

28] is DENIED.

A separate judgment in accordance with this Memorandum and Order is entered this

same date.

Dated this 1st day of August, 2023.

UNITED STATES DISTRICT JUDGE

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