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Ward v. Smith

United States District Court, W.D. Missouri, Southern Division

June 16, 2015

KEVIN WARD, Plaintiff,
BRADLEY SMITH, et al., Defendants.


ORTRIE D. SMITH, Senior District Judge.

Plaintiff, an inmate at South Central Correctional Center in Licking, Missouri, filed an Amended Complaint against correctional officers Bradley Smith ("Smith") and Dustin Merriett ("Merriett") (collectively "Defendants"), asserting a claim under 42 U.S.C § 1983 and a claim for intentional infliction of emotional distress. Plaintiff's claims are based on Defendants' alleged excessive use of pepper spray against him. In light of the Court's Order on October 29, 2014, Defendants are being sued only in their individual capacities. Doc. #203.

A bench trial was held the week of April 27, 2015. As discussed below, the Court finds in Defendants' favor.


The Court finds the following facts have been proven by the greater weight of the evidence. In setting forth its findings, the Court will not parse out each piece of evidence or testimony on a point and will only occasionally indicate the evidentiary support for the facts set forth. It should be understood that any conflict in the evidence has been resolved in the manner described below.

A. Background

The Missouri Department of Corrections operates South Central Correctional Center ("SCCC") in Licking, Missouri. Defendants Dustin Merriett and Bradley Smith both worked at SCCC as correctional officers during October and November 2009. Also during October and November 2009, Plaintiff was housed by himself in cell 154 in an administrative segregation ("ad seg") unit at SCCC. Plaintiff's cell was equipped with a functioning toilet and sink.

SCCC had an evening "count time" each day at 10 p.m. During count time, each inmate is required to state his name and number. Plaintiff previously had been housed in ad seg units in other MDOC facilities, and so was familiar with the rules associated with that type of housing unit.

B. Cell Search Procedure

SCCC correctional staff members perform searches of inmates' cells once a month, at a minimum. The searches are unannounced and irregularly timed. It would be unusual for a cell search to be performed shortly before count time. The procedure for performing a cell search is as follows: the inmate is placed in restraints, removed from his cell, and escorted to the strip out cell, which is a small cage the size of a phone booth. Once in the strip out cell, the inmate is strip searched. While the strip search of the inmate is occurring, the inmate's cell is being searched. Once the strip search and the cell search are finished, the inmate is again placed in wrist restraints, and the inmate is escorted back to his cell. After a correctional officer completes this cell search, the correctional officer is supposed to record the search in an Institutional Search Report log.

C. Use of Force Procedure

When a correctional officer orders an inmate to submit to wrist restraints for a cell search, the inmate must comply with this order. A failure to comply with such an order is a violation of the MDOC Offender Rulebook. Correctional officers are authorized to use force to gain and maintain control of an inmate, but must only use the minimum amount necessary to do so. If an inmate refuses to comply with a correctional officer's order, the inmate is considered to be "out of control." Attempts to gain compliance with a correctional officer's order are considered efforts to gain and maintain control of an inmate. A correctional officer must receive authorization from the shift supervisor on duty before carrying out a planned use of force on an inmate. If time and circumstances permit before administering force, correctional staff must counsel the inmate, warn the inmate that force will be used, and give the inmate an opportunity to comply with orders.

During a use of force involving pepper spray, the target area is the inmate's face. Pepper spray should be applied to the target area for a ½ to 1 second burst. While the distance varies depending on the type of dispenser, a correctional staff member should be at least three feet away from the target area when applying pepper spray. After an inmate is sprayed with pepper spray in his cell, the inmate is expected to clean the pepper spray in his cell.

D. Limited Property Status

An inmate can be placed on limited property status when an inmate uses property to barricade the cell door. When an inmate is placed on limited property status, correctional staff members remove all property and clothing from the inmate's cell. The only property the inmate would retain would be a security smock and a security blanket. Based on the inmate's behavior, correctional staff members would return one item of property per shift.

E. October 26, 2009 Incident

During the evening October 26, 2009, Plaintiff was talking with another inmate housed in the ad seg unit. Sometime between 9:00 p.m. and 9:24 p.m., Defendant Merriett instructed Plaintiff to stop talking. Plaintiff refused. Soon thereafter, Defendant Merriett ordered Plaintiff to submit to wrist restraints. Plaintiff refused. Defendant Smith approached Plaintiff's cell and ordered Plaintiff to submit to wrist restraints so that correctional staff could perform a search of Plaintiff's cell. Plaintiff refused to submit to wrist restraints. Defendant Smith then contacted medical staff at SCCC to determine whether Plaintiff had a medical condition that would prevent the use of pepper spray and was informed Plaintiff did not have any such condition.

Defendant Smith received authorization from Lieutenant Jeremy Robertson, the shift supervisor during the evening of October 26, 2009, to carry out a planned use of force against Plaintiff. Defendant Smith, with Defendant Merriett and correctional officer Michael Pinkava, returned to Plaintiff's cell with a pepper spray canister and ordered Plaintiff to submit to wrist restraints. Defendant Smith warned Plaintiff that pepper spray would be used against him if Plaintiff failed to comply with this order. Plaintiff refused. Standing less than three feet away from Plaintiff, Defendant Smith sprayed Plaintiff through his cell's food port with pepper spray for three to five seconds.

Shortly thereafter, Defendant Smith again ordered Plaintiff to submit to wrist restraints. Plaintiff refused to do so and placed his mattress up against his cell's food port. Defendant Merriett used a barricade removal assistance device ("BRAD") to move the mattress out of the food port. At approximately the same time, Defendant Smith sprayed Plaintiff with pepper spray for more than three to five seconds. Defendant Smith was standing less than three feet away from Plaintiff when he did so. Plaintiff grabbed on to the BRAD and on to the wand of the pepper spray canister, but eventually let go of each. During this tussle, the BRAD scratched Plaintiff's arm. Shortly thereafter, Plaintiff submitted to wrist restraints.

Defendants Smith and Merriett escorted Plaintiff to the strip out cell. While in this cell, Plaintiff removed his clothing, and a strip search was performed on Plaintiff. Defendant Smith handed Plaintiff a security smock, which is a thin padded blanket meant to cover the front and back of an inmate but is left open on the sides. The security smock has velcro straps that can be used to close the sides of the smock to some degree. Plaintiff tied the security ...

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