                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1211
                         ___________________________

                                    Deverick Scott

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

 Randy Watson, Warden, Varner Unit; Moses Jackson, Assistant Warden, Varner
  Unit; Lasaundra Malone, Originally named Malone; Mark Stephens, Captain,
Varner Unit; Corey Paskel, Officer, Varner Unit; Xavier Butler, Officer (originally
named as Butler); Alex Cofield, Officer, Varner Unit (Originally named Alex Copefield)

                       lllllllllllllllllllll Defendants - Appellees

       Keonta Wilson, Corporal, Varner Unit (originally named as Wilson)

                              lllllllllllllllllllll Defendant

         Craig Woolfolk, Officer, Varner Unit (Originally named Wolfo)

                        lllllllllllllllllllll Defendant - Appellee

                            Powell, Officer, Varner Unit

                              lllllllllllllllllllll Defendant

   Cortez Jones, Officer, Varner Unit (originally named as Jones); Phillip Esaw,
  Lieutenant, Varner Unit; Kandi Hicks, Originally named Hicks; Joseph Bivens,
   Originally named Bplens; Jonathan Young, Sergeant, Varner Unit (Originally
                                  named Young)

                       lllllllllllllllllllll Defendants - Appellees
                                        ____________
                     Appeal from United States District Court
                  for the Eastern District of Arkansas - Pine Bluff
                                   ____________

                           Submitted: November 6, 2017
                             Filed: December 7, 2017
                                  [Unpublished]
                                  ____________

Before COLLOTON, BOWMAN, and KELLY, Circuit Judges.
                        ____________

PER CURIAM.

       Arkansas inmate Deverick Scott appeals after the District Court1 granted
summary judgment to certain defendants in his 42 U.S.C. § 1983 action. Scott
identifies no valid basis, and we discern none, for overturning the District Court’s
assessment of the merits of his asserted claims. See Murchison v. Rogers, 779 F.3d
882, 886–87 (8th Cir. 2015) (standard of review). The judgment is affirmed. See 8th
Cir. R. 47B.

KELLY, Circuit Judge, concurring in part and dissenting in part.

       I believe Scott’s excessive-force claim against Phillip Esaw relating to the
November 11, 2014, use-of-force incident should have survived summary judgment.
At his deposition, Scott testified that Esaw emptied an entire can of mace directly in
his face without any warning. At the time, Scott was speaking with defendants Young
and Cofield about his placement on behavior control for intentionally flooding his


      1
       The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable Jerome T. Kearney, United States Magistrate Judge for the Eastern District
of Arkansas.
cell, and he had requested to speak with their supervisor. According to Scott, this
incident occurred three hours after the flooding had been resolved, his cell had been
cleaned without incident, and the situation had been contained. While Scott admits
that the defendants had told him to “catch the cuffs” and that he had not yet complied
with that order, it is undisputed that he was secured in his own cell. Also, there is no
indication he was using abusive or profane language, threatening violence, or
otherwise acting in a manner that would justify the deployment of a full can of mace
to his face without a warning that the use of mace was imminent and some post-
warning opportunity to submit to being handcuffed. Scott’s deposition testimony is
consistent with the allegations in his verified complaint. In my view, this
evidence—viewed in the light most favorable to Scott—was sufficient to withstand
summary judgment as to this claim. See Walker v. Bowersox, 526 F.3d 1186,
1189–90 (8th Cir. 2008) (per curiam); Treats v. Morgan, 308 F.3d 868, 871–75 (8th
Cir. 2002); cf. Burns v. Eaton, 752 F.3d 1136, 1138–41 (8th Cir. 2014). Accordingly,
I would reverse the grant of summary judgment on this claim, and affirm the district
court in all other respects.
                         ______________________________




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