MARSHALL v. ANDIS

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

SHAWN MARSHALL, )

)

Plaintiff, )

)

v. ) No. 1:23-cv-00781-JPH-MG

)

ANDIS Sgt., )

KAFFENBERGER Sgt., )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Indiana Department of Correction inmate Shawn Marshall alleges that

Sergeant Andis and Sergeant Kaffenberger used excessive force by deploying

pepper spray to break up a fight between Mr. Marshall and another inmate.

Defendants have filed a motion for summary judgment, dkt. [50]. For the

reasons set forth below, the motion for summary judgment is GRANTED.

I.

Standard of Review

A motion for summary judgment asks the Court to find that a trial is

unnecessary because there is no genuine dispute as to any material fact and,

instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ.

P. 56(a). The Court views the record in the light most favorable to the non-

moving party and draws all reasonable inferences in that party's favor. Skiba

v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh

evidence or make credibility determinations on summary judgment because

those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827

(7th Cir. 2014).

"[A] party seeking summary judgment always bears the initial

responsibility of informing the district court of the basis for its motion, and

identifying those portions of 'the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,'

which it believes demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[T]he burden on the moving

party may be discharged by 'showing'—that is, pointing out to the district

court—that there is an absence of evidence to support the nonmoving party's

case." Id. at 325.

Whether a party asserts that a fact is undisputed or genuinely disputed,

the party must support the asserted fact by citing to particular parts of the

record, including depositions, documents, or affidavits. Fed. R. Civ. P.

56(c)(1)(A). Failure to properly support a fact in opposition to a movant's

factual assertion can result in the movant's fact being considered undisputed,

and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e). The

Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and is not

required to "scour the record" for evidence that is potentially relevant to the

summary judgment motion. Grant v. Trustees of Indiana University, 870 F.3d

562, 572-73 (7th Cir. 2017).

II.

Factual Background

Because Sgt. Andis and Sgt. Kaffenberger have moved for summary

judgment under Rule 56(a), the Court views and recites the evidence "in the

light most favorable to the non-moving party and draw[s] all reasonable

inferences in that party's favor." Zerante v. DeLuca, 555 F.3d 582, 584

(7th Cir. 2009) (citation omitted).

Mr. Marshall was an inmate, and Sgt. Andis and Sgt. Kaffenberger were

staff members at Correctional Industrial Facility on April 11, 2023, when Mr.

Marshall got into a fight with another inmate. Dkt. 1; dkt. 52-1 at 12 ¶¶ 15–18

(Marshall Deposition). Both the fight and the officers' intervention to break it

up were recorded on surveillance video, which the Court has reviewed. Dkt. 54

(manually filed video recording). Mr. Marshall was getting food from the food

line when he got into an altercation with another inmate. Dkt. 52-1 at 12–13

¶¶ 25–24. Mr. Marshall approached the other inmate, but then began backing

away before attempting to punch the inmate in the face. Dkt. 54 at 00:00:38-

00:00:53. Mr. Marshall then grabbed his tray of food and threw it at the other

inmate. Id.

At this point, Sgt. Kaffenberger pulled his OC spray1 out, aimed it at both

inmates, and ordered them to get on the ground. Dkt. 54 at 00:00:51-

00:01:20; dkt. 52-1 at 16 ¶ 13–20. Mr. Marshall complied but the other inmate

1 The Court takes judicial notice that OC stands for Oleoresin Capsicum aerosol, a

type of pepper spray often used by prison guards and law enforcement.

did not, instead attempting to kick Mr. Marshall while he was on the ground.

Dkt. 54 at 00:00:56-00:01:03.

Sgt. Andis then deployed Mark 90, a type of OC spray, aimed at the other

inmate. Dkt. 54 at 00:00:58-00:01:11; dkt. 52-1 at 44. In his verified

response, Mr. Marshall states that Sgt. Andis did not give any warning before

using his OC spray. Dkt. 55 at 3. Mr. Marshall stood up right into the stream

of Mark 90 that Sgt. Andis was attempting to spray at the other inmate. Dkt.

54 at 00:00:58-00:01:11. Mr. Marshall then retreated to the corner of the room

to escape the Mark 90 spray. Id. He was placed on the ground again and

cuffed. Id.

After being sprayed, Mr. Marshall was taken directly to medical and

offered a decontamination shower. Dkt. 52-1 at 20-22. He had difficulty

seeing for two hours after the incident and his sight has gotten progressively

worse. Id. at 22.

III.

Discussion

Defendants argue that they are entitled to summary judgment on Mr.

Marshall's claims that they used excessive force against them by deploying OC

spray during this incident.

"[W]henever prison officials stand accused of using excessive physical

force in violation of the Cruel and Unusual Punishments Clause, 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."

Hudson v. McMillian, 503 U.S. 1, 6–7 (1992) (citing Whitley v. Albers, 475 U.S.

312, 320−21 (1986)); Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir. 2018)

(cleaned up). OC spray can be used "when reasonably necessary" to subdue an

inmate or maintain control, and is a violation of the Eighth Amendment only if

used "in quantities greater than necessary or for the sole purpose of

punishment or the infliction of pain." Soto v. Dickey, 744 F.2d 1260, 1270 (7th

Cir. 1984); see Musgrove v. Detella, 74 F. App'x 641, 646 (7th Cir. 2003). When

evaluating whether prison staff's use of force was reasonably necessary or

excessive, courts look at several factors:

The ultimate determination of the intent of the person applying the

force in an excessive force claim involving prison security measures

depends upon a number of factors, including: (1) the need for the

application of force; (2) the relationship between the need and the

amount of force that was used; (3) the extent of injury inflicted; (4)

the extent of the threat to the safety of staff and inmates, as

reasonably perceived by the responsible officials on the basis of the

facts known to them; and (5) any efforts made to temper the severity

of a forceful response.

McCottrell v. White, 933 F.3d 651, 663 (7th Cir. 2019) (internal citations omitted).

"From such considerations 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." Id. (quoting Whitley, 475 U.S. at 321).

Here, the first factor—the need for the application of force—weighs

heavily in favor of Defendants. The video shows that Mr. Marshall and the

other inmate were involved in an altercation that quickly escalated to physical

violence. Dkt. 54 at 00:39-00:55. Sgt. Kaffenberger then ordered Mr. Marshall

and the other inmate to get down on the ground. Dkt. 52-1 at 16. While Mr.

Marshall complied, the other inmate did not and instead attacked Mr.

Marshall. Id. at 00:56-01:02 (showing Sgt. Kaffenberger pointing his OC spray

at the other inmate and following him as the other inmate walked toward Mr.

Marshall, who was on the ground). At this point, Sgt. Andis deployed his OC

spray. Id. From the video, it's clear that Sgt. Andis had his OC spray pointed

at the other inmate, who was standing over Mr. Marshall attempting to kick

him while he lay on the ground, and that Mr. Marshall was sprayed

incidentally as got up off the ground. Id. 01:00-01:06.

The second factor—the relationship between the need and the amount of

force that was used—also weighs heavily in favor of Defendants. Mr. Marshall

and the other inmate were engaged in a violent altercation, having already

exchanged blows. Sgt. Kaffenberger ordered them onto the ground while

pointing his OC spray at them. The other inmate didn't comply and starting

kicking Mr. Marshall. It was only then that Sgt. Andis deployed a single five-

second burst of OC spray. Dkt. 54 at 00:01:01-00:01:05. This amount of force

was not a disproportionate response to the other inmate physically attacking

Mr. Marshall and refusing to follow orders. See Jackson v. Angus, 808 F. App'x

378, 382 (7th Cir. 2020) (finding district court correctly found that there was

no factual dispute on excessive force claim where "video footage show[ed] that

tactical team officers used two short bursts of pepper spray on Jackson only

after he disobeyed three direct orders to come out of his cell"); Rice ex rel. Rice

v. Correctional Medical Servs., 675 F.3d 650, 668 (7th Cir. 2012) (use of pepper

spray justified when inmate refused to comply with order to step out of his

cell); cf. Soto, 744 F.2d at 1270 (violation of the Eighth Amendment if an officer

uses a chemical agent "in quantities greater than necessary or for the sole

purpose of punishment or the infliction of pain.").

The third factor—the extent of the injury—is neutral. On one hand, Mr.

Marshall experienced pain in his eyes and had difficulty seeing, dkt. 52-1 at

20-22, and later sought further medical treatment for his eyes, dkt. 56 at 9, 11,

28. On the other hand, Mr. Marshall was taken to medical immediately after

the incident and thereafter given the opportunity for a decontamination shower

to rinse off the OC spray. Dkt. 52-1 at 20-22. When an inmate is promptly

given the opportunity to wash off OC spray, exposure to OC spray ordinarily

does not give rise to a risk of serious medical issues. Pearson v. Wiley, 2020

LEXIS 10369, at *6 (S.D. Ind. January 22, 2020) (quoting Buchanan v. Pfister,

2018 WL 4699778 at *7 (collecting cases)). And the types of conditions

associated with exposure to OC spray are generally considered "relatively

minor." See Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999) (citing

Oliver v. Deen, 77 F.3d 156, 160-61 (7th Cir. 1996)) ("[B]reathing problems,

chest pains, dizziness, sinus problems, headaches and a loss of energy…are,

objectively speaking, relatively minor.").

The fourth factor—the extent of the threat posed by the inmate to the

safety of inmates and staff—weighs again in favor of Defendants. Mr. Marshall

and the other inmate were engaged in a violent confrontation that had quickly

escalated. Also, there were other inmates in close physical proximity. The

violent confrontation, combined with the other inmate's refusal to comply with

orders and continued physical aggression, presented risk of harm to Mr.

Marshall, other inmates, and staff.

Last, the fifth factor—efforts to temper the severity of the force—also

weighs in favor of Defendants. It does not appear that Sgt. Kaffenberger used

any force against Mr. Marshall. Dkt. 54. Mr. Marshall argues that Sgt. Andis

could have used a less potent spray rather than Mark 90 spray to deescalate

the conduct, but he chose to use Mark 90 counter to IDOC policy. Dkt. 55 at

4. However, Mr. Marshall designates no evidence from which a jury could find

that Sgt. Andis was prohibited from using Mark 90 to break up a violent

physical altercation like the one that occurred between him and the other

inmate. See Thompson v. City of Chicago, 472 F.3d at 444 (7th Cir. 2006)

("[Section] 1983 protects plaintiffs from constitutional violations, not violations

of state laws or . . . departmental regulations."). Mr. Marshall also argues that

Sgt. Andis should have warned him before deploying his Mark 90 spray. But

the designated evidence clearly shows that the other inmate ignored Sgt.

Kaffenberger's order to get down on the ground, instead opting to attack Mr.

Marshall. Under these circumstances, no further warning was needed for Sgt.

Andis to deploy his Mark 90 spray at the other inmate. See Santiago v. Walls,

599 F.3d 749, 757 (7th Cir. 2010) (affirming dismissal of excessive force claim

when officer used mace to break up altercation between inmates); Rice, 675

F.3d at 668.

Applying the five factors from McCottrell to the facts here, the only

reasonable inference is that neither officer intended to unnecessarily inflict

harm on Mr. Marshall. No jury could reasonably conclude that Defendants

used excessive force against Mr. Marshall, so Defendants' motion for summary

judgment is granted.?

Vv.

Motion to Strike

On July 3, 2024, Mr. Marshall filed a second response in opposition to

summary judgment. Dkt. 59. This response was nearly identical to his first

response in opposition to summary judgment. Dkt. 55, 56. The Defendants'

motion to strike Mr. Marshall's response, dkt. [63], is DENIED to the extent

that the Court recognizes that these responses are duplicative, and Mr.

Marshall's arguments from his first filing are duly considered as his response.

Vv.

Conclusion

Defendant's motion to strike response, dkt. [63], is DENIED. Sgt. Andis

and Sgt. Kaffenberger's motion for summary judgment, dkt. [50], is GRANTED.

Final judgment will now issue.

SO ORDERED.

Date: 3/5/2025 ands Pat tanlove

James Patrick Hanlon

United States District Judge

Southern District of Indiana

2 Because the Court concludes that Defendants’ use of force did not violate the Eighth

Amendment, it need not address their alternative argument that they are entitled to

qualified immunity.

Distribution:

SHAWN MARSHALL

PO Box 1523

Thomasville, GA 31799

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