Desmond Aaron v. Jack Surguy

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 4, 2023*
Decided October 10, 2023
Before
DIANE S. SYKES, Chief Judge
DIANE P. WOOD, Circuit Judge
CANDACE JACKSON‐AKIWUMI, Circuit Judge
No. 23‐1394
DESMOND AARON,
Plaintiff-Appellant,
v.
JACK SURGUY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 1:20‐cv‐03290‐JRS‐MG
James R. Sweeney II,
Judge.
O R D E R
Desmond Aaron, an Indiana prisoner, contends that a correctional officer
violated his Eighth Amendment rights by deploying pepper spray out of racial malice.
See 42 U.S.C. § 1983. The district judge entered summary judgment for the officer
because the officer said that he sprayed Aaron out of fear that Aaron might attack him.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23‐1394 Page 2
Because a jury must resolve this genuine dispute about the reason the officer used the
spray, we reverse and remand for a trial.
We view the record in the light most favorable to Aaron, the nonmovant, and
construe all reasonable inferences in his favor. McCottrell v. White, 933 F.3d 651, 661–62
(7th Cir. 2019). This appeal stems from an incident in February 2020. At the time Jack
Surguy, a correctional officer with the Indiana Department of Correction, ordered
Aaron, who was outside of his cell, to return to his cell. When Aaron argued with him,
Surguy called his supervisor, who also told Aaron to return to his cell. This interaction
lasted several minutes and was recorded on a prison camera. Ordinarily the recording
could establish the sequence of events. See Scott v. Harris, 550 U.S. 372, 380–81 (2007).
But because the camera’s position does not capture all movements and the recording
lacks audio, it does not confirm the complete interaction between Aaron and Surguy.
After several minutes of dialogue, the video shows Aaron moving toward his
cell. At first, Aaron walks backwards and then stops. Surguy appears to remove his
pepper spray; Aaron then turns to face forward, and he and Surguy walk toward
Aaron’s cell, with Aaron walking in front of Surguy. The video then skips, and Aaron
and Surguy are next visible down the hall, near Aaron’s cell. At this point Aaron turns
around (or has turned around), faces Surguy, and quickly leans or steps toward him.
Surguy then deploys pepper spray in Aaron’s face.
The precise events immediately preceding Surguy’s blast of pepper spray are
disputed. The incident occurred too quickly and too far away from the camera for the
recording to show conclusively what happened. On appeal Surguy summarizes his
account: He says that once Aaron was facing him, he pointed to Aaron’s cell, took out
his pepper spray, and told Aaron that he would use the spray if Aaron did not enter the
cell. Aaron responded by saying that if Surguy sprayed him, he would attack Surguy.
Aaron then “assum[ed] a bladed body position with clenched fists,” which Surguy says
made him fear for his safety and led him to deploy the spray. Surguy places all these
events between 09:29 and 09:31 of the recording, a span of two seconds.
In his verified complaint, which the judge cited and relied on in the summary‐
judgment order, Aaron attested to his account. He says that as he and Surguy walked
toward his cell, Surguy was spewing “racist and threatening slurs” at him, including
calling him the N‐word. In his grievance, attached as an exhibit to his summary‐
judgment papers, Aaron says that he turned and asked Surguy, “What did you just
say?” After that question, Surguy sprayed him with pepper spray. Aaron denies that he
ever threatened Surguy and insists that he gave Surguy “no reason” to spray him.

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No. 23‐1394 Page 3
The events following the spray are uncontested. Under the effects of the spray
(and, in Aaron’s telling, the slurs), Aaron punched Surguy. Surguy then pepper sprayed
Aaron again, Aaron tried to flee, and Aaron was placed briefly in a segregated cell.
Later, Surguy wrote an incident report in which he recounted his version of the facts as
recited above. Aaron responded with a grievance about his view of the incident. In
resolving the grievance, the warden wrote that the “[a]vailable footage does show
conclusive evidence that the incident report is inaccurate” and that he would refer the
incident for further investigation.
Aaron sued Surguy, asserting that his use of pepper spray was excessive force
that violated Aaron’s rights under the Eighth Amendment. See 42 U.S.C. § 1983. Surguy
moved for summary judgment. He first argued that based in part on the pending
investigation of the incident, Aaron had not exhausted his administrative remedies.
After Surguy later conceded that his filings contained factual inaccuracies, including
falsely stating the investigation was still pending, the judge chastised Surguy for his
misstatements to the court and rejected the exhaustion defense. Surguy then contended
that he undisputedly used the pepper spray in a good‐faith effort to maintain discipline.
The judge ruled that although Aaron posed a minimal threat when he turned to face
Surguy, no reasonable jury could find that Surguy was malicious or sadistic because
Aaron had defied orders to go to his cell and Surguy used limited force.
On appeal Aaron maintains that the use of pepper spray was unlawful because
Surguy maliciously harmed him “for no reason” after using a racial slur against him.
We interpret him to mean that he presented adequate evidence—namely, his verified
complaint—from which a jury could conclude that Surguy sprayed him not to maintain
or restore order but out of racial animosity.
When a prisoner argues that a guard used excessive force under the Eighth
Amendment, our core inquiry asks whether the “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 (1992); McCottrell, 933 F.3d at 664. The question of good
faith can turn on the need for force, the amount used, the prisoner’s injury, the threat
reasonably perceived by the official, and any efforts to avert a forceful response.
See McCottrell, 933 F.3d at 663.
The issue of Surguy’s good faith cannot be resolved on this record because of the
numerous factual disputes. If a fact‐finder believes Aaron’s version and disbelieves
Surguy’s, it could rationally find (based on Surguy’s use of a racial epithet) that he
deployed the pepper spray only because of racial malice, and malice of any sort is never
a legitimate use of force. See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984). If the fact‐

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finder believes Surguy’s version—that Aaron had assumed a “bladed” stance and
threatened him—then it could conclude that the force was proper because a guard may
use a chemical spray “to subdue recalcitrant prisoners.” Santiago v. Walls, 599 F.3d 749,
757 (7th Cir. 2010) (quotation marks omitted).
Both viewpoints are permissible on this record. Indeed, the warden believed that
the video provided “conclusive evidence” that Surguy’s version is “inaccurate.” And a
jury could disbelieve Surguy’s version for the reason that he squeezes too many events
into just two seconds. In that short time, Surguy says that he pointed to Aaron’s cell,
took out his pepper spray, told Aaron he would use it, heard Aaron say he would attack
Surguy, saw Aaron assume a bladed position with clenched fists, and deployed the
spray. Nonetheless, “our job when assessing a summary judgment motion is not to
weigh evidence, make credibility determinations, resolve factual disputes and swearing
contests, or decide which inferences to draw from the facts.” Miller v. Gonzalez, 761 F.3d
822, 827 (7th Cir. 2014); Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (“Where the
parties present two vastly different stories[,] … it is almost certain that there are
genuine issues of material fact in dispute.”). Thus, summary judgment was improper.
We address four additional points that inform our analysis. First, Surguy argues
that a jury would have to find that he used the pepper spray in good faith because, as is
undisputed, Aaron turned and leaned toward him in front of the cell, and that motion
showed disobedience that justified force. It is true that a jury could find that Surguy
responded lawfully if he genuinely perceived that Aaron was disobedient. But a jury
need not do so. See Lewis v. Downey, 581 F.3d 467, 477 (7th Cir. 2009). Instead, it could
reasonably infer from Surguy’s calling Aaron a racial slur just before Aaron turned to
face him that racial hatred, not a good‐faith desire to quell disobedience, motivated
Surguy to pepper spray Aaron. Further, even if Surguy perceived Aaron’s turning
around as disobedience, a jury could also find that Surguy incited that situation by
goading Aaron with racial slurs, and as a result his use of force was excessive. See Miller
v. Leathers, 913 F.2d 1085, 1088 (4th Cir. 1990) (en banc) (concluding that the prisoner’s
account supported a reasonable inference that the guard provoked the incident); see also
Hendrickson v. Cooper, 589 F.3d 887, 894 (7th Cir. 2009) (affirming an excessive‐force
verdict against a guard and stating that punitive damages were appropriate partly
because the guard “goaded” the prisoner “into leveling an insult,” which the guard
“used as an excuse to attack”).
Second, Surguy and the judge point out that Aaron had earlier been
insubordinate—he argued with Surguy and his supervisor—before Aaron relented and
began walking back to his cell. But Aaron’s previous conduct did not unequivocally

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justify the use of force once he became compliant and walked back to his cell. We have
held that a trial was required to resolve a dispute about whether a previously volatile
situation had resolved itself because if the volatility had dissipated, then the need for
force arguably also dissipated. See McCottrell, 933 F.3d at 667, 671.
Third, in explaining why the use of a racial slur did not create a triable issue, the
judge suggested that words alone cannot create an Eighth Amendment violation. But
Aaron is not relying just on the racial slur; he relies also on the force that followed the
slur. Further, we have said that verbal harassment can itself, in limited circumstances,
violate Eighth Amendment rights when it accompanies danger or harm to a prisoner.
Lisle v. Welborn, 933 F.3d 705, 717–18 (7th Cir. 2019).
Finally, for two reasons we disagree with Surguy’s suggestion that he is entitled
to summary judgment because Aaron did not furnish evidence of substantial injuries.
To begin, attachments to Aaron’s verified complaint state that the pepper spray left him
in pain and with mental anguish. And we have held that verified complaints may serve
as evidence at summary judgment. Jones v. Van Lanen, 27 F.4th 1280, 1285 (7th Cir. 2022);
see also F ED. R. C IV. P. 10(c). In any case, the Supreme Court has said that a prisoner need
not show a “significant injury” if the force used was excessive. See Wilkins v. Gaddy,
559 U.S. 34, 37 (2010); see also Dean v. Jones, 984 F.3d 295, 303 (4th Cir. 2021) (determining
that a several second “blast of pepper spray directly to the face” is more than “de
minimis force”). And as we have explained above, pepper spray used solely for reasons
of racial malice is excessive.
REVERSED and REMANDED

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