## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-3866

___________ Laura L. Johnson, *
* Plaintiff, *
* Patti E. Johnson, * * Appeal from the United States Plaintiff-Appellant, * District Court for the Western * District of Missouri. v. *
* Kevin Blaukat, Don Broers, Jeff * Carr, Terry Moback, Sergeant * Jeannette Riley, Melissa Roughton, * Matt Terry, John Does, 1-5, Jasper * County, Craig Preacher, Denita * Douglas, * * Defendants - Appellees. *

___________ Submitted: April 21, 2006 Filed: June 27, 2006

___________ Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.

___________ MURPHY, Circuit Judge.

Patti E. Johnson, an inmate at the Jasper County Detention Center (the Detention Center), brought this acti on under 42 U.S.C. § 1983 against individual1 Lockdown is a disciplinary action which confines inmates to their cell for twenty three hours a day.
-2- correctional officers and Jasper County, alleging that her constitutional rights were violated by the use of excessive force agains t her on June 13, 2003. The district court granted summary judgment to the defendants, and Johnson appeals. We affirm in all respects except for the claims against Matt Terry and Denita Douglas which we remand.

Patti Johnson (Johnson), her sisters Laura Johnson (Laura) and Stacey Hall, and Karen Mitchell were incarcerated at the Deten tion Center. Staff decided to to put the four women in lockdown 1 on June 13, 2003 after receiving complaints that they had been bullying other inmates. Officer Matt Terry announced the lockdown order while they were in the common room. The four women were upset by the order, and Johnson admits that she did not initially coope rate with it. She asked to speak with Sergeant Jeannette Riley, a nd Terry radioed Sergeant Rile y for assistance. Other prison officials also came to the scene, among them Officers Eaton, Douglas, and Roughton.

What happened after the sisters returned to their cell is the focus of Johnson's claim for excessive force. We recount th ese facts in the light most favorable to Johnson as we should when reviewi ng summary judgment. Johnson produced evidence that after they all reentered th eir cell, Laura banged a shampoo bottle on the desk and threw toilet paper at the wall. Several officers d ecided to enter the cell. As some of them moved towards Laura who was in the back of the cell, Johnson stepped in front of Sergeant Blaukat and asked him not to touch her sister, assuring him that the cellmates would be able to calm he r down. Sergeant Blaukat told Johnson to move, but she did not. At this point Terry tackled Johnson to the floor and tried to handcuff her. He was able to cuff one of her hands and struggled to get the other one. According to her evidence, Johnson tried to produce her other hand for cuffing but it2 The record indicates that an OPN is a device similar to a numchuck, which consists of two polycarbonate sticks connected by a rope.
-3- was caught underneath her. She could not pull the hand out because Officers Terry, Douglas, and Roughton had pile d on top of her. Even though Johnson explained that her hand was stuck, Terry placed an Orcutt Police Nonchaku (OPN) 2around her neck and choked her, twisting the device until it broke. She testified that her head was slammed down on the floor, that her hair wa s pulled, and that Douglas sprayed mace on her face and eyes. Johnson claims that she sustained injuries from the incident, including bruising and lacerations on her arms, a broken thumb, and two black eyes. Johnson admits that after the incident Terry gave her a cold to wel and she was taken to the shower. Some supervisors were pr esent at the scene, including Captain Carr, Lieutenant Moback, and Serg eants Blaukat and Riley.

The testimony of the officers varied from Johnson's account. Terry stated that Laura was throwing objects around the cell, th at Johnson lunged at one of the deputies who was trying to restrain Laura, and that Douglas handcuffed oneof Johnson's wrists but could not cuff the other because Johnson ke pt turning. Terry testified further that after he wrestled Johnson to the ground, she continued to resist and locked her hands under her stomach. He then used the OPN on her forearm to try to open her hand and one of the plastic sticks broke. Roughton tes tified that she had assisted in restraining Laura, but not Johnson.

Johnson and her cellmates brought this civil action under 42 U.S.C. § 1983 and state law, asserting that their rights had b een violated by the use of excessive force, deliberate indifference, and retaliation. All of the claims except the Johnsons' excessive force claims were voluntarily di smissed, and the district court granted summary judgment to the defendants on those claims. Only Johnson appeals.3 Kevin Blaukat was a Sergeant when the incident took place but had been promoted to Captain by the time this action was filed.
-4- On defendants' motion for summary ju dgment, all disputed facts and the inferences that could be drawn from them were to be viewed in the light most favorable to Johnson. See Schoolhouse, Inc. v. Anderson , 275 F.3d 726, 728 (8th Cir. 2002). The district court determined thatJohnson had made no f actual allegations of excessive force against defendants Kevi n Blaukat, Don Broers, Jeff Carr, Terry Moback, Craig Preacher, Jeannette Riley, and Jasper County and granted them summary judgment. In its opinion the district court discussed Johnson's claims against Matt Terry, Denita Douglas, and Melissa Roughton at greater length.

The district court cited Johnson's depos ition testimony regarding her reason for approaching the guards as they entered the cell:

It was Captain Blauket 3 and Matt Terry was the first ones through that door because I stepped in front of Mr. Blauket to keep him from getting to Laura, and I did – I said, L ook, you're not putting your hands on my sister, and he told me, I'm not going to hurt her. I said, You're not putting your hands on my sister. All you have to do is step back out and shut that door and we'll calm her down. You know, she's just upset. And then after that I was hit. I meanhit like a football player. Matt Terry was the first one that hit me, and I fell to the floor.

The district court found from the evidence that Johnson had " clearlytried to step in and physically prevent the officers from doing their job." The court went on to say that " [i]t is not an unreasonable inference to find that Plaintiff was actively resisting the efforts of the officers" (emphases added) . In the district court's view the use of force was "quite limited" and "not done in a malicious or sadistic manner." The court said that it "[did] not find that Plaintiff has established that the use of force was anything more than a good faith effort to maintain and restore discipline" and concluded that Johnson had not presented sufficient evidence of wanton infliction of4 Officer Terry's name is not included on the brief filed by counsel for the appellees.
-5- pain to allow the case to r each a jury. It closed by gr anting summary judgment to the three remaining officers.

On appeal Johnson argues that the di strict court improperly construed the evidence in a light favorable to the moving parties instead of her. She asserts that the record demonstrates that she had an acti onable claim based on the officers' elective and avoidable use of force in violation of a number of Detention Center policies. She points out that the officers only entered the cell after the door had been shut, that they admitted they did not have concerns about th eir safety or that of other inmates, that they applied severe force, and that she suffered actual injuries. Appellees 4 respond that summary judgment was appropriate becau se Johnson posed a risk to safety and security since she had not initially co mplied with the lockdown order, had intentionally interfered with their acti ons, and had failed to produce her hand for cuffing. They say that the use of force against Johnson was only intended to restrain her rather than to cause her harm and th at there was no evidence of malice. Johnson responds that malice was shown by Captain Carr's order to remove personal hygiene items from the cell to which she was move d even though she was menstruating at the time and by his directing a racial epithet at Karen Mitchell.

We review a grant of summary j udgment de novo. Hu tson v. McDonnell Douglas Corp. , 63 F.3d 771, 775 (8th Cir. 1995). Th e evidence and all fair inferences from it must be viewed in the light most favorable to the non moving party, and summary judgment is appropriate if there is no genuine issue of material fact when the evidence is considered under that standard. See id. ; see generally Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986).-6- The Eighth Amendment bars correcti onal officers from imposing unnecessary and wanton pain on inmates, re gardless of whether there is evidence of any significant injury. See Hudson v. McMillian , 503 U.S. 1, 9 (1992). Officers may reasonably use force in a "good-faith effort to maintain orrestore discipline" but may not apply force "maliciously and sadistica lly to cause harm." Id. at 7. The test for reasonableness or good faith application of for ce depends on "whether there was an objective need for force, the relationship between any such n eed and the amount of force used, the threat reasonably perceived by the correctional offi cers, any efforts by the officers to temper the severity of their forceful response, and the extent of the inma te's injury." Treats v. Morgan , 308 F.3d 868, 872 (8th Cir. 2002) (citing Hudson , 503 U.S. at 7).

The Detention Center has regul ations restricting the use of force and the use of pepper spray. Force may be used by officer s "to defend themselves or another person or to subdue a resisting subject." Regula tion on Use of Force, No. 2-3, at IV.A.1. (Jasper Cty. Sheriff's Dep't, April 19, 1990) [Detention Center Force Regs.]. Mace may be used for "self-defense, defense of a third person, or to subdue a violently resisting subject", but it may not be used to "threaten, to elicit information or persuade people to comply with orders" if the indi vidual is handcuffed or properly in custody. Detention Center Force Regs. at IV.C. The pepper spray re gulation states that pepper spray may be used when "theaggressor has failed to comp ly with the Deputie's [sic] verbal instructions" and the aggressor has been issued a warning that the spray will be used, but it may not be used "in anticipation against mere verbal threats of violence or resistance". Regulation on Use of OC/Pe pper Spray, No. 2-21, at III. (Jasper Cty. Sheriff's Dep't, May 15, 1997).

According to Johnson, force was applied in violation of these policies at a time when she was not resisting the officers. She testified that she had gone back to her cell and was trying to calm and protect he r sister Laura who had just banged the shampoo bottle on the desk. Then she was suddenly thrown to the floor and buried under three correctional officers, choked, a nd maced without warning. Her head was-7- banged against the floor while she was trying to comply with the order to produce her second hand after the other one had already been cuffed. Sh e claims that her injuries included a broken thumb and two black eyes. While she was give n a towel and taken to the shower after the incident, she wa s also deprived of hygiene products even though she was menstruating.

Whether a situation justifies the use of force to maintain or restore discipline is a fact specific issue that "turns on the circumstances of the individual case or the particular 'prison setting.'" Treats , 308 F.3d at 872 (quoting Jones v. Shields , 207 F.3d 491, 495 (8th Cir. 2000)). An application of pepper spray when an inmate is being compliant can provide a basis for an Eighth Amendment claim. SeeFoulk v. Charrier , 262 F.3d 687, 702 (8th Cir. 2001).

The trier of fact might well come to ag ree with the district court's assessment of the evidence, but the court erred by fi nding facts in favor of the defendants on disputed material issues. Instead of view ing the contested facts in favor of Johnson, the district court drew inferences in fa vor of Terry and Douglas, finding that their actions were done in "good faith" and were"quite limited". Particularly when considering such factspecific issues, see Treats , 308 F.3d at 872, it is important that a court adhere to the summary judgment sta ndard, which requires that the court "view the facts and the inferences to be drawn fro m them in the light most favorable to the nonmoving party." Wells Fargo Fin. Leasing, Inc. v. LMT Fette, Inc. , 382 F.3d 852, 855-56 (8th Cir. 2004) (citing Matsushita , 475 U.S. at 587).

Although force may be used by correction officers in a good faith effort to maintain discipline, see Hudson , 503 U.S. at 7, we conclude that in this record there are several material questions of fact about whether Officers Terry and Douglas used excessive force, including whether their acts were defensive in nature, as required by the Detention Center policy, or motivated by anger; whether they were necessary to maintain order or were excessive reacti ons by frustrated officers; and whether the-8- amount of force used was commensurate with the situation. Additional material issues include whether or not Johnson failed to comp ly with orders given by officers in the cell, whether she was actively resisting them, whether verbal orders or the application of less force would have been sufficient, whether or not a warning issued before application of the pepper spray, and whether Johnson suffered real injuries. The factors outlined in Hudsonand Treats could be weighed by a trier of fact in favor of Johnson or the officers, and a jury coul d find that force was applied to Johnson maliciously and sadistically. We concl ude that summary judgment should not have been granted to Terry and Douglas, becau se Johnson produced evidence sufficient to withstand summary judgment on her claim that they applied excessive force.

Although Johnson appeals the entire grant of summary judgment, the only officers she cites by name for having usedphysical force against her are Terry, Douglas, and Roughton. We conclude that the evidence as to Roughton was insufficient to sustain an excessive for ce claim, and Johnson does not make specific allegations of excessive force against the other remaining officers. The district court did not err in dismissing them.

Johnson asserts that the court erred by ruling in favor of the officers with supervisory authority – Captain Carr, Li eutenant Moback, Sergeant Blaukat, and Sergeant Riley – because they witnessed th e actions of their subordinates and failed to stop them. Appellees respond that there is no respondeat superior liability under § 1983 and that there is no basis for a de liberate indifference claim against them. Supervisors can be individually liable if th ey directly participate in a constitutional violation or if they failed to s upervise and train officers. See Andrews v. Fowler , 98 F.3d 1069, 1078 (8th Cir. 1996). Johnson's a llegations against Captain Carr are that he used a racial epithet against Mitchell and ordered her hygiene items removed; they do not support an Eighth Amendment cl aim against him. Johnson provided no evidence that the supervisors were deliberat ely indifferent or tacitly authorized any-9- excessive force used, see id. , or that there was inadequate training or supervision. For these reasons the supervisors were appropriately granted summary judgment.

Finally, we address the district court' s grant of summary judgment in favor of Jasper County. A claim against a county is sustainable only where a constitutional violation has been committed pursuant to an official custom, policy, or practice. See Monell v. Dep't of Soc. Servs of the City of New York , 436 U.S. 658, 690-91 (1978). Although Johnson claims that the c ounty's policies were violated in numerous ways, she does not allege thatany of the policies are th emselves unconstitutional. We conclude that the district court did not err in granting summary judgment in favor of the County.

After a thorough review of the record, we reverse the summary judgment as to Officers Terry and Douglas and remand the claims against th em for trial and we affirm the judgment of the district court dismissi ng the claims against all other defendants.

GRUENDER, Circuit Judge, concurring.

I concur in the judgment of the Court, but wish to emphasize that the corrections officers were justified in usi ng some force to restore discipline due to Johnson’s initial resistance. Johnson testif ied in her deposition that she stepped in front of Sergeant Blaukat and told him not to touch her sister, that Blaukat responded by telling Johnson to move and that he was not going to hurt Laura, and that Johnson refused to comply. Accordi ngly, I see no error in the district court’s statement that Johnson “clearly tried to step in and phys ically prevent the officers from doing their job.” Because Johnson stepped in front of an officer during a tense situation and failed to comply with his verbal order, the corrections officers were justified in using some level of force in order to control the situation. Cf. Hickey v. Reeder , 12 F.3d 754, 759 (8th Cir. 1993) (“Our review of th e law shows that summary applications of-10- force are constitutionally permissible when prison security and order . . . has been placed in jeopardy.”).

I find that summary judgment was not appr opriate in this cas e because there are genuine issues of material fact regarding what happened after the initial use of force against Johnson. As the Court found, there ar e disputed issues of material fact as to whether Johnson continued to resist and wh ether the force applied was excessive. See Whitley v. Albers , 475 U.S. 312, 321 (1986) (describing as a relevant factor the relationship between the need for force and the amount of force used). Thus, a rational jury could find an Eighth Amendmen t violation after determining these facts.

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