Shampoire Orange v. Payton Prescott, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10955
Non-Argument Calendar
____________________
SHAMPOIRE VALENTINO ORANGE,
Plaintiff-Appellant,
versus
PAYTON A. PRESCOTT,
Officer, Baker County Jail,
J. ROBERTS,
Sgt., Baker County Jail,
ALEXANDER MCKENZIE,
L.T., Baker County Jail,
DONALD KENDRICK,
Officer, Baker County Jail,
HENRY REED,
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Officer, Baker County Jail, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00842-BJD-PDB
____________________
Before R OSENBAUM , LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Shampoire Orange appeals the district court’s grant of sum-
mary judgment on his complaint that various officers at the Baker
County Jail used excessive force against him during incidents on
October 22, 2019, and October 27, 2019. After careful review of the
record and the parties’ briefs, we affirm.
I. Background
This action arises from two incidents in October 2019, while
Orange was an inmate at the Jail.1 We summarize the relevant
facts in the light most favorable to Orange, the nonmoving party
1 Orange was not a pretrial detainee at that time. Rather, it appears he was
waiting for transfer to federal custody after having had been convicted and
sentenced in federal court in March 2019. See United States v. Orange, Case No.
5:17-cr-5-LGW-BWC (S.D. Ga. 2019).
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at summary judgment, crediting his “version of the record evi-
dence” unless “obviously contradictory video evidence is availa-
ble.” Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir.
2010).
A. October 22, 2019
On October 22, 2019, Orange was transferred from general
population to Dorm A-7, an isolation dorm. Jail Officers Kristopher
Kirkland, Payton Prescott, and Terrance Roberts, escorted Orange
in handcuffs, and Officer Donald Kendrick met them in Dorm A-7.
No cell room was immediately available, so the officers
spent the next several minutes determining where Orange would
be housed in the two-tiered dorm. Officer Henry Reed arrived dur-
ing this time. Meanwhile, Orange informed the officers that he had
a “bottom bunk bottom tier profile” due to major knee injuries,
specifically a ruptured or torn tendon in both knees.
After about seven minutes, the officers determined that Or-
ange would be housed in a cell on the upper tier, which first had to
be vacated by the current occupant. To reach the upper tier, Or-
ange had to ascend a staircase of approximately sixteen continuous
metal steps.
Roberts testified that, before assigning Orange’s cell, he
“called medical to check on Mr. Orange’s assignment and was in-
formed that Mr. Orange did have a bottom bunk assignment, but
did not have a bottom tier assignment.” Orange likewise stated
that Roberts told him he called medical to check Orange’s profile.
Video of the incident confirms that Roberts, about five minutes
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4 Opinion of the Court 22-10955
after they arrived at Dorm A-7, used the desk phone for approxi-
mately one and a half minutes, the video lacks audio of the call.
Nor does any evidence contradict Roberts’s testimony that he
checked with medical about Orange’s profile. Soon after this
phone call concluded, it appears the officers finalized their housing
decision and told the current occupant of the cell he needed to
gather his things.
When Orange learned of the housing assignment, he pro-
tested that he could not go up or down stairs because he would fall
and hurt himself due to his knee injuries. Roberts responded,
“you’re a bitch and you’re going up the stairs,” and told Orange to
move to the base of the stairs. As the officers waited for the cell to
be cleared, Orange twice rolled up his right pant leg to about his
right knee for the officers. According to Orange, he had previously
suffered patellar tendon ruptures in both knees, causing his knee-
cap to move five inches up his thigh and making “the imprint of
[his] knee bones” visible. The video does not reflect that Orange
showed the officers his thigh. Orange pled with the officers to “call
medical” and check his medical records, which would show his
MRI results and an appointment to see an orthopedic doctor, but
they refused to do so.
Once the assigned cell was vacant, Prescott and Kirkland
grabbed Orange’s arms from either side, forced him to the bottom
of the staircase, and “started pushing [him] up the first step.” Or-
ange’s legs buckled immediately on the first step, so he grabbed the
railing to his right with both hands to prevent himself from falling.
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Roberts ordered him to let go of the railing and go up. Orange
responded that he would fall if he let go and could not proceed due
to his knee injuries. Roberts again ordered him to let go and go up,
but Orange replied that he would fall.
Prescott took out a canister of Oleoresin Capsicum (“OC”)
spray and sprayed Orange in the face in several bursts. Orange let
go of the railing and fell backwards onto the floor. He rolled onto
his stomach and attempted to sit up, saying he could not breathe
and asking for water for his eyes. Roberts pulled Orange back-
wards, turned him around, and attempted to subdue him facedown
on the floor. Another officer, Alexander McKenzie, arrived around
this time and assisted Roberts in subduing Orange on the ground,
while Reed wheeled over a restraint chair.
The video shows Orange attempting to push up with his
arms and possibly sit up while Roberts and other officers were at-
tempting to force him down. Orange testified that he was attempt-
ing to wipe his eyes with his shirt and that he asked for water. Rob-
erts said he was “not going to get any,” and then deployed OC
spray in Orange’s face at short range. After that, the officers lifted
Orange off the ground, placed him in the restraint chair, and
strapped him down.
Because Orange had OC spray in his nose and mouth, he
was having trouble breathing or swallowing. As a result, he spat
down onto the front of his jumpsuit. An officer told him to stop
spitting, and McKenzie placed a “spit hood”—a mesh hood with an
elastic bottom—over his head. The hood interfered with Orange’s
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breathing. After Orange spat again, into the hood this time, an of-
ficer turned the hood around so that there was a plastic cover over
his mouth and nose, which made it even harder to breathe.
Orange was taken to medical and seen by a nurse, who
poured water in his eyes. As soon as he could breathe a little better,
he asked the nurse to check his medical file and tell the officers he
had a major knee injury and could not go up or down stairs. The
nurse said she would “look it up for the officers.” Soon after, Or-
ange was rolled back to Dorm A-7, where officers unstrapped him
from the restraint chair and dragged him up the stairs to the upper
tier. He was permitted to shower, though the burning continued
throughout the night.
The next morning, Orange was moved to a cell on the bot-
tom tier in Dorm A-7. The lieutenant officer who informed Or-
ange and helped him downstairs told him that, due to his knee in-
juries, he was “never supposed to have been placed up the stairs.”
In addition, Prescott wrote a disciplinary report against Orange for
the above events, but it was “thrown out” because Orange “really
couldn’t go up the stairs.”
B. October 27, 2019
On October 27, 2019, Orange was in his cell in Dorm A-7
when Kirkland came on shift at approximately 6:00 p.m. Reed was
also on duty. Kirkland walked past his cell and asked “how [he]
liked the OC spray,” and they “had a few words” before Kirkland
continued his rounds. About an hour later, Kirkland refused
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Orange’s request to have his blood pressure checked like some
other inmates in Dorm A-7, and they “had words about that” as
well.
At approximately 8:40 p.m., Orange was in his cell talking to
another inmate through the vent. Kirkland approached and or-
dered Orange to stop talking. Orange responded, “this is not a li-
brary[,] this [is] isolation[,] and there’s nothing in the jail handbook
[that] say[s] I can’t talk.” Kirkland stepped closer, opened the door
flap, and started spraying Orange in the face through the flap with
OC spray. Orange grabbed a blanket to block the spray, but Kirk-
land “continued to spray all over [his] cell.” Kirkland then ordered
Orange to “cuff up” at the cell door, but Orange replied that he did
not feel safe with Kirkland, and he asked to see a supervisor. The
supervisor arrived within a few minutes, and Orange submitted to
being handcuffed. He was taken to medical, where his eyes were
washed with water, and then taken back to the dorm, where he
was permitted to decontaminate. Later, a lieutenant officer came
by Orange’s jail cell and stated that “the use of force was unneces-
sary and was against jail policy.”
Kirkland’s report about the incident reflects that, on the
night of October 27, Orange was “being disruptive and causing sev-
eral disturbances” by yelling obscenities and making derogatory re-
marks. After Kirkland put a black security curtain over the window
of his cell door—which can be seen on the video—Orange contin-
ued to be disruptive, causing other inmates to become disruptive.
After Orange refused Kirkland’s order to cease his disruptive
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behavior, Kirkland administered three short bursts of OC spray to
Orange’s face and torso and then ordered him to cuff up at the
door.
II. Procedural History
Orange filed his initial 42 U.S.C. § 1983 civil-rights complaint
in July 2020 and an amended complaint in February 2021. He al-
leged that the jail officers involved in the incidents on October 22
and October 27—Kendrick, Kirkland, McKenzie, Prescott, Reed,
Roberts, and Adolphus Warren—used unconstitutional excessive
force against him or failed to intervene, and that a nurse was delib-
erately indifferent to his serious medical needs. The nurse filed a
motion to dismiss, while the officers moved for summary judg-
ment.
The district court granted the nurse’s motion to dismiss and
the officers’ motion for summary judgment. Orange has not
briefed the dismissal of his claim for deliberate indifference against
the nurse, so we do not address that claim further. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“[I]ssues not briefed on
appeal by a pro se litigant are deemed abandoned.”).
Instead, our focus is the grant of summary judgment. The
district court reasoned that the first use of OC spray on October 22
was justified because Orange defied multiple orders to climb the
stairs, and there was no evidence to contradict Roberts’s testimony
that he checked with medical and was told that Orange did not
have a bottom tier assignment. The court further concluded that
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the second use of OC spray on October 22, as well as the spit hood
and restraint chair, were reasonable responses to Orange’s non-
compliance and his spitting, and that the officers took steps to tem-
per the severity of their response by taking him to medical and per-
mitting him to decontaminate. As for the October 27 incident, the
court determined that using OC spray was not excessive force
given the evidence that Orange had disobeyed a direct order to stop
talking and been “unruly and yelling for hours.” Orange appeals.
III. Standard of Review
We review the grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party,
Orange, and drawing all reasonable inferences in his favor. Pour-
moghani-Esfahani, 625 F.3d at 1315. Summary judgment is appro-
priate only if no reasonable jury could return a verdict in favor of
the nonmoving party. Underwood v. City of Bessemer, 11 F.4th 1317,
1327 (11th Cir. 2021). Because Orange is proceeding pro se, we lib-
erally construe his filings. Trawinski v. United Techs., 313 F.3d 1295,
1297 (11th Cir. 2002).
IV. Discussion
The Eighth Amendment forbids officers using excessive
force against prisoners. Thomas v. Bryant, 614 F.3d 1288, 1303–04
(11th Cir. 2010). The “core judicial inquiry” for an excessive-force
claim is “whether force was applied in a good-faith effort to main-
tain or restore discipline, or maliciously and sadistically to cause
harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quotation marks
omitted); see Hudson v. McMillan, 503 U.S. 1, 9 (1992) (“When prison
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10 Opinion of the Court 22-10955
officials maliciously and sadistically use force to cause harm, con-
temporary standards of decency always are violated.”). Thus, the
official must have “acted with a sufficiently culpable state of mind.”
Sconiers v. Lockhart, 946 F.3d 1256, 1265 (11th Cir. 2020) (quotation
marks omitted).
To determine whether force was applied maliciously and sa-
distically to cause harm, we consider the need for force, the
amount of force used, the extent of any injury inflicted, the threat
reasonably perceived by the responsible official, and any efforts
made to temper the severity of the use of force. Danley v. Allen, 540
F.3d 1298, 1307 (11th Cir. 2008), overruled on other grounds as recog-
nized by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010); see Whit-
ley v. Albers, 475 U.S. 312, 320–21 (1986). In conducting this evalu-
ation, “[w]e examine the facts as reasonably perceived by [the re-
sponsible officials] on the basis of the facts known to [them] at the
time.” Fennell v. Gilstrap, 559 F.3d 1212, 1217–18 (11th Cir. 2009),
abrogated on other grounds as recognized by Crocker v. Beatty, 995 F.3d
1232, 1248 (11th Cir. 2021).
Based on these factors, “inferences may be drawn as to
whether the use of force could plausibly have been thought neces-
sary, or instead evinced such wantonness with respect to the unjus-
tified infliction of harm as is tantamount to a knowing willingness
that it occur.” Skrtich v. Thornton, 280 F.3d 1295, 1300–01 (11th Cir.
2002), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223
(2009). “Unless it appears that the evidence, viewed in the light
most favorable to the plaintiff, will support a reliable inference of
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wantonness in the infliction of pain . . . , the case should not go to
the jury.” Whitley, 475 U.S. at 322.
We have recognized that “correctional officers in a prison
setting can use pepper-spray or a takedown to subdue an inmate as
long as a valid penological reason supports the use of such force.”
Sconiers, 946 F.3d at 1265. Pepper spray may be used to control
unruly inmates, and guards “need not wait until disturbances reach
dangerous proportions before responding.” Danley, 540 F.3d at
1307. Nor are guards required to “convince every inmate that their
orders are reasonable and well thought out.” Id. We must give “a
wide range of deference to prison officials acting to preserve disci-
pline and security.” Sears v. Roberts, 922 F.3d 1199, 1205 (11th Cir.
2019) (quotation marks omitted).
A. October 22 Use of Force
Construed in the light most favorable to Orange, the evi-
dence does not support a reasonable inference that the defendants
applied force on October 22, 2019, “maliciously and sadistically to
cause harm,” rather than “in a good-faith effort to maintain or re-
store discipline.” Wilkins, 559 U.S. at 37.
The central dispute regarding the events on October 22 con-
cerns the need for force. The officers used force while attempting
to relocate Orange to a new cell. Enforcing compliance with prison
housing assignments generally provides a “valid penological reason
[that] supports the use of [OC spray].” Sconiers, 946 F.3d at 1265;
see Danley, 540 F.3d at 1307 (“readily conclud[ing]” that an “initial
use of pepper spray following [an inmate’s] second failure to obey
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12 Opinion of the Court 22-10955
[an officer’s] order to return to the cell” was not a constitutional
violation).
But Orange claims that no penological purpose was served
by using OC spray against him because it was obvious that he could
not physically comply with the orders to ascend the stairs or let go
of the railing. Cf. Sconiers, 946 F.3d at 1267–68 (recognizing a viable
excessive force claim where the evidence supported a finding that
the official “had no legitimate penological purpose in demanding
that Sconiers repeatedly sit and stand” or in punishing him Sconiers
for questioning those orders).
Here, a reasonable jury could conclude that Orange suffered
from knee injuries that made it physically impossible for him to as-
cend the stairs as ordered. The evidence reflects that Orange suf-
fers from patellar tendon knee injuries that limited his mobility. He
repeatedly described his injuries to the officers and showed them
his right knee, where he had a surgical scar and the kneecap was
several inches up his thigh. And he told the officers that, as a result
of his injuries, he had a “bottom bunk bottom tier profile.” Plus,
notes from a medical examination in April 2020, after the events of
this case, reflect that Orange was “unable to step up or over ele-
vated objects” and unable to actively bend his knee without falling.
Nevertheless, the evidence does not support a reasonable in-
ference that the defendants ordered Orange to ascend the stairs de-
spite knowing that he could not physically comply, such that an
intent to punish could be inferred. See Fennell, 559 F.3d at 1217–18
(stating that “we examine the facts as reasonably perceived by
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22-10955 Opinion of the Court 13
[defendants] on the basis of the facts known to [them] at the time”).
Sergeant Roberts testified that, before assigning Orange to a cell on
the upper tier, he called medical and “was informed that Mr. Or-
ange did have a bottom bunk assignment, but did not have a bot-
tom tier assignment.” The officers were not medical professionals,
so it made sense for them to defer to medical staff with respect to
any housing limitations due to Orange’s knee injuries, even if the
information they received was erroneous or in conflict with Or-
ange’s statements.
Thus, we cannot say the evidence supports a finding that the
officers’ orders for Orange to ascend the stairs lacked a legitimate
penological purpose, even if the endeavor the officers turned out
to be wrong in retrospect in believing that Orange could navigate
stairs. See Sears, 922 F.3d at 1205 (“[W]e must . . . give a wide range
of deference to prison officials acting to preserve discipline and se-
curity, including when considering decisions made at the scene of
a disturbance.”). In other words, when Orange was unable to
climb the stairs and refused to do so, and then grabbed and held the
railing, we can’t say that the officers were unreasonable, based on
their mistaken knowledge, in understanding Orange to have been
resisting orders. And based on that misunderstanding, a reasonable
officer would have thought he was permitted to use force to main-
tain or restore discipline. See Sconiers, 946 F.3d at 1265; Sears, 922
F.3d at 1205; Danley, 540 F.3d at 1307. Likewise, after Orange fell
to the ground, the video shows him engaging in movements that
reasonable officers could have construed as resisting the officers’
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efforts to subdue him facedown on the ground, so the officers were
permitted to respond with some level of force. See id.
The record does not support a finding that the officers mali-
ciously and sadistically engaged in force disproportionate to what
our jurisprudence has recognized as the need to enforce compli-
ance with their directives. Though we certainly don’t condone
calling a detainee “bitch,” on this record, we can’t say that indicates
malicious or sadistic intent.
The record shows that the officers used short bursts of pep-
per spray after giving several verbal orders and using forceful
touching. See Danley, 540 F.3d 1307 (“A short burst of pepper spray
is not disproportionate to the need to control an inmate who has
failed to obey a jailer’s orders.”). Soon after the use of force, Or-
ange was taken to a nurse and then permitted to shower and de-
contaminate, which suggests an effort to temper the severity of
their response. See id. at 1308–09 (reasoning that the denial of ef-
fective decontamination after using pepper spray can support an
excessive force claim). It also does not appear that Orange, despite
falling to the ground, suffered any injuries beyond the temporary
(though surely uncomfortable) effects of chemical agents. And
while a detainee need not experience long-term injuries to establish
a claim of excessive force, the temporary and confined nature of
the injuries here are an indication that the officers, who not unrea-
sonably believed themselves to be in a position to use force, used
force in a focused and limited way to accomplish their penological
objective.
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While Orange complains of the restraint chair and spit hood,
these were brief measures plausibly supported by the facts as the
officers understood them at the time. Orange admits he was spit-
ting because of the presence of OC spray in his mouth, and there is
no evidence that the officers used or adjusted the spit hood with
the intent to impair his breathing. Plus, using a wheeled chair was
arguably safer and faster to transport Orange, an inmate with mo-
bility issues under the active effects of chemical spray, than having
him walk on his own, and the temporary restraints during
transport to the nurse were plausibly supported by Orange’s per-
ceived prior noncompliance. Even if the officers could have used
different tactics to better effect, the evidence does not support a
reasonable inference that the officers applied force “maliciously
and sadistically to cause harm,” rather than “in a good-faith effort
to maintain or restore discipline.” Wilkins, 559 U.S. at 37.
For these reasons, the district court properly granted sum-
mary judgment on Orange’s claim that the defendants used exces-
sive force against him on October 22, 2019.
B. October 27 Use of Force
Regarding the second incident on October 27, 2019, Orange
has not shown that the district court erred by granting summary
judgment. Undisputed evidence shows that jail officer Kirkland
used OC spray against Orange in his cell after Orange refused and
questioned Kirkland’s order to stop talking. Although Orange was
confined in his cell and posed no danger to others, he does not
meaningfully dispute that Kirkland could have viewed his conduct
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as disruptive. Rather, he admits that he was talking to another in-
mate through the vent shortly before Kirkland’s order, and that he
and Kirkland had multiple disagreements earlier in the evening,
which resulted in a security curtain being placed on his cell. So the
officer reasonably could have believed that some level of force was
justified to “preserve discipline and security.” Sears, 922 F.3d at
1205. And we have recognized that “[p]epper spray is an accepted
non-lethal means of controlling unruly inmates.” Danley, 540 F.3d
at 1307.
The other factors do not support “a reliable inference of
wantonness in the infliction of pain.” Whitley, 475 U.S. at 322. Af-
ter the use of force, Kirkland attempted to remove Orange from
the cell and then, when Orange refused to be handcuffed by Kirk-
land, called a supervisor, who arrived within five minutes of the
initial use of force.2 Orange was then taken for a medical evalua-
tion, where his eyes were washed with water, before he was taken
back to the dorm, where he was permitted to decontaminate. Or-
ange also does not allege any injuries from this incident apart from
the temporary effects of chemical spray. Accordingly, Orange has
2 We agree with the district court that the video plainly contradicts Orange’s
assertion that the spraying itself lasted five minutes, and so that portion of his
testimony need not be credited. See Pourmoghani-Esfahani v. Gee, 625 F.3d 1313,
1315 (11th Cir. 2010) (“Where the video obviously contradicts Plaintiff’s ver-
sion of the facts, we accept the video’s depiction instead of Plaintiff’s ac-
count.”). Even assuming the spraying was more extensive than the three, one-
second bursts described in Kirkland’s incident report, the timeline depicted in
the video does not support a reasonable inference that the length of the spray-
ing was wanton or malicious.
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not shown that the spraying was done without penological justifi-
cation or was so disproportionate to the need for force that it
demonstrates “wantonness with respect to the unjustified infliction
of harm as is tantamount to a knowing willingness that it occur.”
Skrtich, 280 F.3d at 1300–01.
V. Conclusion
For these reasons, the district court properly granted sum-
mary judgment on Orange’s claims of excessive force.
AFFIRMED.
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