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Chemical Agents

     Monthly Law Journal Article: Staff Use of Force Against Prisoners--Part III: Use of Chemical Weapons, 2008 (11) AELE Mo. L.J. 301.
     Monthly Law Journal Article: Civil Liability for the Use of Pepper Spray, Tear Gas, and Chemical Agents - Part 2, 2014 (5) AELE Mo. L. J. 101.

     A prisoner claimed that two correctional officers used excessive force when they administered pepper spray to gain his compliance with an order to submit to wrist restraints. Upholding summary judgment for the officers, a federal appeals court found that the evidence did not clearly refute the trial court’s finding that one officer did not intentionally apply pepper spray to the plaintiff’s genitals or that the decision to use pepper spray in general was not a pretext to punish the prisoner but instead a direct response to his refusal to comply with orders. Ward v. Smith, #15-2583, 844 F.3d 717 (8th Cir. 2016).
     When an inmate did not comply with an officer's orders to back up to a cell door to be placed in restraints, the officer sprayed a chemical agent into the cell, subsequently issuing the prisoner a major misconduct ticket. Overturning qualified immunity for the officer in an excessive force lawsuit, a federal appeals court ruled that there was a genuine factual issue of whether, as the prisoner claimed, he was sleeping and covered from head to toe in his blanket at the time the chemical agent was sprayed into the cell. If the facts were as the prisoner alleged, rather than as the officer stated, then the use of force would have violated clearly established law. Roberson v. Torres, #13-1405, 770 F.3d 398 (6th Cir. 2014).
     A prisoner claimed that his Eighth Amendment rights were violated when a sergeant pepper-sprayed him because he refused to return to his cell after showering. He further claimed that another officer then turned off the water, which prevented him from rinsing off the pepper spray for ten to fifteen minutes. A federal appeals court upheld summary judgment for the defendant on the excessive force claim, noting that the prisoner had been warned that he would be pepper sprayed if he did not comply with orders, and that he either threw an object at or spit at the sergeant three times, with a small quantity of pepper spray used after each act of defiance. There was no indication of a malicious intent to harm or that the force used was excessive. The other officer was entitled to qualified immunity on the delayed decontamination claim, as the prisoner failed to establish that he acted with deliberate indifference to a serious medical need. Burns v. Eaton, #13-1730, 2014 U.S. App. Lexis 9596 (8th Cir.).
     An arrestee who appeared intoxicated actively resisted officers both during the process of being arrested and when taken into jail. He was handcuffed and pepper sprayed. Then, at the jail, when he continued to resist, he was held down and a Taser was applied to him three times in the stun mode. He was held face down, ceased breathing, and was taken to a hospital where he died. A medical expert for the plaintiff expressed the opinion that his cause of death was traumatic asphyxia due to compression of his neck and back while being restrained. A federal appeals court ruled that the defendant officers were entitled to qualified immunity when there was insufficient evidence to support the strangulation theory, since only the expert's conclusory opinion supported it. That opinion was contradicted by other evidence, including the testimony of all the officers and two EMTs. Burdine v. Sandusky County, Ohio, #12-3672, 2013 U.S. App. Lexis 7691, 2013 Fed. App. 376N, 2013 WL 1606906 (Unpub. 6th Cir.).
    An inmate got involved in a fight with officers who were taking him to administrative segregation. The officers used pepper spray on him, threw him on the floor and put leg restraints on him, and one of them allegedly turned his left wrist upward in a sharp motion, dislocating it. He claimed that the use of force had continued against him at a time when he was not resisting. The court found that the officers were entitled to qualified immunity on the excessive force claims, but not on the claim that one of them acted with deliberate indifference in delaying allowing him to wash off the pepper spray. Claims against one officer for alleged retaliatory death threats were also allowed to go forward, Santiago v. Blair, #11-3693, 2012 U.S. App. Lexis 26854 (8th Cir.).
     A prisoner was entitled to receive vegetarian meals on religious grounds. When an officer brought him a non-vegetarian breakfast, he alleged put his fingertips on the open food port in his cell door. He claimed that the officer them sprayed him with pepper spray with no warning. His lawsuit claimed that the use of the spray was excessive force, and that denying him a vegetarian meal violated his equal protection rights. Qualified immunity was denied on the excessive force claim because it was not clear from the officer's version of the incident that force was required or that the prisoner posed a threat. The force used seem extensive and disproportionate to the level of the disturbance created by the prisoner putting his fingertips on the port. The court rejected his equal protection claim as he was not treated any different than any other prison when an officer did not know that he was supposed to receive a vegetarian meal. Furnace v. Sullivan, #10-15961, 2013 U.S. App. Lexis 1110 (9th Cir.).
     An inmate in an Illinois maximum security facility claimed to have been exposed to fumes at least eight times when guards used pepper spray against other prisoners. He also claimed that this aggravated his glaucoma, although he never sought medical treatment for it. He asserted that officers ignored requests, after pepper spraying incidents, to air out cells. The prisoner failed to establish that the warden knew that he had been exposed to pepper spray fumes or that he suffered from glaucoma, which was thereby aggravated. Claims against the warden for deliberate indifference were therefore properly rejected. Flournoy v. Schomig, #09-3610, 2011 U.S. App. Lexis 8303 (Unpub. 7th Cir.).
     A Texas prisoner presented claims of excessive force against two officers that were "plausible." He alleged that after he refused to remove his arm from a cell food slot when he was denied a meal that they threatened him with a beating and threatened to break his arm. After he withdrew his arm, they allegedly returned with a team who sprayed a chemical agent into his cell. He again thrust his arm through the slot, and one officer allegedly used excessive force, twisting and snapping his finger, causing it to break. The court found that, if the facts were as alleged, there was no showing that the use of the chemical spray was necessary, or that it was justified to allegedly intentionally break his finger. Dismissal of the lawsuit, therefore, was premature. Moss v. Brown, #10-10207, 2010 U.S. App. Lexis 25570 (Unpub. 5th Cir.).
     A federal appeals court ruled that a prisoner asserting a claim for excessive use of force failed to show that prison guards acted "maliciously and sadistically for the very purpose of causing him harm" when using pepper spray on him after he repeatedly refused to comply with orders to cease holding his blanket up to his cell door. Horne v. Rutledge, #09-17378, 2010 U.S. App. Lexis 20564 (Unpub. 9th Cir.).
     An arrestee seated in the booking room of a jail was subjected to a short burst of pepper spray, and subsequently placed in the back of a patrol car for approximately an hour. He claimed that he was never allowed to decontaminate, and that his repeated complaints of breathing problems and repeated requests for medical attention after he was removed from the car were ignored. In an excessive force lawsuit, he claimed that he developed Reactive Airway Dysfunction Syndrome (RADS) from the lengthy pepper spray exposure. A federal appeals court held that the plaintiff had adequately established that an officer was aware of his serious need for medical attention, but ignored it, which stated a claim for violation of his Fourteenth Amendment rights. Nasseri v. City of Athens, #09-11473, 2010 U.S. App. Lexis 7297 (Unpub. 11th Cir.).
     Ten mentally ill or "otherwise vulnerable" inmates claimed that the use of chemical agents against them constituted cruel and unusual punishment. The prisoners settled their claims against the individual officers, and the court later entered judgment in favor of two of the remaining plaintiffs on claims that repeated sprayings of such inmates under a use of force policy violated the Eighth Amendment. Upholding an award for these plaintiffs, a federal appeals court ruled that the defendants had waived any challenge they might have had to the application of a "deliberate indifference" rather than stricter legal standard, that a deceased inmate could still be a prevailing plaintiff entitled to an award of attorneys' fees despite his death rendering moot any injunctive relief about him being further sprayed, and that the trial court did not clearly err in finding that a plaintiff had suffered psychological injury from being subjected to the spray. An injunction was upheld against the "non-spontaneous" use of chemical agents on the one remaining plaintiff without consultation with the correctional department's trained mental health staff. Thomas v. Bryant, #09-11658, 2010 U.S. App. Lexis 17419 (11th Cir.).
     A correctional officer used no more force than necessary against an inmate who kicked his cell door, yelled profanity, refused orders to stop, and threw some object from his bed at the officer. The use of a short burst of pepper spray against the prisoner was not excessive under the circumstances. Easley v. Dept. of Rehabilitation and Correction, #2009-05277, 2010 Ohio Misc. Lexis 110 (Ct. of Claims).
     An officer did not use excessive force in employing pepper spray to control an unruly inmate and compel him to comply with her orders. After he was pepper sprayed, he was examined by psychiatric staff members, who concluded that he should be placed on suicide watch, after which he was transferred to a floor where such prisoners were housed. The detainee had no due process right to a hearing prior to his transfer there. Sanchez v. McCray, #08-13503, 2009 U.S. App. Lexis 22800 (Unpub. 11th Cir.).
     A guard used a burst of oleoresin capsicum (O.C.) spray against a prisoner who made an aggressive move toward an officer while being escorted from his cell to be searched for contraband. The action took place after the prisoner had also disobeyed a direct order. After the incident, the prisoner was kept in four-point restraints for three and a quarter hours. Rejecting claims of excessive force, a federal appeals court found that jail personnel properly regarded him as a dangerous, high-risk prisoner in light of a past history of escape, and found that the use of the O.C. spray was proper under the circumstances. The court also found no evidence that the cell where the plaintiff was restrained was poorly ventilated or small, or that the defendant guards, who did not try to wash the spray off of him, knew that he claimed to be experiencing continued discomfort from the spray. Scroggins v. Davis, #07-15514, 2009 U.S. App. Lexis 21383 (Unpub. 11th Cir.).
     Prisoner failed to present a viable claim that excessive force was used against him on either of two occasions that he was subjected to pepper spray. In the first instance, he used a profane name against a prison employee, retreated into his cell when ordered to go to another unit, and refused to move before pepper spray was used to compel his compliance. As for the second incident, the prisoner himself admitted he was resisting being handcuffed, and that he was asked four times to get in his cell before the pepper spray was used. Thompson v. Carani, CV 106-099, 2008 U.S. Dist. Lexis 97455 (S.D. Ga.).
     Prisoner failed to show that the force used against him in his cell was excessive, or that engaging in further discovery would establish that. The evidence showed that the prisoner refused to obey commands to allow guards to secure his cell door properly by releasing control of a food slot in the door, that he was warned that failure to obey would result in the use of chemical agents and the sending of a "move team" into his cell, and that he was restrained by force when he failed to comply. Poe v. Texas Dept. of Criminal Justice, No. 08-20148, 2009 U.S. App. Lexis 706 (Unpub. 5th Cir.).
     Estate of deceased prisoner and his heirs could not pursue, in federal civil rights lawsuit, claims arising from the death of the prisoner, allegedly shot in the head with a plastic bullet by a prison employee, and pepper sprayed by other prison employees who allegedly then placed a plastic bag over his head to increase the harm suffered from the burning effect of the pepper spray. The plaintiffs, in alleging only negligence by the defendants in causing the death failed to show that the defendant supervisory personnel did anything that they should have known would cause prison employees to take actions that would violate constitutional rights. State law claims were time barred, based on the plaintiffs' prior filing of a state court lawsuit that they voluntarily dismissed before attempting to raise such claims in the federal court proceeding. Provencio v. Vazquez, 1:07-CV-0069, 2008 U.S. Dist. Lexis 73255 (E.D. Cal.).
     In a inmate's lawsuit claiming that corrections officers violated the Eighth Amendment in failing to adequately decontaminate him after subjecting him to pepper spray, and in holding him in restraints for eighteen hours, a federal court ruled that a reasonable officer could have believed that allowing the prisoner to briefly shower before he was placed into restraints, as well as rinse his eyes with saline, was adequate to avoid a rights violation. Normally, the effects of pepper spray are gone after 45 minutes. Claims related to the decontamination were therefore rejected. Further proceedings were ordered, however, as to whether an officer could have believed that it was reasonable to restrain the prisoner for eighteen hours, when it was disputed whether the prisoner made threatening gestures or verbal threats. Montgomery v. Johnson, Case No. 7:05CV00131, 2008 U.S. Dist. Lexis 74256 (W.D. Va.).
     When a prisoner refused to obey a jailer's orders during a disagreement, creating a disturbance, there was a need to use force and a short burst of pepper spray was not excessive. The prisoner's assertion, however, that he was confined in a small cell following the incident and was not allowed to wash off the spray was sufficient to state a claim for excessive use of force. Danley v. Allen, No. 07-12328, 2008 U.S. App. Lexis 17837 (11th Cir.).
     Summary judgment should not have been entered against a prisoner on his excessive force claims since there were genuine factual disputes as to whether officers used force against him, including pepper spray, after he had begun to comply with their orders to him. Additionally, he allegedly was not warned before the use of the pepper spray, was not permitted to clean up after its use, and was then handcuffed to a bench and denied bathroom breaks, food, and water during that restraint. Walker v. Bowersox, No. 06-3118, 2008 U.S. App. Lexis 11507 (8th Cir.).
     Prisoner failed to show that officers violated his rights in using pepper spray in the process of extracting another inmate from a cell near his. The officers were not shown to have acted with malicious and sadistic intent, but instead used the pepper spray to restore discipline when the other inmate refused to comply with their orders. The officers also followed written policies designed to minimize other inmates' exposure to the fumes of the pepper spray. Allen v. Bosley, No. 06-16541, 2007 U.S. App. Lexis 25933 (9th Cir.).
     Prison officials were not entitled to summary judgment on prisoner's claim that the use of pepper spray against him constituted excessive force. A reasonable jury could conclude, from the evidence presented, that the prisoner had not advanced on the prison officials in a threatening manner, and that the use of the pepper spray had not been necessary to keep order. Barber v. Pinion, No. 1:04CV00118, 2007 U.S. Dist. Lexis 72982 (M.D.N.C.).
     Use of one burst of pepper spray against inmate who refused orders to move from solitary confinement to general housing was not objectively unreasonable under clearly-established law, so that defendant prison lieutenant who did so was entitled to qualified immunity. The plaintiff inmate had refused to move because he was allegedly fearful of his safety in the general population. Thomas v. Comstock, No. 04-41696, 2007 U.S. App. Lexis 6159 (5th Cir.).
     Two correctional officers were not entitled to summary judgment when there were factual issues about whether they used excessive force and pepper spray against female inmate at a time when she was allegedly not actively resisting them. Johnson v. Blaukat, No. 05-3866, 2006 U.S. App. Lexis 16091 (8th Cir.). [2006 JB Aug]
     The use of a chemical agent to extract a prisoner from his cell did not violate his rights when it was used only after he repeatedly disobeyed orders to come out by himself. Eccleston v. Oregon, No. 04-36122, 168 Fed. Appx. 760 (9th Cir. 2006). [N/R]
     Sheriff and officers were not entitled to summary judgment in prisoner's lawsuit challenging their use of pepper spray against him at county jail. Factual issues existed as to how long he was sprayed, and whether he was "adequately irrigated" afterwards or allowed to suffer unnecessarily. Court also holds that the plaintiff was not required to exhaust available administrative remedies prior to pursuing his excessive force lawsuit, pursuant to 42 U.S.C. Sec. 1997e, since he was now a former prisoner. The requirement to exhaust such remedies only applies to current prisoners. Norton v. City of Marrietta, Ok, No. 04-7133, 432 F.3d 1145 (10th Cir. 2005). [N/R]
     Correctional officer's alleged action of making an inmate wait from five to ten minutes before he could wash pepper spray from his face and eyes was not a violation of the Eighth Amendment when the prisoner had failed to comply with an order to enter his cell before being subjected to the spray. Kervin v. Barnes, No. 05-1443, 144 Fed. Appx. 551 (7th Cir. 2005). [N/R]
     Detainee suffering from paranoid schizophrenia, acute psychosis, impulse-control disorder, and "polysubstance abuse" could not assert disability discrimination claims since his impairments, because they could be corrected "or mitigated" by medication, did not constitute disabilities. Jail personnel did not use excessive force in using pepper spray to subdue him when he actively resisted his transfer to a hospital for treatment, and did not violate his right to receive adequate medical attention. Atwell v. Hart County, Kentucky, No. 03-6421, 122 Fed. Appx. 215 (6th Cir. 2005). [2005 JB Dec]
     Prisoner's claim that he was sprayed with a chemical agent that damaged his lungs was insufficient to show an imminent danger of serious physical injury sufficient to allow him to proceed as a pauper with his federal civil rights lawsuit despite his prior failure, as a frequent filer of civil rights lawsuit, to make progress towards the repayment of unpaid filing fees from previously filed lawsuits. The complaint was dismissed on the basis of the three strikes rule, as required by 28 U.S.C. Sec. 1915(g), barring a prisoner from proceeding as a pauper after having three lawsuits dismissed as frivolous, except in cases of a risk of imminent physical harm. Because four months had elapsed between the alleged injury and the filing of the lawsuit, the prisoner could not show a risk of imminent danger. Cosby v. Gray, 124 Fed. Appx. 595 (10th Cir. 2005). [N/R]
     Federal appeals court upholds jury's award of $29 million in compensatory and $27.5 million in punitive damages against two deputy sheriffs for causing pre-trial detainee's death through use of excessive force. Failure to show that the death was caused by any official policy or custom, or by deliberate indifference to a widespread pattern of violation of jail policies, required summary judgment on claims against county sheriff. Mere number of uses of pepper spray did not show that it was being misused. Estate of Moreland v. Dieter, No. 03-3734, 2005 U.S. App. Lexis 743 (7th Cir.). [2005 JB Mar]
     Officer did not violate prisoner's right to be free of cruel and unusual punishment in spraying him with a chemical agent when the facts showed the officer acted in a good faith effort to maintain or restore discipline and not malicious or sadistically to cause him harm. Davis v. Cannon, #02-41596, 91 Fed. Appx. 327 (5th Cir. 2004). [N/R]
     Prison employees did not use excessive force by spraying prisoner with pepper spray after he refused to exit a shower. The evidence showed that they applied the force used in a good-faith effort to maintain or restore discipline, and not maliciously to cause injury or pain. A videotape of the incident showed that the prisoner refused to obey several direct orders to leave the shower before the use of the pepper spray. Additionally, the use of the spray only caused discomfort, rather than any physical injury. Jennings v. Mitchell, No. 03-1922, 93 Fed. Appx. 723 (6th Cir. 2004). [N/R]
     Jury verdict in favor of correctional officers' use of tear gas against prisoners locked in their cells during prison riot upheld. Plaintiff prisoners were not entitled, in the absence of a showing of "bad faith," to instructions to the jury that would have allowed it to infer that "missing evidence" such as video footage of the gassing incident would have been unfavorable to the defendant officers. Beaudry v. Corrections Corporation of America, No. 02-6073, 331 Fed. 3d 1164 (10th Cir. 2003). [2003 JB Sep]
     Correctional officer's use of mace in the course of quelling disturbance among death row inmates was not malicious or sadistic. Genuine issues remained as to whether commander of special response team failed to adequately control and instruct subordinates in suppressing confrontational prisoners or allowed the excessive use of "lethal levels" of gas and other chemical agents before ordering entry into death row unit. Death row prisoners could not pursue claims against unidentified officers concerning the use of excessive force. Combs v. Wilkinson, #00-4270, 315 F.3d 548 (6th Cir. 2002). [2003 JB Apr]
      Prison officials were not liable for prisoner's injuries from being struck in the head by a tear gas canister fired during an inmate disturbance, when there was no showing that the canister was fired maliciously or sadistically. Torres-Viera v. Laboy-Alvarado, #01-2712, 311 F.3d 105 (1st Cir. 2002). [2003 JB Mar.]
    Prison officials use of pepper spray to quell a fight in a cell between two prisoners in which one threatened to kill the other did not constitute an excessive use of force, even if a second application of pepper spray was administered after the prisoners began to cough, but before they were restrained. Appeals court rules, however, that officials were not entitled to qualified immunity from a deliberate indifference to medical needs claim by other prisoners in the cell block that the vapors drifted into their cells and they were not given showers or medical attention for four hours. Clement v. Gomez, # 01-16088, 2002 U.S. App. Lexis 15659 (9th Cir.). [2002 JB Sep]
     Federal appeals court upholds award of $10,002 against a correctional officer who allegedly "orchestrated" an unnecessary soaking with pepper spray of two inmates confined to their cell five hours after a prison riot had been quelled. Officer allegedly instructed a co-worker to soak the cell with pepper spray after one of the inmates questioned his alleged calling out "Niggers get naked." Lawrence v. Bowersox, #01-1813, 2002 U.S. App. Lexis 14657 (8th Cir.). [2002 JB Sep]
     Prisoner's claim that officials' use of tear gas to enforce lockdown was an excessive use of force was contradicted by videotape showing that prisoners, including the plaintiff, did not return into their cells when the order to do so was initially given. Prisoner's claim that he "begged" for medical attention but that prison employees would not help him was also contradicted by videotape which showed officers asking him whether he needed medical attention and him replying that he did not. Fairweather v. Giles Dalby Correctional Facility, 154 F. Supp. 2d 921 (N.D. Tex. 2001). [2002 JB Mar]
     284:115 Correctional officer did not impose cruel and unusual punishment when he sprayed an inmate in the face with pepper spray after the prisoner refused a direct order from his work supervisor and "questioned" an order from the officer. Jones v. Shields, #99-1869, 207 F.3d 491 (8th Cir. 2000).
     239:164 Requirement that prison guard undergo "mace training," involving her being sprayed in the face with pepper mace did not violate her right to due process or privacy or shock the conscience; federal court finds requirement "rationally related" to correctional department's interest in encouraging officers to "take care" when using pepper mace, to discourage "indiscriminate use" of it, and to teach the importance of "prompt remediation" of its effects. Ryder v. Freeman, 918 F.Supp. 157 (W.D.N.C. 1996).
     229:3 Policy directive on use of chemical agents, such as mace, against resisting prisoners did not create constitutionally protected liberty interest for violation of which Michigan state prisoner could sue correctional officer. McLaurin v. Morton, 48 F.3d 944 (6th Cir. 1995). [Cross-reference: Defenses: Qualified Immunity]. » Editor's Note: One other federal appeals court has also ruled that a denial of summary judgment based on qualified immunity was immediately appealable even though the second claim of two civil rights damage claims would proceed to trial even if the qualified immunity appeal was successful. Green v. Brantley, 941 F.2d 1146 (11th Cir. 1991). In Schrob v. Catterson, 967 F.2d 929 (3d Cir. 1992), on the other hand, the court did not allow an immediate appeal of the denial of a motion to substitute the United States as a defendant (it would have replaced the individual defendants, thus relieving them of liability on certain claims) where the defendants would still be required to go to trial on other civil rights claims even if the substitution occurred.
     238:155 Use of pepper spray to force arrestee to disgorge crack cocaine from his mouth was a reasonable use of force and was not "outrageous." U.S. v. Holloway, 906 F.Supp. 1437 (D. Kan. 1995).

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