United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISCUSSING MOTION FOR PARTIAL SUMMARY
WALTON PRATT, JUDGE.
matter is before the Court on a Motion for Partial Summary
Judgment (Dkt. 120) filed by Defendant David Mason
(“Lieutenant Mason”). Plaintiff Terry Davis (Mr.
Davis”), an inmate at the Pendleton Correctional
Facility (“Pendleton”), brings this action
pursuant to 42 U.S.C. § 1983 alleging that Defendants
Blake Thrasher (“Officer Thrasher”) and
Lieutenant Mason, who are correctional officers at Pendleton,
used excessive force against him. Lieutenant Mason seeks
summary judgment on Mr. Davis’ claim against him and
Mr. Davis has not responded. The motion is ripe for
resolution. For the reasons that follow, the Motion for
Partial Summary Judgment is granted.
SUMMARY JUDGMENT STANDARD
judgment is appropriate when the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). A “material
fact” is one that “might affect the outcome of
the suit.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is
genuine only “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If no reasonable jury
could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 550
U.S. 372, 380 (2007).
survive a motion for summary judgment, the non-moving party
must set forth specific, admissible evidence showing that
there is a material issue for trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). 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. Barbera v. Pearson Education, Inc., 906 F.3d
621, 628 (7th Cir. 2018). The court cannot weigh evidence or
make credibility determinations on summary judgment because
those tasks are left to the fact-finder. Johnson v.
Advocate Health & Hospitals Corp., 892 F.3d 887, 893
(7th Cir. 2018).
Davis failed to respond to the partial summary judgment
motion. Accordingly, facts alleged in the Motion are deemed
admitted so long as support for them exists in the record.
See S.D. Ind. Local Rule 56-1 (“A party
opposing a summary judgment motion must . . . file and serve
a response brief and any evidence . . . that the party relies
on to oppose the motion. The response must . . . identif[y]
the potentially determinative facts and factual disputes that
the party contends demonstrate a dispute of fact precluding
summary judgment.”); Smith v. Lamz, 321 F.3d
680, 683 (7th Cir. 2003) (“[F]ailure to respond by the
nonmovant as mandated by the local rules results in an
admission”); Brasic v. Heinemanns, Inc., 121
F.3d 281, 285-286 (7th Cir. 1997) (affirming grant of summary
judgment where the nonmovant failed to properly offer
evidence disputing the movant’s version of the facts).
This does not alter the summary judgment standard, but it
does “reduce the pool” from which facts and
inferences relative to the motion may be drawn. Smith v.
Severn, 129 F.3d 419, 426 (7th Cir. 1997).
January 5, 2014, Mr. Davis had a verbal altercation with
Officer David Dale (“Officer Dale”) at Pendleton
while returning to his cellblock from recreation. Dkt. 121-1,
p. 50-52. During or immediately following this altercation,
Officer Dale grabbed Mr. Davis by the right arm or neck and
ordered him to “cuff up.” Dkt. 121-1, p. 52. Mr.
Davis then spun around and pushed Officer Dale. Dkt. 121-1,
p. 53. While Pendleton staff worked to subdue Mr. Davis, he
was “kicked…in the head, and then sprayed [with]
mace.” Dkt. 121-1, p. 54-55. Mr. Davis asserts he was
sprayed with O.C. “all over my hair, my throat, my
nose, my ears …. all over my body, ” and in the
mouth, at least four times. Dkt. 121-1, pp. 37-38. As a
result of this incident, Mr. Davis received a conduct report
for battery, which he unsuccessfully appealed. Dkt. 121-1, p.
47-48; Dkt. 121-2.
Mr. Davis was subdued, Officer Thrasher and two other
correctional officers escorted Mr. Davis to Pendleton’s
infirmary. Dkt. 121-1, p. 11. According to Mr. Davis,
“as they was leading me, Thrasher blindsided me,
knocked me down, ” and they “repeatedly
beat” him. Dkt. 121-1, p. 12. As a result of this
incident, Mr. Davis received a second conduct report for
battery, which he unsuccessfully appealed. Dkt. 121-1, p.
47-48; Dkt. 121-3.
Mr. Davis arrived at Pendleton’s infirmary, he
“had a significant amount of mace that was sprayed down
my throat, in my mouth. It caused me to choke and, yes, gag a
lot, which resulted in a lot of drool.” Dkt. 121-1, pg.
65. Lieutenant Mason directed medical staff to place a spit
mask over Mr. Davis’ face. Dkt. 121-1, pp. 72-73. After
the spit mask was placed over his head, Mr. Davis could not
breathe. Dkt. 121-1, p. 73. He then went unconscious.
Davis alleges that Lieutenant Mason exercised excessive force
against him by directing an unknown officer to place a bag
over his head. Dkt. 2. Lieutenant Mason seeks summary
judgment on this contention explaining that application of
the spit mask was appropriate under the circumstances.
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)). Several factors are relevant to this
determination, including the need for force, the amount
applied, the threat a guard reasonably perceived, the effort
made to temper the severity of the force used, and the extent
of the injury caused to the prisoner. Hudson, 503
U.S. at 7.
Lieutenant Mason has presented evidence that Mr. Davis was
coughing or spitting blood. By directing the application of
the spit mask, Lieutenant Mason acted with the amount of
force necessary to protect others from contamination from Mr.
Davis’ bodily fluids and OC. There is no evidence that
the spit mask was applied incorrectly or with excessive
force. Finally, although serious injury is not required to
allege an excessive force claim, the lack of a serious injury
is a factor to be weighed by the Court. Here, Mr. Davis
testified at his deposition that he became unconscious for a
brief period because of the application of the spit mask.
Dkt. 121-1, p. 73. He does not identify any other injuries or
any lasting harm from the application of the spit mask.
Outlaw v. Newkirk, 259 F.3d 833, 839 (7th Cir. 2001)
(finding that a relatively minor amount of force used to
achieve a legitimate security objective was not the sort of
force that was “repugnant to the conscience of
mankind.”). In short, Lieutenant Mason has shown that
the use of the spit mask was done in a good-faith effort to