Staples v. Gerry

United States Court of Appeals
For the First Circuit

No. 18-1727

FRANK STAPLES,

Plaintiff, Appellant,

v.

RICHARD GERRY, Warden, New Hampshire State Prison, Defendant, in
both his individual and official capacities, WILLIAM WRENN,
Commissioner of the New Hampshire Department of Corrections,
Defendant, in both his individual and official capacities,
JEFFREY BROWN, New Hampshire Parole Board, Defendant, in both
his individual and official capacities, DONNA SYTEK, New
Hampshire Parole Board, Defendant, in both her individual and
official capacities, MARK FURLONE, New Hampshire Parole Board,
Defendant, in both his individual and official capacities, JAMES
DALY, Chaplain of the New Hampshire State Prison, Defendant, in
both his individual and official capacities, KIM LACASSE,
Director of classifications at the New Hampshire State Prison,
Defendant, in both her individual and official capacities,
JOSEPH MICHAUD, Correctional Officer at the New Hampshire State
Prison, Defendant, in both his individual and official
capacities, RONALD GAGLIARDI, Correctional Officer at the New
Hampshire State Prison, Defendant, in both his individual and
official capacities, JON FOUTS, Head of Security at New
Hampshire State Prison, Defendant, in both his individual and
official capacities, CHRISTOPHER KENCH, Correctional Officer at
the N.H. State Prison, Defendant, in both his individual and
official capacities, LEO DEUSAULT, Correctional Officer at the
New Hampshire State Prison, Defendant, in both his individual
and official capacities, PAUL CASCIO, Correctional Officer at
the New Hampshire State Prison, Defendant, in both his
individual and official capacities, MARC MILLER, Correctional
Officer at the New Hampshire State Prison, Defendant, in both
his individual and official capacities, MICHAEL EDMARK,
Correctional Officer at the New Hampshire State Prison,
Defendant, in both his individual and official capacities, SCOTT
MARSHALL, Correctional Officer at the New Hampshire State
Prison, Defendant, in both his individual and official
capacities, JOSEPH DIAMENT, Correctional Officer at the New
 Hampshire State Prison, Defendant, in both his individual and
official capacities, MARC THERIAULT, Correctional Officer at the
New Hampshire State Prison, Defendant, in both his individual
and official capacities, PAUL COURCHESNE, Correctional Officer
at the New Hampshire State Prison, in both his individual and
official Defendant, in both his individual and official
capacities, ROBERT PARENT, Correctional Officer at the New
Hampshire State Prison, Defendant, in both his individual and
official capacities.

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]

Before

Lynch, Thompson, and Barron,
Circuit Judges.

Donna J. Brown, with whom Wadleigh, Starr & Peters, P.L.L.C.,
was on brief, for appellant.
Francis C. Fredericks, Senior Assistant Attorney General,
with whom Gordon J. MacDonald, Attorney General, was on brief, for
appellees.

April 24, 2019
 BARRON, Circuit Judge. This appeal concerns three

claims that a New Hampshire State Prison ("NHSP") inmate brought

against two of the prison's officers in a lawsuit under 42 U.S.C.

§ 1983 alleging violations of his federal constitutional rights.

The inmate alleges in the first of these claims that, in 2013, one

of the officers pushed him against a pillar, allegedly causing him

to hit his head on it, in violation of the Eighth Amendment. The

inmate alleges in the other claims that, in 2015, the other officer

sprayed pepper spray into his cell, in violation of both the First

Amendment and the Eighth Amendment. The officers moved for summary

judgment on those claims based on qualified immunity. The District

Court granted the motion, and the inmate appealed. We affirm.

I.

The plaintiff is Frank Staples, a NHSP inmate at all

relevant times. The defendants are two NHSP corrections officers,

Robert Parent and Scott Marshall. The following facts are not in

dispute, except where expressly noted otherwise.

In November 2011, Staples was transferred from a New

Hampshire county prison to the Special Housing Unit ("SHU") of the

NHSP, a facility run by the New Hampshire Department of Corrections

("NHDOC"). Around that same time, Staples started practicing

Taoism, including the Taoist practice of growing long hair.

- 3 -
 NHDOC policy set a one-fourth inch limit on facial hair

length that was enforced in all units except the SHU. Staples

grew a lengthy beard between November 2011 and September 2013.

In September 2013, NHDOC staff decided to transfer

Staples from the SHU to the Close Custody Unit ("CCU"), which did

enforce the NHDOC facial hair policy. CCU staff escorted Staples

and five other inmates to the office area of the CCU for intake.

Parent, a sergeant in the CCU, ordered Staples to trim his beard.

Staples became visibly upset and refused to shave. Parent asked

Staples to fill out a written statement form.

The parties dispute what Parent said when he handed

Staples the form. The government claims that Parent asked Staples

to explain why he was refusing to enter the CCU. Staples claims

that Parent actually asked Staples, "[t]ell me why you want to be

PC." Staples contends that "PC" is short for "protective custody,"

a label associated with "snitch[es]" and "sex offender[s]" that

could put Staples in a dangerous position with other inmates.

The parties agree that Staples took the form and tore it

in half. At the moment at which Staples tore up the form, Staples

was within "arms' reach" ("three to four feet") of Parent. Parent

then swiftly pushed Staples against a support pillar in the office

in order to restrain him. Another officer, Robert Leitner, then

handcuffed Staples.

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 Staples claims that Parent "took [his] arm and threw it

behind [him] and pushed" him and "slammed him face first into [the]

cement pillar." Parent claims that he was not holding Staples's

arm but only the "center of his back" and that "the front of

[Staples's] body was pressed up against the pillar," but that

"Staples'[s] head did not make any contact with the pole."

A different officer escorted Staples to an isolation

cell. Video footage of the search conducted of Staples upon

entering the cell shows Staples without any obvious marks on his

forehead and without any obvious signs of discomfort.

Pursuant to NHDOC policy, Staples was offered medical

attention, which Staples accepted. Officers escorted Staples to

the NHSP Health Services Center. Staples reported bilateral wrist

tingling and intermittent lower back and shoulder pain. A nurse

examined Staples and concluded that Staples's wrist functioning

"was within normal limits" and reported that she "did not observe

any visible sign of injury, such as redness or bruising, to Inmate

Staples'[s] wrists, back, head, or shoulder." The nurse "did not

recommend that Inmate Staples receive any follow up medical care

as [she] saw no indication that continued care was necessary."

On December 13, 2014, Staples filed a lawsuit detailing

his disputes with NHSP officers relating to the NHDOC facial hair

policy and seeking damages. On December 24, 2014, Staples received

a "Hurt Feelings Report" that was slipped under his cell door.

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The "Hurt Feelings Report" is a mock form that allegedly purports

to "assist whiners in documenting hurt feelings," and suggests

that a person who complains is a "sissy," "candy-ass," and a

"wimp." Staples was allegedly told by other officers that Marshall

had arranged for Staples to receive the document, and Marshall

allegedly later asked Staples, "[O]h, did you get that?" in

reference to the document. Marshall does not admit to sending

Staples the Hurt Feelings Report or to making the comment in

reference to it.

In July 2015, NHDOC staff decided to move Staples from

the "D-tier" in the SHU to the "I-tier" in the same unit. Staples

viewed the transfer to "I-tier" as punitive.

Officers David Dionne and Kory McCauley unsuccessfully

attempted to get Staples to leave his cell to complete the move.

The two officers then met with Marshall, the SHU sergeant, to

determine how to effectuate the move. Marshall ordered them to

try to get Staples's voluntary compliance with the move by talking

to Staples again during their next rounds. Dionne did so, and

Staples again refused. Dionne again conferred with Marshall.

Marshall made the decision to use pepper spray to extract Staples

from his cell if Staples continued to refuse to leave.

NHDOC policy permits the use of pepper spray to obtain

an inmate's compliance with an order to leave his cell. When

pepper spray is used, the NHDOC policy requires officers to warn

- 6 -
the inmate of its use, videotape its use, and offer the inmate

medical attention promptly after.

Marshall approached Staples in his cell and ordered

Staples to "cuff up" several times. A "cuff up" is when the inmate

places his hands through the cell's tray slot so the officer can

handcuff him before opening the cell door. Staples refused.

Marshall then left the tier to get the pepper spray, a camera, and

Officers Dionne and McCauley.

Marshall, Dionne, and McCauley returned to Staples's

cell. McCauley turned the camera on and began recording. Marshall

warned Staples: "I am giving you a direct order or you are going

to be sprayed." Staples replied: "[S]pray me, tase me, do whatever

the fuck you want."

Marshall then sprayed the pepper spray into the cell

through the tray slot using a cone nozzle, which produces a mist,

for approximately nine seconds. To protect himself from the spray,

Staples turned around and covered his face with a blanket.

Staples remained in the cell. Less than ten minutes

later, Dionne returned to the cell and offered Staples medical

attention, to which Staples responded: "I'm fine, this shit doesn't

bother me." According to Staples, he refused medical attention

because he did not want to come out of his cell to receive it.

Shortly thereafter, Dionne escorted a nurse into Staples's cell

who examined Staples and deemed him medically cleared.

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 About ninety minutes later, Marshall returned to

Staples's cell and offered to move Staples to "H-tier" instead of

"I-tier." Staples agreed. Staples then complied with Dionne's

order to "cuff up." Dionne offered Staples a shower, which he

accepted.

In June 2016, Staples brought suit under 42 U.S.C. § 1983

alleging multiple constitutional and statutory claims against

twenty NHSP officials in the United States District Court for the

District of New Hampshire. The defendants moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6). The District Court

dismissed most of the plaintiff's claims, except for the claim

that Parent had violated the Eighth Amendment by using excessive

force against him and the claims that Marshall had violated the

First Amendment and the Eighth Amendment by using pepper spray

against him. After discovery on these three remaining claims, the

defendants moved for summary judgment on the ground that they were

entitled to qualified immunity. The District Court granted the

defendants' motions. The plaintiff appealed.

II.

We review the grant of summary judgment de novo. See

Sch. Union No. 37 v. United Nat'l Ins. Co., 617 F.3d 554, 558 (1st

Cir. 2010). In undertaking that review, we "draw[] all reasonable

inferences in favor of the non-moving party while ignoring

'conclusory allegations, improbable inferences, and unsupported

- 8 -
speculation.'" Shafmaster v. United States, 707 F.3d 130, 135

(1st Cir. 2013) (quoting Sutliffe v. Epping Sch. Dist., 584 F.3d

314, 325 (1st Cir. 2009)).

We may affirm only if the record reveals "no genuine

dispute as to any material fact and [that] the movant is entitled

to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute

is "genuine" if "a reasonable jury could resolve the point in favor

of the nonmoving party." Meuser v. Fed. Express Corp., 564 F.3d

507, 515 (1st Cir. 2009) (quoting Suarez v. Pueblo Int'l, Inc.,

229 F.3d 49, 53 (1st Cir. 2000)).

In granting the defendants' motion for summary judgment

on qualified immunity grounds, the District Court relied on the

first prong of the qualified immunity analysis. That prong

concerns whether "a plaintiff plead[ed] facts showing . . . that

the official violated a statutory or constitutional right."

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The District Court

concluded that no reasonable jury could conclude from the record

that Parent had violated the Eighth Amendment or that Marshall had

violated the First Amendment or Eighth Amendment. On appeal,

Staples contends that the District Court erred in construing the

- 9 -
record because it reveals a "genuine dispute" as to whether the

defendants violated those constitutional provisions.

III.

We begin with Staples's Eighth Amendment claim against

Parent for pushing him against the pillar in the CCU. "A claim of

cruel and unusual punishment in violation of the Eighth Amendment

has two components -- one subjective, focusing on the defendant's

motive for his conduct, and the other objective, focusing on the

conduct's effect." Wright v. Goord, 554 F.3d 255, 268 (2d Cir.

2009) (citing Hudson v. McMillian, 503 U.S. 1, 7–8 (1992); Blyden

v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)).

To prevail on the objective prong, Staples must show

that "the alleged wrongdoing was objectively 'harmful enough' to

establish a constitutional violation." Hudson, 503 U.S. at 8

(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The

subjective prong turns on "whether force was applied in a good

faith effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm." Whitley v.

Albers, 475 U.S. 312, 320–21 (1986) (quoting Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom.

John v. Johnson, 414 U.S. 1033 (1973)). The "factors" that "are

relevant to that ultimate determination" include "the extent of

the threat to the safety of staff and inmates, as reasonably

perceived by the responsible officials," "the need for the

- 10 -
application of force," "the relationship between the need and the

amount of force that was used," "the extent of the injury

inflicted," and "any efforts made to temper the severity of a

forceful response." Id. at 321 (citations and internal quotation

marks omitted).

The District Court, reaching only the subjective prong

of the inquiry, concluded that the record compelled the conclusion

that Parent had acted "in a good-faith effort to maintain or

restore discipline" and therefore without "malicious[] and

sadistic[]" intent. Hudson, 503 U.S. at 7. On appeal, Staples

contends that "the District Court failed to consider evidence from

which a jury could conclude that Parent's use of force was planned,

sadistic and unnecessary." But, we do not agree.

Parent testified that he was prompted to use the force

at issue because he was "surpris[ed]" when Staples "aggressively

ripped [the form] up." Parent testified that he thus immediately

"put [Staples] against the wall to be handcuffed" "[b]ecause that

was . . . an unusual incident and [he] took control of it as

quickly as [he] possibly could."

Staples does not dispute that his "defiance of

[Parent's] order[s]" by ripping up the statement form "could

reasonably be thought to present a threat to" Parent's safety.

Whitley, 475 U.S. at 323-24; see also Stenzel v. Ellis, 916 F.2d

423, 426 (8th Cir. 1990) ("When a prisoner, having been warned

- 11 -
three times, refuses to comply with a legitimate jail security

regulation, the incident has escalated into a

'disturbance . . . that indisputably poses significant risks to

the safety of inmates and prison staff.'" (quoting Whitley, 475

U.S. at 320)). Thus, this case is not one in which a reasonable

jury could conclude, even on the officer's own account of why force

was needed, that it was wanton based on an inference that there

was no "need for the application of force." Whitley, 475 U.S. at

321.

Nor could a reasonable jury infer from the undisputed

record that "the relationship between the need and the amount of

force that was used" supports a finding that the use of force was

wanton. Id. Staples conceded during his deposition that Parent

restrained him in "one quick movement." See, e.g., Wright, 554

F.3d at 270 (relying on concession made in plaintiff's deposition

testimony). And, while the parties disagree as to whether Staples

in fact hit his head against the pillar, Staples admitted that he

hit his head "in the course of [Parent] pushing [him] to the pole"

and that Parent did not "grab[] his head and slam[] it into the

pole." See, e.g., Guitron v. Paul, 675 F.3d 1044, 1046 (7th Cir.

2012) (finding that officer did not act "maliciously and

sadistically" where he "twisted" inmate's wrist and "slammed" him

into a wall because the officer "did not use any force until [the

inmate] disobeyed a command that was designed to maintain order

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within the prison; and, when [the officer] applied modest force,

[the inmate] remained defiant").

Staples does point to what he contends was Parent's

statement during the incident, "[t]ell me why you want to be PC,"

when he handed him the statement form. Staples also points to

what he contends was Parent's subsequent admission to him, in a

conversation shortly after the CCU incident, that Parent "knew

[Staples] wasn't going to shave" and the "whole PC thing . . . was

[his] plan to try to get [Staples] to shave."

But, even crediting Staples's testimony that Parent made

these statements, they at most show that Parent wanted to pressure

Staples into shaving. Neither statement suffices to permit a

reasonable jury to find that Parent pushed Staples into the pillar

for a reason other than the one that Parent gave -- namely, that

Staples posed a security risk at the time of the push due to his

defiant act of ripping up the statement form. In fact, beyond

"general attacks upon the defendant's credibility," Staples points

to no "affirmative evidence," Crawford-El v. Britton, 523 U.S.

574, 600 (1998), that could suffice to rebut Parent's deposition

testimony that he was prompted to use force to "t[a]ke control" of

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the situation when Staples "aggressively ripped [the statement

form] up."1

We thus conclude that "the evidence, viewed in the light

most favorable to the plaintiff, [does not] support a reliable

inference of wantonness in the infliction of pain." Whitley, 475

U.S. at 322. Accordingly, we affirm the District Court's grant of

summary judgment to Parent on this claim.

IV.

We turn, then, to Staples's First Amendment and Eighth

Amendment claims against Marshall for using pepper spray against

him. We start with the First Amendment retaliation claim.

A.

To make out a prima facie case of First Amendment

retaliation, Staples must demonstrate that: (1) he engaged in an

activity protected by the First Amendment; (2) Marshall took an

adverse action against him; and (3) there is a causal link between

the protected activity and the adverse action. See Hannon v.

Beard, 645 F.3d 45, 48 (1st Cir. 2011). The government concedes,

for the purposes of this appeal, that Staples's suit challenging

1
To the extent that Staples means to argue that Parent's
alleged attempt to label him as a "PC" inmate constitutes an
independent use of force that is also actionable under the Eighth
Amendment, Staples did not make this argument in any developed
manner below. See United States v. Rodriguez, 311 F.3d 435, 437
(1st Cir. 2002) ("[A] waived issue ordinarily cannot be resurrected
on appeal.").

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NHDOC's facial hair policy is protected activity under the First

Amendment and that the use of pepper spray on an inmate is adverse

in the context of retaliation. "The heart of the matter,

therefore, is the third element of the prima facie case: the

presence or absence of a causal link between the protected activity

undertaken by the plaintiff and the adverse action that he

experienced." Id. at 49.

To make out the third element of the prima facie case,

Staples must show that his protected activity "was a substantial

or motivating factor for the adverse [action]." Padilla–García v.

Rodríguez, 212 F.3d 69, 74 (1st Cir. 2000). Even if Staples

succeeds in making that showing, however, the government may "still

prevail[] by showing that [Marshall] would have reached the same

decision in the absence of the protected conduct." Crawford-El,

523 U.S. at 593 (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429

U.S. 274, 287 (1977)); see also Padilla–García, 212 F.3d at 74;

McCue v. Bradstreet, 807 F.3d 334, 338 (1st Cir. 2015).

The District Court concluded that "even if the evidence

[that Staples] cites is minimally sufficient to establish that

Marshall was angry with Staples for filing the 2014 lawsuit, the

other undisputed evidence . . . leaves no doubt that [Marshall]

would have taken the same action regardless of any retaliatory

motive." We need not decide whether the District Court was correct

in this respect, because we conclude that Staples has not met his

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burden to show that a reasonable jury could conclude from this

record that his protected activity was a "substantial or motivating

factor" for Marshall's decision to use pepper spray against him.

Padilla–García, 212 F.3d at 74.

To argue otherwise, Staples points out that he had filed

the prison lawsuit in December 2014, seven months before Marshall's

use of pepper spray in July 2015. And, as evidence of Marshall's

animus toward Staples for filing the suit, Staples points to

Marshall's alleged sending of the "Hurt Feelings Report" in

December 2014, shortly after Staples had first filed the suit

against the prison and to Marshall's earlier alleged comment to

him in September 2013 that "I can't wait to see what that face

looks like without a beard" in connection with his move to the

CCU. Staples also points to motions that he filed in the lawsuit

a week before Marshall used the pepper spray.2 "[This] chronology

2
We note that the record contains no evidence that Marshall
was aware of any motion filed in the lawsuit -- let alone that
particular motion -- prior to his use of the pepper spray. See
Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002)
("It is only intuitive that for protected conduct to be a
substantial or motiving factor in a decision, the decisionmakers
must be aware of the protected conduct."). The government also
points out that the lawsuit involved frequent filings by Staples,
which generated more than 140 docket entries over the span of a
year.

- 16 -
of events," Staples contends, "gives rise to an inference of

retaliation." Hannon, 645 F.3d at 49.

But, the record "points to another explanation" for

Marshall's decision to use pepper spray -- Staples's multiple

refusals to leave his cell in the days before Marshall's use of

pepper spray -- "that is so obviously correct as to render the

charge of improper motivation implausible." Maloy v. Ballori-

Lage, 744 F.3d 250, 253 (1st Cir. 2014); cf. Micheo-Acevedo v.

Stericycle of Puerto Rico, Inc., 897 F.3d 360, 366 (1st Cir. 2018),

cert. denied, 139 S. Ct. 1297 (2019) (noting, in the employment

context, that "proximity in timing does not alone suffice to create

a genuine issue of material fact as to [causation]" where the

plaintiff's "own unprotected conduct readily explains the timing

of . . . the adverse . . . action[]"); Bonilla-Ramirez v. MVM,

Inc., 904 F.3d 88, 96 (1st Cir. 2018) (same).

Here, Marshall testified that his "plan" was "[t]o use

the OC [spray] . . . to get [Staples] to cuff up and come out of

his cell." Consistent with Marshall's testimony, Staples

testified that he refused the orders to cuff up, that he expected

Marshall to "assemble a team and do an extraction" in response to

his refusals, and that he told Marshall to "spray me, tase me, do

whatever the fuck you want" immediately after Marshall warned him

that pepper spray would be used if he continued to refuse to

comply. Thus, Staples does not contest that the conduct that

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Marshall identified as supplying the "justification for using the

pepper spray against [him]" -- namely, Staples's refusal to cuff

up and to leave his cell -- in fact took place. Stallworth v.

Tyson, 578 F. App'x 948, 951 (11th Cir. 2014) (per curiam).

Nor does Staples contend that Marshall orchestrated the

plan to move Staples to a different cell in order to create an

excuse to use pepper spray against him.3 Cf. id. (concluding that

genuine dispute existed as to whether an officer "in fact responded

to [plaintiff's] attempt to hurt himself with a razor" where

plaintiff averred that the officer "set up" plaintiff by throwing

the razor into the plaintiff's cell). In fact, the undisputed

record shows that Marshall did not single Staples out for the use

of pepper spray. Cf. Saleh v. Upadhyay, 11 F. App'x 241, 257 (4th

Cir. 2001) (per curiam) (finding genuine issue as to causation

where the adverse action was taken only against one of six

similarly situated employees and the employer "presented no

evidence to justify the decision to single out [the plaintiff] for

[the adverse] treatment"). Rather, Marshall testified that he

had, pursuant to prison policy, used pepper spray on inmates "six

to 10" times before. And, Staples points to no contrary evidence

3
Staples does not contend that the move to I-tier was itself
the adverse action for purposes of the First Amendment retaliation
claim.

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"that would support an inference of differential treatment." Air

Sunshine, Inc. v. Carl, 663 F.3d 27, 37 (1st Cir. 2011).

Staples does try to make the case that Marshall

"deviat[ed] from standard operating procedures" in using the

pepper spray. Hannon, 645 F.3d at 49. But, the record shows that

NHDOC Policy and Procedure Directive 5.58 authorizes officers to

use pepper spray after "verbal directives fail to result in an

inmate's compliance with officers' commands," including "after

[an] inmate has indicated his refusal to leave [his] cell and is

not complying with staff orders." When an officer employs pepper

spray for such a purpose, NHDOC policy requires the officer to

warn the inmate prior to using the spray, to videotape the use of

the spray, and to disengage and consider other options if the use

of the spray does not result in the inmate's compliance. It is

undisputed that Marshall complied with these requirements. See

Air Sunshine, 663 F.3d at 36 (rejecting plaintiff's First Amendment

retaliation claim where there was no basis to conclude that "the

relevant procedures were not followed by [the defendant]").

Staples does contend that Marshall violated NHDOC policy

by not first attempting to physically extract Staples before

resorting to the use of pepper spray. But, an officer -- unnamed

in the suit and certified by New Hampshire Police Standards and

Training in the use of pepper spray -- declared in an affidavit

that, under NHDOC policy, "a physical cell extraction is typically

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viewed as a last resort means of gaining an inmate's compliance

with leaving a cell" and that pepper spray is viewed as "a minimal

use of force." Staples points to nothing in the record to rebut

this competent evidence besides his own speculative testimony that

NHDOC policy requires officers to first attempt a physical

extraction. See Hannon, 645 F.3d at 49 ("[A]ffidavits and

deposition testimony are effective in opposing summary judgment

only when they are given on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant . . . is

competent to testify about the matter in question.").

Thus, we affirm the District Court's grant of summary

judgment to Marshall on Staples's First Amendment retaliation

claim. We turn, then, to Staples's separate claim that Marshall's

use of pepper spray violated the Eighth Amendment.

B.

"[A]lthough it is not per se unconstitutional for guards

to spray mace at prisoners confined in their cells, it is necessary

to examine the 'totality of the circumstances, including the

provocation, the amount of [spray] used, and the purposes for which

the [spray] is used [to] determin[e] the validity of the use of

[spray] in the prison environment.'" Williams v. Benjamin, 77

F.3d 756, 763 (4th Cir. 1996) (quoting Bailey v. Turner, 736 F.2d

963, 969 (4th Cir. 1984)). Here, as we have explained, Marshall

testified that he used pepper spray for a "valid[]" "purpose" -- to

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extract Staples from his cell -- in response to a "valid[]"

"provocation" -- Staples refusing multiple orders over several

days to leave his cell. Id.

The record amply supports that testimony, and the

evidence of Marshall's prior comments to Staples concerning his

beard do not suffice to permit a reasonable jury to conclude that

Marshall acted for a reason other than the one that he gave. See

Skinner v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005) (finding

no Eighth Amendment violation where an "extraction team sprayed a

non-lethal chemical irritant (derived from cayenne pepper) into

the cell to make [plaintiff] exit the cell without direct physical

force"); Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979)

(holding "that use of [tear gas] in small amounts may be a

necessary prison technique if a prisoner refuses after adequate

warning to move from a cell"); Allen v. Bosley, 253 F. App'x 658,

659 (9th Cir. 2007) (finding the use of pepper spray permissible

after inmate "refused to comply with orders to submit to standard

handcuffing procedure and attempted to block a cell extraction

team from entering his cell"); Rodriguez v. Elmore, 407 F. App'x

124, 126 (9th Cir. 2010) (mem.) (same); cf. Torres-Viera v. Laboy-

Alvarado, 311 F.3d 105, 108 (1st Cir. 2002) (granting officers

qualified immunity where they used tear gas to "respond[] to a

security disturbance"); Passmore v. Ianello, 528 F. App'x 144, 148

(3d Cir. 2013) (per curiam) (holding that "the use of pepper spray

- 21 -
was reasonable" where defendant "refused to present himself for a

mandatory shower at least nine times" before the use of the spray).

Nor does the "amount of [spray] used" by Marshall suffice

in and of itself to permit a reasonable jury to infer wantonness.

Williams, 77 F.3d at 763 (internal quotation marks omitted). The

undisputed record shows that Marshall used a cone nozzle that

produced a mist instead of a harsher stream of pepper spray, that

Marshall directed the pepper spray into Staples's cell and not at

Staples's person, that Marshall sprayed the pepper spray into the

plaintiff's cell for approximately nine seconds, and that Staples

was promptly offered a shower and medical attention after the

incident. This case is thus not like those cases on which Staples

relies "where . . . summary judgment in Eighth Amendment excessive

force claims based on pepper spraying" was denied. Burns v. Eaton,

752 F.3d 1136, 1140 (8th Cir. 2014). The officers' use of pepper

spray in those cases "involved no warning th[e] force would be

used, no apparent purpose other than inflicting pain, use of

unnecessary 'super-soaker' quantities of the chemical, refusal to

allow the victim to wash off the painful chemical for days, and/or

use of additional physical force" and therefore permitted an

inference of wantonness. 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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 V.

For the foregoing reasons, we affirm the District

Court's grant of summary judgment to the defendants on the

plaintiff's First Amendment and Eighth Amendment claims. Each

party shall bear its own costs.

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