Facts

Plaintiff Eric Dicks, a state prisoner, was involved in an altercation with a fellow inmate. The prison alarm sounded, and the inmates refused to cease fighting after an officer ordered them to stop. Officer R.L. Witte heard the alarm and arrived at the scene of the fight. Witte also ordered the inmates to cease fighting. When they did not comply, Witte used a 40-millimeter direct impact launcher to shoot a 40-millimeter round at the inmates. A round struck plaintiff. The fight ended after police sprayed the inmates with oleoresin-capsicum.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that his Eighth Amendment rights were violated by Witte because Witte used excessive force. The firing of the impact launcher raised an issue of fact as to whether plaintiff's rights were violated. Further, plaintiff did not pose a threat to the officers.

DEFENDANT'S CONTENTIONS: Witte claimed he acted lawfully and, further, intended no serious harm to plaintiff. The evidence did not show the force used to stop the fight was excessive, or used with malicious or sadistic intent.

Result

The defendant's motion for summary judgment was granted.