Burns v. Eaton

Decision Date23 May 2014
Docket NumberNo. 13–1730.,13–1730.
PartiesRoy Don BURNS, Plaintiff–Appellant v. Edward EATON, Sgt.; Renita White, Corporal, East Arkansas Regional Unit, ADC, Defendant–Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

752 F.3d 1136

Roy Don BURNS, Plaintiff–Appellant
v.
Edward EATON, Sgt.; Renita White, Corporal, East Arkansas Regional Unit, ADC, Defendant–Appellee.

No. 13–1730.

United States Court of Appeals,
Eighth Circuit.

Submitted: Jan. 14, 2014.
Filed: May 23, 2014.


[752 F.3d 1137]


William Arnold Waddell, Jr., argued and on the brief, Little Rock, AR, for Plaintiff–Appellant.

James Owen Howe, AAG, argued and on the brief, Little Rock, AR, for Defendant–Appellee.


Before LOKEN, MURPHY, and SMITH, Circuit Judges.

LOKEN, Circuit Judge.

In this 42 U.S.C. § 1983 action, Roy Don Burns, an inmate in the Maximum Security Unit of the Arkansas Department of Corrections (“ADC”), claims that his Eighth Amendment rights were violated when Sgt. Earl Eaton pepper-sprayed Burns when he refused to return to his cell after showering, and Cpl. Renita White turned off the water, preventing Burns from rinsing off the pepper spray for ten to fifteen minutes. The district court 1

[752 F.3d 1138]

granted summary judgment dismissing these claims, concluding that Eaton was entitled to qualified immunity and that Burns failed to exhaust prison grievance remedies as to White. Reviewing the grant of summary judgment de novo and the facts in the light most favorable to Burns, we affirm.

A. Sgt. Eaton. On July 2, 2010, Burns was taken to a locked shower cell in Isolation Unit # 3 to wash off a topical medication for treating scabies. When Burns finished his shower, Eaton told him to “catch the cuffs,” meaning that Burns should turn around and allow Eaton to place hand restraints on Burns before taking him back to his cell. Burns refused. Eaton repeated his instruction. Burns again refused. Eaton took out his pepper spray and warned Burns, “If you do not catch the cuffs to go back to your cell, I'll spray you.” Burns changed the topic by asking about another inmate, and Eaton again stated, “Catch the cuffs or I'll spray you.” Then, according to Burns's verified pro se complaint:

7 ... I realized it was serious so I threw my shampoo bottle at [Eaton] to keep him back away from me.

8. Then [Eaton] ran to my shower bars and started spraying me all over my face and body for about a 2 to 3 second blast.

9. At that time, I threw my soap dish at him to get him away from me. And he ran up to the bars and began spraying me again.

10. I was really mad and scared at this point.... So I started spitting at him to try to keep him away from me but, that did not deter him he ran up to my bars and started spraying me in my face and genital area.

Burns filed a grievance on the prescribed Unit Level Grievance Form, complaining that Eaton acted “against policy” by spraying Burns in the face three times with a chemical agent without “contact[ing] the Lt. or anyone else or try[ing] to get help.” The warden found the complaint “has no merit.” The warden noted that Burns “refused to be cuffed, argued with Sgt. Eaton, then threw a shampoo bottle at him,” and was found guilty of violating five disciplinary rules as a result of the incident. “[T]he only reason that you were sprayed with a chemical agent was due to your combative behavior towards staff.” Following denial of his appeal to ADC's Chief Deputy Director, Burns filed this action alleging that the pepper spraying “was a malicious and sadistic act on the part of Sgt. Eaton.” The district court granted Eaton's motion for summary judgment, concluding that he did not use excessive force in spraying Burns with pepper spray, relying on undisputed facts that Burns “refused to obey multiple direct orders,” “continued to grow increasingly combative,” and, even after Eaton had applied pepper spray, “continued to throw various items at Defendant Eaton and began spitting on him.”

(1) On appeal, Burns first argues that whether Eaton used excessive force in violation of the Eighth Amendment when he deployed pepper spray after Burns refused orders to leave a locked shower cell is a genuine issue of disputed fact.

“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quotation omitted). “The infliction of pain in

[752 F.3d 1139]

the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.” Id. Six years later, the Court held that “whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: 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, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992); see Wilkins v. Gaddy, 559 U.S. 34, 130 S.Ct. 1175, 1178–79, 175 L.Ed.2d 995 (2010).

This is a different and less protective test than the Fourth Amendment standard that applies to “a free citizen's claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other ‘seizure’ of his person.” Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Fourth Amendment standard is “whether the officers' actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation,” whereas “the subjective motivations of the individual officers are of central importance in deciding whether force [was] used” maliciously and sadistically to cause harm in violation of the Eighth Amendment. Id. at 397–98, 109 S.Ct. 1865.

Qualified immunity shields a government official from liability unless his conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The Supreme Court has repeatedly stressed “the importance of resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, ...

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