concluding that “a limited application of [chemical irritant] to control a recalcitrant inmate constitutes a tempered response by prison officials when compared to other forms of force,” and cautioning that the spray’s use “in such manner and purpose . . . should rarely be a proper basis for judicial oversight” (citations and quotations omitted)
How later courts described this case
- concluding that “a limited application of [chemical irritant] to control a recalcitrant inmate constitutes a tempered response by prison officials when compared to other forms of force,” and cautioning that the spray’s use “in such manner and purpose . . . should rarely be a proper basis for judicial oversight” (citations and quotations omitted)
- holding that no Eighth Amendment violation occurred when officer sprayed inmate in face with chemical spray and then handcuffed him against the wall for “10 or 15, maybe 20 minutes” before taking the inmate to the infirmary
- concluding, in the Eighth Amendment context, that “a limited application of [pepper spray] to control a recalcitrant inmate constitutes a ‘tempered response by prison officials’ when compared to other forms of force”
- holding that “a limited application of [chemical spray] to control a recalcitrant inmate constitutes a tempered response by prison officials when compared to other forms of force” -8- (cleaned up) (citation omitted)
Written by the judges who cited it.
The opinion
RICHARD S. ARNOLD, Circuit Judge,
dissenting.
I would hold, as did the Magistrate and District Judges, that judgment as a matter of law on the basis of qualified immunity is not appropriate in this case. Accepting as true Thuworn Shields’s version of the facts, I think an objectively reasonable officer would know that spraying an inmate with capstun for no reason was excessive force. Moreover, the injury alleged by Shields was more than de minimis, and genuine questions of material fact regarding the knowledge and conduct of R.D. Jones, who did not testify at the hearing, preclude summary judgment on qualified-immunity grounds. I therefore respectfully dissent.
Today the Court holds that Shields failed to show more than a de minimis injury, and that Jones’s use of capstun was a justified and “tempered response” to control the “recalcitrant inmate” Shields. Ante at 498. The Court appears to be reviewing this case as if it were a jury. It looks at the evidence and draws reasonable inferences in favor of the defendant, rather than the plaintiff. I believe Shields’s testimony, which must be taken as true in the present context, was sufficient to create a genuine issue of fact.
Shields testified as follows:
BY THE COURT:
A: After — after the last order, which was to mop the back floor, he [Mr. J. Carbage] told me — he instructed me to — if I was quitting, to place my mop down and I did so. And he told me to go to the entrance of the kitchen, the east side kitchen riot gate. And there I was met by Sergeant R.D. Jones, which instructed me to go to the hall desk and that I was being placed on DCR.
I asked him what was the purpose of me going into the hall desk and he said you just do like you’re told. I said, ‘Tes, sir,” and I went on to the hall desk.
When I got there, he asked me my name and ADC number. And I gave it to him. And then, he said, “Go to your barracks and don’t come back out unless you’re called for before going to chow.”
And, I said, “Yes, sir.”
So, I started east, because I was in 10 Barracks at the time, which is on the east hall. I headed towards the barracks, and Mr. Jones called me *498 and asked me, said, “Inmate Shields, what barracks you out of?”
I turned around and replied, “10 Barracks.” I then — I didn’t say anything else, I just turned around and proceeded to go on to my barracks.
And then he said, “Inmate Shields, what barracks you out of?”, with like aggressiveness in his voice. And I turned around to respond and he sprayed me. And I said, “Hey, wait, wait a minute, what is going on?”
And, the next thing I know, I’m being pushed and then I get up against the wall and I feel someone grab my left arm and forces it up my back until I’m handcuffed. And then, I’m just standing there questioning, “Hey, Man, what is going on; why did you do this?” you know.
And then, I stood in the hall for probably about, oh, man, it was 10 or 15, maybe 20 minutes, I mean, because I remember, I mean, I don’t know any polite way of putting it. But, I was just drooling and snot and everything, just all, you know — I—I couldn’t do anything for myself. And I was just standing there and asking them to take me to the infirmary. And, no one was answering me. No one would say anything.
Then, all of sudden, somebody grabbed me by the arm and said, “Come on,” and it was this Officer Spencer and they — he took me to the infirmary. And then, when I got there, Nurse Coleman asked me, she said “What is happening here, what’s going on?” And, I tried to explain—
Okay. And, when Nurse Coleman requested as to what had happened, I — I tried telling her, but the chemical was taking my breath. And it was just causing me — I couldn’t function properly. So I just told her, I said “R. D. Jones sprayed me for nothing, and I don’t — I don’t know why, but he just — he just tripped out.” You know, I remember saying that.
And she said, “Well, I’m going to document it down here and we’re going to take care of you.” And they took me into the examining room and I don’t know what they really did besides flush my eyes out with water and then told the officers to go ahead and take me to the barracks.
But, I didn’t go to the barracks. I went to administrative segregation, which is a lock down part of the institution at the Cummins Unit.
And when I got there, that’s where I met Mr. Harvey. He was the officer that was working 14 and 16 Barracks floor during that time. And I guess Spencer left. And this officer took me from that point. And that’s when — I don’t really remember what happened. I’m only — I can only say he — what he said — but, there again, that’s another one of my witnesses that the Attorney General’s office is saying that they can’t — they can’t find.
Q: This is this Officer Hardrey?
A: Harvey.
Q: Harvey?
A: Yes, sir. But he said that I had blacked out. And when I did — or if I did, I really don’t know, but I remember being taken back to the infirmary because I was suffering from a pain in my left side of my back and that the chemicals was still bothering me. And I guess I became in a — in a upset state at that point. And then, I was taken to Mental Health to see Mr. — Mr. Moore, Mr. Jerry Moore.
Q: So you went back to the infirmary first?
A: Yes, sir.
Q: And then to mental health?
A: Yes, sir.
Q: Okay. How long were you at the infirmary?
A: The second time?
*499 Q: Yes, sir.
A: I really — I really can’t — I really can’t say. I — I don’t know, 10— about 10 minutes maybe or less, I really don’t know.
Q: Do you remember anything that they did for you, or any treatment or examination?
A: Oh, yeah. She — she and the dentist’s assistant, Ms. Christie which she’s not — -she’s not in the case, but her and Ms. Cristie flushed my eyes again and told the officers to take me outside for air. And, yeah, I forgot about that — yeah, they took me outside for air. And then when they took me outside, then that’s when they took me to Mr. Moore’s office.
Q: So they did take you outside, but then they took you to Mr. Moore’s office.
A: Yes, sir. Because I — I complained of the wind blowing, you know, it was hurting. It was burning, so you know. Then I went to Mr. Moore, and Mr. Moore took notes of what happened. Or what I explained to him, rather, and then they took me back to and locked me up.
Q: How long did you stay with Mr. Moore? Do you remember? Can you give me a rough estimate?
A: Oh, about — about 20 minutes. About 20 minutes there. He was trying to get me to calm down, because I was, you know, like I said, about the second time I went to the infirmary, I was upset. I was being punished for nothing, sprayed.
A: But, Mr. Jones never gave me any orders except to go to my barracks, and I complied with them by heading east, going to my barracks. And I — I can’t — I don’t know what he was thinking about or what his intentions was, but they couldn’t have been good because he just turned — like I say, I turned around and replied the first time and attempted to do so the second time, and he just — just sprayed me. Just sprayed me.
Q: I wanted to ask you how long it took before the effects of being sprayed wore off?
A: Ml right. I sat up in that cell for— for a while. I really — I really don’t want to put any time on it. But if I had to, I’d have to say a good 30 or 45 minutes.
Q: Okay.
A: And you know, that was with me still repeatedly putting water on it, and put a towel on my face. And just let it sit there. That “cap stun,” it’s a meaningful effect for compliance. I mean, I have to say that myself. But being used improperly, that’s a different story.
Q: The next day, were the effects completely gone?
A: All except for my left eye. I still felt irritable about it. And I did go to the infirmary, but they told me to put in a sick call, and when I put in the sick call, I had hoped to go back to see Ms. Coleman. But I didn’t see her, I saw Nurse Cunningham. Yeah, Nurse Cunningham, I saw her. And, she looked over my eye and said she didn’t see anything wrong with it. And — but—
BY MS. INFANTE:
Q: And after they ■yrere washed out, you didn’t have any problem with your eyes anymore; isn’t that correct?
A: No. No, that’s no correct.
Q: In fact, you told Ms. Coleman when she asked you if you were okay, and you said you were okay?
*500 A: Oh, yeah. I mean, yeah, I was okay. But I was still suffering, I was still burning and irritated. I mean, yeah, I mean, yeah, I — easy for me to say, yes I’m okay, to have the problem resolved for that moment. But I’m still in pain, that doesn’t stop my pain.
App. Appendix, 6 — 27.
Shields presented enough evidence that the force used against him was excessive. Force was used for no reason. When force is used without necessity, there exists an inference of a wanton infliction of pain. Excessive force against a prisoner violates the Eighth Amendment, even where no significant injury exists. See Hudson v. McMillian, 503 U.S. 1, 9 , 112 S.Ct. 995 , 117 L.Ed.2d 156 (1992). Shields demonstrated that his pain was above the level of de minimis. I am at a loss to understand how the Court can uphold a judgment as a matter of law on this record. To be sure, Shields had been recalcitrant, but at the time he was sprayed with capstan he was being completely obedient. There was no justification for the use of additional force at that point. Significantly, Jones, the defendant officer whose actions are being complained about, did not even testify. If Shields’s testimony by itself were not enough, surely the trier of fact could draw an adverse inference from the absence of testimony by Jones.
I do not question that capstan can be a valuable means of preserving discipline among inmates. It is also doubtless true that the harm inflicted by capstan is less serious than harm that might be inflicted by other means of disciplinary control. But the effect of the Court’s opinion in this case is to give a blank check to prison employees to spray capstan in inmates’ faces for no reason. Physical force cannot legitimately be applied to punish an inmate for past misconduct. It should be used only to compel compliance with a lawful order or to quell current disobedience. I suspect that the Magistrate and District Judges who handled this case will be as startled as I am at the result the Court reaches today. It is possible, perhaps even likely, that a jury would return a verdict for defendants, with or without Jones’s testimony, but I cannot agree that sufficient facts to create a jury issue have not been made out. I respectfully dissent.