Lavall T. Lee v. WILLIAM JAMES and EDWARD JONES

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 8, 2021 *
Decided July 29, 2021
Before
WILLIAM J. BAUER, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 21-1114
LAVALL T. LEE,
Plaintiff-Appellant,
v.
WILLIAM JAMES and EDWARD
JONES,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 1:20-cv-00396-WCG
William C. Griesbach,
Judge.
O R D E R
A prison guard used pepper spray on Lavall Lee after he was restrained face-
down on the ground. Lee then sued several guards, asserting that the use of the spray
and his later escort to segregation violated his rights under the Eighth Amendment.
See 42 U.S.C. § 1983. The district court entered summary judgment for the guards,
concluding that nothing suggested they used force for any purpose other than to restore
* 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. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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order. But Lee’s evidence creates a factual dispute over why the guard deployed the
spray, so we vacate the judgment as to him. We affirm in all other respects.
The events are disputed; we present the version that favors Lee, the party against
whom summary judgment was entered. Thomas v. Martija, 991 F.3d 763, 767 (7th Cir.
2021). On the day in question, Lee was involved in two fights at Racine Correctional
Institution. After the first, he was ordered to return to his cell. A short while later,
guards instructed him to report to his unit’s dayroom so they could escort him to the
Restricted Housing Unit. As he came down the stairs from his cell toward the sign-out
podium, he lunged at another inmate standing nearby.
Guards intervened immediately. They pulled Lee to the ground and radioed for
assistance. When Officer William James arrived on the scene, Lee already was secured,
face down on the ground, underneath a pile of five guards. Guards told James that Lee
was cooperating and that they had the situation under control. Nonetheless, James
drew his pepper spray. Guards pleaded with him not to use it, but James yelled “No, I
got this!” and dispensed the spray less than two inches away from Lee’s face. The burst
hit Lee in the eyes, causing him severe pain.
Captain Edward Jones, who also responded to the radio call, arrived in time to
see guards coughing amid a cloud of spray. He ordered staff to escort Lee quickly to the
Restricted Housing Unit. Lee says that he was dragged away in shackles, still blinded
by the spray. At the Restricted Housing Unit, Captain Jones put Lee in a shower and
told him to flush his eyes. Lee complained that the water was too hot and further
irritated his eyes. By this time Jones’s shift had ended. He told health services to follow
up with Lee but did not stay to ensure that any nurses arrived. Lee then told another
guard at the Restricted Housing Unit that his eyes burned and that he was having
trouble breathing. He received no medical attention. His pain lasted two hours.
Retrospective accounts of the incident vary. For instance, Captain Michael
Giernoth, who conducted a review of the facility’s use of force, found that James’s
actions were “justified.” But in internal emails to Michelle Bones (an inmate-complaint
examiner who had received a grievance from Lee), Captain Giernoth also wrote that the
spray was “not needed.” Bones, for her part, thought that James was “in the wrong”
based on her own review of reports about the incident, and she asked a second officer to
review Captain Giernoth’s finding. Also, James’s own account of events shifted over
time. In an incident report, revised several times, he said he used the spray only after
issuing a warning that Lee resisted. But in a later declaration, James asserted that other

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guards told him to use the spray after asking for handcuffs while they wrestled Lee to
the ground.
About a month after the incident, Lee filed a health-services request,
complaining that he had developed headaches and blurry vision in his right eye. An eye
examination was normal. A nurse told Lee to follow up with health services if he had
further issues, but he filed no further requests for these complaints.
Lee then sued James and Jones for excessive force over use of the spray and his
escort to segregation. (He named several other defendants in his complaint, but the
district court dismissed the claims against them at screening, see 28 U.S.C. § 1915A, and
Lee does not challenge those dismissals.)
The parties eventually filed cross-motions for summary judgment, and the
district court entered summary judgment for the defendants. The parties disputed
whether Lee was restrained when he was sprayed, whether he was sprayed in the face
or on the shoulder, and whether other guards told James to use the spray. But these
disputes were immaterial, the district court believed, because Lee did not deny that he
resisted the efforts to restrain him. In the court’s view, there was no question that James
used the spray to restore order and, regardless, Lee had not sustained any significant
injury. Further, any discomfort inflicted by the spray was “short-lived, even if painful,”
and the officials tried to minimize the harm by giving Lee access to a shower to rinse his
eyes. As for Jones, no evidence showed that he transported Lee to the Restricted
Housing Unit in an unreasonable manner. And to the extent Lee meant to raise a
deliberate-indifference claim against Jones, the court had not identified that claim at
screening as one that could go forward.
To reach a jury on his excessive-force claims, Lee needed to submit evidence that
the guards’ actions were malicious attempts to inflict suffering rather than good-faith
efforts to restore discipline. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Not every
“malevolent touch” by guards implicates the Constitution, id., but the infliction of pain
is per se malicious if it is done “totally without penological justification.” Fillmore v.
Page, 358 F.3d 496, 504 (7th Cir. 2004) (internal citations omitted).
We begin with the claim against James. Lee contends that the district court
overlooked evidence creating material factual disputes over James’s motivation for
deploying the spray. Lee points, for instance, to declarations by two fellow inmates,
stating that he was secured and cooperative and that guards had told James as much
before he deployed the spray. Second, Lee refers us to allegations in his verified

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complaint, swearing that he was “at ease” on the ground while guards pleaded with
James not to spray. (Factual allegations in a verified complaint can be admissible
evidence at summary judgment. E.g., Ford v. Wilson, 90 F.3d 245, 246–47 (7th Cir. 1996).)
Finally, Lee says, internal emails from Giernoth and Bones support his view that James
acted in bad faith.
We agree with Lee that this evidence creates a fact question over whether James
acted with malice in deploying the spray. The district court here concluded that there
was no constitutional violation, but it did so by crediting James’s account that he used
pepper spray during a chaotic encounter with a combative inmate who was resisting
efforts at restraint. At summary judgment, however, the court must construe the
evidence in the light most favorable to Lee. Thomas, 991 F.3d at 767. On Lee’s telling he
was fully restrained and compliant—and order had been restored—well before James
arrived on the scene. Upon his arrival, however, James caused events to spiral: He
ignored the other guards’ reports that the situation was under control, defied their
requests not to use the spray so close to them, and proceeded anyway to pepper-spray
Lee in the face. Under these circumstances, a reasonable jury crediting Lee’s version
could infer that the need for force was not so obvious that it excluded the possibility of
a malicious motive. Lewis v. Downey, 581 F.3d 467, 477–78 (7th Cir. 2009) (tasering prone
inmate who was slow to comply with orders could be excessive); see also Dean v. Jones,
984 F.3d 295, 304–05 (4th Cir. 2021) (pepper-spraying a fully restrained, face-down
inmate who headbutted officer raised inference of malice). Our conclusion is bolstered
by—but does not depend on—James’s shifting accounts of the incident, the curious
absence of any affidavits from fellow guards corroborating any of those accounts, and
Giernoth’s and Bones’s evident belief that the use of force was unnecessary.
See McCottrell v. White, 933 F.3d 651, 667 (7th Cir. 2019) (shifting stories by guards can
support inference of lying). Of course, how a jury ultimately chooses to weigh this
evidence is not for us to say.
James counters with three arguments, but none persuades us. First, he asserts
that Lee does not deny being involved in an altercation with another inmate or staff, so
the use of pepper spray cannot be unreasonable. But by Lee’s account, he was
complying with orders and “at ease” on the ground by the time James arrived. Second,
James argues that the force could not have been excessive because Lee did not incur any
significant injury. But the significance of an injury is not the dispositive factor in an
excessive force inquiry; the “core judicial inquiry” is whether the force was applied in
good faith. Hudson, 503 U.S. at 7, 9 (“When prison officials maliciously and sadistically
use force to cause harm, contemporary standards of decency always are violated. This is

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true whether or not significant injury is evident.” (internal citations omitted)); see also
Wilkins v. Gaddy, 559 U.S. 34, 37–38 (2010) (vacating dismissal of excessive force claim
because of erroneous focus on extent of injury over nature of force applied). Third,
James asserts that guards made reasonable efforts to temper the effects of the spray by
taking Lee to a shower and having him rinse his eyes. But those steps by other guards
do not resolve whether force was necessary in the first place.
Alternatively, James contends that he is entitled to qualified immunity because
the law is unclear whether a single burst of pepper spray can be excessive. It is not: No
reasonable guard would think using such force on a docile and restrained inmate was
justified. Lewis, 581 F.3d at 479. We are mindful that the infliction of pain to maintain
order is not excessive simply because the use of force in retrospect appears unnecessary.
Whitley, 475 U.S. at 319. And we have previously approved the use of chemical agents to
subdue recalcitrant prisoners. See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984). But
by Lee’s account he was neither resisting nor recalcitrant.
Lee’s claim against Jones fares differently. Lee asserts that the district court
ignored Jones’s admissions that he left Lee in a hot shower with pepper spray in his
eyes and then went home. But these assertions do not bear on whether Jones’s actions in
transporting Lee to segregation were unreasonable. In the district court, Lee contended
that Jones violated prison regulations during the escort. Yet not every violation of a
prison regulation offends the Constitution. Whitman v. Nesic, 368 F.3d 931, 935 n.1
(7th Cir. 2004). We have independently reviewed the record and see nothing to suggest
that Jones acted with ill intent in removing Lee from the dayroom—or that Jones used
force at all. To the extent Lee meant to assert a deliberate-indifference claim against
Jones for not waiting to ensure that medical staff would come, the evidence reflects
negligence at worst. As we understand the record, Jones tried to allow Lee to rinse the
spray from his eyes and get him medical care before leaving him in the care of another
guard. And negligence alone is not enough to support a claim for deliberate
indifference. Figgs v. Dawson, 829 F.3d 895, 903 (7th Cir. 2016).
For the foregoing reasons, we VACATE the judgment in favor of James and
remand for further proceedings. We AFFIRM the judgment in all other respects.

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