Shane Kervin v. Sean Barnes

*After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and on
the record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 9, 2005*
Decided June 10, 2005
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05–1443
SHANE KERVIN,
Plaintiff-Appellant,
v.
SEAN BARNES,
Defendant-Appellee.
Appeal from the United States
District Court for the Northern
District of Indiana, Hammond Division
No. 4:03–CV–70
Allen Sharp,
Judge.
O R D E R
Indiana prisoner Shane Kervin brought this lawsuit under 42 U.S.C. § 1983
claiming that guard Sean Barnes violated his constitutional rights by using pepper
spray against him for refusing to enter his cell, and then maliciously locking him in
a small holding cell without permitting him to wash his face. The district court
dismissed Kervin’s claim regarding the initial use of pepper spray at the 28 U.S.C.
§ 1915A screening stage, and later granted summary judgment on his claim that he
was locked up solely to prolong his suffering. Kervin appeals, challenging the grant
of summary judgment, and we affirm.
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05–1443 Page 2
Kervin was moved from his cell while guards collected his belongings to
investigate whether he was hoarding fruit juice to make hooch (homemade liquor).
On the way back to his cell he insisted on watching while his property was searched
and refused to budge when this request was denied. Barnes repeatedly ordered
Kervin to return to his cell and warned him several times that failure to comply
would force him to use pepper spray, but Kervin refused, threatening to sue Barnes
if he used force. Barnes sprayed Kervin in the face with a one-second burst of
pepper spray and then attempted to handcuff him. When Kervin resisted, Barnes
and other guards secured the handcuffs and forced him into the holding cell—a
converted phone booth—where he could settle down while they observed him for any
serious reaction to the pepper spray. Kervin kicked the cell door repeatedly and
yelled that he could not breathe. Five to ten minutes later he was released and
allowed to wash his face.
On appeal Kervin contends that summary judgment was improper. He
challenges the district court’s conclusion that he could only show that Barnes used
excessive force by submitting evidence that he complied with the guards’ directions
after he was sprayed. Kervin argues that the evidence does show that he
cooperated when Barnes handcuffed him, proving that the decision to lock him in
the holding cell was a wanton attempt to extend the painful effects of the pepper
spray rather than a legitimate effort to restore order.
To reach a jury on his excessive force claim, Kervin must show that the
decision to detain him was taken not as a good faith effort to restore discipline, but
as a malicious and sadistic attempt to inflict suffering. Whitley v. Albers, 475 U.S.
312, 320–21 (1986); Ort v. White, 813 F.2d 318, 321–23 (11th Cir. 1987). This court
has held that prison guards may use chemical sprays when reasonably necessary to
subdue recalcitrant prisoners, for orders must be obeyed, and there are only so
many choices available to correctional officers when inmates refuse. Soto v. Dickey,
744 F.2d 1260, 1267, 1270 (7th Cir. 1984); Stringer v. Rowe, 616 F.2d 993, 998 (7th
Cir. 1980). While detaining an inmate for eight hours after using chemical agents
without allowing him to wash his face amounts to the wanton infliction of pain and
suffering, Williams v. Benjamin, 77 F.3d 756, 764–65 (4th Cir. 1996), holding the
inmate until the disturbance has clearly ended does not, id. at 764, nor does waiting
10 to 20 minutes before letting him wash off the spray, Jones v. Shields, 207 F.3d
491, 493, 496 (8th Cir. 2000).
The district court reached the correct result. Kervin did not rebut Barnes’s
affidavits that he resisted the guards after being sprayed; his one-page affidavit
nowhere denies the struggle. In his memorandum opposing summary judgment
Kervin generally denied resisting the guards, but these bald denials are not sworn
and therefore are not evidence. See Liu v. T & H Machine, Inc., 191 F.3d 790,
796–97 (7th Cir. 1999). A jury could conclude only that Barnes was attempting to

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No. 05–1443 Page 3
force Kervin to comply with his order, not inflicting gratuitous pain. Kervin also
contends that by confining him to the holding cell Barnes violated jail guidelines on
the use of pepper spray, but this argument fails as well. Neglecting prison rules
does not amount to a per se constitutional violation, and moreover Barnes did
comply with the rule, which states that the “subject should be removed from the
immediate contaminated area, as soon as tactically possible, and allowed to use cool
water to rinse” the chemicals from his face and eyes (emphasis added). Kervin had
to wait five to ten minutes before he could wash his face because the guards
determined from his resistance to being handcuffed that he had not yet been
brought under control.
Kervin also argues that the district court erred by refusing to appoint him
counsel. We find no abuse of discretion. Kervin’s case involves straightforward
facts to which he bore witness and no complicated legal issues. See Howard v.
Gramley, 225 F.3d 784, 794 (7th Cir. 2000). He adequately presented his claims
and arguments in the pleadings, surviving screening under 28 U.S.C. § 1915A and
successfully conducting several discovery requests for documents and admissions.
We cannot say that it was impossible for him to obtain justice without an attorney.
AFFIRMED.

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