Brent v. Kyles et al, No. 3:2012cv00215 - Document 39 (S.D. Miss. 2013)
Court Description: Memorandum Opinion and Order granting 31 Defendants' Motion for Summary Judgment. Plaintiff's Complaint is dismissed with prejudice, and Final Judgment in favor of all Defendants shall be entered. Signed by Magistrate Judge Linda R. Anderson on 9/30/2013. (ACF)
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Brent v. Kyles et al Doc. 39 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION NATHANIEL TOVORIS BRENT, #24357 VS. PLAINTIFF CIVIL ACTION NO. 3:12CV215-LRA DARRELL KYLES, ET AL DEFENDANTS MEMORANDUM OPINION AND ORDER This § 1983 action is before the Court on the Motion for Summary Judgment [31] filed by Defendants Sheriff Tyrone Lewis, Captain Mike Ivy and Deputy Darrell Kyles. The Court has considered all related pleadings, including the response of Plaintiff Nathaniel Tovoris Brent [34], and his sworn testimony at the omnibus hearing conducted on October 11, 2012. The Court finds that the applicable law requires a finding that the motion is meritorious and should be granted for the reasons discussed below. I. Facts and Procedural History Plaintiff testified that on March 12, 2012, he was housed in the Hinds County Detention Facility as a pretrial detainee. According to Plaintiff, he was on his "recreation time" and had five minutes remaining. He was talking on the telephone at the time. Defendant Deputy Kyles came to the zone and was very upset because "there were guys out who wasn't supposed to be out." [31-2, pp. 4-5]. Deputy Kyles began trying to lock them down. As he was doing so, Kyles said "Brent, you're going on lockdown too." Plaintiff then testified as follows: Dockets.Justia.com BRENT: Kyles, you told me we've got five minutes. He was like, Man, I said lock down. You don't know nothing. I know you're a stone, and all this. I'm like, Man, I know you. What that got to do with anything, you know. So he took his mace out. So I turned my back to him. I said, Man, you ain't got to do all of that, Kyles. This is supposed to be my recreation time. You know, you told me I got five minutes. BRENT: So he sprayed me but he didn't get to spray me in my face because I had my back to him. So when he seen he didn't get to spray me good, he said, Man, you know, I know who you is. You a stone. And he sprayed me again. He came to the side and he sprayed me. This time he got me in my face. So I leaned up against the wall and he punched me in the back of my head. ... So all the guys who was out, you know, they was ready to, I don't know, they started arguing because, you know, it was different gangs---gang organizations in there. And one of the other deputy sheriffs, he rushed in and he just grabbed me. You know, I'm like, man, I've got mace in my eyes. You seen the man hit me with my back turned and my hands in the air. And Kyles was just cursing, and, I don't know, he was talking all type of stuff. ... THE COURT: You said that he asked you to do something and you started talking to him. You didn't comply right away? BRENT: Yes, ma'am. See, when he came on the zone---well, he came and let us out upstairs for our recreation and he went back into the tower outside the zone. So while he was out, guys downstairs started sneaking out their cells. So when he looked and seen it was too many people out, so he came in and was like, everybody downstairs, go to your cell. Upstairs, ya'll ain't got but five minutes. So by that time the phone ---I got on the phone for them five minutes while he was locking downstairs the inmates down. So when he got through, he said, Brent, you come on, too. I'm like, Kyles, you just told me I had five minutes. 2 THE COURT: All right. So you didn't do what he told you at that point? BRENT: Yes, ma'am. [31-2, pp. 5-7]. Defendant Deputy Kyles submitted a sworn affidavit in support of the Motion for Summary Judgment, 31-5. Deputy Kyles confirms the incident, describing it as follows: 4. On the date in question, I was working the A-3 pod and ordered the inmates there to go back to their cells following recreational time. Nathaniel Brent was on the telephone, and after I specifically told him to catch up, he jumped up and yelled, "we ain't going," When I asked Inmate Brent not to yell, he only became more irate and started yelling louder. I believed that Inmate Brent was attempting to start a riot in the pod area. Because he did not respond to my repeated 45, 751 (5th Cir. 2005). Factors to be used in analyzing whether force was excessive include: 1. The extent of the injuries suffered; 2. The need for the application of force; 10 3. The relationship between the need and the amount of force used; 4. The threat reasonably perceived by the responsible official; and 5. Any efforts made to temper the severity of a forceful response. Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992). Defendant Kyles argues there was no excessive force because (1) he was acting to restore order and to prevent a riot; and, (2) that the injury was de minimis. As support, Defendant submitted Plaintiff's medical reports; the Inmate Infraction Form, [31-3, p. 10]; the Incident Report [31-3, p. 19]; the Use of Force Report [31-3, pp. 20-21]; and, his own affidavit. The extent of Plaintiff's injuries have been considered. The pepper spray apparently was not sprayed directly into Plaintiff's eyes, as the initial spray missed him. He was then sprayed from the side, and spray did get in his eyes. He was immediately taken to medical and his eyes were washed out with "milky stuff." The use of pepper spray is not forbidden by the United States Constitution, and its application in and of itself is not "excessive force." See Stone v. Damons, 252 F. App'x 581 582 (5th Cir. 2007) (per curiam) (affirming summary judgment dismissing Eighth Amendment case where officer used pepper spray on plaintiff resisting arrest); Bailey v. Turner, 149 F. App'x 276, 278 (5th Cir. 2005)(per curiam) (reversing judgment at law where factual dispute existed as to whether plaintiff was sprayed by mace directly in face for 1-25 seconds after restrained in handcuffs). 11 Plaintiff testified that he had no "permanent injury" from the pepper spray. He testified that Kyles hit him with his fist in the back of his head, and he "had a knot on the back of [his] head." He also testified that he suffered no "permanent injury" due to this blow, either. Kyles contends that because Plaintiff ducked when he started to spray, most of the pepper spray got on the side of his face and his jumpsuit. According to Kyles, Plaintiff then charged in his general direction, so he struck him once with an open hand strike. Plaintiff's testimony was that the strike was with a closed fist. There are various factual differences in the versions of the incident given by Plaintiff and Kyles. However, Plaintiff conceded to this Court in his testimony that he did not immediately follow Kyles's order and that he argued with Kyles about whether he would immediately go back to his cell---- he wanted his five additional minutes of telephone conversation. He also conceded to this Court that other inmates in the A-3 pod were out of their cells, and should not have been. ["... he was in a rage because there was guys out who wasn't supposed to be out." 31-2, pp. 5-6]. Plaintiff also confirmed that Kyles first attempted to lock him down without force by simply instructing him to go to his cell— but that Plaintiff argued with him instead. Plaintiff confirms that Kyles was attempting to restore order in the pod and get the inmates locked down when the force was applied. He also testified that he did not obey Kyles's initial direction--- instead he argued and remained on the phone. An important undisputed fact is that Kyles confirms that inmates from 12 different gangs were out of their cells and were beginning to argue. This testimony confirms Kyles’s belief that a gang riot threat existed in the pod. There are factual disputes remaining: whether Plaintiff was subdued by the pepper spray or whether he "charged" in Kyles's general direction after the spray; whether Plaintiff was actually trying to start a riot or whether Kyles believed he was trying to start a riot; and, whether the strike was by open or closed fist. Yet, under the totality of circumstances, the Court finds that these factual distinctions are not material. The material facts are undisputed: 1. That Kyles was concerned that prisoners were out who should not have been, and the prisoners who were out were from different gangs and had begun arguing; 2. That Kyles was attempting to lock down the pod and to restore security and order in the pod prior to the incident; 3. That Kyles did issue Plaintiff a directive in his effort to restore order, and Plaintiff did not immediately comply with Kyles's directive-- he argued and refused to voluntarily lock down; 4. That Kyles applied force to bring Plaintiff into compliance; 5. That the force used did not cause permanent or severe injuries; and, 6. Plaintiff was immediately treated for the injuries (indicating an effort to "temper" the results of the force). Given these undisputed facts, and based on the totality of the circumstances, the Court concludes as a matter of law that Kyles did not use unconstitutional force and, 13 alternatively, that he acted with objective reasonableness. For this reason, the Court finds that the Motion for Summary Judgment should also be granted as to Defendant Kyles. III. Conclusion The Court finds that Defendants’ Motion for Summary Judgment [31] should be granted; they are entitled to a judgment at law. A Final Judgment shall be entered in favor of all Defendants, and Plaintiff's lawsuit shall be dismissed with prejudice. THIS the 30th day of September 2013. /s/ Linda R. Anderson UNITED STATES MAGISTRATE JUDGE 14
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