United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY United States District Judge.
the Court is Defendant James Russell's third motion for
summary judgment, Doc. 135, and Plaintiff's motion for
leave to file sur-reply in opposition to Defendant's
motion, Doc. 146. Defendant's motion for summary judgment
is denied. Plaintiff's motion is denied as moot.
April 24, 2016, Mr. DeAndre Cothran was an inmate
incarcerated at Western Missouri Correctional Center
(“WMCC”) with the Missouri Department of
Corrections (“MDOC”). Doc. 140 (Plaintiff's
Response to Defendant's Statement of Facts), p. 1. At
8:00 p.m., Mr. Cothran was in his cell in the Administration
Segregation Unit of WMCC (“Ad Seg”) with another
inmate, Dywon Newell. Id.
evening Corrections Officer James Russell was working as a
Lieutenant and assigned to the Ad Seg unit. Id. at
2. While Mr. Russell was making his rounds, he heard the
sound of a cell door being kicked. Id. at 3. Mr.
Russell contends that Mr. Newell was kicking the door and
yelling and that the cell door was shaking. Id. Mr.
Cothran denies that the cell door shook and maintains that
Mr. Newell only kicked the door twice. Id. at 3-4.
There is no dispute that Mr. Cothran was uninvolved in
kicking the door or causing a disturbance. Doc. 142
(Defendant's Reply in Support of Motion for Summary
Judgment), p. 4.
Russell claims that upon seeing the door shaking, he warned
Mr. Newell that he would use pepper spray if Mr. Newell did
not stop kicking the door. Doc. 140, p. 3. Mr. Cothran denies
this and contends Mr. Russell offered no such warning.
Id. Mr. Russell then shot a burst of pepper spray
into the cell door through the cell door's food port.
Id. Mr. Russell claims that Mr. Cothran could only
have been affected by residual exposure to the pepper spray,
because he did not intentionally aim the spray at Mr.
Cothran, though he concedes that if he had done so, it would
have constituted improper use of force. Id. at 4;
Doc. 142, p. 5. Mr. Cothran denies this, asserting Mr.
Russell directly and intentionally sprayed him with pepper
spray, which caused him physical pain and suffering. Doc 140,
the application of pepper spray, Mr. Russell left the Ad Seg
area and Mr. Cothran was taken to the nurse. Doc. 140, p. 5.
The nurse's report states Mr. Cothran complained that his
eyes were burning. Doc. 139, Exhibit D-7. The nurse noted
that his eyes were not affected, but she recommended that Mr.
Cothran's mucus membranes should be flushed with copious
amounts of water, that he should consider showering with cool
water and soap, and that he should notify medical immediately
if he experiences any shortness of breath or difficulty
breathing. Id. Mr. Cothran claims he was then placed
in a cell without functioning water facilities for several
days. Doc. 142, p. 5. It is undisputed that he does not have
any residual medical issues from exposure to the pepper
spray. Doc. 140, p. 7.
2017, Mr. Cothran filed a civil rights Complaint alleging
that Mr. Russell had engaged in excessive use of force. Doc.
1. On March 19, 2018, Mr. Russell moved for summary judgment
on the grounds that Mr. Cothran had failed to establish
excessive force and that Mr. Russell was entitled to
qualified immunity. Doc. 34. On May 29, 2018, that motion was
denied, because the Court found “genuine issues of
material fact remain as to whether there was an objective
need for force, the relationship between any such need and
the amount of force used, the threat reasonably perceived by
Defendant, any efforts by Defendant to temper the severity of
his forceful response, and the extent of Plaintiff's
injuries.” Order, Doc. 54, p.7. On December 21, 2018,
Mr. Russell filed his second motion for summary judgment on
the same grounds-that Mr. Cothran had failed to establish
excessive force and that Mr. Russell is entitled to qualified
immunity. Doc. 78. On February 26, 2019, the Court denied
this motion, because genuine issues of material fact
remained, including whether Mr. Russell intentionally
directed pepper spray at Mr. Cothran and whether Mr. Russell
warned Mr. Cothran that he intended to administer pepper
spray, and therefore Mr. Russell had not established as a
matter of law that there was no constitutional violation or
that he was entitled to qualified immunity. Order, Doc. 100.
March 4, 2019, Mr. Cothran filed an amended Complaint, adding
a deliberate indifference claim against MDOC, as well as WMCC
Warden Sherie Korneman and MDOC Director Anne Precythe, each
in their individual and official capacities. Doc. 103. On May
18, 2019, Defendants MDOC, Precythe, and Korneman were
dismissed from this case, and the claim against Mr. Russell
in his official capacity was dismissed as moot. Order, Doc.
116. Mr. Russell has now filed a third motion for summary
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law.” Anderson v. Durham D&M,
LLC, 606 F.3d 513, 518 (8th Cir. 2010); Fed.R.Civ.P.
56(a). The moving party bears the burden of establishing a
lack of genuine issue of material fact. Brunsting v.
Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir.
2010). The Court must “view the facts and draw
reasonable inferences in the light most favorable to the
party opposing the summary judgment motion.” Scott
v. Harris, 550 U.S. 372, 378 (2007) (internal quotation
and citation omitted).
Russell's third motion for summary judgment is based on
the same grounds as his first and second motions: that Mr.
Cothran has failed to establish that Mr. Russell used
excessive force because the injury was de minimis and the
pepper spray was not applied intentionally or maliciously,
and that Mr. Russell is entitled to qualified immunity. Mr.
Russell does not assert that new facts or law require
changing the Court's prior conclusions.
only new evidence cited, presented in support of his argument
that Mr. Cothran suffered only de minimis injury that is
insufficient to support a finding of a constitutional
violation, is Mr.Cothran's medical records from the
prison medical facility. Doc. 139, Exhibit D-7-8; Doc. 144.
In a nurse's report taken immediately after the pepper
spray incident, the nurse notes that Mr. Cothran's eyes
were not affected. Id. However, the nurse also notes
that Mr. Cothran complained his eyes were burning and
recommends that Mr. Cothran's mucus membranes should be
flushed with copious amounts of water, that he should
consider showering with cool water and soap, and that he
should notify medical staff immediately if he experiences any
shortness of breath or difficulty breathing. Id.
Court has already concluded in its prior Order that
“[t]here is no question that there is evidence of
injury in this case, ” Doc. 100, p. 5, and this new
evidence does not overcome that finding. Rather, the
nurse's contrasting assessment and treatment
recommendations further underscore the factual dispute as to
the existence and severity of the injury. That the medical
records may not reflect a more permanent injury does not
decide the issue, because as the Court previously held,
“[t]he fact that Mr. Cothran may have sustained no
serious injuries is not determinative.”
Id. (citing Hudson v. McMillian, 503 U.S.
1, 4 (1992)). Moreover, Mr. Cothran has responded with
evidence demonstrating the continued dispute of material
fact. See Doc. 140-2 (Mr. Cothran's sworn
testimony stating, “[a]s a result of being sprayed
directly and intentionally with pepper spray, I experienced
pain and suffering”). In addition, the parties still
dispute whether Mr. ...