PHILADELPHIA – A federal appellate court has upheld a lower court’s decision to grant qualified immunity to corrections officials accused of deliberate indifference by an inmate at SCI-Benner Township, who suffered an asthma attack when those officials pepper sprayed another nearby inmate.
In an April 11 memorandum opinion, U.S. Court of Appeals for the Third Circuit judges Thomas M. Hardiman, Anthony J. Scirica and D. Brooks Smith chose to affirm a U.S. District Court for the Middle District of Pennsylvania ruling in favor of SCI-Benner Township officials Lt. Redfern, Corrections Officer Shreck, Corrections Officer Monsell and Nurse Phil Rogers, and against plaintiff Michael Rivera.
Hardiman authored the Court’s opinion in this matter.
“On June 20, 2020, Rivera was a Pennsylvania state prisoner confined in the restricted housing unit. At approximately 5:45 p.m., Rivera was inside an open-air telephone cage when he overheard prison officials preparing to forcibly extract inmate Ryan Miller from a nearby cell. Miller was ‘covering and uncovering his door,’ which was ‘slowing down’ prison operations. His behavior also presented ‘a safety issue,’ as prisoners who cover their cell doors sometimes hurt themselves or even commit suicide. Anticipating that prison officials would use pepper spray, Rivera informed them that exposing him to secondhand pepper spray, while he was unprotected in an open-air cage, would cause him to suffer an asthma attack,” Hardiman said.
“For nearly 90 minutes, Rivera implored prison officials to escort him back to his cell located 25 to 30 feet away on the same floor, stating that he would not be adversely affected by the pepper spray there. The officials refused, claiming there was no one available to take Rivera to his cell because of the ongoing preparations to extract Miller. Shortly past 7 p.m., after Miller had repeatedly refused to exit his cell, prison officials donned gas masks and released pepper spray into Miller’s cell. After Miller was removed, prison officials escorted him to the psychiatric ward. Rivera began coughing, sneezing and experiencing a drowning-like sensation within three minutes of the pepper spray being deployed in Miller’s cell. Even after a prison official brought Rivera his asthma inhaler and took him back to his cell, his severe symptoms continued. Hearing Rivera coughing and vomiting, a prisoner in the neighboring cell requested medical attention on Rivera’s behalf. Rivera then received a nebulizer breathing treatment, which abated his symptoms.”
Rivera then sued the prison officials in their individual capacities under 42 U.S.C. Section 1983, arguing they had acted with deliberate indifference to the substantial risk of a serious harm to him, in violation of the Eighth Amendment to the U.S. Constitution, when they refused to return him to his cell before deploying pepper spray against Miller.
Without deciding whether or not a constitutional violation occurred, the District Court granted summary judgment to the defendant prison officials, concluding that “the law was not clearly established such as to put the defendants on notice that spraying a targeted burst of [pepper] spray into another prisoner’s cell 50-60 feet away from an inmate with asthma violates the Eighth Amendment.”
Rivera then appealed to the Third Circuit.
Hardiman explained the calculus by which the Court would examine the issue, which was if Rivera’s “exposure [to the pepper spray] could be substantially reduced without materially hindering institutional interests”, and if the defendants took that point into consideration.
“Rivera relies primarily on our decision in Atkinson v. Taylor, which held that prison officials were not entitled to qualified immunity when they allegedly ‘exposed [a prisoner], with deliberate indifference, to constant smoking in his cell for over seven months.’ While we do not require ‘precise factual correspondence between the case at issue and a previous case’, Atkinson does not place the constitutional question here ‘beyond debate’. Unlike in Atkinson, where prison officials gave no reason for declining to move the prisoner, prison officials here were confronted with competing institutional concerns. As Rivera admitted: (1) Prison protocol puts all normal restricted housing unit procedures on pause while prison officials are preparing to forcibly extract a prisoner, and (2) All prisoners ordinarily have to be escorted everywhere in the restricted housing unit by at least two officers per prisoner. Rivera emphasizes that ‘there is no prison policy or procedure that precluded any of the [prison officials] from returning him to his cell prior to their use of [pepper] spray.’ Even if true, Atkinson sheds no light on how prison officials should prioritize conflicting penological interests. So Atkinson did not clearly establish that reasonable prison officials in this case would have known that their decision to focus exclusively on Miller’s extraction violated Rivera’s Eighth Amendment rights,” Hardiman stated.
“None of the other cases Rivera cites fares any better in showing that the Eighth Amendment violation alleged here was clearly established. For example, in Clement v. Gomez, the Ninth Circuit reasoned that a ‘failure to institute adequate prison policies for minimizing the effects of pepper spray on bystander inmates’ ‘may lead to liability’ – if ‘in light of the duties assigned to specific officers or employees, the need for more or different training is obvious, and the inadequacy so likely to result in violations of constitutional rights, that the policy-makers…can reasonably be said to have been deliberately indifferent to the need.’ Even if Clement alone sufficed to constitute ‘a robust consensus of cases of persuasive authority’ in our sister circuits, the alleged Eighth Amendment violation here does not implicate the training of prison officials. Clement is thus inapposite. And out-of-circuit cases showing that the use of pepper spray satisfies the objective component of the Eighth Amendment deliberate indifference framework fail for the same reason as Atkinson: They do not address whether prison officials violate constitutional rights when they prioritize the health and safety of one prisoner over another.”
Hardiman and his colleagues reasoned that with institutional obligations at odds, the corrections officials made a choice to not move Rivera from an area where the pepper spray was used, but that such a decision was not in violation of the law.
“The prison officials in this case faced conflicting obligations. By choosing to forcibly extract Miller from his cell without first returning Rivera to his cell, they knowingly caused Rivera to suffer an asthma attack. But because that decision was not made in derogation of clearly established law, the officials are entitled to qualified immunity. We will affirm the District Court’s judgment to that effect,” Hardiman said.
U.S. Court of Appeals for the Third Circuit case 23-1554
U.S. District Court for the Middle District of Pennsylvania case 1:21-cv-01118
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com