AELE LAW LIBRARY OF CASE SUMMARIES:
Corrections Law for
Jails, Prisons and Detention Facilities
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.
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).