MCKAY v. TONA

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

PARNELL LEDELL MCKAY,

Plaintiff,

vs. Case No.: 3:23cv24180/LAC/ZCB

MICHAEL TONA, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This is a pro se prisoner civil rights case filed under 42 U.S.C.

§ 1983. Plaintiff Parnell McKay is an inmate of the Florida Department

of Corrections (FDOC). His second amended complaint asserts Eighth

Amendment claims of excessive force against two FDOC officers,

Defendants Tona and Estep. (Doc. 14).1 Defendants moved for summary

judgment (Doc. 47), Plaintiff responded in opposition (Docs. 53, 54, 55,

56, 58), and Defendants replied (Doc. 57). For the reasons below,

Defendants’ motion for summary judgment should be granted.

1 Plaintiff named a third Defendant, the Warden of Santa Rosa C.I., but

the Court previously dismissed all claims against that Defendant and

terminated him from this lawsuit. (Doc. 23). The Court also dismissed

Plaintiff’s Fourteenth Amendment claims of deliberate indifference

against Defendants Tona and Estep. (Id.).

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I. Factual Background

A. Plaintiff’s version of events2

On July 19, 2021, between approximately 8:25 a.m. and 9:15 a.m.,

Plaintiff was in a holding cell awaiting a new cell assignment. (Doc. 53

at 3; Doc. 56 at 2-3). Defendant Tona ordered him to submit to an

unclothed search. (Doc. 14 at 5; Doc. 53 at 3; Doc. 56 at 2). Plaintiff

alleges he fully complied with all orders, stripped to his boxer shorts, and

was searched. (Id.). He alleges Defendant Tona then said, “Here, Estep,

you mace this Fuck boy” and handed Defendant Estep a canister of

chemical agent. (Doc. 14 at 5; Doc. 53 at 3; Doc. 54 at 3; Doc. 56 at 2-3).

Plaintiff alleges Defendant Estep took the canister and gratuitously

sprayed his body with chemical agent. (Doc. 14 at 5, 7-8; Doc. 53 at 3;

Doc. 54 at 3; Doc. 56 at 3). Plaintiff alleges Tona then said, “Fuck boy,

we should beat your ass.” (Doc. 14 at 5; Doc. 53 at 3; Doc. 54 at 3; Doc.

56 at 3). Plaintiff was provided a decontamination shower and then a

post-use of force medical exam. (Doc. 14 at 5; Doc. 53 at 3; Doc. 56 at 3).

2 Plaintiff’s version of events is taken from the second amended complaint

and his documents opposing Defendants’ motion for summary judgment.

(Docs. 14, 53, 54, 55, 56). He signed all of those documents under penalty

of perjury. (Id.).

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He alleges he sustained physical and emotional injuries as a result of the

use of chemical agent. (Doc. 14 at 9).

Plaintiff has brought Eighth Amendment excessive force claims

against Defendants. (Doc. 14 at 7-8). He seeks punitive and

compensatory damages, among other relief. (Id. at 8-9).

B. Defendants’ version of events

The use of force at issue occurred while Plaintiff was in a holding

cell while being reassigned from general population to confinement.

(Doc. 47-2 at 13 (indicating Plaintiff’s housing status as “Gen Pop” one

hour prior to the use of force); Doc. 47-3 at 10 (indicating Plaintiff’s

housing status as “Confinement” at the time of the use of force)).

Defendants allege Plaintiff initially complied with Lieutenant Neel’s

orders to submit to the unclothed search by removing his clothing but

then refused orders to remove a watch from his wrist. (Doc. 47 at 4-5;

Doc. 47-3 at 1-3, 10-11). Defendants allege Defendant Estep applied

three one-second bursts of Oleoresin Capsicum (OC) spray through the

grate of the holding cell door. (Id.). Minutes later, Plaintiff relinquished

the watch. (Id.). The unclothed search resumed and was completed.

(Id.). Plaintiff was then escorted to a cold shower chamber for

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decontamination of the chemical agent. (Id.). Officers determined that

the watch belonged to another inmate and was contraband. (Id.).

Defendants allege Plaintiff’s medical records show he did not suffer more

than de minimis injury as a result of the use of chemical agent. (Doc. 47

at 20; Doc. 47-5 at 3). In support of their motion for summary judgment,

Defendants submitted sworn use of force incident reports, video evidence,

and medical records. (Docs. 47-3, 47-5 , 48).

C. Video evidence

Defendants have provided a video (with audio) from a hand-held

camera depicting Defendant Estep’s use of chemical agent against

Plaintiff. (Doc. 47-4; Doc. 48). The video is not time-stamped, so the

Court refers to the stopwatch of the video player which times the video

in minutes and seconds (00:00). Here is what the video shows.

Lieutenant J. Neel (a non-party)3 approaches the holding cell where

Plaintiff is temporarily housed and asks Plaintiff if he will comply with

all orders. (Doc. 48, 00:01-01:08). Plaintiff agrees to comply. (01:09). Lt.

Neel orders Plaintiff to submit as Defendant Tona and Officer Windley

3 Lieutenant J. Neel is identified by his name tag in the video and his role

as supervising officer in the use of force incident reports.

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(a non-party)4 remove his ankle and wrist restraints. (04:20-06:07).

Plaintiff complies as officers remove the restraints. (Id.). Lt. Neel then

orders Plaintiff to remove his clothing and move in specific ways to

facilitate the unclothed visual body search. (06:09-07:16). Plaintiff

complies until Neel orders him to remove the watch from his wrist. (Id.).

Lt. Neel orders Plaintiff to remove the watch: “Let me see your watch.

Take your watch off. Take your watch off. Take your watch off.” (07:16-

07:30). Plaintiff refuses to take off the watch. (Id.).

Lt. Neel then directs Defendant Estep to administer OC spray

through the metal grate of the cell door. (07:30-07:40). Defendant Estep

applies three one-second bursts of OC spray into the holding cell. (07:42-

7:45). All of the officers, except the camera operator (a non-party officer),

leave the camera’s view. (07:45-08:00). Neither Defendant Tona nor any

other officer utters the vulgarities and threats that Plaintiff alleges he

heard. Two more minutes into the video, a watch is visible on Plaintiff’s

right wrist. (09:50-09:54). Approximately three and a half minutes after

4 Officer Windley is identified from the use of force incident reports. (Doc.

47-3 at 5).

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Defendant Estep applied the OC spray, Plaintiff removes the watch and

a necklace and places them on the cell floor. (11:10-11:15).

Within two minutes of Plaintiff’s relinquishing the items, Lt. Neel,

Defendant Tona, and Officer Windley return to the cell front. (12:41).

Plaintiff fully complies with the unclothed body search. (12:46-13:36).

The officers secure Plaintiff with restraints and escort him to a cold water

shower to wash off the OC spray. (13:43-20:10). He is instructed to

shower until he feels relief from the OC spray. (20:10). After a five-

minute shower, the officers provide a clean pair of boxer shorts, reapply

ankle and wrist restraints, and escort Plaintiff to the medical department

for an exam. (26:32-31:50). After the medical exam, the officers escort

Plaintiff to his newly assigned cell. (31:50-33:30).

II. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is

“genuine” if the “evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome

of the suit under the governing law.” Id.

At bottom, the summary judgment question is “whether the

evidence presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail as a matter

of law.” Id. at 251-52. When answering that question, courts view the

evidence in the light most favorable to the nonmoving party. Scott v.

Harris, 550 U.S. 372, 380 (2007). But the nonmoving party bears the

burden of coming forward with sufficient evidence on each element.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A mere “scintilla”

of evidence is insufficient to meet that burden. Young v. City of Palm

Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). Likewise, speculation or

conjecture cannot create a genuine issue of material fact. Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).

When the plaintiff’s version of events is “blatantly contradicted” by

the record, a court “should not adopt that version of the facts for purposes

of ruling on a motion for summary judgment.” Scott, 550 U.S. at 380.

Thus, when a video recording of an incident clearly contradicts the

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plaintiff’s version of events, the court views the evidence in the light

depicted by the video. Id. at 380-81.

To determine what facts are “material” at the summary judgment

stage, courts look to the substantive law. Anderson, 477 U.S. at 248.

Completing that task here requires an examination of the law governing

Eighth Amendment claims of excessive force.

III. Discussion

Plaintiff claims Defendants Tona and Estep violated the Eighth

Amendment by using excessive force against him—namely, gratuitously

applying OC spray even though he was fully complying with orders. (Doc.

14 at 5, 7-8).

Defendants argue that the video footage shows that the use of OC

spray was necessary because Plaintiff refused to comply with the order

to remove the watch during the unclothed search. (Doc. 47 at 5-13). They

also argue they are entitled to qualified immunity because they did not

violate Plaintiff’s Eighth Amendment rights or any clearly established

law. (Id. at 13-17).5

5 Defendants make additional arguments about Plaintiff’s inability to

recover compensatory and punitive damages. (Doc. 47 at 17-29). The

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“Qualified immunity shields public officials from liability for civil

damages when their conduct does not violate a constitutional right that

was clearly established at the time of the challenged action.” Echols v.

Lawton, 913 F.3d 1313, 1319 (11th Cir. 2019) (cleaned up). The rationale

behind the doctrine is the balancing of “two important public interests:

the need to hold public officials accountable when they exercise power

irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.”

Davis v. Waller, 44 F.4th 1305, 1312 (11th Cir. 2022) (cleaned up). Under

the balance that qualified immunity strikes, “all but the plainly

incompetent or those who knowingly violate the law” enjoy its protection.

Malley v. Briggs, 475 U.S. 335, 341 (1986).

To receive qualified immunity, an officer “bears the initial burden

to prove that he acted within his discretionary authority.” Dukes v.

Deaton, 852 F.3d 1035, 1041 (11th Cir. 2017). The plaintiff then bears

the burden of proving that the officer “violated a constitutional right” and

“the right was clearly established at the time of the violation.” Barnes v.

Court need not address the issue of damages because Defendants are

entitled to summary judgment on the issue of liability.

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Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012). Here, Plaintiff does not

dispute that the officers were engaged in discretionary functions,

meaning he bears the burden of proving that they were not entitled to

qualified immunity.

The “core judicial inquiry” in considering an Eighth Amendment

claim of excessive force is “whether force was applied in a good-faith effort

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

harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992); see also Whitley v.

Albers, 475 U.S. 312, 319-21 (1986). “When prison officials maliciously

and sadistically use force to cause harm,” the Supreme Court recognized,

“contemporary standards of decency always are violated . . . . whether or

not significant injury is evident.” Hudson, 503 U.S. at 9.

To determine whether the application of force was done in good

faith or maliciously and sadistically, courts are required to consider four

factors: “(1) the need for the application of force; (2) the relationship

between that need and the amount of force used; (3) the threat reasonably

perceived by responsible officials; and (4) any efforts made to temper the

severity of the forceful response.” Ledlow v. Givens, 500 F. App’x 910,

912-13 (11th Cir. 2012) (citing Whitley, 475 U.S. at 321). From the

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consideration of such factors, “inferences may be drawn as to whether the

use of force could plausibly have been thought necessary, or instead

evinced such wantonness with respect to the unjustified infliction of

harm as is tantamount to a knowing willingness that it occur.” Whitley,

475 U.S. at 321. In cases where a collective use of force is alleged, the

court need not analyze separately the force administered by each officer

to determine which of the blows or other acts, if any, constituted the use

of excessive force. Skrtich v. Thornton, 280 F.3d. 1295, 1302 (11th Cir.

2002).

“[T]he extent of injury suffered by an inmate is one factor that may

suggest whether the use of force could plausibly have been thought

necessary in a particular situation.” Hudson, 503 U.S. at 7 (cleaned up).

The extent of injury may also provide some indication of the amount of

force applied. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). As the Supreme

Court stated in Hudson, not “every malevolent touch by a prison guard

gives rise to a federal cause of action.” Hudson, 503 U.S. at 9. An inmate

who has brought an excessive force claim “may avoid summary judgment

only if the evidence viewed in the light most favorable to him goes beyond

a mere dispute over the reasonableness of the force used and will support

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a reliable inference of wantonness in the infliction of pain.” Ledlow, 500

F. App’x at 913 (internal quotations omitted).

Applying the factors set forth above, Defendants are entitled to

qualified immunity because the evidence viewed in the light depicted in

the video does not support a reliable inference of wantonness in the use

of force. The video evidence clearly shows that Plaintiff was given not

one, not two, but three direct orders to remove the watch from his wrist

to complete the unclothed search. Plaintiff refused to comply with those

orders, and his refusal prevented officers from completing his housing

reassignment. Defendant Estep applied three one-second bursts of OC

spray. Once the spray had the desired effect of compelling Plaintiff’s

compliance with the orders to remove the watch and complete the

unclothed search, Plaintiff was removed from the contaminated cell,

provided a cold water shower to relieve the uncomfortable effects of the

OC spray, given a clean pair of boxer shorts, and seen my medical staff.

Considering this evidence, no rational juror could find Defendants acted

with the wantonness and maliciousness required for an Eighth

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Amendment violation.6 See Burke v. Bowns, 653 F. App’x 683, 696 (11th

Cir. 2016) (holding that “no reasonable jury could find” that corrections

officers used pepper spray “maliciously and sadistically to cause harm”

where pepper spray was administered after the inmate refused to comply

with orders). The Court will now explain why each of the factors

identified above weigh in Defendants’ favor.

Looking first to the need for the application of force, this factor

favors Defendants. This is so because officers were attempting to

reassign Plaintiff to a new cell, and the video clearly shows that Plaintiff

6 Plaintiff’s evidence opposing summary judgment includes a declaration

of inmate Shaquon R. Johnson. (Doc. 58). Inmate Johnson describes

Lieutenant Neel’s use of chemical agent on him one year prior to the use

of force on Plaintiff. (Id.). Johnson alleges Neel instructed officers to

spray him with chemical agent for disorderly conduct even though he was

not being disorderly. (Id.). Johnson also alleges Neel forced him to give

up his wrist watch and never returned it. (Id.).

Inmate Johnson’s affidavit does not create a genuine issue of

material fact in this case. That is because the video evidence clearly

shows that OC spray was applied in response to Plaintiff’s refusal to

comply with Lieutenant Neel’s lawful order to submit all articles of

clothing and property during the unclothed body search. See Fla. Admin.

Code R. 33-602.204(2)(b) (requiring an unclothed body search when an

inmate is placed in any confinement status); id., § 33-602.204(2)(e)

(describing the procedures to be followed when conducting an unclothed

body search, including that the inmate will remove all clothing, and

“[e]very article of clothing and personal property will be thoroughly

searched.”).

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was preventing the reassignment by refusing to comply with clear orders

to relinquish the wrist watch to facilitate the unclothed search.

Enforcing compliance with orders is a valid penological reason for the use

of OC spray. See Danley v. Allen, 540 F.3d 1298, 1307 (11th Cir. 2008)

(holding that the need for using a three- to five-second burst of pepper

spray was established by the undisputed evidence that the inmate twice

disobeyed an officer’s commands), overruled in part on other grounds as

recognized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010); see

also Orange v. Prescott, No. 22-10955, 2024 WL 1156573, at *6 (11th Cir.

Mar. 18, 2024) (holding that officer’s use of OC spray against inmate who

refused and questioned officer’s order was justified).

The Court now moves to the second and third factors, which are

“the relationship between that need and the amount of force used,” and

“the threat reasonably perceived by responsible officials.” When

evaluating these factors, a court should “weigh the prison’s security

interest in maintaining order against the force used against” the inmate.

Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990). Courts must

give a wide range of deference to prison officials acting to preserve

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discipline and security. Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir.

2019).

A refusal to follow orders could disrupt prison operations, and “[i]f

the operations of a prison are disturbed, there is the potential for great

risk to the safety of all involved.” See White, 2016 WL 4787281, at *6.

The Eleventh Circuit held in Danley that a three- to five-second burst of

pepper spray “[wa]s not disproportionate to the need to control an inmate

who ha[d] failed to obey a jailer’s orders” to return to his cell. Danley,

540 F.3d at 1304, 1307. Rather, the court explained that the short burst

of pepper spray was “a reasonable response to th[e] threat” of an inmate

“creat[ing] a disturbance by failing to obey orders.” Id. at 1308; see also

Orange, 2024 WL 1156573, at *6 (explaining that the Eleventh Circuit

has recognized that pepper spray is an accepted non-lethal means of

controlling unruly inmates) (citation omitted). As in Danley, the three

one-second bursts of OC spray used in this case were not disproportionate

to the need to control an inmate refusing to comply with orders.

Additionally, the minor nature of Plaintiff’s injuries supports the

finding that the three one-second bursts of OC spray were a minimal

amount of force. Logan v. Smith, 439 F. App’x 798, 800 (11th Cir. 2011)

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(explaining that “the extent of injury is a relevant factor in determining

whether the use of force could plausibly have been thought necessary

under the circumstances and may be an indication of the amount of force

applied.”); see also White, 2016 WL 4787281, at *6 (explaining that

“[w]hile injury and the amount of force are imperfectly correlated, here

the indisputably minimal injuries that Plaintiff suffered reveal that

Defendant only applied minimal force.”). Plaintiff’s complaint includes a

conclusory and vague allegation that he suffered physical injury from the

OC spray. (Doc. 14 at 9). The video shows that he suffered a minor nose

bleed and occasional coughing. Plaintiff’s medical records show that he

did not report any injuries from the OC spray, and medical staff did not

observe any injuries. (Doc. 47-5 at 2-3, 50).7

Plaintiff’s refusal to relinquish the watch from his wrist prevented

Defendants from completing Plaintiff’s housing reassignment.

Defendants reasonably could have believed that some level of force was

7 Approximately one hour prior to the use of OC spray, Plaintiff was

involved in a separate use of force for which he received medical

treatment for an abrasion and hematoma to his forehead, swelling to his

nasal area, a small lower lip laceration, and a posterior right ear

hematoma. (Doc. 47-5 at 2-3, 48-49, 51-53). Plaintiff later sought

additional treatment for injuries sustained from that use of force. (Id. at

2-3, 46-47). That use of force is not at issue in this case.

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justified to restore discipline and preserve institutional security. Thus,

the second and third factors weigh in Defendants’ favor. See Carter v.

McCullen, No. 22-10499, 2023 WL 6120616, at *5 (11th Cir. Sept. 19,

2023) (holding that the second and third factors of the excessive force

analysis weighed in the officers’ favor because the use of three one-second

bursts of chemical spray was not disproportionate to the need to control

inmates’ disorderly behavior and was a reasonable response to the threat

of a disturbance created by inmates’ failure to obey orders); see also

Burke, 653 F. App’x at 697 (holding that the “amount of force was

proportional to the degree of risk posed” where officers used pepper spray

on an inmate who refused orders to submit to handcuffs).

Looking finally to the fourth factor—efforts made to temper the

severity of the use of force—it also weighs in Defendants’ favor. The

effects of the OC spray were tempered by the officers’ resuming the

unclothed search very shortly after Plaintiff relinquished the watch and

then removing Plaintiff from the contaminated cell and providing a cold

water decontamination shower. Plaintiff was then provided a medical

exam. These efforts to temper the severity of the use of force are

something the Eleventh Circuit has considered when evaluating this

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factor. See Cockrell v. Sparks, 510 F.3d 1307, 1312 (11th Cir. 2007)

(stating that the prison guards’ summoning of medical assistance for the

inmate “tempered the severity of the forceful response and [made] it less

likely that either of them was acting sadistically instead of in good faith”)

(cleaned up); Orange, 2024 WL 1156573, at *5-6 (stating that officers’

taking inmate to a nurse and then permitting him to shower and

decontaminate suggested an effort to temper the severity of the use of

chemical spray); Carter, 2023 WL 6120616, at *5 (stating that officers’

permitting inmate to cover his face, wash the affected areas of his body,

and receive medical care after the use of chemical spray weighed in favor

of officers in excessive force analysis). The fourth factor therefore weighs

in favor of Defendants.

Having considered all the factors, the Court finds that no

reasonable juror could conclude that Defendants applied force

“maliciously and sadistically to cause harm.” Ledlow, 500 F. App’x at

912. What happened in this case is a far cry from the type of egregious

conduct that violates “contemporary standards of decency” as required

for an Eighth Amendment violation. See Hudson, 503 U.S. at 9. Because

the evidence in the record will not “support a reliable inference of

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wantonness in the infliction of pain . . . the case should not go to the jury.”

Whitley, 475 U.S. at 322. Defendants, therefore, are entitled to summary

judgment on Plaintiff’s excessive force claims.

IV. Conclusion

For the reasons above, it is respectfully RECOMMENDED that:

1. Defendants’ motion for summary judgment (Doc. 47) be

GRANTED.

2. The Clerk of Court be directed to enter judgment accordingly

and close this case.

At Pensacola, Florida this 1st day of November 2024.

/s/ Zachary C. Bolitho

Zachary C. Bolitho

United States Magistrate Judge

Notice to the Parties

Objections to these proposed findings and recommendations must

be filed within fourteen days of the date of this Report and

Recommendation. Any different deadline that may appear on the

electronic docket is for the Court’s internal use only and does not

control. An objecting party must serve a copy of the objections on all

other parties. A party who fails to object to the magistrate judge’s

findings or recommendations contained in a report and recommendation

waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28

U.S.C. § 636.

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