Thomas v. Comstock , 222 F. App'x 439 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT March 16, 2007
Charles R. Fulbruge III
Clerk
No. 04-41696
LORENZO THOMAS,
Plaintiff-Appellee,
versus
JACKSON COMSTOCK, Lieutenant,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(9:99-CV-333)
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
PER CURIAM:*
This action, brought pursuant to 42 U.S.C. § 1983 by then-
inmate Lorenzo Thomas, claims Lieutenant Jackson Comstock used
excessive force. Thomas appeared pro se at trial and was awarded
one dollar in damages. His appeal was dismissed for want of
prosecution. On the other hand, Lieutenant Comstock appeals, inter
alia, the denial of judgment as a matter of law (JML), premised on
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
qualified immunity (QI). Thomas has not filed a brief in response.
VACATED and RENDERED.
I.
After spending the 15-day maximum term in solitary confinement
in July 1996, Thomas was ordered to move to his new prison-housing
assignment. He refused to do so, claiming other inmates housed in
the designated building posed a danger to his life. Major Hickson,
a supervisor at the prison, was notified of Thomas’ refusal to
leave solitary confinement. Aware of Thomas’ concerns about his
housing assignment, Major Hickson ordered Lieutenant Comstock to
move Thomas, authorizing the use of force, if necessary: Oleoresin
Capsicum spray (OC spray) and/or a five-man response team.
Lieutenant Comstock ordered Thomas to submit to hand
restraints to allow him to be moved. Thomas refused, even after
being told Lieutenant Comstock was authorized to use force to
achieve compliance. Before using force, Lieutenant Comstock:
obtained a video camera to record his and Thomas’ interaction;
telephoned the medical department and obtained clearance to use the
OC spray against Thomas; telephoned the psychological department to
verify Thomas had no mental health restrictions; and had medical
personnel and the five-man response team in place.
Lieutenant Comstock then advised Thomas he was going to be
sprayed; in response, Thomas covered his face with his shirt.
2
Lieutenant Comstock administered an approximately 1.8-ounce burst
of OC spray.
Shortly thereafter, Thomas submitted to hand restraints and
was moved to the infirmary, where he was allowed to shower to
remove any chemical residue. The use-of-force injury report notes
Thomas made no complaints and received no medical treatment
following administration of the OC spray.
Thomas filed this action pursuant to § 1983, claiming
Lieutenant Comstock’s OC-spray use constituted excessive force, in
violation of the Eighth and Fourteenth Amendments. After various
delays, including an interlocutory appeal, a two-day trial was held
in September 2004. (Lieutenant Comstock had not moved for summary
judgment based on QI.) Pursuant to Federal Rule of Civil Procedure
50(a), Lieutenant Comstock moved for JML both at the close of
Thomas’ case and of all the evidence, including based on QI; but,
because trial of this action had been so delayed, the district
judge reserved ruling on JML until after a verdict was rendered.
The jury awarded Thomas one dollar.
Post-verdict, the district court denied the pending JML
motions and entered judgment. Lieutenant Comstock again moved for
JML and, also, for a new trial; Thomas, for an additur or a new
trial. The motions were denied.
3
II.
Lieutenant Comstock claims, inter alia, he is entitled to JML
based on QI. Because he is entitled to QI, we need not reach the
other issues he raises on appeal.
The denial of JML is reviewed de novo. E.g., Burge v. St.
Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003). We apply the
same standard the district court applied and consider the evidence
in the light most favorable to the party opposing the motion.
E.g., Bank of Saipan v. CNG Fin. Corp., 380 F.3d 836, 840 (5th Cir.
2004). JML is proper if “a reasonable jury would not have a
legally sufficient evidentiary basis to find for [a] party on [an]
issue”. FED. R. CIV. P. 50(a); see Huss v. Gayden, 465 F.3d 201,
205 (5th Cir. 2006).
Concerning QI, “government officials performing discretionary
functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known”. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
see also Elder v. Holloway, 510 U.S. 510, 512 (1994) (“[Q]ualified
immunity shields public officials ... from damages actions unless
their conduct was unreasonable in [the] light of clearly
established law”.). For deciding whether Lieutenant Comstock is
entitled to QI, we examine: (1) whether Thomas alleged, for the
spray-incident in 1996, the violation of a constitutional right;
4
and, (2) if so, whether Lieutenant Comstock’s conduct in 1996 was
objectively reasonable in the light of then clearly-established
law. E.g., Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006).
Thomas alleged the violation of a constitutional right by
claiming the use of excessive force. Therefore, we turn to the
second prong: whether the challenged conduct in 1996 was
objectively reasonable under then clearly-established law.
“[A] good-faith effort to maintain or restore discipline” does
not give rise to an Eighth Amendment violation; on the other hand,
the malicious or sadistic application of force to cause harm does.
Hudson v. McMillian, 503 U.S. 1, 7 (1992). De minimus use of force
can constitute an Eighth Amendment violation only if it is
“repugnant to the conscience of mankind”. Id. at 9-10.
Although the use of de minimus force — including chemical
sprays — can support an excessive-force claim, Lieutenant
Comstock’s actions were not “repugnant to the conscience of
mankind”. Id.; see also Jones v. Shields, 207 F.3d 491, 495-96
(8th Cir. 2000) (correctional officer’s use of a pepper-based
chemical spray resulted in de minimus injury and was not “repugnant
to the conscience of mankind” when used to subdue a “recalcitrant
prisoner” locked in his cell or in handcuffs). Rather, his actions
both preceding and following his use of the spray reflect he
carefully ensured both the level of force and any injury to Thomas
were minimal. As noted, he warned Thomas that a five-man response
5
team or OC spray would be used to ensure his compliance with his
housing reassignment; ensured Thomas had no health conditions that
would be aggravated by exposure to the spray; used the less-
intrusive spray, rather than the five-man team; administered only
one burst of spray after giving Thomas sufficient warning to allow
him to cover his face; and immediately permitted Thomas to proceed
to the infirmary to rid himself of any chemical residue.
Here, the administration in 1996 of one 1.8-ounce burst of OC
spray to an inmate disobeying lawful orders, pursuant to
authorization given by a superior, was not objectively unreasonable
in the light of then clearly-established law. See, e.g., Williams
v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (use of mace against
inmates throwing liquids at guards did not violate Eighth
Amendment); Soto v. Dickey, 744 F.2d 1260, 1270-71 (7th Cir. 1984)
(use of mace against inmate who refused to obey a direct order was
not per se violation of the Eighth Amendment). Accordingly,
pursuant to the doctrine of qualified immunity, Lieutenant Comstock
is entitled to JML.
III.
For the foregoing reasons, the judgment is VACATED and
judgment is RENDERED in favor of Lieutenant Comstock.
VACATED and RENDERED
6