Zabriel L. Evans v. DAN SCHNURR, Warden, Hutchinson Correctional Facility

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ZABRIEL L. EVANS,
Plaintiff - Appellant,
v.
DAN SCHNURR, Warden,
Hutchinson Correctional Facility, in
his official capacity; DOUGLAS W.
BURRIS, Secretary of Corrections,
in his official capacity; STEVE
FOSTER, Captain/Shift Supervisor,
Hutchinson Correctional Facility, in
his individual and official capacity;
KYLE CHICK, CSII, Hutchinson
Correctional Facility, in his
individual capacity; DYLAN
DARTER, Correctional Officer I,
Hutchinson Correctional Facility, in
his individual capacity,
Defendants - Appellees.
No. 20-3088
(D.C. No. 5:18-CV-03193-JWB-TJJ)
(D. Kan.)
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ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH,
Circuit Judges.
* We conclude that oral argument would not materially help us to
decide the appeal, so we have decided the appeal based on the record and
the parties’ briefs. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
July 30, 2021
Christopher M. Wolpert
Clerk of Court
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_________________________________
This appeal grew out of a prison infraction. The prisoner, Mr. Zabriel
Evans, allegedly exposed himself to a female guard. Another guard
responded by ordering Mr. Evans to move to a more restricted area.
Mr. Evans did not comply. From there, the accounts differ. Mr. Evans says
that he simply asked the guards whether he was being moved as
punishment, adding that any such punishment would violate prison policy.
Authorities say that Mr. Evans refused to move and threatened to batter
officers.
A guard, Officer Kyle Chick, ultimately sprayed a chemical into the
cell and moved Mr. Evans to the more restricted area. Mr. Evans sued for
excessive force, and Officer Chick sought summary judgment based on
qualified immunity. The district court granted Officer Chick’s motion, and
Mr. Evans appeals. We affirm.
Stay of Discovery
In appealing, Mr. Evans argues in part that the district court erred in
staying discovery.
In our circuit, many prison officials seek summary judgment based
on an investigative report (frequently called a “Martinez report”). When
Officer Chick sought summary judgment, prison officials filed an
investigative report and the district court stayed discovery.
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Mr. Evans argues that the district court abused its discretion by
staying discovery. But he did not respond to the defendants’ motion for a
stay.
To oppose summary judgment based on an inability to conduct
discovery, a plaintiff must file an affidavit in district court; the plaintiff
would otherwise waive that argument. Fed. R. Civ. P. 56(d); see Campfield
v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111, 1124 (10th Cir. 2008).
Because Mr. Evans filed no such affidavit, he waived the argument and we
reject his challenge to the stay of discovery.
Injunction
Mr. Evans also argues that the district court should have enjoined use
of a prison policy allowing excessive force. But Mr. Evans doesn’t identify
anything in the prison policy that allows excessive force. He instead
suggests that the use of chemical agents on non-combative inmates is
always excessive. We disagree.
We review the denial of an injunction for an abuse of discretion.
EagleMed LLC v. Cox, 868 F.3d 893, 899 (10th Cir. 2017). In determining
whether the district court acted within its discretion, we consider the
constitutionality of using a chemical agent. Using a chemical agent may be
excessive, but it is sometimes permissible. Redmond v. Crowther, 882 F.3d
927, 936–38 (10th Cir. 2018); see also Staples v. Gerry, 923 F.3d 7, 17
(1st Cir. 2019) (stating that “it is not per se unconstitutional for guards to
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spray mace at prisoners confined in their cells” and “the totality of the
circumstances” must be examined).
Given the absence of an apparent defect in the policy, the district
court did not abuse its discretion in denying Mr. Evans’s request for an
injunction.
Excessive Force
On the claim of excessive force, the district court granted summary
judgment to Officer Chick based on qualified immunity. On this ruling, we
conduct de novo review, applying the same standard that governed in
district court. McCoy v. Meyers, 887 F.3d 1034, 1044 (10th Cir. 2018).
Summary judgment is appropriate when no genuine dispute exists on a
material fact and the movant is entitled to judgment as a matter of law. In
re Rumsey Land Co., 944 F.3d 1259, 1270 (10th Cir. 2019). The court
views the evidence and all reasonable inferences favorably to the
nonmovant (Mr. Evans). Id. at 1271.
We apply the summary-judgment standard in light of the underlying
test for qualified immunity. To defeat qualified immunity, Mr. Evans must
show that Officer Chick committed a constitutional violation that had been
clearly established. Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th
Cir. 2016).
Excessive-force cases often turn on factual disputes that are
irresolvable on summary judgment. Buck v. City of Albuquerque, 549 F.3d
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1269, 1288 (10th Cir. 2008) (“[U]nreasonable force claims are generally
fact questions for the jury.”). Here, however, the entire incident is
captured on video.
“When the record on appeal contains video evidence of the incident
in question, . . . we will accept the version of the facts portrayed in the
video . . . to the extent that it blatantly contradicts the plaintiff’s version
of events.” Emmett v. Armstrong, 973 F.3d 1127, 1130–31 (10th Cir. 2020)
(brackets & internal quotation marks omitted). So we rely on “what is
indisputably shown by the video[ ], and therefore necessary to take as a
matter of fact.” Id. at 1131 (internal quotation marks omitted); see also
Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so
no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.”). The
video prevents any reasonable decisionmaker from finding excessive force.
The force was excessive only if Officer Chick had sprayed Mr. Evans
with malice and sadism in order to cause harm rather than to maintain
discipline. Redmond v. Crowther, 882 F.3d 927, 936 (10th Cir. 2018). To
determine whether Officer Chick acted maliciously and sadistically, we
consider the need for force and its proportionality. Id. at 937.
Officer Chick defends the award of summary judgment, arguing in
part that he didn’t use excessive force. Mr. Evans disagrees, pointing to the
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use of a chemical agent. The disagreement is reflected in vastly different
versions of events. Mr. Evans’s version is that he had propped his mattress
against the bars to supply privacy and simply wanted to know if the
officers were moving him to a more restricted area as a form of
punishment. In Officer Chick’s version, Mr. Evans flatly refused to comply
with a lawful order to go to a more restricted area after exposing himself to
a female guard.
Ordinarily the different accounts would create a fact issue. But the
video shows that Officer Chick repeatedly asked Mr. Evans to get cuffed
and move to another area, reluctantly using a chemical agent only when
Mr. Evans had refused. After spraying Mr. Evans, Officer Chick offered to
help Mr. Evans get air. Officers then took Mr. Evans to a shower to remove
the spray. From the video, no factfinder could reasonably determine that
Officer Chick had acted maliciously or sadistically for the purpose of
causing harm. We thus conclude that Mr. Evans failed to show the
violation of a clearly established constitutional right.
Affirmed. 1
Entered for the Court
Robert E. Bacharach
Circuit Judge
1 We grant Mr. Evans’s motion for leave to appear without prepayment
of fees. See 28 U.S.C. § 1915.
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