Stanley v. Gray

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

ERIC ROMAR STANLEY PLAINTIFF

v. Civil No. 4:22-cv-04036

CORPORAL GRAY; OFFICER SMITH;

OFFICER MARTINEZ; CAPTAIN ADAMS;

and WARDEN WALKER DEFENDANTS

REPORT AND RECOMMENDATION

This is a civil rights action filed pro se by Plaintiff, Eric Romar Stanley, under 42 U.S.C.

§ 1983. Plaintiff names as Defendants Corporal Gray, Officer Smith, Officer Martinez, Captain

Adams, and Warden Walker. Plaintiff alleges his claims against all Defendants in both their

official and individual capacities. Before the Court is Defendants’ Motion for Summary Judgment.

(ECF No. 31). Plaintiff responded. (ECF No. 34).

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011) the Honorable Susan O.

Hickey Chief United States District Judge referred this case to the undersigned for the purpose of

making a Report and Recommendation.

I. BACKROUND

In March 2022, Plaintiff was incarcerated in Miller County Detention Center (“MCDC”)

in Texarkana, Arkansas. At all times relevant to the instant lawsuit, all Defendants were employees

at the MCDC. (ECF No. 7, pp. 2-4). The complained of actions occurred on March 25, 2022

inside the MCDC and center around an incident where Plaintiff was stripped and placed in a one-

man psych cell with another inmate. (ECF No. 7).

In his Amended Complaint, Plaintiff asserts three claims: (1) Defendants Gray, Smith, and

Martinez violated Plaintiff’s constitutional rights through his conditions of confinement; (2)

Defendants Gray, Smith, and Martinez violated his constitutional rights with excessive force; and

(3) all Defendants violated his constitutional rights through cruel and unusual punishment. (ECF

No. 7, pp. 6-8).

In Claim One, Plaintiff claims Defendants Gray, Smith, and Martinez stripped him, and

placed him in a “one-man psych cell” with another dangerous inmate, Mr. Land. Plaintiff classifies

this claim as a conditions of confinement claim. Plaintiff specifically states Defendants Gray,

Smith, and Martinez showed deliberate indifference to his safety by ignoring the risk related to

placing him, while naked, in the same cell with this dangerous inmate. Plaintiff alleges these

actions violate his Eighth Amendment rights, and caused him anxiety, uncontrollable nervousness,

and “emotional demoralization.” (ECF No. 7, pp 6-7).

In Claim Two, Plaintiff claims Defendant Smith maced him. Then, Defendants Smith,

Martinez, and Gray grabbed him and forced him into the one-man psych cell with Mr. Land—a

dangerous inmate. Defendants Smith and Martinez then held Plaintiff against the wall while

Defendant Gray stripped off all of Plaintiff’s clothing. Plaintiff classifies this claim as an excessive

force claim. Plaintiff specifically states these Defendants showed deliberate indifference to his

safety, subjected him to cruel and usual punishment, and exhibited excessive force against him

with these actions. Plaintiff claims these actions violated his Eighth Amendment rights, and

caused him “emotional demoralization,” mental trauma, anguish, and “physical emotional torture.”

(ECF No. 7, pp. 7-8).

In Claim Three, Plaintiff alleges all Defendants subjected him to cruel and unusual

punishment. Specifically, Defendants Walker and Adams “deviated” the actions of Defendants

Gray, Smith, and Martinez by allowing them to place Plaintiff in the one-man psych cell. Plaintiff

goes on to allege these Defendants showed him deliberate indifference by: (1) ignoring obvious

safety factors; (2) subjecting him to cruel and unusual punishment; (3) subjecting him to excessive

force when they stripped off his clothes and forced him into a one-man cell with another inmate.

Plaintiff claims these actions by Defendants caused him anxiety, uncontrollable nervousness, and

mental trauma, emotional as well as physical demoralization, mental anguish, and physical

emotional torture. (ECF No. 7, pp. 8-9).

Plaintiff asserts his claims against all Defendants in their individual and official capacities.

(ECF No. 7). For relief, Plaintiff requests 1.3 million dollars in compensatory and punitive

damages for physical and emotional torture, physical and emotional demoralization,

uncontrollable nervousness, mental anguish, nightmares, anxiety, mental trauma, and lasting

physical distress, scarring on his right foot, and disrespect to his constitutional rights. (ECF No.

7, p. 9).

Defendants filed their Motion for Summary Judgment with Brief in Support and Statement

of Facts on January 26, 2023. (ECF Nos. 31, 32, 33). In their Motion, Defendants argue: (1)

Plaintiff failed to exhaust his administrative remedies; (2) Defendants’ use of force was reasonable;

(3) Defendants are entitled to qualified immunity on the excessive force claim; and (4) Plaintiff

failed to state an official capacity claim. (ECF No. 32). Defendants failed to move for summary

judgment for any claims asserted against Defendant Gray. Defendants also failed to move for

summary judgment on Plaintiff’s Claims One and Three.

Defendants also filed a Supplement to their Motion for Summary Judgment on April 12,

2023. (ECF No. 40). This Supplement included additional exhibits in support of Defendants’

Brief in Support but no additional arguments. Id.

Both parties submitted statements of facts. (ECF Nos. 33, 35). The parties only dispute a

few of the material facts. On March 25, 2022, Defendants Smith and Martinez moved Plaintiff

from his cell in the Max D pod to a psych cell. Defendants assert this relocation was in response

to Plaintiff’s suicidal statements. (ECF No. 33, p. 1). Plaintiff denies he ever made any suicidal

statements. (ECF No. 35, p. 1). Plaintiff initially would not leave his Max D cell, and Defendant

Gray was called to assist Defendants Smith and Martinez. However, upon Defendant Gray’s

arrival, Plaintiff was cooperating with Defendants Smith and Martinez. (ECF No. 33, p. 1).

Once at the psych cell door, Plaintiff was instructed to remove all his clothes before

entering the psych cell per MCDC policy. Plaintiff refused. Defendant Smith then ordered

Plaintiff to strip three times, but Plaintiff continued to refuse. Id. at 2. Defendant Smith warned

Plaintiff he would spray him with pepper spray if he did not comply. Plaintiff continued to refuse.

(ECF No. 31-2, p. 8). According to Defendants’ Statement of Facts, the video footage from the

incident then shows Plaintiff walking away from Defendants and physically resisting them. (ECF

No. 31-3). Plaintiff did not dispute this rendition of the video footage. (ECF No. 35). Defendant

Smith then gave a short burst of “OC spray” to Plaintiff. Defendants assert this spray was to gain

control over Plaintiff (ECF No. 33, p. 2), but Plaintiff contends Defendant Smith sprayed him in

retaliation for a prior event that occurred on March 12, 2022, (ECF No. 35, p. 1). Plaintiff was

then offered decontamination and medical assessment. (ECF No. 33, p. 2).

The parties agree Plaintiff filed a Prison Rape Elimination Act (“PREA”) claim against

Defendant Martinez. Plaintiff, however, alleges his PREA complaint was against Defendants

Martinez, Gray, and Smith. (ECF No. 35, p. 2). Defendants concluded Plaintiff’s PREA claim

was “unsubstantiated.” (ECF No. 33, p. 3). Plaintiff alleges the PREA claim was not fully

investigated, but the results of the investigation showed the incident did occur. (ECF No. 35, p.

2).

In addition to the disputed facts, Plaintiff also filed a Response to Defendants’ Motion for

Summary Judgment on May 17, 2023. (ECF No. 45). In his Response, Plaintiff submitted an

additional list of disputed facts and arguments. Specifically, Plaintiff lists the following facts as

in dispute:

(1) on March 25, 2022, at 9:26 a.m., Plaintiff filed a grievance requesting help because he

felt officers were trying to harm him;

(2) on March 25, 2022, at 9:45 a.m., Defendants attempted to escort Plaintiff to a psych

cell which already housed a highly dangerous fugitive, Mr. Land, who had only been

in MCDC custody for approximately 72 hours;

(3) Plaintiff never made any suicidal statements;

(4) Plaintiff was not pepper sprayed because he was backing down the hallway;

(5) Plaintiff backed down the hallway because he was peppered sprayed;

(6) Plaintiff was stripped and put in the one-man cell with Mr. Land who was threating

harm to Plaintiff;

(7) an officer outside the one-man cell played music and this should be viewable on the

video footage;

(8) Mr. Land told Defendants he would break Plaintiff’s jaw if they put him back in the

cell when they brought him back from medical;

(9) Plaintiff filed Grievance Number 11,296,632 regarding the incident and was told to file

a regular request of the incident stating the names of officers involved;

(10) there are several requests listing the officers names;

(11) the incident report does not list a real offense report, investigating officer, or

disciplinary action on the incident;

(12) Defendants never told Plaintiff what they believed was false about his claim;

(13) in Grievance Number 11,422,313 Plaintiff complained of his PREA claim being

dismissed and Defendant Martinez working near him;

(14) in response to Grievance Number 11,422,313, Plaintiff was informed false allegations

would result in disciplinary action;

(15) Plaintiff never received any disciplinary action based on false allegations regarding

Grievance Number 11,422,313;

(16) Grievance Number 11,432,752 asks to speak with “CID” and press charges against

Defendants Gray, Smith, and Martinez;

(17) there is a camera outside the psych cell where the incident occurred;

(18) Plaintiff filed twenty grievances on this matter including #11,422,313 #11,465,779

#11,432,535 #11,322,727 #11,322,847 #11,429,252 #11,500,927 #11,507,972

#11,508,118 #11,408,270 #11,572,482 #11,322,415 #11,352,249 #11,432,752

#11,437,666 #11,443,732 #11,556,331 #11,568,827 #11,568,869 #11,628,223;

(19) the video footage of the incident has been modified because it does not show

Defendant Smith spray Plaintiff with pepper spray, it does not show Defendants refusing

to give Plaintiff cover for himself, and it does not show Defendants leaving the cell; and

finally

(20) Defendants failed to argue against Plaintiff’s claims of deliberate indifference, cruel

and unusual punishment, and conditions of confinement. (ECF No. 34).1

0F

Defendants then filed a Reply to Plaintiff’s Response on May 25, 2023. (ECF No. 46). In

their Reply, Defendants argue Plaintiff’s affidavit submitted in his Response is conclusory, self-

serving, and unsupported by material facts relevant to the issue at hand. Defendants argue the

Court should not consider Plaintiff’s allegations as meeting proof with proof. Id.

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, the record "shows that there is no genuine

1 Plaintiff also makes allegations regarding a previous incident and retaliation for this

incident for the first time in his Response. Additionally, Plaintiff alleges a state law claim for

assault against Defendant Smith in his Response for the first time. However, Plaintiff made no

such claims in his Amended Complaint. The Court will not consider claims herein raised for the

first time in response to a motion for summary judgment.

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once

a party moving for summary judgment has made a sufficient showing, the burden rests with the

non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine

issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.

1999).

The non-moving party "must do more than simply show that there is some metaphysical

doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient

evidence to support a jury verdict in their favor." Nat’l Bank, 165 F.3d at 607. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.

“When opposing parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380

(2007).

Under § 1983, a defendant may be sued in either his personal capacity, or in his official

capacity, or claims may be stated against a defendant in both his personal and his official

capacities. The type of conduct that is actionable and the type of defense available depend on

whether the claim is asserted against a defendant in his official or individual capacity. See Gorman

v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against

individuals in their official capacities are equivalent to claims against the entity for which they

work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the

only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims

“are those which allege personal liability for individual actions by officials in the course of their

duties; these claims do not require proof of any policy and qualified immunity may be raised as a

defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff

must allege that the defendant acted under color of state law, and that the actor violated a right,

privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).

III. DISCUSSION

As an initial matter, the Court notes it will not be considering Plaintiff’s Claims One or

Three in this Report and Recommendation—other than to the extent Claim Three reiterated

Plaintiff’s excessive force claim from Claim Two—as Defendants did not move for summary

judgment on Claims One and Three. (ECF No. 31, 32). The only claim which Defendants seek

summary judgment over is Plaintiff’s claim of excessive force alleged in Claim Two.2

1F

Furthermore, Defendant Gray did not move for summary judgment along with his fellow

Defendants. (ECF No. 31). Accordingly, the Court will not address any claims made against

Defendant Gray in this Report and Recommendation.

A. Failure to exhaust

Defendants first argue Plaintiff failed to exhaust his administrative remedies regarding his

claim of excessive force against Defendants. Defendants argue Plaintiff did not specifically

2 Defendants do make an argument in their Brief regarding Plaintiff’s allegations of fear of sexual

assault not being a cognizable claim pursuant to Section 1983. However, the Defendants did not

address Plaintiff’s claims of conditions of confinement and deliberate indifference to his safety

when placed in a one-man cell with a dangerous inmate while nude. Accordingly, the Court does

not construe the argument regarding a fear of rape to appropriately move for dismissal of Claims

One and Three.

mention by name all the Defendants in his grievances, and he did not allege specific facts and

circumstances in his grievances as required by MCDC grievance policy and procedure.

The Prison Litigation Reform Act (“PLRA”) mandates exhaustion of available

administrative remedies before an inmate files suit. Section 1997e(a) of the PLRA provides: “[n]o

action shall be brought with respect to prison conditions under section 1983 of this title, or any

other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded that “exhaustion [as

required by the PLRA] is not per se inadequate simply because an individual later sued was not

named in the grievances.” Id. at 219. “[T]o properly exhaust administrative remedies prisoners

must complete the administrative review process in accordance with the applicable procedural

rules.” Id. at 218 (internal quotation marks and citation omitted). The Court stated that the “level

of detail necessary in a grievance to comply with the grievance procedures will vary from system

to system and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the

boundaries of proper exhaustion.” Id.

The Eighth Circuit Court of Appeals has recognized only two exceptions to the PLRA

exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance

procedures, or (2) when the officials themselves fail to comply with the grievance procedures. See

Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (explaining a prisoner is only required to

exhaust those administrative remedies that are “available” and any remedies that prison officials

prevent a prisoner from utilizing are not considered available).

Here, Plaintiff submitted over twenty grievances, complaints, or requests related to the

incident on March 25, 2022. However, the issue of exhaustion presented by Defendants is not

whether Plaintiff submitted a grievance but whether Plaintiff’s grievances complied with the

MCDC grievance procedure in a way that satisfies the exhaustion requirement.

The MCDC policy and procedure reads in pertinent part:

C. POLICY: The Miller County Jail affirms that it shall protect and promote the safety and

Constitutional Rights of Inmates and shall seek a balance between the expression of

individual rights and the preservation of facility order and security. Procedures for Inmates

to file a complaint or grievance are established.

D. DEFINITIONS

COMPLAINT – A verbal and/or written communication with staff for informal resolution

of an incident, policy, procedure, or condition within the jail which personally/directly

affects the inmate. These may be submitted through the KIOSK in the Housing Areas.

GRIEVANCE – Written communication for formal resolution of an incident, policy,

procedure, or condition within the jail which personally affects the inmate filing the

grievance. A grievance can only be made subsequent to filing a written complaint and

receiving a written response.

NOT SUSTAINED – The investigation revealed the allegations were not true/accurate, or

the evidence was insufficient to substantiate the allegations.

SUSTAINED – The investigation revealed sufficient evidence to support or substantiate

the reported allegation(s) occurred.

(ECF No. 31-7, p. 1). The procedure then goes on to explain how an inmate may submit a

Complaint and Grievance:

3. COMPLAINTS

a. Inmate complaints shall be submitted through the KIOSK.

b. Inmate requests/concerns/complaints shall be reviewed daily (excluding

weekends and holidays) and routed to the appropriate person to address. A

response to all complaints shall be provided to the inmate in a timely manner.

c. Complaints directed to a particular supervisory level (i.e. Captain or Major) does

not require that they respond. Complaints will be forwarded to the lowest

appropriate supervisory level to address and respond.

d. Multiple copies of the same complaint, directed to multiple supervisory levels

will be combined and addressed at the lowest level appropriate.

e. Appropriate criminal charges for filing a false report and/or perjury may be

pursued. Complaints which have already been answered do not require additional

responses. Repetitive complaints shall be returned to the Inmate.

f. The supervisor addressing the complaint shall ensure a response is delivered to

the inmate.

4. GREIVANCES

a. The Jail Warden or designee is responsible for the coordination and management

of the grievance procedures. Inmates who cannot resolve a complaint through the

procedure using the KIOSK shall have access to a grievance procedure. Inmate

grievances which are determined to be untruthful/frivolous will be considered the

same as lying to staff members and appropriate sanctions may be imposed.

Appropriate criminal charges for filing a false report and/or perjury may also be

pursued. Grievances and appeals which have already been answered do not require

additional responses. Repetitive grievances or appeals shall be returned to the

inmate.

. . .

2) Inmates may grieve the following matters:

. . .

c) Incidents occurring within the facility that affect them personally/directly

including a disciplinary decision;

d) Any matter relating to conditions of care or supervision with the authority

of the miller County Jail

. . .

4) Inmates must follow the below procedures to submit a grievance;

a) All grievances shall be submitted on a Request for Administrative

Remedy Form, jail form 09.01A obtainable from a shift officer or

supervisor.

b) At all levels of the grievance or appeal process, it will be the

responsibility of the Inmate to present only specific facts and circumstances

directly relating to the complaint. The Inmate should be brief and concise,

stating only one issue per form. The Inmate should also state the remedy

which they are seeking and state what the original complaint addressed.

Grievances received without an original complaint and response shall be

promptly returned.

c) Upon completion of the Request for Administrative Remedy Form by

the Inmate, the form shall be routed to the Facility.

(ECF No. 31-7, pp. 4-7). Nowhere in the procedure, on the summary judgment record, is there a

requirement that each employee complained of or grieved against shall be specifically named.

Defendants first argue Plaintiff failed to exhaust his administrative remedies as to all

Defendants except Martinez because he only specifically named Defendant Martinez in his

grievances and complaints. Defendants rely upon an Eastern District of Arkansas case, Waller v.

Kelley, to support this argument. Waller, 956 F.Supp.2d 1007 (E.D. Ark. May 6, 2013). In Waller,

however, the Court explains that to satisfy the PLRA exhaustion requirements, the prisoner “must

fully comply with the specific procedural requirements of the incarcerating facility.” Id. at 1010

(citing Jones v. Bock, 549 U.S. 199, 218 (2007)). The Waller Court goes on to note the facility at

issue in that case, the Arkansas Department of Correction (“ADC”), exhaustion policy states:

“[g]rievances must specifically name each individual involved for a proper investigation and

response to be completed by the ADC” and “[i]nmates who fail to name all parties during the

grievance process may have their lawsuit or claim dismissed by the court or commission for failure

to exhaust against all parties.” Waller, 956 F.Supp.2d at 1010. Additionally, the Waller Court

notes the ADC grievance form includes a reminder to name all personnel involved. Id.

While the Eastern District of Arkansas did determine Mr. Waller failed to satisfy the PLRA

exhaustion requirements, this decision was based on the specific requirements of the ADC

grievance procedure to specifically name all personnel. The Waller Court simply applied the ADC

requirements. The general exhaustion requirements under the PLRA remains as stated in Jones—

to fully comply with the specific requirements of the incarcerating facility’s grievance procedure.

See Waller, 956 F.Supp.2d at 1010.

Here, the Defendants failed to point the Court to any specific naming requirement in the

MCDC policy and procedure on grievances and complaints, and the Court was also unable to find

any such requirement upon its own review of the policy. Accordingly, Plaintiff’s failure to list all

Defendants’ names is not a violation of the MCDC policy. Thus, it does not necessitate a finding

he failed to exhaust his administrative remedies under the PLRA.

Secondly, Defendants argue Plaintiff failed to exhaust because he did not include specific

facts and circumstance in his complaints and grievances. Defendants cite to Section E.4.A.4.b. of

the MCDC grievance policy in support of their second failure to exhaust argument:

At all levels of the grievance or appeal process, it will be the responsibility of the Inmate

to present only specific facts and circumstances directly relating to the complaint. The

Inmate should be brief and concise, stating only one issue per form. The Inmate should

also state the remedy which they are seeking and state what the original complaint

addressed. Grievances received without an original complaint and response shall be

promptly returned.

(ECF No. 37-1, p. 5). The Court again is unconvinced by Defendants’ argument. Plaintiff filed

multiple grievances on the incident and in many of those grievances listed out the specific actions

of which he complained. In his first grievance, filed on March 28, 2022, Plaintiff states:

I will like to file prea charges I feel sexual assaulted Friday the 25th of march around 9 am

I was mase and stripped out my clothes and thrown in a pysyce cell legally blind with

another man butt naked not even a shield to cover myself for thirty mins and on the outside

I can here some one playing music the song that’s on me baby by yellow bezzy the rap

artist like they were want me to perform a dance for them I felt rape violated and less of a

man during this encounter

(ECF No. 31-8, p. 31) (errors in original).

Plaintiff continued to file additional grievances on this matter through April 25, 2022. In

total, Plaintiff filed ten grievances. The Court finds the first Grievance #11,320,727, filed on

March 28, 2022, includes sufficient specific facts to put Defendants on notice of the incident of

which Plaintiff complains. In this grievance, Plaintiff presented “specific facts and circumstances

directly relating to [his] complaint” as required by Section E.4.A.4.b. of the MCDC Policy.

Plaintiff listed the date and time of the incident, and specifically listed his allegations of

complained of conduct from the incident—sexual assault through the stripping by officers, macing

by officers, and the officers placing Plaintiff in a psych cell with another inmate while nude. These

facts are sufficiently specific and similar to the facts alleged in Plaintiff’s Complaint in this matter.

The Court finds there are no genuine issues of material fact as to whether Grievance #11,320,727

complies with MCDC policy and procedure, (ECF No. 37-1, p. 5). Therefore, the Court finds

Plaintiff exhausted his administrative remedies in satisfaction of Section 1997e(a).

B. Claim Two - Excessive force

In Claim Two, Plaintiff claims Defendant Smith maced him. Then, Defendants Smith,

Martinez, and Gray grabbed him and forced him into the one-man psych cell with Mr. Land.

Defendants Smith and Martinez then held Plaintiff against the wall while Defendant Gray stripped

off all of Plaintiff’s clothing. Plaintiff claims these Defendants exhibited excessive force against

him with these actions. Plaintiff claims these actions violated his Eighth Amendment rights and

caused him “emotional demoralization,” mental trauma, anguish, and “physical emotional torture.”

(ECF No. 7, pp. 7-8). The Court interprets Plaintiff’s Claim Two to assert an excessive force claim

for three independent uses of force: (1) pepper spraying Plaintiff; (2) grabbing Plaintiff and forcing

him inside the psych cell; and (3) holding Plaintiff against the wall and stripping off his clothes.

Defendants do not dispute force was used against Plaintiff but argue the force was

objectively reasonable given the circumstances; thus, Defendants are entitled to qualified

immunity. The undisputed material facts surrounding Plaintiff’s claim of excessive force include:

(1) on March 25, 2022, Defendants Smith and Martinez moved Plaintiff from his cell in

the Max D pod to a psych cell;

(2) Plaintiff initially refused to leave his Max D cell but after Defendants Smith and

Martinez called for assistance from Defendant Gray, Plaintiff cooperated (ECF No. 33, p.

1);

(3) once at the psych cell, Plaintiff was ordered to remove all of his clothes and enter the

psych cell at least three times; but, Plaintiff again refused direct orders from the

Defendants, Id. at 2;

(4) Defendant Smith warned Plaintiff he would spray him with pepper spray if he did not

comply (ECF No. 31-2);

(5) the video footage from the incident does not show the spraying and skips frames to a

shot where Plaintiff is standing away from the door to the psych cell;

(6) Plaintiff then resisted Defendants as they grabbed him and escorted him back to the

cell, Id.;

(7) Defendant Smith gave a short burst of OC spray to Plaintiff’s face at some point during

Plaintiff’s resistance, (ECF No. 33, p. 2);

(8) Plaintiff was then offered decontamination and medical treatment if needed (ECF No.

33, p. 2); and

(9) while returning to the psych cell from medical, Plaintiff again resisted going back into

the cell. (ECF No. 33, p. 3).

The video footage submitted by Defendants (ECF No. 31-3) does not show Defendant

Smith spraying Plaintiff. It does show Defendants grabbing Plaintiff as he is attempting to walk

backward down the hallway away from the cell and forcibly escorting him into the cell. Id. The

video does not contain audio, but it is obvious, from Plaintiff’s animated and agitated body

language, Plaintiff is arguing with the Defendants prior to being forced into the cell. Id.

The parties dispute whether Plaintiff made a suicidal statement to initiate the transfer to the

psych cell. (ECF No. 33, p. 1; ECF No. 35, p. 1). Plaintiff states he made no such statement, while

Defendants allege it was Plaintiff’s suicidal statements that prompted the transfer and necessity

for placement in the psych cell.

1. Excessive Force Generally

While Plaintiff claims his Eighth Amendment rights were violated by Defendants’ use of

force, it is not the Eighth Amendment but the Fourteenth Amendment’s Due Process Clause that

protects Plaintiff, a pretrial detainee. The objective reasonableness standard applies to excessive

force claims brought by pretrial detainees. Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015).

“[T]he defendant's state of mind is not a matter that a plaintiff is required to prove.” Id. at 394. A

pretrial detainee “must show only that the force purposely or knowingly used against him was

objectively unreasonable.” Id. at 396.

The objective reasonableness of a use of force “turns on the ‘facts and circumstances of

each particular case.’” Kingsley, 576 U.S. at 397 (quoting Graham v. Connor, 490 U.S. 386, 396

(1989)). This determination must be made “from the perspective of a reasonable officer on the

scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Id.

Additionally, “[a] court must also account for the ‘legitimate interests that stem from [the

government's] need to manage the facility in which the individual is detained,’ appropriately

deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are needed to preserve

internal order and discipline and to maintain institutional security.’” Id. (quoting Bell v. Wolfish,

441 U.S. 520, 540 (1979)).

“[O]bjective circumstances potentially relevant to a determination of excessive force”

include:

the reasonableness or unreasonableness of the force used; the relationship between the need

for the use of force and the amount of force used; the extent of plaintiff's injury; any effort

made by the officer to temper or to limit the amount of force; the severity of the security

problem at issue; the threat reasonably perceived by the officer; and whether plaintiff was

actively resisting.

Kingsley, 576 U.S. at 397 (citing Graham, 490 U.S. at 396). An action is objectively unreasonable

if it is not reasonably related to legitimate governmental interests, such as maintaining order and

security, or is excessive in relation to that objective. Id. at 398-99.

The court must analyze each of Plaintiff’s purported uses of force under this legal standard

to determine if Defendants were objectively reasonable in each use of force.

2. Use of Pepper spray on Plaintiff

First, the Court will consider Defendant Smith’s use of pepper spray on Plaintiff. The

Court notes it is unclear when the pepper spray was dispensed, and the video footage offers no

clarification as it skips and appears to be missing frames of the incident. However, despite this

inadequacy in the video evidence, the parties do not dispute Plaintiff refused at least three orders

from Defendants to disrobe and enter the psych cell prior to the spraying. (ECF Nos. 33, 35).

Further, the parties do not dispute the discharge of pepper spray was short and to Plaintiff’s face.

(ECF Nos. 33, 35). Plaintiff asserts he was sprayed prior to walking away from the Defendants

down the hallway. Finally, the parties do not dispute Plaintiff was offered decontamination and

medical treatment shortly after the pepper spray was used. (ECF No.33, 35).

The summary judgment record is devoid of any evidence indicating Plaintiff suffered any

injury caused by the pepper spray. The parties dispute whether Plaintiff made suicidal statements

prior to this incident, prompting the need for housing in the psych cell. Plaintiff claims he did not,

therefore, the Court will analyze the relevant factors with the assumption Plaintiff was not suicidal

at the time of the incident. Finally, the parties dispute whether the pepper spray by Defendant

Smith was intended to gain control over Plaintiff or in retaliation for previous events between

Plaintiff and Defendant Smith. (ECF No. 33, p. 2; ECF No. 35, p. 1).

It is well-settled that pepper spray or other summary applications of force may be used to

control a recalcitrant inmate if the inmate poses a threat to himself or others. Hickey v. Reeder, 12

F.3d 754, 757 (8th Cir. 2000). The summary judgment record here clearly indicates Plaintiff was

behaving as a recalcitrant inmate which Defendants were attempting to regain control. He first

refused to leave his initial cell. Then, he refused three orders from Defendant Smith to disrobe

and enter the psych cell even after a warning he would be pepper sprayed if he failed to comply.

Further, as evident on the summary judgment record, Plaintiff was unrestrained, visibly agitated,

actively resisting, and walked away from the Defendants down the hallway rather than complying

with the order to enter the secure psych cell.

The Court finds a reasonable officer would assess Plaintiff under these circumstances as a

risk to themselves and to the security of the MCDC, even if he was not suicidal. Use of reasonable

force in such instance, to regain control over his person and location, is entirely permissible. See

Kingsley, 576 U.S. at 397. See also Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989)

(force may be justified to make an inmate comply with a lawful order, but only if the inmate's

noncompliance poses a threat to other persons or to prison security); Cf. Treats v. Morgan, 308

F.3d 868, 873 (8th Cir. 2002) (an excessive force claim exists when an officer uses pepper spray

without warning on an inmate who may have questioned his actions but who otherwise poses no

threat).

Further, it is undisputed the spray was of short duration, and Plaintiff was offered

decontamination and medical assessment approximately thirty minutes after the incident. (ECF

No. 31-2). Plaintiff does not allege any, and the summary judgment record is devoid of any

evidence of, physical injury from the pepper spray. See Chambers v. Pennycook, 641 F.3d 898

(8th Cir. 2011) (explaining a de minimis injury cannot preclude a claim for excessive force,

however, the lack of, or minor degree of, injury is a relevant factor in determining the

reasonableness of the force used) (citing Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005)).

Finally, Plaintiff argues Defendant Smith pepper spraying him was motivated by retaliation

from some earlier complaint Plaintiff filed against Defendants Smith.3 While the standard for

2F

excessive force used against pretrial detainees does not consider the subjective state of mind of the

offender, Kingsley v. Hendrickson, 576 U.S. at 394, and malice on the part of the offending officer

will not turn reasonable force into an excessive force violation, Wilson v. Spain, 309 F.3d 713, 717

(8th Cir. 2000), the Due Process Clause of the Fourteenth Amendment does protect pretrial

detainees from the use of excessive force that amounts to punishment, Graham v. Connor, 490

U.S. 386, 395 n. 10 (1989). Therefore, the Court must consider whether the summary judgment

record supports Plaintiff’s contention that Defendant Smith’s use of force—spraying pepper spray

in Plaintiff’s face—was for the purpose of injuring, punishing or disciplining Plaintiff. See

Edwards v. Byrd¸750 F.3d 728, 732 (8th Cir. 2014) (explaining a use of flash bang grenade in

close quarters, along with kicking detainees, and shooting them with bean bag guns while detainees

were not resisting and lying face down on bunks, was done to inflict harm rather than restore

discipline).

Immediately prior to the use of pepper spray on the Plaintiff, he was agitated, actively

resisting officers, and refusing to comply with direct orders from officers. Plaintiff was

unrestrained and outside of a secure housing cell in the hallway of the MCDC. Further, Defendant

Smith warned Plaintiff and gave him the chance to avoid the spraying. These undisputed facts on

the record support a finding of objectively reasonable use of force even if Defendant Smith

possessed a retaliatory state of mind. The force used was proportional to the threat and rationally

related to the legitimate interest of maintaining security at the MCDC. See Wilson, 209 F.3d at

3 The Court notes this allegation of retaliation is alleged for the first time in Plaintiff’s Response

to Defendants’ Motion for Summary Judgment. Accordingly, the Court does not consider it a new

and separate claim, but instead an argument in support of Plaintiff’s claim of excessive force.

717 (even if the officer was angry and made threats to the detainee, it does not alter the objective

reasonableness of the use of force applied); see also Leonard v. St. Charles Cty Police Department,

59 F.4th 355, 360 (8th Cir. 2023) (holding officer’s use of pepper spray, after a warning, on

detainee in his cell was objectively reasonable as the detainee refused an order to remain kneeling,

physically resisted restraint, and started to move toward the open door of his cell).

Accordingly, the Court finds Defendants Smith’s use of a short burst of pepper spray in

Plaintiff’s face, after three orders were defied and a warning was issued, to secure Plaintiff in his

housing unit, was objectively reasonable; thus, not rising to the level of a constitutional violation.

3. Forcing Plaintiff into a cell

Next, the Court must address Plaintiff’s excessive force claims regarding Defendants Smith

and Martinez grabbing Plaintiff and forcing him into the cell. The facts of this use of force are

wholly undisputed. After Plaintiff declined to follow orders, resisted Defendants, and walked

away down the hallway, Defendants grabbed Plaintiff and physically forced him into the psych

cell. This use of force was viewable on the video footage on the summary judgment record. Prior

to Defendants grabbing Plaintiff, he was first viewed arguing with the Defendants. Then, the video

skips frames and Plaintiff appears down the hallway from his original location backing away from

the officers. Additionally, it is undisputed Plaintiff refused three direct orders to disrobe and enter

the cell immediately prior to backing down the hallway. The video shows two officers firmly grab

Plaintiff by the arms and escort him back down the hallway and inside the cell. Plaintiff can be

seen actively resisting Defendants as they escort him. (ECF No. 31-3). Plaintiff never leaves his

feet during this escort. Just as with the pepper spray, the Court finds Plaintiff was acting as a

recalcitrant inmate, posed a threat to the Defendants and the security of the MCDC, and Defendants

needed to regain control of him. The Court finds any reasonable officer would have grabbed

Plaintiff and forced him into a cell to secure him under these circumstances. See Hickey, 12 F.3d

at 757; see also Porter v. Cape Girardeau County, 2022 WL 990676, *6-7 (E.D. Mo. Mar. 31,

2022) (finding objectively reasonable the tasing and choke hold of a detainee for refusing multiple

orders to enter his cell).

Further, there are no physical injuries established by the summary judgment record here

other than a “scar” on Plaintiff’s foot. (ECF No. 7, p. 9). This “scar” is alleged in Plaintiff’s

Complaint, but there is no evidence in the summary judgment record this “scar” required medical

treatment. As explained above, while de minimis injuries do not foreclose an excessive force

claim, the degree of injury is relevant to the Court’s analysis as it tends to show the amount and

type of force used. Bishop v. Glazier, 7232 F.3d 957, 962 (8th Cir. 2013) (internal quotations

omitted). Accordingly, the Court finds Defendants Smith and Martinez’s use of force in grabbing

Plaintiff and physically escorting him into the psych cell was objectively reasonable; thus, it does

not rise to the level of a constitutional violation.

4. Forcefully stripping clothes from Plaintiff

Finally, Plaintiff alleges the forcible stripping off his clothes while being held against the wall

constitutes excessive force. As explained above, the facts related to this claim are undisputed,

except for whether Plaintiff was suicidal. As before, the court will presume Plaintiff was not

suicidal in considering the facts in a light most favorable to Plaintiff. Plaintiff claims in his

Amended Complaint that Defendants Smith and Martinez held him against the wall while

Defendant Gray stripped off his clothing. (ECF No. 7, p. 7). The summary judgment record does

not dispute this rendition of the facts. The video footage on the summary judgment record does

not show this use of force. Plaintiff does not dispute the MCDC has a policy against him wearing

his clothes in the psych cell. (ECF No. 31-1). Lastly, it is undisputed Plaintiff refused to follow

three prior orders to enter the cell and disrobe, actively resisted Defendants upon his entry into the

cell, and was visibly agitated immediately prior to entry into the cell. As previously explained,

the Court finds Plaintiff was acting as a recalcitrant inmate, posed a threat to the Defendants and

the security of the MCDC, and Defendants needed to regain control of him and secure him in the

psych cell. See Hickey, 12 F.3d at 757; See also Pehriz v. Kansas City Bd. Of Police Com’rs, 2015

WL 5604441 (W.D. Mo. Sept. 23, 2015) (reasonable use of force to cuff detainee, push her against

the wall, and forcible remove her clothes in compliance with jail policy of removing soiled clothing

from detainees once they arrive in the jail).

Further, there are no physical injuries established by the summary judgment record here

other than a “scar” on Plaintiff’s foot. (ECF No. 7, p. 9). This “scar” is alleged in Plaintiff’s

Complaint, but there is no evidence in the summary judgment record this “scar” required medical

treatment. And as explained above, while de minimis injuries do not foreclose an excessive force

claim, the degree of injury is relevant to the Court’s analysis as it tends to show the amount and

type of force used. Bishop v. Glazier, 7232 F.3d 957, 962 (8th Cir. 2013) (internal quotations

omitted). Accordingly, the Court finds Defendants Smith and Martinez use of force in forcibly

disrobing Plaintiff was objectively reasonable; thus, it does not rise to the level of a constitutional

violation.

5. Qualified immunity

Defendants argue they are entitled to qualified immunity on Plaintiff’s excessive force

claims. Qualified immunity “shields [a] government official from liability in a section 1983 action

unless the official’s conduct violates a clearly established right of which a reasonable person would

have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). Qualified

immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). “At summary judgment, qualified immunity shields

a law enforcement officer from liability in a § 1983 action unless: (1) the facts viewed in the light

most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right;

and (2) the right was clearly established at the time of the deprivation.” Watson v. Boyd, 2 F.4th

1106, 1109 (8th Cir. 2021) (internal citation and quotations omitted).

Here, taking all the facts in the light most favorable to Plaintiff, the Court finds Defendants

Smith and Martinez are entitled to qualified immunity on Plaintiff’s excessive force claim because

the facts as alleged by Plaintiff fail to demonstrate Defendants Smith and Martinez were

objectively unreasonable in their use of force. The Court need not determine whether Plaintiff’s

rights were clearly established at the time of the incident as it has concluded Plaintiff’s

constitutional rights were not violated as a matter of law. See Habhab v. Hon, 536 F.3d 963, 969

(8th Cir. 2009) (there is no need to analyze the second prong of the qualified immunity analysis if

the facts alleged do not amount to a constitutional violation).

6. Respondeat superior

Lastly, if Plaintiff alleges his excessive force claims against Defendants Walker and

Adams, those claims must also fail as a matter of law.

Section 1983 provides a federal cause of action for the deprivation, under color of law, of

a citizen's “rights, privileges, or immunities secured by the Constitution and laws” of the United

States. In order to state a claim under 42 U.S.C. § 1983, plaintiff must allege that the defendant

acted under color of state law and that he violated a right secured by the Constitution. West v.

Atkins, 487 U.S. 42, 48 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999). The

deprivation must be intentional; mere negligence will not suffice to state a claim for deprivation

of a constitutional right under Section 1983. See Daniels v. Williams, 474 U.S. 327 (1986);

Davidson v. Cannon, 474 U.S. 344, 348 (1986).

A claim of deprivation of a constitutional right cannot be based on a respondeat superior

theory of liability. See Monell v. Department of Social Servs, 436 U.S. 654, 694 (1978). “[A]

supervisor is not vicariously liable under 42 U.S.C. § 1983 for an employee's unconstitutional

activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir.1994); see also Whitson v. Stone County

Jail, 602 F.3d 920, 928 (8th Cir.2010) (“In a § 1983 case, an official is only liable for his own

misconduct and is not accountable for the misdeeds of his agents under a theory such as respondeat

superior or supervisor liability”) (internal quotations omitted); Keeper v. King,130 F.3d 1309, 1314

(8th Cir.1997) (“general responsibility for supervising the operations of a prison is insufficient to

establish the personal involvement required to support liability”).

“Liability under section 1983 requires a causal link to, and direct responsibility for, the

deprivation of rights. To establish personal liability of the supervisory defendants, [Plaintiff] must

allege specific facts of personal involvement in, or direct responsibility for, a deprivation of his

constitutional rights.” Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir.2007) (quoting

Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir.2006)).

Plaintiff did not allege any actions or personal involvement of Defendants Walker or

Adams in his excessive force claim. Accordingly, Plaintiff’s Claim Two fails as a matter of law

against Defendants Walker or Adams.

C. Official Capacity Claims

Plaintiff also alleged an official capacity claim against Defendants Smith and Martinez for

their use of excessive force. Official capacity claims are “functionally equivalent to a suit against

the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th

Cir. 2010). In this case, Plaintiff's official capacity claim against Defendants Smith and Martinez

is treated as a claim against Miller County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).

“[I]t is well established that a municipality [or county] cannot be held liable on a

respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of

Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Miller County's liability

under Section 1983, “plaintiff must show that a constitutional violation was committed pursuant

to an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d

814, 817 (8th Cir. 2009) (citation omitted). Here, this means Plaintiff must produce summary

judgment evidence to show a policy or custom of Miller County contributed to his claimed

constitutional violation—excessive force.

Defendants argue Plaintiff failed to provide any summary judgment evidence showing how

the MCDC Use of Force Policy or a custom of Miller County caused a violation of his

constitutional rights. (ECF No. 32, p. 19). The Court agrees. Furthermore, having determined

the facts alleged do not rise to the level of a constitutional violation through excessive force, there

can be no valid official capacity claim against Miller County for causing the excessive force. See

Moyle, 571 F.3d at 817.

IV. CONCLUSION

For the reasons stated above, I recommend the Defendants’ Motion for Summary Judgment

(ECF No. 31) be GRANTED and Plaintiff’s Claim Two for excessive force against Defendants

Smith, Martinez, Walker, and Adams be DISMISSED WITH PREJUDICE. This leaves for

further litigation Plaintiff’s: (1) Claim One alleged against Defendants Gray, Smith, and Martinez;

(2) Claim Two alleged against Defendant Gray, and (3) Claim Three alleged against Defendants

Gray, Smith, Martinez, Adams, and Walker.

The parties have fourteen days from receipt of the Report and Recommendation in

which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 1st day of August 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE