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Eighth Circuit: Pepper Spraying Prisoner's Genitals Not Excessive Force

by Christopher Zoukis

The United States Court of Appeals for the Eighth Circuit has affirmed a district court's finding that a Missouri prison guard did not use excessive force when he pepper sprayed a prisoner four times, including a shot straight to the genitals.

Kevin Ward was imprisoned in administrative segregation at the South Central Correctional Center on October 26, 2009 when he was ordered by prison guard Dustin Merriett to stop talking to another prisoner. When Ward refused, prison guard Bradley Smith ordered him to cuff up. Ward refused.

Smith and Merriett then administered pepper spray through the food port and into Ward's cell. Ward continued to refuse the order to cuff up, and attempted to block the port with his mattress. After more pepper spray, Ward submitted to the handcuffs.

Ward was then removed to a telephone booth-sized strip out cell and put into a "security smock." After guards shook his cell down and "removed all personal items as punishment," Ward again refused to cuff up. He was pepper sprayed for a third time. When he tried to cover his face with the security smock, Smith pepper sprayed him directly on his bare genitals.

Crediting Smith's testimony that he was trying to get the spray under the smock and onto Ward's face, the district court found no excessive force. The court also did not buy Ward's assertion that the use of pepper spray was a pretextual punishment for his refusal to stop talking to another inmate.

Ward's case is a prime example of how difficult it is for a prisoner to prevail on an excessive force claim. As the Eighth Circuit noted, "[a]fter incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Indeed, courts accept that the use of force and imposition of pain are part of the prison experience. In the Eighth Circuit, that includes the indignity and excruciating pain of being pepper sprayed on the genitals. See:  Ward v. Smith, No. 15-2583 (8th Cir. Dec. 21, 2016).

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Related legal case

Ward v. Smith