ERIN WILDER-DOOMES, Magistrate Judge.
Before the Court are the cross-motions for summary judgment of the plaintiff and the remaining defendant, Clarence Parker (R. Docs. 56 and 61).
The pro se plaintiff, an inmate confined at the Louisiana State Penitentiary ("LSP"), Angola, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against Lt. Clarence Parker, Capt. Gary Aymond and Sgt. Frye, complaining that the defendants violated his constitutional rights on September 7, 2012, in several respects, including through excessive force on that date. The Court has previously granted partial summary judgment to the defendants in this case, see R. Docs. 39 and 40, dismissing all of the plaintiff's claims except his claim of excessive force asserted against defendant Clarence Parker in violation of the Eighth Amendment to the United States Constitution.
The plaintiff moves for summary judgment relying upon the pleadings, a Statement of Undisputed Facts, his own Declaration executed "under penalty of perjury," excerpts from his pertinent administrative remedy proceedings, excerpts from his medical records, hand-written statements purportedly executed by co-inmates Spencer Watts, Toby Parfait, Patrick Wade and Carl England, and a copy of the transcript of his deposition testimony given on April 21, 2015.
Defendant Parker moves for summary judgment relying on the pleadings, a Statement of Undisputed Facts, a certified copy of the plaintiff's pertinent administrative remedy proceedings, a certified copy of the plaintiff pertinent medical records, an excerpt from the LSP Camp D Chemical Agent Logbook for the date September 7, 2012, a certified copy of a disciplinary report issued against the plaintiff on September 7, 2012, prepared by Nurse Shulonda Robinson (charging the plaintiff with an "Aggravated Sex Offense"), a certified copy of a disciplinary report issued against the plaintiff on September 7, 2012, prepared by defendant Clarence Parker (charging the plaintiff with "Aggravated Disobedience"), a copy of an expert report dated May 14, 2015, prepared by Dr. Glenn M. Coullard, and the affidavits of Dr. James Sylvester, Dr. Glenn M. Coullard and defendant Clarence Parker.
As pertinent to the single claim and defendant remaining before the Court, the plaintiff alleges in his Complaint that on September 7, 2012, he was ordered to pack his personal property and was escorted in restraints to the shower cell located on the cell tier. The plaintiff alleges that sometime later defendant Parker, accompanied by Sgt. Frye and Capt. Aymond, returned to the tier and ordered the plaintiff to approach the cell bars and to turn his back toward them. The plaintiff alleges that when he complied with this request, Sgt. Frye pulled the plaintiff backward by the restraints, pinning the plaintiff to the cell bars, and Lt. Parker then sprayed the plaintiff with a chemical agent in the face and neck for three to five seconds. The plaintiff alleges that when he asked to be examined by medical personnel, Lt. Parker responded that the plaintiff would be seen later by a medical technician. Finally, the plaintiff alleges that he was restrained and escorted to administrative segregation by Lt. Parker and Capt. Aymond and was later provided with an examination by a medical technician.
In response to the plaintiff's allegations, defendant Parker asserts that he is entitled to qualified immunity in connection with the plaintiff's claims. Specifically, the defendant contends that only a minimal amount of force was utilized against the plaintiff on the date in question and that the plaintiff has failed to present evidence sufficient to show the existence of a genuine issue of disputed fact relative to the defendant's violation of the plaintiff's constitutional rights.
The qualified immunity defense is a familiar one and, employing a two-step process, operates to protect public officials who are performing discretionary tasks. Huff v. Crites, 473 Fed. Appx. 398 (5th Cir. 2012). Taking the facts as alleged in the light most favorable to the plaintiff, the Court considers whether the defendant's conduct violated the plaintiffs constitutional rights and whether the rights allegedly violated were clearly established at the time that the violation occurred. Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that the rigid protocol mandated in Saucier v. Katz, 533 U.S. 194 (2001) "that called for consideration of the two-pronged analysis in a particular order" should not be "regarded as an inflexible requirement"). Under Pearson, courts now have discretion to decide which of the two prongs of the analysis to address first. This inquiry, the Court stated, is undertaken in light of the specific context of the case, not as a broad, general proposition. Saucier v. Katz, supra, 194 U.S. at 201. The relevant, dispositive inquiry in determining whether a constitutional right was clearly established is whether it would have been clear to a reasonable state official that his conduct was unlawful in the situation that he confronted. Id. at 202. The assertion of the qualified immunity defense alters the summary judgment burden of proof. Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Once a defendant pleads qualified immunity, the burden shifts to the plaintiff, who must rebut the defense by establishing that the official's allegedly wrongful conduct violated clearly established law and that genuine issues of material fact exist regarding the reasonableness of the official's conduct. Gates v. Texas Department of Protective and Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008), citing Michalik v. Hermann, supra, 422 F.3d at 262.
Undertaking the qualified immunity analysis with respect to the plaintiff's claim of excessive force, the Court finds that the parties' cross-motions for summary judgment should be denied in connection with this claim. Specifically, the Court finds that there are genuine issues of disputed material fact in this case that are not susceptible of resolution on motion for summary judgment.
Initially, the Court finds that the plaintiff's claim asserted against the defendant in the defendant's official capacity is subject to dismissal because 42 U.S.C. § 1983 does not provide a federal forum for a litigant who seeks monetary damages against either a state or its officials acting in an official capacity, specifically because such officials are not seen to be "persons" within the meaning of § 1983.
Turning to the plaintiffs claim asserted against the defendant in the defendant's individual capacity, the law is now well-settled that a use of force by a prison official is excessive and violate s the Eighth Amendment to the United States Constitution when such force is applied maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline. Williams v. Champagne, 13 F.Supp.3d 624, 632 (E.D. La. 2014), quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). Not every malicious or malevolent action by a prison guard gives rise to a federal cause of action, however, and the Eighth Amendment's prohibition against cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that such force is not of a sort "repugnant to the conscience of mankind." Hudson v. McMillian, supra, 503 U.S. at 10, quoting Whitley v. Albers, 475 U.S. 312, 327 (1986). The fact that an inmate may have sustained only minimal injury, however, does not end the inquiry, and an inmate who has been subjected to gratuitous force by prison guards "does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury." Wilkins v. Gaddy, supra, 559 U.S. at 38. Notwithstanding, the Court may consider the extent of injury, if any, as potentially relevant to a determination whether an alleged use of force was excessive under the circumstances. In addition, other factors that may be considered in determining whether an alleged use of force has been excessive include the relationship between the need for the use of force and the amount of force used; the extent of the 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 the plaintiff was actively resisting. Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473, 192 L. Ed. 2d 416 (2015), citing Graham v. Connor, 490 U.S. 386, 396 (1989).
Applying the foregoing standard, the Court finds that there are disputed questions of material fact regarding the events of September 7, 2012. The plaintiff has filed a verified Complaint and has provided his own sworn declaration, executed "under penalty of perjury," attesting that on the referenced date, he was escorted to administrative segregation in connection with an earlier disciplinary report. The plaintiff further attests that he thereafter complied with all instructions given to him by security officers and cooperated in being placed in the shower cell at Camp D and in backing up to the bars of the cell as instructed. According to the plaintiff, defendant Parker, without provocation or justification, then sprayed a quantity of chemical irritant into the plaintiff's face. The plaintiff further attests that the defendant subsequently falsified a disciplinary report charging the plaintiff with "Aggravated Disobedience" and accusing the plaintiff of disobeying repeated orders to come to the bars of the cell.
In response to the plaintiff's assertions, the defendant has presented his own competing sworn affidavits, attesting that on the referenced date, he arrived at the plaintiff's cell tier for the purpose of escorting the plaintiff to administrative segregation. According to the defendant, the plaintiff then refused to comply with repeated orders to come to the bars of the cell. The defendant attests that, in response to these repeated refusals, he obtained a can of irritant spray and again issued repeated orders to the plaintiff. The defendant attests that it was only upon the plaintiff's continued refusal to obey these commands that a brief one-second application of irritant spray was utilized to obtain the plaintiff's compliance. The defendant asserts that the plaintiff then complied with the defendant's instructions and was allowed to shower and put on a clean jumpsuit. The defendant further asserts that the referenced use of force was reasonable and necessary and was undertaken solely for the purpose of obtaining compliance with orders and was not utilized to cause the plaintiff harm or pain. Finally, the defendant points to the absence of any serious complaints of injury by the plaintiff after the incident as proof that the use of force was not excessive.
As noted above, the absence of serious injury is not sufficient to eliminate the essential factual dispute between the parties in this case relative to the events of September 7, 2012. The parties have provided competing sworn accounts of the events of the referenced date, and the resolution of the factual dispute will require credibility determinations that are not susceptible of determination on motion for summary judgment. Accepting the plaintiff's sworn assertions as true, the defendant sprayed a burst of chemical irritant into the plaintiff's cell, lasting between three and five seconds, without any provocation or justification, and a reasonable correctional officer would have known on that date that such conduct was constitutionally objectionable. Although documentation prepared after the incident characterized the use of force as being only a one-second burst of irritant spray, see R. Doc. 71-3 at pp. 15-20, the plaintiff asserts that the defendant in fact employed three separate bursts of the chemical irritant, see R. Doc. 71-3 at p. 3. The Court notes in this regard that the Camp D chemical log reflects that forty (40) grams of chemical were expended from the canister used during the incident. See R. Doc. 72. Although the plaintiff apparently suffered only minor objective injuries as a result of the incident, he alleges that he experienced severe discomfort that persisted for several days thereafter, and the Court has previously noted that an absence of serious injury is not alone sufficient to defeat a claim of excessive force. Accordingly, in light of the apparent disputed fact issues in this case, the parties' cross-motions for summary judgment should be denied.
It is recommended that the defendant Clarence Parker's cross-motion for summary judgment (R. Doc. 56) be granted in part, dismissing the plaintiffs claim asserted against defendant Parker in his official capacity, as recommended in an earlier Magistrate Judge's Report (R. Doc. 26, pp. 11-12). It is further recommended that the plaintiff's cross-motion for summary judgment (R. Doc. 61) be denied and that this matter be referred back to the Magistrate Judge for further proceedings in connection with the plaintiff's Eighth Amendment claim of excessive force asserted against defendant Clarence Parker in the defendant's individual capacity.
