Love, Jr. v. Merchant et al

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION
CHRISTOPHER LOVE, JR. PLAINTIFF
V. Civil No. 4:23-cv-04038-SOH-BAB
SERGEANT MERCHANT DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed pro se by Plaintiff, Christopher Love, Jr., under 42 U.S.C.
§ 1983. Plaintiff names as Defendant, Sergeant Merchant. Plaintiff alleges his claims against
Defendant Merchant in both his official and individual capacities. Before the Court is Defendant

Merchant’s Motion for Summary Judgment. (ECF No. 29). Plaintiff responded. (ECF No. 38).

Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2011) the Honorable Susan O.
Hickey Chief United States District Judge referred this case to the undersigned for the purpose of

making a Report and Recommendation.

I. BACKROUND
All the events complained of by Plaintiff took place while he was incarcerated in the
Hempstead County Detention Center (“HCDC’”’) in Hope, Arkansas. At all times relevant to the
instant lawsuit, Defendant was an employee at the HCDC. (ECF No. 6, p. 2). Plaintiff indicates
in his Amended Complaint that he was convicted on March 13, 2023. Id. Typically, this would
indicate Plaintiff was a pretrial detainee on March 12, 2023 when the complained of force was

used. Jd. at 4. However, Defendant produces evidence that Plaintiff was incarcerated on March

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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12, 2023 for a parole violation. (ECF No. 31-2, p. 1). Accordingly, the facts of Plaintiff’s arrest
and basis for his confinement are material to the Court’s analysis and will be included herein.
Plaintiff alleges both official and individual capacity claims against Defendant Merchant
in his Amended Complaint, and he seeks compensatory and punitive damages. Id. at 5, 9.
A. Plaintiff’s Assertions
In his Amended Complaint Plaintiff asserts:
I was in F Pod in Hempstead County Jail when Officer [Zwirnmann] left my cell unlocked
do to me having seizures because I had no cell mate. Officer Adams came to F Pod and
seen my cell open and radio’d [Defendant] Merchant to come lock me in my cell. I tried
to explain to [Defendant] Merchant that I have seizures and my cell needed to remain
unlocked because I didn’t have a cellmate. He unholstered his CO2 pepperball gun from
his side and shot me in my throat around 3 feet away. I told him that he was in front of my
door and he opened fire again, raising his gun shooting me in my right eye. 	I was then
placed in the holding cell up front for 2 days without receiving any medical attention.
Captain Wise denied me any type of medical attention for the First two days. I have vision
in my right eye.
(ECF No. 6, p. 5)0F
1 (errors in original). For his official capacity claim, Plaintiff alleges:
Hempstead County employees are trained to use the CO2 pepperball gun at 6 ½ - 7 feet
from [their] target. They are in violation of shooting me in the face and locking me in a
cell denying me any medical attention.
Id.
Finally, Plaintiff claims that the shot to his eye caused vision loss in that eye. He requests
compensatory and punitive damages as well as injunctive relief through the termination of
Defendant Merchant from his employment with the HCDC. 	(ECF No. 6, p. 9). 	Plaintiff also
claims had he been taken to the hospital immediately he may not have lost his vision. Id.
1 Defendant Wise was dismissed by Order of the Court on February 7, 2024 for failure to exhaust
pursuant to the Prison Litigation Reform Act. 	(ECF No. 24). 	Accordingly, the Court need not
address any of Plaintiff’s allegations made in his Amended Complaint against Defendant Wise.
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B. Plaintiff’s Jail File
First, the parties do not dispute the Eight Amendment applies to Plaintiff’s excessive force
claim. 	(ECF Nos. 30, 38). 	On Plaintiff’s booking sheet it states Plaintiff was booked into the
HCDC on March 4, 20231F
2 on multiple charges: two separate failures to appear charges; two counts
of fleeing; a burglary charge; and a parole violation all dated March 13, 2023 and a felony theft of
property, and a breaking or entering charge dated April 4, 2023. 	(ECF No. 31-2, p. 1). 	On
Plaintiff’s Arkansas Community Correction Violation Report, it states Plaintiff was arrested on
March 4, 2023 and the date of his violation was March 6, 2023. 	(ECF No. 31-2, p. 2). 	This
Violation Report also includes an explanation of Plaintiff’s charges for which he is on parole, and
the new charges he received as a result of his March 4, 2023 arrest. Plaintiff was arrested on March
4, 2023 by the Hope Police Department for residential burglary and two counts of fleeing. Id. at
5. On this same day, Plaintiff was also subject to an Absconder Warrant for retaking a prisoner
which was issued by the Arkansas Board of Parole on February 23, 2023. (ECF No. 31-2, p. 6).
It appears Plaintiff was incarcerated on both new charges and a parole violation on March 12, 2023
when the complained of incident occurred.
Next, it is notable that Defendant Merchant did not produce his own affidavit or declaration
testifying to the events on March 12, 2023. 	Accordingly, the Court has no factual basis upon
which to consider Defendant’s beliefs, interpretation, or perceptions of any risks before he
exercised the uses of force on Plaintiff beyond what is included in Defendant Merchant’s incident
report. This incident report is submitted as part of Plaintiff’s jail file and supported by the Affidavit
2 Defendant’s Statement of Undisputed Facts states Plaintiff was booked into the HCDC on March
3, 2024. (ECF No. 31, p. 1). As enumerated in the exhibits attached to Defendant’s Statement of
Undisputed Facts, this is clearly incorrect.
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of non-party Captain Wise, Jail Administrator and custodian of records of the HCDC. (ECF No.
31-1, p. 1).
On March 13, 2023, Defendant Merchant entered an incident report stating:
On Sunday, March 12, 2022, at approximately 2350, I (Sgt. Joseph Merchant) went to F-
pod to assist Officer Zwirnmann in nightly lock down. Upon entering F-pod I asked Officer
Zwirnmann if there was an issue. He stated the inmate Christopher Love was refusing to
be locked down. I then ordered inmate Love to go to his cell. Inmate Love refused the
order and continued to sit on the table. I then explained to inmate Love that he could be
locked down for nightly lock down, or he could be placed on disciplinary lock down in A-
pod for not following commands. 	Inmate Love became slightly aggressive and stepped
close to me. I ordered him to back away from me and go to his cell, to which he partially
complied and stepped back to the table. I then ordered him again to go to his cell. He did
not comply. I then pulled my JPX gun and pointed it at inmate Love and gave the order to
go to his cell again. Inmate love then pulled open his jumpsuit and continued to be non-
compliant. I then fired one shot of JPX to the upper chest/neck area of inmate Love and
ordered him to go to his cell again. At this time, inmate Love was still not compliant and
appeared to take another step toward me. 	I then fired another shot to the facial area of
inmate Love. Inmate Love then went down to his knees. Once there appeared to no longer
be a threat, I holstered my JPX and started assisting inmate Love back to his feet and started
giving him commands to walk towards the door and we (Officer Zwirnmann, Officer
Adams, and myself) would take him to the front to decontaminate. 	Inmate Love was
compliant with this order.
At approximately 2355, Inmate Love was escorted to the intake bathroom and the
decontamination process was started. At approximately 0010, the lights on the yard were
turned on and the remaining inmates were taken out of F-pod and placed on the yard so
that F-pod could be decontaminated.
A few minutes later, inmate Love finished decontaminating and was placed in the padded
cell with a new jumpsuit, a towel, and a blanket. I then went to F-pod, and with the help
of 2 inmates, started decontamination of the pod. Inmate Love’s belongings were gathered
and taken to A-pod. At approximately 0045 F-pod inmates were taken off of the yard and
placed back in their cells for the night.
At approximately 0102, inmate Love was placed in Cell 2 of A-pod, with his belongings
and the door was locked. At approximately 0148, control informed me that inmate Love
wanted an Officer to come look at his eye, stating that it was still hurting. I and Officer
Zwirnmann went to A-pod and examined his eye. A few minutes later, I gave him a De-
con wipe and explained to him how to use it, and to keep rinsing his eye out. 	It was
enflamed and slightly swelled.
Nothing further to report.
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(ECF No. 31-5, p. 1).
On March 16, 2023, Defendant Merchant entered a supplement to his incident report
stating:
After reviewing the incident that occurred on March 12, 2023, with inmate Christopher
Love, I (Sgt. Joseph Merchant) was asked why I took 2 steps toward the inmate between
the first and second shot of JPX. This was done because after being hit with the first shot,
inmate Love turned his back and stepped away from me for a moment. At this time I took
a small series of steps in an attempt to better the angle of shot, and keep the inmate in my
sights, should a second shot become necessary. 	When inmate Love turned back around
toward me and continued to be aggressive and non-complaint, I felt a second shot was
necessary and fired a second time hitting him in the facial area. Inmate Love immediately
dropped to his knees and became compliant.
Nothing further to report at this time.
(ECF No. 31-5, p. 1).
On March 30, 2023 Plaintiff submitted the following grievance:
I was in f pod and Sargent Merchant shot me in my neck around 3 feet away with the co2
pepperball gun when i tried to explain to him that i have seizures and wasnt suppose to be
locked down in my cell by myself Then he opened fire again when i tried to enter my cell
and he was in front of my cell and he open fire again shooting me in my right eye around
three feet away I then hit the ground and he walked me to the front without any handcuffs
on I feel that what he did was wrong and something needs to be done about this It was two
days before i even got any medical attention after the incident took place I went to the
hospital and had to be rushed to UAMS in little rock where the doctor said i should have
came the same day and that i wouldnt be able to see again out of my right eye the same
Now ive been having seizures on a regular basis and having headaches.
(ECF No. 31-3, p. 3) (errors in original)
C. Plaintiff’s Medical Records
Plaintiff’s medical records from UAMS Health are also attached to Defendant’s Statement
of Undisputed Facts. 	An after-visit summary dated March 14, 2023 from the UAMS Health
Emergency Department in Hope, Arkansas stated Plaintiff was diagnosed with a corneal abrasion
and prescribed artificial tears, cyclopentolate, erythromycin, moxifoxacin, and oxycodone. (ECF
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No. 31-4, p. 1). The follow-up instructions from the emergency room stated Plaintiff needed to
follow up with his eye doctor as soon as possible or within one day. Id.
On March 23, 2023, nine days after his emergency room visit, Plaintiff was seen by Dr.
Riley N. Sanders, ophthalmologist for a retina evaluation. Dr. Riley’s impressions noted at this
visit:
OD
Trauma from pepper gel gun 3-14-23
Corneal abrasion, Traumatic preretinal heme over macula and vit heme, OCT showing
central retinal thinning and loss of outer retina consistent with severe macular commotio
retinae
OS
Normal exam, good vision
. . .
No medical or surgical treatment to recover outer retina (commotio retinae) of right eye.
This will be the long-term determinant of visual recovery. Some recovery is possible, but
not full recovery expected with this extent of injury.
Small vit heme should clear with time.
Monocular precautions emphasized, patient wear shatter-proof/polycarbonate glasses at all
times. 	When doing sports or using power tools, needs to wear appropriate protective
glasses or goggles
Can stop ofloxacin and atropine
Continue predforte twice daily till follow-up
(ECF No. 31-4, pp. 6-7).
Plaintiff’s medication log from the HCDC for his eye medications is attached as well. (ECF
No. 31-4, pp. 9-10). However, Plaintiff does not make any claims regarding his medication.
D. Plaintiff’s Response
In Plaintiff’s properly notarized Response he argues, that all parties agree Defendant
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Merchant used excessive force and caused Plaintiff’s injury. (ECF No. 38, p. 1). Plaintiff argues
that he did nothing wrong, therefore, Defendant Merchant had no legitimate penological purpose
to use force against him. Id. Plaintiff goes on to assert he was not a danger to anyone and shooting
him twice was a greater amount of force than was necessary. Id. at 2.2F
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Plaintiff then attached Defendants’ Partial Motion for Summary Judgment for Failure to
Exhaust Administrative Remedies with handwritten notes in the margins. (ECF No. 38, pp. 3-6).
Plaintiff notes the pod camera will show the use of force, and that Defendant Merchant agreed
HCDC has a grievance procedure, Plaintiff submitted grievances between March 3, 2023 and April
12, 2023, and these grievances related to the use of force incident. Id.
Next, Plaintiff attached Defendant Merchant’s Statement of Indisputable Material Facts in
support of his Motion for Summary Judgment on the issue of Exhaustion. and also made
handwritten notes in the margins of this document. (ECF No. 38, pp. 7-9). Plaintiff notes he was
booked into the HCDC on March 4, 2023 and not March 3, 2023 as stated in Defendant Merchant’s
Statement of Facts. Id. at 7.
Finally, Plaintiff attaches his First Requests for Admissions as well as numbered statements
of facts. (ECF No. 38, pp. 10-15). The Requests for Admissions have no responses noted so the
Court does not find these helpful. However, Plaintiff’s numbered statements of fact do serve as
disputes to material facts herein. Specifically, Plaintiff states:
• 	Plaintiff was booked into the HCDC on March 4, 2023;
• 	Plaintiff has over thirty previous arrests and bookings into the HCDC;
3 Plaintiff also attempts to amend his Complaint by adding Captain Wise as a Defendant because
he is “over the jail and responsible for his Jailers.” 	(ECF No. 38, p. 2). 	Defendant Wise was
previously dismissed from this action by Order dated February 7, 2024 for failure to properly
exhaust. (ECF No. 24). Plaintiff cannot amend to add Defendant Wise back to the case through
his Response.
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• 	Plaintiff was assigned to the F-Pod at booking;
• 	On March 12, 2023 at approximately 10:30 non-party Officer [Zwirnmann] entered F-Pod
to lock down inmates in their cells, 	Officer [Zwirnmann] 	did not lock down Plaintiff
because Officer [Zwirnmann] was aware Plaintiff suffered from epilepsy;
• 	Plaintiff was taking prescribed medication for his epilepsy while incarcerated in the
HCDC;
• 	At approximately 11:15 p.m. that same night, non-party Officer Adams entered F-Pod to
make security rounds, and the F-Pod video footage shows Plaintiff and Officer Adams
having a conversation outside his unlocked cell;
• 	Then Defendant Merchant entered F-Pod and stood in the entrance of Plaintiff’s cell;
• 	Plaintiff does not describe or assert any facts related to Defendant Merchant’s first shot
with his JPX gun, instead he explains, Defendant Merchant then shot Plaintiff with a
“second” “CO2 Pepper Gel projectile” at point blank range;
• 	This second shot struck Plaintiff in his face in the right eye area;
• 	Plaintiff states his hands were up in compliance with Defendant Merchant’s direct order
prior to the second shot;
• 	After the second shot, Plaintiff fell to the floor;
• 	Plaintiff asserts this was lethal force and that Defendant Merchant was trained in the safe
operation of the “CO2 Pepper Gell Ball firearm”.
(ECF No. 38, p. 13-15).
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E. Video Footage
The entire use of force is captured on video. Defendant Merchant submitted two videos.
Both videos capture the entire use of force, but from two different camera angles in the F-Pod.
(ECF No. 31-7, p. 1).
At 23:45:58, Officer Zwirnmann 	enters the pod day room. 	The day room is a long
rectangular shaped room with tables in the middle. The cell doors are down the length of one side
of the day room and windows to the hallway are down the length of the other side of the day room.
There are two inmates sitting on the pod tables—Plaintiff being one—and one inmate laying on
the floor on a mat. 	There is no audio on the videos, but it is clear that Officer Zwirnmann is
speaking with Plaintiff. Plaintiff does not move from his seated position on the table until 23:48:10
when he gets up and walks around the pod talking. He walks to the pod exit door and pushes it
open (showing the door to be unlocked to the hallway), then shuts it back without exiting the pod.
Plaintiff is obviously agitated by time stamp 23:48:45. He is talking to Officer Zwirnmann and
gesturing with his arms while pacing around the pod. Plaintiff then returns to sit on the table with
the other inmate at time stamp 23:49:36.
Defendant Merchant enters the pod day room with a female nonparty officer at time stamp
23:51:08. At 23:51:22, Defendant Merchant walks over to Plaintiff’s cell door and gestures to the
door. Again, the Court cannot hear what Defendant Merchant says along with his pointing gesture.
Plaintiff does not move from his seated spot on the pod table. Defendant Merchant then points to
the pod exit door and Plaintiff rises and walks directly toward Defendant Merchant. At this point,
Defendant Merchant is pointing at both Plaintiff’s open cell and the pod exit.
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Plaintiff can be seen talking back to Defendant Merchant with what can best be described as
argumentative body language at time stamp 23:51:39. 	Contrary to Plaintiff’s claims he never
raises his hands. Plaintiff then returns to the table in the middle of the day room at time stamp
23:51:49.
It is then difficult to see Plaintiff from the viewpoint of this camera (Camera 14), so the
Court switched to the second video produced with the viewpoint from the opposite end of the pod
day room (Camera 15). This angle provides a clear view of Plaintiff after the 23:51:48 time stamp.
At 23:51:48, Plaintiff walked away from Defendant Merchant back to the pod table on
which he was previously seated. 	He then turned his body around to face Defendant Merchant.
Plaintiff is talking and making large gestures with his arms at this time. It is obvious, even without
audio, that Plaintiff is arguing with Defendant Merchant. There is a pod table between Plaintiff
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and Defendant Merchant at this time. One inmate is still laying on the floor on his mat next to
Plaintiff, and a second inmate is sitting on the pod table next to Plaintiff. Officer Zwirnmann and
the female officer are also still in the pod at this time.
The next events happen very quickly. Plaintiff rips off his jumpsuit and makes movement
toward Defendant Merchant at time stamp 23:51:50.
Defendant Merchant unholsters his JPX gun and points it at Plaintiff. Plaintiff then throws
both of his arms back in the typical “bring it on” gesture at Defendant Merchant.
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At time stamp 23:51:53, Defendant Merchant shoots Plaintiff in the upper chest area with
the JPX gun. This shot causes Plaintiff to turn away somewhat, but he is still arguing and making
large gestures with his arms at 23:51:55.
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At time stamp 23:52:57, Defendant Merchant then takes a step closer to the Plaintiff, and
when Plaintiff reaches up to wipe his face, Defendant Merchant shoots him a second time in his
face. This shot takes Plaintiff to the ground, and it is obvious Plaintiff is in serious pain. At time
stamp 23:53:30, Plaintiff stands up and allows Defendant Merchant to escort him out of the pod.
It appears Plaintiff cannot see as he is escorted out of the pod. After the officers and Plaintiff exit
the pod, the other two inmates present in the day room can be seen suffering the effects of the
pepper spray with sneezing and coughing. Then the video ends.
There is no video offered of Plaintiff once he is escorted from the pod during
decontamination and the alleged denial of medical care.
E. HCDC Policy and Procedure on Use of Force
Defendant Merchant attached the entire HCDC Policy and Procedure on the use of force
and specifically the policy on use of chemical weapons. The Court provides a copy of these two
procedures in its entirety here:
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Hempstead County Detention Facility
Policies and Procedures

$:87 Use Of Force

I. Ob jective

A. Only that amount of physical force necessary to Baintain
or regain centrol of am inmate shall he used by the staff
of the Hempstead Detention Facility. Physical force may
be used only when an attack by anh inmate({s) on a facility
employee(s), visitor(s) or other inmate(s) is actually

_ occurring, is clearly imminent, or when other lesser
means have failed to achieve a Legitimate and necessary

objective.

H. Fhysical punishment of an inmate shall not be permitted
under any circumstances.

Il. Frocedure

A. the following procedural guidelines are designed to
illustrate that officers have a number of choices in
handling violent or potentially Violent situations.

B. In order te give and inmate every opportunity to cease
hisvher disruptive or assaultive activity and cooperate
With the officer, the following steps shall be followed
Whenever possible in sequence:

C. The officer who encounters and uncooperative inmate
{e.g., refuses to enter cell, refuses frisk search,
refuses to be removed from cell} shall take the following

action:
1. Attempt toe verbally convince the inmate to cooperate.
2. Tf verbal persuasion fails, warn the inmate of the

consequences of non-cooperation [use of force,
disciplinary sanction).

3. If warnings are not effective, call for back-up
Personnel in an attempt to intimidate the inmate

through a show of foree.

4a. Tf a show of force is insufficient {or impossible)
the officer{s) shall attempt, to use the physical
holds designed to gain control of the inmate [ne
blows shall be struck by the officer unless the
refisting inmate becomes an attacker)

D. Tf at any point in the above process a inmate attempts to

physically attack a staff member, a visitor, another
inmate, or any other personfs}, the following steps shali

be taken:

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1. Call for back-up persennel. (if not already present}

2. If, after the inmate's initial blows or kicks have
been blacked, the inmate persists, the efficer(s)
shall attempt to take the inmate down by using take-
down techniques designed to gain control over the
inmate.

a. If, the officer’s strength and ability are such that
the take-dewn techniques are not effective {or if the
physical setting renders their use ineffective), only
then may the officer({s) resort te kieks or blows.

The following blows are to be avoided categorically
~ unless an officer’s life or the life of another
person is clearly in danger:

a. knuckle blows to the temple

b. base of hand blows to the nose,
c. cupped-hand blows te the ears,

d. kicks to grein or head areas, and
&, blews or gouges to the eye.

E. Officers may, if all else has failed and if an escape
route is open to the officer(s)} and if no other persons
are or would be open to attack from the inmate, retreat
fros the scene and obtain chemical irritant Spray.

F. If chemical irritant spray is used, it shall be used only
in that amount necessary ta gain control and to cause the

inmate to desist.

G. After every incident in which an officer(s) or staff
member(s) has used physical force, the officer(s} or
staff member(s) involved shall immediately file a full
report of the incident, citing the reasons for the degree
of force used and the results of its use, The report
shall be transmitted ta the Pacility Administrator.

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Hempstead County Detention Facility
Policies and Proaeedures

4:46 Chemical weapon ({Oleoresin Capsicum)

Objective

A.

The use of the Oleocresin Capsicum (pepper spray) is
intended solely as a control device. To enable the
officer to carry out his or her duties in the safest,
nest efficient and professional manner with the least
chance of injury or harm to either the officer or inmate.

The timely and appropriate use of the OC (Qleoresin
Capsicum), injuries to both officers and inmates are

greatly reduced.

Procedure

A.

All Hempstead County Detention Officers will be required
to receive eight-hour certified CLEST (Commission on Law
Enforcement $tandards and Training) course which

includes exposure to the effects of OC," Only officer
trained will be allowed to have OC in their possession on

the premises of the Hempstead County Detention Facility.

OC (pepper spray) may be wtilized anytime an officer
feels that its use will reduce the likelihood of injury
to either the officer or the inmate.

The use of the Chemical weapon falls along the use of
fForee continuum between “verbal commands” and actual
“hands-on” use of force when resistance if encountered.

1. The basic outline is as follows for use of force:

a. physical presence
b. verbal warning

c. verbal command

d. chemical Weapon

a hands-on control

f. impact Weapon
g.- deadly force

2. Example

When a’ inmate is given a order and complies,

a.
there is no need to escalate ‘the use of the
chemical weapon.

b. Tf by word or action the inmate shows no
intention of compliance, the wae of the chemical
weapon is the next logicai step. This should, in

Most cases, eliminate the need for actual hands-—
On active countermeasures and the possibility of
officer/finmate injury.

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The chemical weapon is not, under anY Circumstances, te
be Used as "punishment", of as a coercive tool once sn

innate is under control.

OC whieh exceeds 5.5% active ingredients will not he
carried and/or used. Woe product using &@ combination of
OC, CS and/or CN tear gas or irritation agent, will be

used,

The OC spray is aimed direetly inte the inmate’s face and
aoone (1) or two (2) second burst. The ideal distance
from inmate te officer is between four (4} and (18) feet.
Follow with simple verbal commands to the inmate to gain

compliance.

Inmates subdued through the use of OC shall be taken ta
&@ wash-up area prior to any further processing,

Incapacitatian results for approximately fifteen (15) to
twenty (28) minutes, There is no after-effects, nor any
medical problems resulting from the use of the oc spray.

Decumentation

A.

Incident reports will be completed by the officer
using the OC weapon. Each officer involved will write an

inter-office memorandum. Incident report and memorandums
Will be forwarded to the Jail Administrator,

The following will be contained in the repert;

Circugstances that required the use of the weapon.
A description of ether physical foree utilized,
The effects on and the response by the inmate,
Description of the decontamination process used,
Description of any injuries and the medical

treatment received.
6. Wame of any medical personnel rendering treatment.

tS

All reports and memorandums shall be completed and
submitted prior to the end of the officer's scheduled

shift.

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II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving party, the record "shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once
a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999).
The non-moving party "must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient
evidence to support a jury verdict in their favor." Nat’l Bank, 165 F.3d at 607. "A case founded
on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
Under § 1983, a defendant may be sued in either his personal capacity, or in his official
capacity, or claims may be stated against a defendant in both his personal and his official
capacities. 	The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. See Gorman
v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). 	“Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
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work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims
“are those which allege personal liability for individual actions by officials in the course of their
duties; these claims do not require proof of any policy and qualified immunity may be raised as a
defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff
must allege that the defendant acted under color of state law, and that the actor violated a right,
privilege, or immunity secured by the Constitution. 	West v. Atkins, 487 U.S. 42, 48 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
III. DISCUSSION
In his Motion, Defendant Merchant argues: (1) Plaintiff cannot show Defendant used
objectively unreasonable force on March 12, 2023 because Defendant Merchant applied force in
a good-faith effort to maintain or restore discipline rather than maliciously and sadistically to cause
harm; (2) Plaintiff cannot show Defendant was deliberately indifferent to his serious medical need;
(3) Defendant is entitled to qualified immunity; and (4) Hempstead County does not have any
unconstitutional policies implemented by Defendant to violated Plaintiff’s constitutional rights.
(ECF No. 29). The Court will first address Defendant Merchant’s assertion of qualified immunity
as it applies to (1) his use of force; and (2) Plaintiff’s medical care. The Court will then address
Plaintiff’s official capacity claims.
A. Qualified Immunity
Qualified immunity “shields [a] government official[] from liability in a § 1983 action
unless the official’s conduct violates a clearly established constitutional or statutory right of which
a reasonable person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th
Cir. 2009). Qualified immunity protects “all but the plainly incompetent or those who knowingly
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violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “At summary judgment, qualified
immunity shields a law enforcement officer from liability in a § 1983 action unless: (1) the facts,
viewed in the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional
or statutory right; and (2) the right was clearly established at the time of the deprivation.” Watson
v. Boyd, 2 F.4th 1106, 1109 (8th Cir. 2021) (internal citation and quotations omitted). The Court
may use its discretion in determining which of these two prongs to address first. 	Pearson v.
Callahan, 555 U.S. 223, 236 (2009). 	If a constitutional right was not clearly established at the
time of deprivation, then the Court need not determine whether the particular plaintiff’s
constitutional rights were violated based on the facts before it because the defendant is entitled to
qualified immunity regardless. 	See Dimock, v. City of Brooklyn, et. al, No. 24-1728, 2024 WL
5220190, *3 (8th Cir. Dec. 26, 2024).
For this analysis, the Court looks to the law at the time of the incident in March 2023. The
Supreme Court has cautioned that “clearly established law should not be defined at a high level of
generality.” White v. Pauly, 580 U.S. 73, 79 (2017) (internal citation and quotation omitted). A
right is clearly established if it is sufficiently clear for every reasonable official to understand the
actions would violate a constitutional right. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)
(internal quotations omitted). The case precedent must not be directly on point, but it must place
the constitutional question beyond debate. White, 580 U.S. at 79 (internal citation and quotation
omitted). 	The Eighth Circuit recently expounded on this standard by explaining “[a] clearly
established right is dictated either by controlling authority or a robust consensus of cases of
persuasive authority.” 	Dimock, 2024 WL 5220190 at *2 (internal quotations and citations
omitted). 	The Dimcok Court went on to explain the legal principle must “clearly prohibit the
officer’s conduct in the particular circumstances before him.” Id.
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1. Use of Force
Defendant Merchant does not deny he used force against Plaintiff on March 12, 2023.
Instead, Defendant Merchant argues the force used was not maliciously or sadistically imposed
with the intent to harm Plaintiff. 	According to Defendant Merchant, Plaintiff’s constitutional
rights were not violated, and Defendant Merchant is entitled to qualified immunity. 	Defendant
Merchant’s argument relies on the Eighth Amendment standard for excessive force due to
Defendant Merchant’s assertion that Plaintiff was in convicted inmate status on March 12, 2023
as a parole violator held on such violation. 	Plaintiff agrees with this convicted inmate status
characterization in his Response, stating that the Eighth Amendment applies to his excessive force
claim.3F
4 (ECF No. 38, p. 1).
“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel
and unusual punishment forbidden by the Eighth Amendment.” Burns v. Eaton, 752 F.3d 1136,
1138 (8th Cir. 2014) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). 	In evaluating an
excessive force claim under the Eighth Amendment, the relevant inquiry is whether the force used
was applied in a good-faith effort to maintain or restore discipline or was used to maliciously and
sadistically to cause harm. See U.S. v. Miller, 477 F.3d 644, 647 (8th Cir. 2007). The infliction
of pain during a prison security measure does not amount to cruel and usual punishment simply
because it may appear, in hindsight, that the degree of force applied for security purposes was
unreasonable or unnecessary in the strict sense. Burns, 752 F.3d at 1138-9 (8th Cir. 2014). This
4 The Court notes the parties’ consensus that Plaintiff’s claim should be considered under the
Eighth Amendment rather than the Fourteenth Amendment is supported by Eighth Circuit
precedent. 	See Peterson v. Heinen, 89 F.4th 628 (2023) (holding a probationer held on an
unadjudicated probation violation is subject to the Eighth Amendment in his excessive force claim
because his detention is “part and parcel of the state’s successful criminal conviction and ensuing
punishment.”)
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standard is different and less protective than the standard applied to arrestees or pretrial detainees
under the Fourth Amendment. The Fourth Amendment standard does not consider the officer’s
underlying intent, “whereas the subjective motivations of the individual officers are of central
importance in deciding whether force was used maliciously and sadistically to cause harm in
violation of the Eighth Amendment.” Id. at 1139 (internal quotations and citations omitted).
In determining whether a prison guard acted maliciously and sadistically the Court may
consider factors such as: (1) “whether there was an objective need for force;” (2) “the relationship
between any such need and the amount of force used;” (3) “the threat reasonably perceived by the
correctional officers;” (4) “any efforts by the officers to temper the severity of their forceful
response;” and (5) “the extent of the inmate’s injury.” Ward v. Smith, 844 F.3d 717, 721-22 (8th
Cir. 2016) (citations omitted).
The Eighth Circuit previously recognized that use of non-lethal chemical agents used by
correctional officers to control a recalcitrant inmate constitutes a “tempered response” when
compared to other uses of force. Burns, 752 F.3d 1136, 1139-40 (8th Cir. 2014) (citing Jones v.
Shields, 207 F.3d 491, 496 (8th Cir. 2000)). In Burns, the Eighth Circuit also discussed specific
facts in the few cases, involving pepper spray, in which it based the denial of summary judgment:
(1) no waning that pepper spray would be used; (2) no apparent purpose other than inflicting pain;
(3) use of unnecessary “super-soaker” quantities of spray; (4) refusal to allow the victim to wash
off the painful chemical for days; and (5) the use of additional physical force. Id. (citing Walker
v. Bowersox, 526 F.3d 1186, 1189 (8th Cir. 2008); Treats v. Morgan, 308 F.3d 868, 873 (8th Cir.
2002); Lawrence v. Bowersox, 297 F.3d 727, 730, 732 (8th Cir. 2002)).
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In applying the Ward factors to the record before it, the Court determines Defendant
Merchant is entitled to qualified immunity against Plaintiff’s excessive force claim because
Defendant Merchant’s actions did not rise to the level of constitutionally prohibited use of force.
a. An objective need for force
First, the record clearly indicates there was an objective need for the JPX spray to restore
and maintain discipline. See Peterson, 89 F.4th 628, 636 (8th Cir. 2023); Burns, 752 F.3d at 1139-
40 (8th Cir. 2014). The video evidence plainly shows Plaintiff as a recalcitrant inmate refusing
orders to be locked down in his cell, and his aggressive behavior directed toward Defendant
Merchant—first walking up close to Defendant Merchant to argue, walking back across the
dayroom gesturing and arguing, and finally ripping off his jump suit, advancing toward Defendant
Merchant, and gesturing in the “bring it on” fashion. (ECF No. 31-7).
b. The relationship between the need for force and amount of force used.
Secondly, Defendant Merchant deployed two separate shots from his JPX gun. The first
to Plaintiff’s chest/throat area, but the second to Plaintiff face. Defendant Merchant explains in his
incident report that he gave Plaintiff four orders to return to this cell before firing the first
pepperball shot and then issued a fifth order before firing the second pepperball shot. (ECF No.
31-5). Plaintiff does not dispute Defendant Merchant ordered him to his cell, he only objects that
he should not have been ordered to his cell for lockdown due to his epilepsy. 	(ECF No. 38).
Defendant Merchant also states in his incident report that he shot Plaintiff a second time because
he believed Plaintiff to remain noncompliant and to take a step towards Defendant Merchant. (ECF
No. 31-5, p. 1). Defendant Merchant also explained that he took a step toward Plaintiff between
his first and second shot because Plaintiff initially stepped away from Defendant Merchant and
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Defendant Merchant was attempting to keep a good angle on Plaintiff in case a second shot was
needed. Id. Plaintiff disputes this explanation by Defendant Merchant and claims he was shot a
second time while he had his hands up in compliance with Defendant Merchant’s orders. (ECF
No. 38).
The video evidence here clearly contradicts Plaintiff’s version of events. While the Court
typically considers the facts in the light most favorable to Plaintiff on summary judgment, it cannot
ignore video evidence which clearly contradicts Plaintiff’s rendition of the facts. See Scott, 550
U.S. at 380. Pursuant to the video evidence, six seconds past between the first and second shot by
Defendant Merchant, and the video footage supports Defendant Merchant’s rendition of events in
his incident report. (ECF No. 31-7 at time stamp 23:51:53).
The Court finds the video evidence establishes Defendant Merchant’s two shots of pepper
spray were necessary to gain compliance of Plaintiff, thus a proportionate use of force. 	See
Peterson v. Heinen, 89 F.4th 628 (8th Cir. 2023) (officer spraying inmate locked in his cell with
pepper spray when inmate began pulling a brick from his cell wall and refused to stop and then
spraying him again when the inmate refused to turn over the metal bar he used to pull the brick
from the wall was not deemed excessive force).
c. The threat reasonably perceived
Third, as indicated on the video, two other inmates as well as two nonparty officers were
present in the dayroom during this incident. Furthermore, the pod door was unlocked. The Court
finds the record indicates Plaintiff’s noncompliance posed a risk to both fellow inmates, the
nonparty officers, and Defendant Merchant. Finally, an inmate’s refusal to lock down in his cell
poses a risk to the security of the HCDC as a whole. Burns, 752 F.3d at 1139 (the Eighth Circuit
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found an inmate’s refusal of a direct order to “catch the cuffs” and return to his cell from the
shower posed a threat and the ordering officer’s use of pepper spray to restore discipline did not
violate the inmate’s Eighth Amendment rights).
d. Defendant Merchant’s efforts to temper his response
Fourth, as explained above, it is undisputed Defendant Merchant gave Plaintiff four orders
to return to his cell before deploying his JPX gun for the first time and a fifth order prior to the
second deployment. 	(ECF No. 31-5). 	Also undisputed is Defendant Merchant’s belief that
Plaintiff refused nonparty officer’s orders to return to his cell prior to Defendant Merchant being
called to the pod. (ECF No. 6, 31-5).
Furthermore, the video shows once Plaintiff became compliant, all force ceased. 	It is
undisputed, after the second shot, Plaintiff was immediately escorted for decontamination. (ECF
Nos. 31-5, 38). Defendant Merchant clearly attempted to temper his response.
e. The extent of Plaintiff’s injury
Lastly, 	the 	Court 	recognizes 	the 	extent 	of 	Plaintiff’s 	injury 	is 	serious 	which 	is
distinguishable from Burns and Jones where the plaintiff did not suffer long term or permanent
injuries from the pepper spray. See Burns, 752 F.3d at 1140; Jones, 207 F.35 at 496. 	However,
there must be material factual dispute on the record to indicate Defendant Merchant’s actions were
maliciously and sadistically exercised to cause harm in order for Plaintiff to survive summary
judgment. 	See Miller, 477 F.3d at 647; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)
(explaining the extent of the plaintiff’s injury is only one factor to consider in analyzing excessive
force, and the core judicial inquiry is whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm.). Here, Defendant Merchant
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first shot Plaintiff in his chest/throat area, but this did not gain compliance of Plaintiff. Defendant
then shot Plaintiff a second time in his face after his first effort was unsuccessful at gaining
compliance from Plaintiff. Without more, the Court does not find these actions rise to the level of
sadistic and malicious intent to harm.
f. Additional facts support a finding of no excessive force
It does not appear Defendant Merchant warned Plaintiff before he fired his JPX gun on
either shot. 	However, failure to warn, standing alone, should not preclude summary judgment
here. 	See Wright v. State of Arkansas, 2016 WL 3023845, *3 (E.D. Ark. April 26, 2016),
(explaining generally there must be other factors besides failure to warn to preclude summary
judgment such as super-soaker quantities, additional physical force, or denial of shower) (citing
Walker, 526 F.3d at 1189; Treats, 308 F.3d 873; Lawrence, 297 F.3d at 730; Foulk, 262 F.3d at
692)), report and recommendation adopted, 2016 WL 3024081 (E.D. Ark. May 25, 2016). The
video evidence here shows once Plaintiff ripped of his jumpsuit and moved toward Defendant
Merchant both shots of pepper spray happened within six seconds. The events happened so quickly
a warning may not have been feasible, and the Plaintiff posed a threat not only to Defendant
Merchant but the four other people in the dayroom.
Additionally, Defendant Merchant had a purpose, other than inflicting pain on Plaintiff, to
use his JPX gun. As explained above, Plaintiff’s noncompliance with the orders to lock down and
his aggressive behavior putting fellow inmates and the officers at risk justify Defendant
Merchant’s use of force. See Peterson v. Heinen, 89 F.4th 628, 636 (8th Cir. 2023) (explaining
that an inmate, shown on video to curse, threaten, and spit at officer, is distinguishable from
previous cases such as Treats v. Morgan, 308 F.3d 868, 873 (8th Cir. 2002), where the pepper
spray was used without warning on an inmate who may have questioned the officer but otherwise
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posed no threat.). The Court finds these undisputed facts do not show “a complete absence of a
penological purpose,” which could raise “the reasonable inference that [Defendant Merchant]
acted maliciously in an effort to cause harm.” Petterson, 89 F.4th at 637.
Finally, while no additional force, other than the two shots from Defendant Merchant’s
JPX pepper spray gun were exercised on Plaintiff, Plaintiff does argue that Defendant Merchant
should not have shot his JPX gun at such close range. Plaintiff asserts Defendant Merchant shot
him in the throat at a distance of only three feet and he was trained to use his JPX gun at a distance
of at least 6.5 to 7 feet. (ECF No. 6, p. 5). Defendant does not indicate in his incident report at
what distance he was standing when he deployed his JPX gun on either instance in his incident
report. 	While the Court cannot determine the exact distance, without evidence showing the
dimension of the pod dayroom, the video evidence is clear it was more than three feet.4F
5 Defendant
Merchant appears to be at least five feet and possibly seven feet from Plaintiff when he deployed
both shots. The HCDC policy and procedure indicates the ideal distance from inmate to officer is
between four and ten feet and the spray should be aimed at the inmate’s face. (ECF No. 31-6, p.
4). Accordingly, the Court finds Defendant Merchant complied with HCDC Policy and Procedure
regarding the distance between himself and Plaintiff, and by directing the shot into Plaintiff’s face.
5 During the incident, and evident on the video footage, an inmate is lying next to Plaintiff on the
floor of the pod on a sleeping mat. Said mat appears to be a standard twin size and accommodates
the full length of the grown male inmate lying upon it. This allows the Court to determine the mat
is at least 75 inches long or slightly more than six feet in length – the standard length of a twin
mattress. This mat stretches approximately halfway across the width of the pod dayroom leading
the Court to determine the dayroom is approximately 12 feet wide. Using these measurements and
the placement of Defendant Merchant and Plaintiff in the dayroom, the Court is able to determine
at least a five (5) to seven (7) foot distance between Plaintiff and Defendant Merchant when
Defendant Merchant deployed his JPX gun.
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However, even if Defendant Merchant was three feet from Plaintiff when he shot him as
Plaintiff claims, the Court does not find the distance or location Plaintiff was sprayed to evidence
any malicious or sadistic intent. As explained above, the escalation of the incident occurred within
six seconds and the video clearly evidences Plaintiff’s recalcitrant and aggressive behavior toward
Defendant Merchant. 	See Petterson, 89 F.4th at 639 (explaining the Eighth Circuit precedent
establishes “a mere disputed over the reasonableness of a particular use of force or the existence
of arguably superior alternatives” does not defeat summary judgment, and arguments the officer
erred falls short of showing “there was no plausible basis for [their] belief that this degree of force
was necessary.”) (quoting Whitley, 475 U.S. at 323).
Accordingly, despite the unfortunate injury suffered by Plaintiff to his eye, based on this
summary judgment record, a jury could not find Defendant Merchant’s use of the JPX gun was
maliciously and sadistically deployed in violation of Plaintiff’s Eighth Amendment rights. 	See
Burns, 752 F.3d 1136 (8th Cir. 2014). Without a constitutional violation, Defendant Merchant is
entitled to qualified immunity under the first prong of the analysis, and the Court need not
determine whether the particular right is clearly established under the second prong.5F
6 See Pearson
v. Callahan, 555 U.S. 223, 236 (2009).
6 If the Court proceeded to the second prong of the qualified immunity test, the same outcome
would result. The Court has made a thorough search of Eighth Circuit authority and is unable to
find any cases where a convicted inmate, being analyzed under the Eighth Amendment, was
seriously injured from the use of chemical weapons after exhibiting aggressive and recalcitrant
behavior such as Plaintiff here. 	Accordingly, even if the Court found Defendant Merchant’s
conduct violated Plaintiff’s constitutional rights, Defendant Merchant would still be entitled to
qualified immunity because the right was not clearly established.
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2. Denial of Medical Care
Plaintiff makes a denial of medical care claim in his Amended Complaint, but he does not
assert any facts related to this claim specifically against Defendant Merchant. (ECF No. 6, p. 5).
Plaintiff states “Captain Wise denied me any type of medical attention for the first two days.”
(ECF No. 6, p. 5). 	Then he states under his official capacity claim that “Hempstead County
employees . . . . are in violation of shooting me in the face and locking me in a cell denying me
any medical attention.” 	Captain Wise was previously dismissed from this case for failure to
exhaust administrative remedies. 	(ECF No. 24). 	Accordingly, the Court need not address any
claims made against Captain Wise herein.
Furthermore, the Court finds Plaintiff has failed to state a claim upon which relief may be
granted for denial of medical care against Defendant Merchant. While the Court recognizes it was
not sufficiently clear in its previous Report and Recommendation on the issue of exhaustion, no
claim of denial of medical care was stated against Defendant Merchant in Plaintiff’s Amended
Complaint pursuant to Federal Rule of Civil Procedure 8.
Rule 8(a) contains the general pleading rules and requires a complaint to present “a short
and plain statement of the claim showing that the pleader is entitled to relief.” 	Fed. R. Civ. P.
8(a)(2). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court will consider well plead factual allegations
in the Complaint as true and construe all reasonable inferences from the pleadings in favor of the
non-moving party. 	Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). 	However, while the
Court will liberally construe a pro se plaintiff’s complaint, the plaintiff must allege sufficient facts
to support his claims. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004).
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In order to state a denial or delay of medical care claim, Plaintiff must allege (1) that he
had an objectively serious medical need, and (2) that the Defendant Merchant actually knew of,
but deliberately disregarded, that serious medical need. See Ivey v. Audrain Cty., Mo., 968 F.3d
845, 848 (8th Cir. 2020). “A serious medical need is one that has been diagnosed by a physician
as requiring treatment, or one that is so obvious that even a layperson would easily recognize the
necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (internal
quotations omitted). 	“To demonstrate that a defendant actually knew of, but deliberately
disregarded, a serious medical need, the plaintiff must establish a mental state akin to criminal
recklessness: disregarding a known risk to the [detainee’s] health.” 	Barton v. Taber, 908 F.3d
1119, 1124 (8th Cir. 2018) (internal quotations and citations omitted). 	The Eighth Circuit has
stated that this “onerous standard requires a showing more than negligence, more even than gross
negligence, but less than purposefully causing or knowingly bringing about a substantial risk of
serious harm to the inmate.” 	Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (internal
quotations and citations omitted).
Plaintiff failed to allege any facts whatsoever regarding whether Defendant Merchant knew
of his serious medical need and deliberately disregarded it. (ECF No. 6). 	Plaintiff also did not
allege any additional facts or evidence in his response regarding this claim against Defendant
Merchant. (ECF No. 38).
Deliberate indifference may also be manifested by “prison guards in intentionally denying
or delaying access to medical care or intentionally interfering with the treatment once prescribed.”
Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). However, the “Constitution does not require jailers
to handle every medical complaint as quickly as each inmate might wish.” 	Jenkins v. Cty. of
Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). In order to prove a constitutional violation
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based on a delay of medical treatment, the plaintiff must “present verifying medical evidence that
the prison officials “ignored an acute or escalating situation or that [these] delays adversely
affected his prognosis.” Holden v. Hirner, 663 F.3d 336, p. 342 (8th Cir. 2011) (internal quotations
and citation omitted).
It is undisputed that Defendant Merchant immediately took Plaintiff for decontamination
after the incident. 	(ECF No. 31, p. 2-3). 	It is also undisputed that Defendant Merchant had no
knowledge that Plaintiff suffered from a serious eye injury prior to the March 14, 2023 emergency
room visit. Id. at 3. Plaintiff does not make any references to his medical care in his Response
other than to allege: “medical reports attached cause of injury.” (ECF No. 38, p. 2). There is no
evidence on the record to indicate Defendant Merchant was deliberately indifferent to Plaintiff’s
serious eye injury, that he ignored an acute or escalating situation, or that any delay in treatment
adversely affected Plaintiff’s prognosis.
Accordingly, Plaintiff has failed to state a cognizable denial of medical care claim against
Defendant Merchant.
B. Official Capacity Claims
Plaintiff also alleged official capacity claims of excessive force and denial of medical care
against Defendant Merchant. Official capacity claims are “functionally equivalent to a suit against
the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th
Cir. 2010). In this case, Plaintiff's official capacity claims against Defendant Merchant are treated
as claims against Hempstead County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).
“[I]t is well established that a municipality [or county] cannot be held liable on a
respondeat superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of
Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). 	To establish Hempstead County's
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liability under Section 1983, “plaintiff must show that a constitutional violation was committed
pursuant to an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson,
571 F.3d 814, 817 (8th Cir. 2009) (citation omitted). Here, this means Plaintiff must produce
summary judgment evidence to show a policy or custom of Hempstead County caused his claimed
constitutional violations—excessive force and denial of medical care.
As the Court has determined the summary judgment record does not support any
cognizable constitutional violations regarding those claims, there can be no corresponding official
capacity claims. See McCoy v. City of Monticello, 411 F.3d 920, 922 (8th Cir. 2005) (The Eighth
Circuit has consistently recognized without an underlying substantive constitutional violation
against a defendant in their individual capacity, a plaintiff cannot be successful on an official
capacity claim against that defendant’s employer).
IV. CONCLUSION
For the reasons stated above, I recommend the Defendant Merchant’s Motion for Summary
Judgment (ECF No. 29) be GRANTED and Plaintiff’s Amended Complaint be DISMISSED
WITH PREJUDICE
Referral Status: The referral in this matter should be terminated.
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The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 16th day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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