Sound Check, Inc. v. American Federation

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2571
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Reginald Early, *
*
Appellant, *
*
v. *
*
C. Moore, CO-1, Cummins Unit, *
Arkansas Department of Correction; * Appeal from the United States
B. Rosenbaum, CO-1, Cummins Unit, * District Court for the
Arkansas Department of Correction; * Eastern District of Arkansas.
C. Kilgore, CO-1, Cummins Unit, *
Arkansas Department of * [UNPUBLISHED]
Correction; G. David Guntharp, *
Deputy Director, Cummins Unit, *
Arkansas Department of *
Correction; M. D. Reed, Warden, *
Cummins Unit, Arkansas Department *
of Correction, *
*
Appellees. *
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Submitted: February 7, 2000
Filed: February 28, 2000
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Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
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PER CURIAM.

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1The Honorable JAMES MAXWELL MOODY, United States District Judge for
the Eastern District of Arkansas, adopting the report and recommendation of the
Honorable H. DAVID YOUNG, United States Magistrate Judge for the Eastern
District of Arkansas.
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Reginald Early, an Arkansas inmate, appeals from the order of the District Court1
dismissing his 42 U.S.C. § 1983 action against several correctional officers at the
Cummins Unit of the Arkansas Department of Correction ("ADC") and against both the
director and the warden of that unit. Early alleged that, while he was confined in
punitive isolation, one of the correctional officers sprayed him with Cap Stun pepper
spray and then left him unattended in his cell for twenty minutes; that the other two
correctional officers saw the spraying, but failed to remove Early from his cell as he
asked; and that the director and the warden refused to investigate the incident and to
take appropriate action against the officers. Early sought compensatory and punitive
damages.
Magistrate Judge Young held an evidentiary hearing and then issued a report
containing his recommended findings of fact and also a recommendation that Early's
complaint be dismissed. After de novo review, the District Court adopted the
recommended findings and dismissed the case.
For reversal, Early argues that subsequent discipline of the correctional officer
for his use of Cap Stun in this situation establishes that he acted maliciously and that
the court's findings of fact are clearly erroneous. Having reviewed the case, we reject
Early's contentions. The evidence adduced at the evidentiary hearing provides
substantial support for the court's findings of fact, and we thus cannot say that any of
those findings are clearly erroneous. The facts as found necessarily lead to the
rejection of Early's constitutional claims, because such facts do not support an inference
that any of the defendants acted with malice or were deliberately indifferent to Early's
plight. Although the discipline imposed upon the correctional officer as a result of his

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use of Cap Stun against Early establishes that his use of Cap Stun was not justified
under ADC policy, this is insufficient to show that the correctional officer acted in a
way that violated the Constitution. Moreover, as found by the District Court, any
suffering that Early experienced as a result of the use of the Cap Stun was not severe.
Accordingly, the judgment of the District Court dismissing Early's complaint is
affirmed, essentially for the reasons stated in the report and recommendation of the
Magistrate Judge. See 8th Cir. R. 47B. Early's motion for appointment of counsel is
denied.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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