Jarell Davis Terry v. James Dycus, Warden, ADC

United States Court of Appeals
For the Eighth Circuit
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No. 23-3415
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Jarell Davis Terry
Plaintiff - Appellant
v.
James Dycus, Warden, ADC; Emmer Branch, Warden, ADC; Raymond Naylor,
Internal Affair Investigator, ADC; Carrie Granville, Sergeant, ADC; Dexter Payne,
Director, ADC; Morieno Kelly; Dodd, Corporal; Franklin, Sergeant; K. Wilson,
Corporal; C. Parnell, Corporal
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Delta
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Submitted: June 18, 2024
Filed: August 8, 2024
[Unpublished]
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Before KELLY, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.

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Arkansas inmate Jarell Terry appeals following the district court’s1 adverse
grant of summary judgment in his pro se 42 U.S.C. § 1983 action alleging that prison
guard Morieno Kelly used excessive force against him. Upon de novo review, see
Smith v. Andrews, 75 F.4th 805, 808 (8th Cir. 2023) (standard of review), we affirm.
We conclude that the district court properly relied on the facts depicted by the
video evidence, which blatantly contradicted Terry’s version of the facts, in deciding
the summary judgment motion. See Scott v. Harris, 550 U.S. 372, 380-81 (2007)
(where non-movant’s version of events was blatantly contradicted by video
evidence, court should not adopt that version of facts in ruling on summary judgment
motion, but should view facts in light depicted by video). In light of the facts shown
by the video, we agree that Kelly’s use of force was a good-faith effort to restore
discipline. See Treats v. Morgan, 308 F.3d 868, 872 (8th Cir. 2002) (explaining that
officers may use force reasonably in good-faith effort to maintain or restore
discipline, but not maliciously and sadistically to cause harm, and discussing
relevant factors). We also conclude Terry did not offer sufficient evidence to show
that Kelly pushed him in the shower, or that Kelly could have protected him from
another officer’s push. See Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (to
defeat motion for summary judgment, non-movant’s allegations must be supported
by sufficient probative evidence that would permit finding in his favor on more than
mere speculation or conjecture); Estate of Davis ex rel. Ostenfeld v. Delo, 115 F.3d
1388, 1395 (8th Cir. 1997) (prison officials may be liable for failure to protect inmate
from use of excessive force if they are deliberately indifferent to substantial risk of
serious harm to inmate). Terry has waived his claims against the other appellees by
offering no argument about them in his briefs. See Waters v. Madson, 921 F.3d 725,
744 (8th Cir. 2019) (issues not challenged on appeal are waived).
The judgment is affirmed. See 8th Cir. R. 47B.
1 The Honorable Lee P. Rudofsky, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable
Patricia S. Harris, United States Magistrate Judge for the Eastern District of
Arkansas.

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KELLY, Circuit Judge, dissenting in part and concurring in part.
Terry alleges that Kelly sprayed him in the face three times with MK-9
chemical agent—a form of pepper spray—to obtain his compliance while
responding to his cell about a mental health concern.
Based on my view of the video recording of this incident, there remain
genuine factual disputes as to whether, after the first burst of pepper spray, Terry
was noncompliant, argumentative, or recalcitrant with Kelly. Kelly’s first spray—
which followed a warning that “chemical agent” would be used if Terry did not turn
around, put his arms through the bars in his cell, and submit to restraints—may have
been a good-faith effort “to restore discipline.” But I question whether the same can
be said of the subsequent pepper sprays.
The way I see it, the video does not blatantly contradict the entirety of Terry’s
version of the facts. The video supports the assertion that Terry tried to comply with
Kelly’s commands but was at least partially incapacitated after the first burst of
pepper spray. Because he was wiping his eyes and face with his hands, a reasonable
jury could find that he was unable to simultaneously hold them behind his back to
make them available for cuffing. A reasonable jury could also find that Terry was
not being argumentative or purposely recalcitrant, but rather, was crying out in pain
and for “help.” Cf. Jones v. Shields, 207 F.3d 491, 496–97 (8th Cir. 2000)
(concluding “a limited application of [pepper spray] to control a recalcitrant inmate”
who “was neither handcuffed nor secured in any way during th[e] encounter” was
not unconstitutional); Burns v. Eaton, 752 F.3d 1136, 1139 (8th Cir. 2014)
(concluding the prison guard “no longer faced the relatively simple task of cuffing
Burns and escorting him back to his cell. [The guard] now faced a recalcitrant
inmate.”).
Kelly nevertheless sprayed Terry a second time a little over a minute after the
first; and a third time about a minute and 20 seconds after the second—both at close

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range. Viewing the genuinely disputed facts in the light most favorable to Terry, a
reasonable jury could find that the second and third sprays were gratuitous and not
necessary to restore discipline because, by that point, Terry was sufficiently
incapacitated such that he was neither a threat to the officers or himself, nor able to
fully comply with Kelly’s orders. See Treats, 308 F.3d at 872 (concluding that “the
evidence does not show an objective need for the force which was used because
Treats had not jeopardized any person’s safety or threatened prison security.”); see
also Hope v. Pelzer, 536 U.S. 730, 738 (2002).
For these reasons, although I otherwise concur in the majority opinion, I
would remand the case to the district court for a trial on the issues identified above.
Because Terry is pro se, I would further remand for the district court to consider the
appointment of counsel.
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