United States District Court, N.D. Indiana, South Bend Division
DEMAJIO J. ELLIS, Plaintiff,
SERGEANT PRYOR, et al., Defendants.
OPINION AND ORDER
P. SIMON JUDGE
J. Ellis is a prisoner who is proceeding without a lawyer in
this case against two correctional officers. He was granted
leave to proceed “against Sergeant Pryor in his
individual capacity for monetary damages for using excessive
force against him on June 10, 2016, ” and leave to
proceed “against [Sergeant] Flakes in her individual
capacity for monetary damages for failing to intervene in
Sergeant Pryor's use of excessive force on June 10,
2016.” ECF 10 at 4. The Defendants have filed a motion
for summary judgment, which is now fully briefed. ECF 77, ECF
10, 2016, Ellis, who was housed at the Westville Correctional
Facility, refused to remove his arms from the cuff port in
his cell. ECF 78-1 at 3, 5; ECF 83 at 2. Ellis states he was
“peacefully requesting” to speak with a shift
supervisor; he insists he made no threats to anyone. ECF 83
at 2. What's more, he tells me that he posed no risk of
harm to himself or anyone else. Id. Nonetheless,
suddenly and for reasons that are unclear (if one believes
Ellis), a team of officers including Sergeant Flakes and
Sergeant Pryor was deployed to resolve the situation. ECF
78-1 at 5. For their part, the defendants offer no evidence
that Ellis was posing a risk to anyone during the encounter.
And in all events, as I just noted, Ellis disputes any such
Flakes states that Ellis was given several additional
commands to comply once the team arrived, but he refused. ECF
78-1 at 7. Ellis, on the other hand, attests that Sergeant
Pryor “began to get hostile quick” as soon as he
arrived on the scene. ECF 83 at 2. According to Ellis,
although the officers had “regular” pepper spray
on their persons, Sergeant Pryor directed Sergeant Flakes to
“go get the strong spray.” Id. at 3; ECF
84 at 1. She did so and returned with the
“'big' can that look[s] like a ‘fire
distrigusher' (sic) that is meant for a crowd of people
in riots only . . ..” ECF 83 at 3. For purposes of this
motion, it is undisputed that Sergeant Pryor sprayed Ellis
with the pepper spray for approximately “4 to 6 seconds
or more.” Id.; ECF 84 at 1; see also
ECF 78 at 3 n.2. Ellis had a sheet over his head during this
time. ECF 78-1 at 5.
to Sergeant Pryor, another order was given for Ellis to
release the cuff port, and, when he did not comply, he
deployed a taser onto Ellis's right wrist. ECF 78-1 at 5.
Ellis then released the cuff port, and another officer pushed
his hands back into his cell. Id. It is unclear how
much time elapsed between the use of the pepper spray and the
deployment of the taser, but Ellis suggests that it was
approximately one minute and states that the taser was
deployed “without warning” and “for no
reason.” Id. at 4; ECF 83 at 3. It is
undisputed that the officers never physically attempted to
close the cuff port until after the taser was deployed. ECF
78-1 at 8; ECF 83 at 3. Ellis claims that he heard Sergeant
Pryor laughing about the incident afterwards and that he has
had “issues” with Sergeant Pryor in the past. ECF
83 at 3; ECF 84 at 2. Ellis was left suffocating in his cell
alone for approximately one hour until he was removed and
“decontaminated.” ECF 83 at 3. The spray made him
“burn, ” his skin was swollen, and a small scar
is still visible on Ellis's wrist where he was struck by
the taser. ECF 78 at 3 (citing ECF 9 at 5).
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute of material fact exists when “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not every
dispute between the parties makes summary judgment
inappropriate; “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Id. To determine whether a genuine dispute of
material fact exists, the court must construe all facts in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010)
Force Claim Against Sergeant Pryor
are dangerous places, and security officials are tasked with
the difficult job of preserving order among inmates.
Lewis v. Downey, 581 F.3d 467, 476 (7th Cir. 2009).
It is important that prisoners follow orders given by guards.
Id. at 476-77 (citing Soto v. Dickey, 744
F.2d 1260, 1267 (7th Cir. 1984)). To compel
compliance-especially in situations where officers or other
inmates are faced with threats, disruption, or aggression-the
use of summary physical force is often warranted.
Id. at 477 (citing Hickey v. Reeder, 12
F.3d 754, 759 (8th Cir. 1993)). Neither the use of a taser
nor pepper spray against an inmate under such circumstances
constitutes a per se violation of the Eighth Amendment.
See Id. at 475-76; see also Soto, 744 F.2d
this is not to say that such justification exists
“every time an inmate is slow to comply with an
order.” Lewis, 581 F.3d at 477. Accordingly,
the “core requirement” for any excessive force
claim in this context is that the defendant “used force
not in a good-faith effort to maintain or restore discipline,
but maliciously and sadistically to cause harm.”
Hendrickson v. Cooper, 589 F.3d 887, 890 (7th Cir.
2009) (internal quotation marks and citation omitted).
“A court should examine a variety of factors in
conducting this inquiry, including the need for an
application of force, the relationship between that need and
the force applied, the threat reasonably perceived by the
responsible officers, the efforts made to temper the severity
of the force employed, and the extent of the injury suffered
by the prisoner.” DeWalt v. Carter, 224 F.3d
607, 619 (7th Cir. 2000). The appropriateness of the use of
force is determined by an examination of the particular facts
and circumstances of each case. Soto, 744 F.2d at
the Defendants argue that the use of force was performed in
good faith, rather than with a malicious or sadistic intent.
They stress the fact that Ellis refused to comply with orders
to remove his hands from the cuff port, and contend that the
amount of force employed in response was necessary,
reasonable, and de minimis. As an initial matter, it
is a little hard to swallow that the force here was tiny. If
one believes Ellis, it is anything but that. I note that the
Seventh Circuit has held that “the use of a taser gun
against a prisoner is more than a de minimis
application of force.” Lewis, 581 F.3d at 475.
And because Ellis has presented evidence that he posed no
threat to the officers or anyone else, if that is believed,
this would tend to show that Sergeant Pryor employed the
pepper spray in a manner greater than necessary. See e.g.
Soto, 744 F.2d at 1270 (noting that the use of
“mace or other chemical agents in quantities greater
than necessary” violates the Eighth Amendment).
noted, the core issue is whether the use of force
demonstrated actual malice or a sadistic purpose on the part
of Sergeant Pryor. Many of the facts relevant to this inquiry
are disputed, and those disputes must be resolved in
Ellis's favor at this stage. For example, as to
necessity, it is true that Ellis admits he refused to remove
his hands from the cuff port. However, the Defendants'
suggestion that every time an order is disobeyed, it must
result in the use of force is an overly broad interpretation
of the law. See Lewis, 581 F.3d at 477. According to
Ellis's version of events, he was peacefully requesting
to speak with a shift supervisor but was not given an
adequate opportunity to comply with the order because
Sergeant Pryor immediately became hostile when he arrived on
the scene. In other words, if one were to believe Ellis, he
was posing no threat to anyone when he was suddenly attacked
with a chemical agent. Additionally, after he was pepper
sprayed, he was summarily electrocuted with a taser without
warning -- all the while continuing to pose no threat of harm
to anyone. The Defendants, on the other hand, assert that
Ellis was given multiple opportunities to comply and that
specific warnings were given before both the pepper spray and
the taser were deployed. In other words, there is a simple
dispute of fact over whether Ellis was warned of the
are similar disputes of fact over the threat perceived by the
officers. Ellis insists that his actions were neither
aggressive nor threatening; the Defendants, however,
disagree. “In cases upholding the use of taser guns,
the victims have been violent, aggressive, confrontational,
unruly, or presented an immediate risk of danger to
themselves or others.” Lewis, 581 F.3d at 477.
As Ellis tells the story, the type of behavior deemed
troublesome enough to warrant the application of such force
is nonexistent in this case. See id. at 477-78
(collecting cases and emphasizing the ...