Kevin McCourt v. Miguel Angel Delgado , 241 W. Va. 495 ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
FILED
March 25, 2019
No. 17-0327 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
DAVID BALLARD, KEVIN MCCOURT, JESS MATTOX,
AND HOBERT ALLEN,
Defendants Below, Petitioners
v.
MIGUEL ANGEL DELGADO,
Plaintiff Below, Respondent
Appeal from the Circuit Court of Kanawha County
The Honorable Joanna Tabit, Judge
Civil Action No. 15-C-1885
AFFIRMED
AND
No. 17-0328
DAVID BALLARD, KEVIN MCCOURT, JESS MATTOX,
AND HOBERT ALLEN,
Defendants Below, Petitioners
v.
MIGUEL ANGEL DELGADO,
Plaintiff Below, Respondent
Appeal from the Circuit Court of Kanawha County
Honorable Joanna Tabit, Judge
Civil Action No. 15-C-1885
AFFIRMED
Submitted: January 8, 2019
Filed: March 25, 2019
John P. Fuller, Esq. Lydia C. Milnes, Esq.
Betsy L. Stewart, Esq. Mountain State Justice, Inc.
Michael W. Taylor, Esq. Clarksburg, West Virginia
Bailey & Wyant, PLLC Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioners
Kevin McCourt, Jess Mattox,
and Hobert Allen
William E. Murray, Esq.
Natalie N. Matheny, Esq.
Anspach Meeks Ellenberger LLP
Charleston, West Virginia
Counsel for the Petitioner David Ballard
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “A circuit court’s denial of summary judgment that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under the
‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660(2009).
2. “This Court reviews de novo the denial of a motion for summary judgment,
where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm
Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
3. “The circuit court’s function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter, but is to determine whether there is a
genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
4. “The ultimate determination of whether qualified or statutory immunity bars
a civil action is one of law for the court to determine. Therefore, unless there is a bona fide
dispute as to the foundational or historical facts that underlie the immunity determination,
the ultimate questions of statutory or qualified immunity are ripe for summary disposition.”
Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).
i
5. “A circuit court’s order denying summary judgment on qualified immunity
grounds on the basis of disputed issues of material fact must contain sufficient detail to
permit meaningful appellate review. In particular, the court must identify those material facts
which are disputed by competent evidence and must provide a description of the competing
evidence or inferences therefrom giving rise to the dispute which preclude summary
disposition.” Syl. Pt. 4, W.Va. Dep’t of Health & Human Res. v. Payne, 231 W.Va. 563, 746
S.E.2d 554 (2013).
6. “‘On a motion for summary judgment all papers of record and all matters
submitted by both parties should be considered by the court.’ Syl. Pt. 2, Aetna Cas. & Sur.
Co. v. Fed. Ins. Co. of NY, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. Pt. 3, Ford v.
Dickerson, 222 W.Va. 61, 662 S.E.2d 503 (2008).
ii
WORKMAN, Justice:
In these consolidated appeals, the petitioners (defendants below), David
Ballard, Warden at Mount Olive Correction Center (“MOCC”),1 and Kevin McCourt, Jess
Mattox, and Hobert Allen, correctional officers at MOCC (collectively the “petitioners”),
appeal the Circuit Court of Kanawha County’s March 9, 2017, order through which it denied
their motions for summary judgment based on qualified immunity in this excessive force
action brought under 42 United States Code §1983 (2012)2 (“§ 1983”). The circuit court
found that the petitioners were not entitled to summary judgment because there are genuine
issues of material fact concerning the excessive force, deliberate indifference, and
supervisory liability claims brought against them by the respondent (plaintiff below), Miguel
Delgado, an inmate at MOCC (“Inmate Delgado”). The circuit court further found that if it
1
Effective July 1, 2018, the correctional facility positions formerly designated as
“wardens” are now designated “superintendents.” See W.Va. Code § 15A-5-3 (2018 Supp.).
Mr. Ballard is no longer the superintendent at MOCC, however, he held the title of “warden”
at MOCC at all times relevant to the case at bar. Accordingly, we refer to Mr. Ballard herein
as “Warden Ballard.”
2
See 42 U.S.C. § 1983, in part (“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .”).
1
is ultimately determined that the petitioner officers violated the Eighth Amendment3 through
use of excessive force and deliberate indifference, Inmate Delgado’s tort claims were also
viable. Following our review of the briefs, the arguments of counsel, the appendix record
submitted, and the applicable law, this Court finds no reversible error and affirms the circuit
court’s denial of summary judgment based on qualified immunity grounds.
I. Facts and Procedural Background4
Shortly before midnight on May 23, 2015, Nurse Joyce Coleman, accompanied
by Officers McCourt and Brandon Mooney,5 was distributing medications to prisoners in the
Quilliams II Unit (“Unit”), a segregation unit at MOCC, which is a state correctional facility
located in Mt. Olive, West Virginia.6 Medications are dispensed to inmates through what is
sometimes referred to as a “bean hole,” which is a narrow slot in the solid steel cell doors
through which food trays and medications are passed. Inmate Delgado alleges that during
3
U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
4
These factual allegations have been gleaned from the parties’ briefs and the appendix
record, which includes a partial transcript of Warden Ballard’s deposition testimony taken
on June 10, 2016, in a federal action brought by an MOCC inmate, as well as a transcript of
Inmate Delgado’s deposition taken in the instant action.
5
Officer Mooney is not a party to this action. There is some indication in the
appendix record that he died before this action was brought.
6
The Quilliams II Unit is a solitary confinement unit that houses inmates who have
been placed on administrative segregation. The parties sometime refer to the Unit as a “pod.”
2
this particular “pill pass,” he repeatedly told Nurse Coleman that he had a question. When
she did not respond, he asked Officer McCourt, one of the officers accompanying Nurse
Coleman, to tell the nurse that he had a question. Inmate Delgado states that Nurse Coleman
then approached his cell door and asked, “What is it? I’m busy.” He responded that he had
a question to which she replied she was busy dealing with a thousand other inmates.
According to Inmate Delgado, after further discussion with Nurse Coleman, he became
frustrated and threatened to report her to the board of nursing, prompting her to shout the
address of the nursing board through his cell door. Inmate Delgado replied that he already
had the board’s address, adding “if you don’t care, quit your job, go home, and kill yourself.”
Officer McCourt interjected, warning Inmate Delgado that he was getting close to a “write-
up,”7 Delgado responded, “listen, I don’t care. You go home too and kill yourself.” The
officers and Nurse Coleman then left his cell door to complete the pill pass, after which they
exited the Unit.
Inmate Delgado alleges that after Nurse Coleman and the officers left his cell
door, he lay down on his bed, put on his headphones, and listened to music. He states that
approximately ten minutes later, Officers McCourt, Mooney, and Maddox returned to his cell
door to re-engage with him. He contends that Officer Mooney told him that he was “tired
of my smart mouth and my attitude with the nurses,” that they were “fed up with it,” and that
7
A “write-up” appears to be a disciplinary report that is filed against an inmate.
3
I was “going to get a write-up.” Inmate Delgado responded, “[w]rite it up, write it up,” after
which Officer Mooney said, “you got a smart mouth. I’m going to spray you[,]” referring
to Oleoresin Capsicum pepper spray (“OC”).8 Inmate Delgado avers that he replied, “[g]o
ahead, spray me. If that’s what you want to do, go ahead and spray me.” He then spun
around to place his lower back against the slot in his cell door to try to block the spray from
dispersing throughout his cell.9 He states that he was not quick enough, and the first spray10
went along the wall of his cell; however, the second spray struck his lower back, soaking his
clothing. Inmate Delgado contends that the rest of the Unit was quiet during this entire
incident and that the only disturbance was the one created by the correctional officers.
Upon being sprayed with OC, Inmate Delgado states that he immediately began
to suffer from burning eyes and skin and restricted airways causing him to feel as if he could
not breathe. After deploying the OC spray, the officers closed the slot in the cell door and
departed. Inmate Delgado used the sink in his cell to splash water on his face and hands in
an attempt to lessen the burning effects of the OC spray but, within minutes, the officers shut
8
In written post-incident reports, the officers state that the spray they used on Inmate
Delgado was MK-9 Sabre Red Phantom OC, also referred to as “Mark IX.”
9
Apparently, Inmate Delgado had prior experience upon which to base his evasive
efforts as he had been sprayed with OC spray while locked in his solitary confinement cell
on five occasions.
10
Inmate Delgado learned through his administrative grievance concerning this
incident that it was Officer McCourt who deployed the OC spray into his cell.
4
off the water to his cell. Inmate Delgado states that when he asked why his water had been
shut off, Officer Allen told him they had done it “so you won’t decontaminate yourself.”
Approximately ten minutes later, Officers McCourt, Allen, and Mattox returned to Inmate
Delgado’s cell to take him to the recreation yard for decontamination. Inmate Delgado
testified that his hands were cuffed behind his back in a twisting fashion that caused him so
much pain in his shoulder that he fell to his knees while the officers simultaneously
disregarded his protestations that they were hurting him. Other than an inmate yelling to ask
why his water had been shut off,11 Inmate Delgado states that the rest of the Unit continued
to remain quiet.
Once they arrived in the recreation yard, Inmate Delgado states that Officer
Allen turned on the water in a large sink. When he asked how the decontamination would
proceed when he could not remove his clothing that was soaked with OC spray as he was
handcuffed, he contends that Officer Allen accused him of refusing decontamination.
Another officer told Inmate Delgado to go ahead and remove his clothing, but refused to
remove his handcuffs, at which point the officers again accused him of refusing
decontamination. Thereafter, Inmate Delgado was taken to see Nurse Coleman for a medical
evaluation.
11
Inmate Delgado explained that his cell in the Unit was connected to three other
cells with two on the bottom and two cells above. When the officers shut off the water to his
cell, it was shut off to all four cells.
5
Inmate Delgado states that he was seated at a table in a multipurpose room with
Officers Mattox and Allen on either side of him when Nurse Coleman approached him,
asking him what was wrong. He told her about his shoulder pain caused by the officers
twisting his arm and wrist at an awkward angle before cuffing him and that his buttocks and
back were on fire because of the pepper spray. Inmate Delgado alleges that Nurse Coleman
neither touched nor examined him but, instead, walked to the other side of the table, sat
down, and began reading a book.12 Approximately one hour after the OC spray was deployed
into his locked isolation cell, Inmate Delgado was allowed to shower. He was then returned
to his cell, which had been decontaminated.
Offering a different account of these events, Officers McCourt and Mooney
filed incident reports in which they stated that Inmate Delgado became verbally combative
with Nurse Coleman, telling her to “go kill yourself,” but also threatening, “im [sic] going
to kill you bitch,” the latter of which Inmate Delgado denies. These officers also reported
that Inmate Delgado told them “fuck you CO”13 as they escorted Nurse Coleman away from
his cell following his verbal exchange with her. As for their reason for later returning to
Inmate Delgado’s cell, these officers reported that they did so to attempt to “deescalate” or
“calm” him. According to the reports of the petitioner officers and Officer Mooney, Inmate
12
Inmate Delgado did not name Nurse Coleman as a defendant in this action.
13
Presumably “CO” is used to refer to the correctional officers.
6
Delgado ignored their multiple, loud, and clear verbal commands to cease creating a
disturbance14 that was spreading to other inmates who were yelling from within their locked
cells in the Unit, which prompted Officer Mooney to open the slot in Inmate Delgado’s
locked cell door through which Officer McCourt deployed “two one second burst[s]” of OC
spray into the cell. The officers state this “very low level” use of force was utilized to gain
Inmate Delgado’s compliance and restore order to the Unit.15 Regarding the water being
turned off to Inmate Delgado’s cell after the OC spray was deployed, Officer McCourt stated
in his Incident Report that Officers Mooney and Mattox turned off the water “[i]n order to
allow [Delgado] to deescalate[.]” Officer Mattox stated in his Incident Report that the water
14
The Incident Report filed by Officer Mooney stated that Inmate Delgado was
“continuously yelling and cursing.” Officer Mattox stated in his Incident Report that Inmate
Delgado was “highly agitated, yelling and cursing at Officers Mooney and McCourt” and that
other inmates in the Unit were beginning to yell. Officer McCourt indicated in his Incident
Report that Inmate Delgado was “creating a disturbance” and that “other inmates in the
[Unit] began to yell.”
15
The appendix record contains a copy of the West Virginia Division of Corrections
Policy Directive 312.02 (“DOC Policy Directive 312.02”), which sets forth a Force
Continuum. The Intermediate Control Tactics Soft provides that it is “a level of control used
for any level of resistance by an inmate when lower levels of control have failed” and that
this level of control “may include . . . personally carried chemical agent[.]” This Policy
Directive further provides that such chemical agent “must be employed in the manner as set
forth in the manufacturer’s recommendations” because “[a]ny deviation from those
requirements may increase the potential for injury[.]” The appendix record also contains a
copy of the instruction label for the particular OC used against Delgado. See supra note 8.
These instructions provide that the OC should not be discharged at distances of fewer than
six feet from the intended target because exposure in a closer range can cause damage to soft
body tissue, in addition to being a skin, eye, and respiratory irritant, and that decontamination
should begin “as soon as possible” after restraining the inmate.
7
was shut off “due to Inmate Delgado’s prior history to prevent him from flooding his cell and
unit.”
The petitioner officers further allege that approximately ten minutes after the
OC spray was deployed, Inmate Delgado was placed in mechanical wrist restraints and
removed from his cell at which point leg restraints were also applied. He was escorted by
Officers Mattox and Mooney to the recreation yard for decontamination where they contend
he refused decontamination. Next, Inmate Delgado was taken for medical assessment by
Nurse Coleman. Officer Mattox stated in his Incident Report that “[d]uring the medical
assessment, there were no injuries to be noted for Inmate Delgado[.]” Officer Allen stated
in a memorandum that Inmate Delgado was “medically assessed by LPN Joyce Coleman.”
Similarly, a confidential Use of Force Committee Report to Warden Ballard states that
Inmate Delgado “was medically assessed by LPN Coleman and medically cleared to return
to his cell.” Inconsistent with these reports, Nurse Coleman, the individual who was to have
performed this medical assessment, stated in her Incident Report that Inmate Delgado refused
medical assessment.
Following Inmate Delgado’s exhaustion of his administrative remedies
concerning this incident, he filed the instant action against the petitioners seeking monetary
damages, as well as injunctive relief. See 42 U.S.C. § 1983. He asserted violations of his
8
federal constitutional rights,16 including allegations that the correctional officers used
excessive force against him in violation of the Eighth Amendment. More specifically,
Inmate Delgado alleged that Officer McCourt violated his “constitutional rights to safety .
. . and to be free from cruel and unusual punishment by indiscriminately utilizing . . . OC
pepper spray, through excessive and nontrivial force against [him], as a sadistic and
malicious form of punishment, rather than adhering to clearly established law, [and] proper
disciplinary procedures[.]” He alleged the petitioner officers were “deliberately indifferent
to [his] medical need for decontamination in a manner that caused [him] an unnecessary and
wanton infliction of pain.” A claim of assault and battery was also asserted against Officer
McCourt and intentional infliction of emotional distress against the petitioner officers.
In addition, Inmate Delgado asserted a claim of supervisory liability against
Warden Ballard.17 He alleged that Warden Ballard’s actions violated his constitutional rights
through his promulgation and implementation of policies and internal orders that exposed
him and other inmates confined in the segregation units at MOCC “to unnecessary and
16
Delgado also asserted claims under the Fourteenth Amendment of the United States
Constitution and the West Virginia Constitution, which he voluntarily dismissed.
17
The circuit court found that Inmate Delgado’s claims seeking prospective
injunctive relief against Warden Ballard in his official capacity were not subject to a
qualified immunity analysis and, therefore, “summary judgment based on qualified immunity
[did] not apply to those claims.” See Camreta v. Greene, 563 U.S. 692, 706 n.5 (2011)
(qualified immunity unavailable in actions to enjoin future conduct). This ruling is not a
subject of this appeal.
9
unreasonable uses of force when such uses of force were not justified, but rather
administered as wanton forms of punishment.” In support of this claim, Inmate Delgado’s
evidence included: (1) an inmate’s inquiry concerning whether there was “martial law” in
the Quilliams Units and an MOCC lieutenant’s written response that stated: “PER
WARDEN, MARITAL LAW IS A CONDITION THAT MOCC UTILIZES[;]” (2) an
MOCC major’s email to prison administrators and employees on which Warden Ballard was
copied and which advised that officers “do not have to give efforts to temper to those locked
up in our Seg units[;]” (3) the testimony of an MOCC correctional officer during a
disciplinary hearing that “there’s martial law going on right now” and that “they told me that
came from the Warden[;]” and the deposition testimony of Warden Ballard in which he
confirmed that “efforts to temper are not required in the segregation . . . units.” Also, Inmate
Delgado testified during his deposition to having heard correctional officers discuss martial
law in the Quilliams Units, explaining it was his
understanding from what the officers say, the paperwork I’ve
seen, say we were under Martial Law and that we could be
sprayed for any reason or for no reason at all. And that there
was a memo that I read that the staff working in Quilliams did
not need to temper their efforts of a forceful response meaning
that we were - - we could be victimized by the officers at any
time. That there was nothing we could do about it.
Inmate Delgado further testified that he and many other inmates in the segregation units were
regularly subjected to the use of OC spray for minor infractions, such as yelling through the
doors of their locked isolation cells. He maintains that the subject incident exemplifies how
10
correctional officers implemented this policy of martial law “and/or the suspension of the
requirement that officers should make ‘efforts to temper’ the use of force against inmates on
the isolation units.”
In further support of his supervisory liability claim, Inmate Delgado alleged in
his complaint, inter alia, that Warden Ballard’s directive not to give efforts to temper “was
in direct violation of clearly established law”;18 that it was objectively unreasonable and an
“unawarranted invasion” upon his clearly established rights under the Eighth Amendment;
that the MOCC policy of martial law, which permits any level of force to be used without
efforts to temper, creates a “pervasive and unreasonable risk that inmates, including
[himself], will be maliciously and sadistically harmed by the use of force for the purpose of
punishment and without regard for the need for force;” and that Warden Ballard had actual
and constructive knowledge of the numerous incidents of excessive force in the segregation
units, had approved policies and practices of martial law, and then acted with deliberate
indifference through his failure to stop the abusive and excessive uses of force.
18
See Whitley v. Albers, 475 U.S. 312, 321 (1986) (establishing standard for
evaluating Eighth Amendment excessive force claims arising out of prison situations and
directing courts to consider, inter alia, whether correctional officers made “any efforts [] to
temper the severity of a forceful response” in determining whether force used was excessive)
(emphasis added).
11
The petitioners filed motions for summary judgment in which they asserted
entitlement to qualified immunity from Inmate Delgado’s claims. Inmate Delgado filed
responses in opposition to the motions. During the final pretrial conference, the circuit court
fully entertained counsels’ arguments on these dispositive motions. The hearing transcript
reveals that the circuit court asked counsel several questions during the course of the hearing
concerning the parties’ conflicting factual accounts. The circuit court also confirmed its
understanding of the petitioner officers’ arguments, asking: “[Y]ou’re arguing that your
clients are entitled to qualified immunity, that these were discretionary actions, and that they
did this in good faith, and that there’s no violation of clearly established laws as it relates to
any actions that they took?” The correctional officers’ counsel responded in the affirmative.
After hearing the arguments of counsel, the circuit court stated:
[U]nder the circumstances, I do believe that there are genuine
issues of material fact as to whether or not there was excessive
force.
••••
I think there are issues . . . when you look at the Whitley19
factors to the need for the application of the force, the
relationship between that need and the amount of force used,
and, frankly, the threat reasonably perceived by the officials.
••••
19
In Whitley v. Albers, 475 U.S. 312 (1986), the Supreme Court established the
standard for evaluating Eighth Amendment excessive force claims in the context of prisons,
as discussed more fully infra.
12
And I just think it’s appropriate to let those issues go
before the jury, and I do believe that the remaining tort claims
flow from that. I think that they’re factual issues, so they’ll go
to the jury[.]
(Footnote added). The circuit court also concluded during the hearing that there were
disputed facts related to the supervisory liability claim against Warden Ballard, observing
that if evidence was not elicited as Inmate Delgado’s counsel anticipates, the court would “do
the appropriate thing at the directed verdict stage.”
The circuit court directed Inmate Delgado’s counsel to prepare an order
denying the summary judgment motions. Counsel did so, submitting a proposed order to
which the petitioners objected.20 Over those objections, the circuit court entered a seventeen-
page order on March 6, 2017, denying the petitioners’ motions for summary judgment based
on qualified immunity. The circuit court found that summary judgment was improper
because the resolution of the immunity and the substantive claims were dependent upon a
determination of conflicting evidence. This appeal followed.
II. Standard of Review
We are asked to determine whether the circuit court erred in denying summary
judgment to the petitioners based on their assertion of qualified immunity. While the denial
20
The petitioners filed a joint motion for rehearing.
13
of summary judgment is generally not subject to appellate review, we have carved out an
exception, holding that “[a] circuit court’s denial of summary judgment that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under the
‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660(2009). Further, “[t]his Court reviews de novo the denial of a motion for summary judgment,
where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm
Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). In conducting our de novo
review, we “must draw any permissible inference from the underlying facts in the light most
favorable to the party opposing the motion.” Painter v. Peavy, 192 W.Va. 189, 192, 451
S.E.2d 755, 758 (1994) (citations omitted). This matter being properly before us, the parties’
arguments will be considered against this plenary standard.
III. Discussion
In addition to challenging the denial of their dispositive motions based on
qualified immunity, the petitioners also challenge the circuit court’s order denying summary
judgment as being deficient and unsupported by the record. We consider each of these
issues, in turn, below.
A. Qualified Immunity
Inmate Delgado asserts, and the petitioners do not dispute, that federal law
controls our analysis because the claims to which qualified immunity are being asserted arise
14
under federal law. Our case law makes clear this Court’s “approach to matters concerning
immunity historically has followed federal law due in large part to the need for a uniform
standard when, as in the case before us, public officers are sued in state court for violations
of federal civil rights pursuant to 42 U.S.C. § 1983.” City of Saint Albans v. Botkins, 228
W.Va. 393, 398, 719 S.E.2d 863, 868 (2011); see also Robinson, 223 W.Va. at 834, 769
S.E.2d at 666 (citation omitted) (“federal law is controlling when public officials are sued
in state court for violations of federal rights under 42 U.S.C. § 1983”). As we earlier
explained in State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992),
[a]nother reason for utilizing the federal law is the
holding in Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110
L.Ed.2d 332 (1990), that in Section 1983 litigation a state may
not create an immunity for state officials that is greater than the
federal immunity. The Court in Howlett pointed out that Section
1983 suits could be brought in state courts and that under the
Supremacy Clause, federal substantive law must be applied in
such actions.
Chase Sec., Inc., 188 W.Va. at 359, 424 S.E.2d at 594 (footnote omitted); accord W.Va.
Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W.Va. 492, 504 n.13, 766 S.E.2d 751, 763
n.13 (2014) (citations omitted) (explaining that “nothing herein serves to supplant the federal
§ 1983 jurisprudence regarding immunity or actionable claims thereunder inasmuch as ‘in
Section 1983 litigation a state may not create an immunity for state officials that is greater
than the federal immunity.’”); see also Howlett, 496 U.S. 356 (observing that states may not
create immunity greater than federal immunity in § 1983 litigation brought in state courts);
Hutchison v. City of Huntington, 198 W.Va. 139, 152 n.17, 479 S.E.2d 649, 662 n.17 (1996)
15
(“[S]tate immunity laws are not applicable to § 1983 actions.”). Accordingly, federal law
will guide our analysis in determining whether the circuit court erred in denying summary
judgment to the petitioners based on their assertion of qualified immunity.
In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court of the United
States addressed qualified immunity, holding that “government officials performing
discretionary functions, generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. 818. The Supreme Court has crafted a two-part
test for courts to apply in ruling on a qualified immunity issue. The first inquiry is,
when“[t]aken in the light most favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194,
201 (2001). If answered in the affirmative, then the second inquiry is “whether the right was
clearly established[?]”21 Id.21
While these Saucier considerations remain in tact, the Supreme Court receded from
the order of this two-part analysis in Pearson v. Callahan, 555 U.S. 223 (2009). Trial courts
now have the discretion regarding the order in which these two inquiries are considered. Id.
at 236.
16
i. Eighth Amendment Excessive Force Claims
Against the Petitioner Correctional Officers
The petitioner officers assert entitlement to qualified immunity concerning
Inmate Delgado’s excessive force claims. In this regard,
[t]he ultimate determination of whether qualified or
statutory immunity bars a civil action is one of law for the court
to determine. Therefore, unless there is a bona fide dispute as
to the foundational or historical facts that underlie the immunity
determination, the ultimate questions of statutory or qualified
immunity are ripe for summary disposition.
Hutchison, 198 W.Va. at 144, 479 S.E.2d at 654, syl. pt. 1. Under this standard, the
petitioner officers contend they are entitled summary judgment based on qualified immunity
because they did not violate any clearly established constitutional rights. They argue that
their use of OC spray against Inmate Delgado was a discretionary act in response to his
refusal to comply with their clear verbal commands to stop creating a disturbance that was
spreading to other cells in the Unit. More specifically, they assert that Officer McCourt
engaged in a discretionary function within his duties as a correctional officer when he
deployed OC spray into Inmate Delgado’s locked, solitary cell, and that such use is approved
as an “Intermediate Control Tactics Soft.”22 Arguing further, the petitioner officers state that
“[p]rison officials do not violate the U.S. Const. Amend. VIII whenever it appears in
retrospect that the infliction of pain during a security measure could theoretically have been
avoided” and that the question “ultimately turns on ‘whether force was applied in a good
22
See supra note 15.
17
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) (citation
omitted).
Conversely, Inmate Delgado argues in support of the circuit court’s
determination that genuine issues of material fact exist concerning his claim of excessive
force where the officers’ version of events is directly contradicted by him and where he
offered evidence of prison policies and directives that may have contributed to the alleged
use of excessive force. Rather than a discretionary measure employed when he allegedly
failed to conform to the petitioner officers’ verbal commands, Inmate Delgado denies being
given any specific directives by the officers. Instead, he contends that he was sprayed solely
in retaliation for his admittedly rude comments to Nurse Coleman and with a malicious intent
to cause him pain, which violates his Eighth Amendment rights. He reports that Officer
Mooney told him that he was “tired of his smart mouth and attitude with the nurses” and that
“they were fed up with it” immediately prior to the OC being sprayed into his locked cell.
He further claims the officers intentionally failed to properly decontaminate him for
approximately one hour thereafter.
Under a qualified immunity analysis, we must determine whether the petitioner
officers’ alleged conduct violated a clearly established constitutional right. Harlow, 457 U.S.
18at 818; Saucier, 533 U.S. at 201. More specific to the instant mater, we must determine
whether their use of OC spray against Inmate Delgado violated his right under the Eighth
Amendment,23 which “protects inmates from inhumane treatment and conditions while
imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “It is obduracy and
wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited
by the Cruel and Unusual Punishments Clause[.]” Whitley, 475 U.S. at 319.
In this regard, the Fourth Circuit “held over a decade ago that ‘[i]t is generally
recognized that it is a violation of the Eighth Amendment for prison officials to use mace,
tear gas or other chemical agents in quantities greater than necessary or for the sole purpose
of infliction of pain.’” Iko v. Shreve, 535 F.3d 225, 235 (4th Cir. 2008) (emphasis added)
(citation omitted); see also Greene v. Feaster, 733 F. App’x 80, 82 (4th Cir. 2018) (“It has
long been established that prison officials violate the Eighth Amendment by using ‘mace, tear
gas or other chemical agents in quantities greater than necessary or for the sole purpose of
infliction of pain’”) (citation omitted). Accordingly, Inmate Delgado’s right to be free from
excessive force through the use of OC spray in a manner that violates the Eighth Amendment
was clearly established for purposes of a qualified immunity analysis. See Saucier, 533 U.S.
at 201.
23
See supra note 3.
19
In determining whether the petitioner officers’ deployment of OC spray against
Inmate Delgado constituted excessive force, we must examine the claim under subjective
(state of mind) and objective (seriousness of injury or deprivation) components. Id. at 238.
While the state of mind required in excessive force claims is “wantonness in the infliction
of pain[,]” Whitley, 475 U.S. at 322, the “‘core judicial inquiry’ regarding the subjective
component of an excessive force claim is ‘whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and sadistically to cause harm.’” Iko, 535
F.3d at 239 (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
In Whitley, the United States Supreme Court discussed the factors to be
considered in conducting this core judicial inquiry in the recognition of the deference
afforded to prison administrators in the adoption of policies and practices that they
determined to be necessary to maintain discipline and institutional security. To that end, the
Supreme Court set forth factors to consider in excessive force claims, which were later
summarized in Iko, as follows:
The Supreme Court has set forth four non-exclusive
factors to assist courts in assessing whether an officer has acted
with “wantonness”: (1) “the need for the application of force”;
(2) “the relationship between the need and the amount of force
that was used”; (3) the extent of any reasonably perceived threat
that the application of force was intended to quell; and (4) “any
efforts made to temper the severity of a forceful response.”
Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (internal quotations
omitted) (applying these factors in a prison riot case)[.]
20
Iko, 535 F.3d at 239. At the time Iko was decided, the United States Supreme Court had
already extended these Whitley factors beyond prison riots to all allegations of excessive
force. See Hudson, 503 U.S. at 6-7 (“[W]e hold that whenever prison officials stand accused
of using excessive physical force in violation of the Cruel and Unusual Punishments Clause,
the core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”); see
also Mann v. Scott, No. 0:14-3474-RMG, 2015 WL 5165198, at *5 (D.S.C. Sept. 1, 2015)
(“Use of chemical munitions on prisoners may or may not constitute excessive force, and the
Whitley factors depend on the circumstances surrounding the application of the chemical
munitions and any treatment and decontamination following.”).
While it is clear from the authorities discussed herein that the use of chemical
agents can constitute excessive force, the petitioner officers argue that under the four Whitley
factors recounted above, their use of OC spray in this instance did not constitute excessive
force. They assert that the need for the use of force, the first Whitley factor, occurred when
Inmate Delgado ignored their clear verbal commands to stop creating a disturbance.
Regarding the second Whitley factor, they argue that the amount of force used was
appropriate to the need, as it was a low level of force employed to restore order to the Unit.
They maintain that the third Whitley factor was likewise met because Inmate Delgado’s
yelling and cursing, even from within his locked isolation cell, was spreading throughout the
21
Unit, which can escalate to the kicking of cell doors and can threaten prison security. They
contend the fourth Whitley factor is equally met where they first endeavored to gain Inmate
Delgado’s compliance with verbal commands.
Conversely, Inmate Delgado argues that the officers’ conduct fails on all four
Whitley factors. He insists there was no need for any use of force because he was not posing
a threat to anyone nor was there any threat to prison security. He states that he was alone in
his locked isolation cell, lying on his bed wearing his headphones and listening to music
when the officers returned to his cell door to re-engage with him. He maintains the entire
Unit was quiet at that time, other than the disturbance being created by the officers, and that
he did not ignore clear verbal commands because none were given. Cf. Tedder v. Johnson,
527 F. App’x 269 (4th Cir. 2013) (reversing award of summary judgment in favor of
defendants on inmate’s excessive force claim where officer pepper sprayed inmate for failing
to obey order when inmate posed no threat and was complying).24 Further, regarding whether
the officers deployed the OC spray against him in retaliation and punishment for his earlier
comments to Nurse Coleman, Inmate Delgado testified that Officer Mooney told him
immediately before the OC spray was deployed that he was tired of his “‘smart mouth and
attitude with the nurses’” and “‘they were fed up with it.” See id. at 273 (reversing award
24
On remand, the jury found in favor of inmate Tedder, which was upheld in Tedder
v. Johnson, 583 F. App’x 276 (4th Cir. 2014).
22
of summary judgment on inmate’s excessive force claim where officer’s verbal statements
showed malicious intent); Orem v. Rephann, 523 F.3d 442, 447 (4th Cir. 2008), abrogated
on other grounds by Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d
89 (4th Cir. 2016) (observing that evidence of defendant’s motives is relevant to subjective
component of excessive force claim).
Turning to the objective component of an excessive force claim, which looks
to the deprivation suffered or injury inflicted, the Iko court explained that “[a]n injury is
sufficiently serious for purposes of the objective component of an Eighth Amendment
excessive force claim as long as it rises above the level of de minimus harm. Hudson, 503
U.S. at 9-10, 112 S.Ct. 995 (rejecting argument that ‘minor’ injuries are not actionable).”
Iko, 535 F.3d at 238; see also Hudson, 503 U.S. at 13 (Blackmun, J., concurring in the
judgment) (“The Court today appropriately puts to rest a seriously misguided view that pain
inflicted by an excessive use of force is actionable under the Eighth Amendment only when
coupled with ‘significant injury,’ e.g., injury that requires medical attention or leaves
permanent marks”). Hence, the focus is “not on the severity of any injuries inflicted, but
rather on ‘the nature of the force, which must be ‘nontrivial.’” Tedder, 527 F. App’x at 272
(quoting Wilkins v. Gaddy, 559 U.S. 34 (2010)). As the court in Tedder found, “Tedder’s
adverse physical reaction to the pepper spray–gagging, breathing difficulty, and
vomiting–establishes that the nature of the force . . . was nontrivial.” Tedder, 527 F. App’x
23
at 274. Likewise, in Harper v. Blagg, No. 2:13-cv-19796, 2015 WL 6509131 (S.D. W.Va.
Oct. 28, 2015), the federal district court observed that “[c]ourts previously found that similar
adverse physical reactions to pepper spray or other chemical munitions were sufficient to
create genuine issues of material fact as to the objective inquiry of an excessive force claim.”
Id. at *12; see also Blount v. Farmer, No. 7:14CV00418, 2015 WL 4404810, at *3 (W.D.
Va. July 17, 2015) (denying correctional officer’s motion for summary judgment on objective
inquiry of excessive force claim where inmate alleged pepper spray caused “coughing,
sneezing, excessive mucus, and a painful burning sensation on his skin that lasted for a whole
day.”). Here, Inmate Delgado alleges that his eyes and skin burned and his airways were so
restricted that he felt as if he could not breathe following the deployment of OC spray against
him, which symptoms are akin to those in Tedder and Harper. He further alleges mental and
emotional distress and humiliation, which are similar to the inmate’s additional allegations
in Harper.
While the petitioners do not challenge the physical reactions caused by the
deployment of OC spray, they argue that Inmate Delgado’s injuries were insufficient to rise
to the level of an Eighth Amendment violation under the objective component of the
excessive force analysis. Certainly, not “every malevolent touch by a prison guard gives rise
to a federal cause of action. See Johnson v. Glick, 481 F.2d, at 1033 (‘Not every push or
shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a
24
prisoner’s constitutional rights’).” Hudson, 503 U.S. at 9. We nonetheless also recognize
that “‘[t]he use of excessive physical force against a prisoner may constitute cruel and
unusual punishment [even] when the inmate does not suffer serious injury.’” Wilkins, 559
U.S. at 34 (citation omitted) (emphasis added). Moreover, as the Supreme Court of the
United States has explained,
[w]hen prison officials maliciously and sadistically use force to
cause harm, contemporary standards of decency always are
violated. See Whitley, supra, at 327. This is true whether or not
significant injury is evident. Otherwise, the Eighth Amendment
would permit any physical punishment, no matter how diabolic
or inhuman, inflicting less than some arbitrary quantity of injury.
Such a result would have been as unacceptable to the drafters of
the Eighth Amendment as it is today.
Hudson, 503 U.S. at 9.
While we express no view on the merits of Inmate Delgado’s claims and
understand that a purpose of qualified immunity is to eliminate the burden of defending
against a meritless claim,25 summary judgment is only appropriate if “there is no genuine
issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of
law.” W.Va. R. Civ. P. 56(c). We must draw “any permissible inference from the underlying
25
See Matson v. Wagner, 236 W.Va. 488, 500, 781 S.E.2d 936, 948 (2015)
(“[Q]ualified immunity is more than a defense to liability because, in many cases, it confers
upon governmental bodies and public officials the right not to be subject to the burden of trial
at all. The very heart of qualified immunity is that it spares the defendant from having to go
forward with an inquiry into the merits of the case.”).
25
facts in the light most favorable to the party opposing the motion.” Painter, 192 W.Va. at
192, 451 S.E.2d at 758. “In qualified immunity cases, this usually means adopting . . . the
plaintiff’s version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007).26 In doing so,
we find there are genuine issues of material fact that precluded awarding summary judgment
based on qualified immunity to the petitioner officers. See, e.g., Pritchett v. Alford, 973 F.2d
307, 313 (4th Cir. 1992) (“If there are genuine issues of historical fact respecting the officer’s
conduct or its reasonableness under the circumstances, summary judgment is not appropriate,
and the issue must be reserved for trial.”). These material issues of fact permeate both the
subjective and objective components of this excessive force claim.
26
Other courts have denied summary judgment, finding that inmate’s version of
events, which was provided in his or her own deposition testimony, created material issues
of fact and credibility issues to be determined by a jury. See, e.g., Skelly v. Okalossa Cty. Bd.
of Cty. Comm’rs, 415 F. App’x 153, 155 (11th Cir. 2011) (vacating district court’s award of
summary judgment to defendants and finding plaintiff’s deposition testimony not “so
fantastic or internally inconsistent that no reasonable jury could credit it”; that “this is the
classic case of the plaintiff swearing to one set of facts and the defendants swearing to
another set of facts”; that plaintiff’s testimony directly contradicts officers’ version of events;
and concluding it “is up to the jury to determine whom to believe and what actually
transpired”); Galberth v. Durkin, No. 9:14-CV-115, 2017 WL 4326076, *8 (N.D.N.Y. Sept.
27, 2017) (citation omitted) (adopting magistrate’s recommended findings and decision to
deny summary judgment and which observed that plaintiff’s excessive force claims relied
almost exclusively on his own deposition testimony; that rational jury could credit plaintiff’s
description of alleged assaults by correctional officers; that “although plaintiff’s
inconsistencies provide ‘ammunition for cross-examination,’ they do not provide a basis for
this court to recommend dismissal of his excessive force claims as a matter of law”; and
setting forth string cite of other cases where plaintiff’s account of events was sufficient to
withstand summary judgment).
26
Under the objective component, there are genuine issues of material fact
concerning the seriousness of Inmate Delgado’s injuries. Regarding the subjective
component, there are genuine issues of material fact regarding whether the petitioner
officers’ use of force was necessary and whether the amount of force used was necessary to
the need (the first and second Whitley factors); whether Inmate Delgado was presenting any
reasonably perceived threat at the time the OC spray was used against him (the third Whitley
factor); and whether any efforts were made to temper the severity of their forceful response
(the fourth Whitley factor). See Whitley, 475 U.S. at 320-21
We find compelling support for our conclusion in the similar excessive force
claims brought in federal court by other inmates housed in the segregation units at MOCC
in which dispositive motions based on qualified immunity were denied. For example, in
Smith v. Hypes, No. 2:14-cv-17001, 2017 WL 1016982 (S.D. W.Va. Feb. 21, 2017), the
magistrate judge recommended denying a correctional officer’s motion for summary
judgment based on qualified immunity in an excessive force action brought by an inmate
housed in a segregation unit at MOCC. The magistrate concluded, after considering the
evidence in the light most favorable to the inmate, that “a reasonable officer should have
known that pepper spraying an inmate who had previously, but was not currently . . . creating
a disturbance . . . could be construed as malicious and sadistic punishment and not an action
27
done in a good faith effort to restore order.” Id. at *10.27 There are other cases where the
United States District Court for the Southern District of West Virginia has denied summary
judgment in excessive force actions brought by other inmates housed in the segregation units
at MOCC against Warden Ballard and various correctional officers arising out of being
sprayed with OC as a result of alleged prison policies and directives. See Harper v.
Barbagallo, No. 2:14-cv-07529, 2016 WL 5419442 (S.D. W.Va. Sept. 27, 2016) (denying
motions to dismiss based on qualified immunity on excessive force and supervisory liability
claims where inmate alleged he was sprayed with OC through the food slot in his locked cell
door for insulting officer in MOCC segregation units); Cantrell v. Ballard, 2016 WL
5660339 (S.D. W.Va. Sept. 29, 2016) (adopting magistrate’s proposed findings and
recommendation denying motion for summary judgment based on qualified immunity finding
genuine issues of material fact on claims of excessive force and supervisory liability where
inmate was sprayed with OC for allegedly kicking cell door while alone in his locked cell in
MOCC segregation unit and for incident involving his placement in restraint chair); Douty
v. Rubenstein, No. 2:13-32832, 2016 WL 11481145 (S.D. W.Va. Apr. 27, 2016)
(magistrate’s proposed findings and recommendation to deny summary judgment based on
qualified immunity finding genuine issues of material fact concerning the Whitley factors
where inmate was sprayed with OC for allegedly yelling profanities at officers and creating
27
See Hypes, 2017 WL 988118 (S.D. W.Va. Mar. 14, 2017) (adopting magistrate’s
proposed findings and recommendation).
28
a volatile atmosphere while locked alone in his segregation cell at MOCC);28 Harper v.
Blagg, No. 2:13-cv-19796, 2015 WL 6509131 (S.D. W.Va. Oct. 28, 2015) (denying summary
judgment on qualified immunity finding genuine issues of material fact in each Whitley factor
in Eighth Amendment excessive force claim arising out of incident where inmate was
sprayed with OC in MOCC segregation unit). The United States Court of Appeals for the
Fourth Circuit ruled similarly when it vacated the district court’s award of summary
judgment to the defendants based on qualified immunity in prisoner’s excessive force claim.
Greene, 733 F. App’x 80. The Fourth Circuit found that based on prisoner’s sworn
allegations, it was objectively unreasonable for the officer to pepper spray the prisoner absent
provocation because it had “long been established that prison officials violate the Eighth
Amendment by using ‘mace, tear gas or other chemical agents in quantities greater than
necessary or for the sole purpose of infliction of pain.’” Id. at 82 (citation omitted).
As we have long held, “[t]he circuit court’s function at the summary judgment
stage is not to weigh the evidence and determine the truth of the matter, but is to determine
whether there is a genuine issue for trial.” Painter, 192 W.Va. at 190, 451 S.E.2d at 756,
syl. pt. 3. In considering the allegations in the light most favorable to Inmate Delgado, a
reasonable jury could find that the OC spray was deployed against him unnecessarily and was
28
See Douty, 2016 WL 3349325 (S.D. W.Va. June 15, 2016) (adopting magistrate’s
proposed findings and recommendation).
29
done “maliciously and sadistically to cause harm[,]” rather than in “a good-faith effort to
maintain or restore discipline[.]” Hudson, 503 U.S. at 7. We find these issues are properly
left to a jury’s determination.
ii. Eighth Amendment Deliberate Indifference Claim
Against the Petitioner Correctional Officers
Inmate Delgado also asserts that the petitioner officers were deliberately
indifferent to his serious medical needs. As the Fourth Circuit has explained, in order
[t]o prevail on an Eighth Amendment claim of inadequate
medical care, an inmate must allege acts or omissions
sufficiently harmful to constitute deliberate indifference to a
serious medical need. Estelle v. Gamble, 429 U.S. 97, 106, 97
S.Ct. 285, 50 L.Ed.2d 251 (1976). First, he must objectively
show that the deprivation suffered or injury inflicted was
“sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A sufficiently serious
medical need is one that requires medical treatment. Brice v.
Virginia Beach Corr. Cntr., 58 F.3d 101, 104 (4th Cir. 1995).
Then, the inmate must show that the defendant acted with
deliberate indifference to his serious medical need. Farmer, 511
U.S. at 834, 114 S.Ct. 1970.
Germain v. Metheny, 539 F. App’x 108, 109 (4th Cir. 2013). “Again, there is a subjective and
an objective component to showing a violation of the right. The plaintiff must demonstrate
that the officers acted with ‘deliberate indifference’ (subjective) to the inmate’s ‘serious
medical needs’ (objective). Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976).” Iko, 535 F.3d at 241.
30
In the context of establishing a deliberate indifference claim under the Eighth
Amendment, a “sufficiently serious medical need is one that requires medical treatment.”
Germain, 539 F. App’x at 109. The appendix record contains a copy of American
Correctional Association, Standards for Adult Correctional (“ACA”) Institutions 4-4203 (4th
ed. 2003), which requires “[i]mmediate medical examination and treatment . . . in all
instances involving the use of a weapon or chemical agent.” West Virginia Division of
Corrections Policy Directive 313.02 (“DOC Policy Directive 313.02”), also in the appendix
record, is based, in part, on ACA standard 4-4203 and provides that “[a]ll persons injured in
an incident receive immediate medical examination and treatment.” Even assuming, as the
officers argue, that they were not responsible for medically assessing Inmate Delgado, their
alleged delay in properly and timely decontaminating him can constitute deliberate
indifference. See, e.g., McNeeley v. Wilson, 649 F.App’x 717, 723 (8th Cir. 2016) (finding
district court had not erred in denying corrections officers qualified immunity at summary
judgment stage on inmate’s deliberate indifference claim where corrections officers “were
on notice that delaying a proper decontamination for over twenty minutes despite prisoner’s
complaints about the effects of pepper spray could result in a clearly established
constitutional violation”); Stewart v. Stewart, 60 F.App’x 20 (9th Cir. 2003) (finding
prisoner’s complaint satisfied objective component of deliberate indifference claim where
he alleged prison officials knew of his injuries after exposure to pepper spray but delayed
medical treatment and decontamination shower).
31
Regarding whether Inmate Delgado’s injuries, as recounted above, were
“sufficiently serious” under the objective component of an excessive force claim, the
physical reactions he suffered due to being sprayed with OC have been found to meet the
objective component of an excessive force claim. See, e.g., Tedder, 527 F. App’x at 274
(concluding that plaintiff “created a genuine issue of material fact on the objective
component of his Eighth Amendment excessive force claim” where his “adverse physical
reactions to the pepper spray–gagging, breathing difficulty, and vomiting–establishe[d] that
the nature of the force [the defendant correctional officer] used against [him] was
nontrivial”).
Turning to the subjective component of a deliberate indifference claim, the
officer must have actual knowledge of the risk of harm to the inmate, and he must also have
recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising
from his medical needs. Iko, 535 F.3d at 241. Here, such recognition was arguably supplied
by DOC Policy Directive 313.02, which provides that “[a]ll persons injured in an incident
receive immediate medical examination and treatment.” Moreover, product literature in the
appendix record shows that the effects of MK-9 Phantom OC, the OC spray used in this
instance, can include coughing, choking, gagging, difficulty breathing, vomiting, and that its
disbursement less than six feet away can cause soft tissue damage, which symptoms have
been found to be nontrivial, as discussed above.
32
Here, the petitioner officers assert that any alleged errors in the
decontamination process that occurred following their deployment of OC spray against
Inmate Delgado were the result of their discretionary decisions. They further assert that the
initial delay in removing Inmate Delgado from his cell for purposes of decontamination was
attributable to their need to obtain a video camera to record the cell extraction. Arguing
further, they contend that their discretionary refusal to remove Inmate Delgado's mechanical
wrist restraints, as he had requested, was to ensure safety and security on the recreation yard
where the decontamination process was to occur. They maintain there is no evidence that
they knowingly disregarded an excessive risk to inmate health or safety, adding there was
some self-decontamination when Inmate Delgado splashed water on his hands and face in
his cell prior to what they refer to as his “water supply being exhausted.”29
As recounted above, Inmate Delgado offers a significantly different version of
events. He maintains the officers shut off the water to his cell for the expressly stated
purpose of preventing him from self-decontaminating, which caused him to continue to
suffer the effects of the OC spray. Then, the officers waited for a period of time before
taking him to the recreation yard for the purpose of beginning the decontamination process
and where they refused to remove his handcuffs, effectively preventing any preliminary
29
Although the petitioners euphemistically employ the word “exhaustion,” which
implies the simple depletion of a limited quantity, they admit to having purposefully shut off
the water supply to Inmate Delgado’s cell.
33
decontamination. Thereafter, he was taken to a multiple purpose room where he should have
been medically assessed, but Nurse Coleman read a book instead. Through all of this, he
remained in clothing soaked with OC spray, again causing him to continue to suffer pain.
In total, Inmate Delago asserts that approximately one hour elapsed before he was allowed
to shower and finally remove the OC spray from his body.
Again, we express no view on the merits of Inmate Delgado’s deliberate
indifference claim. However, in drawing “any permissible inference from the underlying
facts in the light most favorable to the party opposing the motion[,]” Painter, 192 W.Va. at
192, 451 S.E.2d at 758, and in adopting . . . [his] version of the facts[,]” Scott, 550 U.S. at
378, we find there are genuine issues of material fact concerning the objective and subjective
components of Inmate Delgado’s deliberate indifference claim. In particular, there are
genuine issues of material fact regarding the extent of Inmate Delgado’s injuries, as well as
the officers’ actions and inactions toward him following the deployment of the OC spray.
These material issues of fact prevent us from awarding summary judgment to the petitioner
officers on the basis of qualified immunity. It will be for a jury, not this Court, to determine
the truth of the matter.
34
iii. Supervisory Liability Claim Against Warden Ballard
Warden Ballard asserts that he should be immune from Inmate Delgado’s
supervisory liability claim. He argues that his administrative policy-making functions are
grounded in his adherence to certain policies in the treatment of inmates at MOCC.
Although denying he had declared “martial law” in the segregation units at MOCC, Warden
Ballard contends that any directive that “efforts to temper” were not required in the
segregation units would not violate any statute or constitutional rights through which
entitlement to qualified immunity would be foreclosed. Lastly, Warden Ballard maintains
that he cannot be liable under any theory of supervisory liability.
We begin by observing that supervisory liability is not premised upon
respondeat superior but upon “a recognition that supervisory indifference or tacit
authorization of subordinates’ misconduct may be a causative factor in the constitutional
injuries they inflict on those committed to their care.” Slakan v. Porter, 737 F.2d 368, 372
(4th Cir. 1984). To defeat qualified immunity on a claim of supervisory liability, a plaintiff
must show that it was clearly established at the time of the subordinate’s conduct that the
supervisor could be held liable under § 1983 for constitutional violations committed by the
subordinate; that the supervisor knew that the degree of force being used was
unconstitutional; and that a reasonable person in the supervisor’s position would have known
35
that his actions were unlawful. Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir. 1994). Necessary
to the establishment of supervisory liability are the following three elements:
(1) that the supervisor had actual or constructive knowledge that
his subordinate was engaged in conduct that posed “a pervasive
and unreasonable risk” of constitutional injury to citizens like
the plaintiff; (2) that the supervisor’s response to that knowledge
was so inadequate as to show “deliberate indifference to or tacit
authorization of the alleged offensive practices,”; and (3) that
there was an “affirmative causal link” between the supervisor’s
inaction and the particular constitutional injury suffered by the
plaintiff.
Shaw, 13 F.3d at 799 (citations omitted).
Turning to the first Shaw factor, a plaintiff must show “(1) the supervisor’s
knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a
pervasive and unreasonable risk of constitutional injury to the plaintiff.” Id. (citing Slakan,
737 F.2d at 373). These factors are met here.
At the time of the subject incident, the law was clearly established that the use
of pepper spray on a inmate who is passive or attempting some compliance can constitute
excessive force. See Iko, 535 F.3d at 235; see also Treats v. Morgan, 308 F.3d 868, 872 (8th
Cir. 2002) (internal citations omitted) (denying qualified immunity to officer who sprayed
inmate with pepper spray, recognizing that “ order and discipline are important in running
a correctional institution, but that does not authorize the arbitrary use of force, . . . nor does
36
it justify punitive use of force on difficult inmates not posing a real threat to other persons
or raising security concerns”). Further, the appendix record contains evidence that shows
Warden Ballard had the authority and responsibility for the administration and operation of
MOCC, including the safety and security of inmates, and for ensuring that MOCC employees
abide by MOCC policies and procedures, including the policy that correctional officers were
not required to temper force in their interactions with inmates housed in the segregation units
at MOCC. Regarding Warden Ballard’s knowledge that his subordinates were engaged in
uses of force, there is evidence that he reviews all inmate grievances, all incident reports filed
by correctional officers, and all Use of Force Review Committee reports. Through these
administrative processes and reports, Warden Ballard would have been aware of the OC
spray being used against inmates housed in the segregation units. And, because inmates must
exhaust their administrative remedies prior to filing a court action,30 Warden Ballard would
have been aware of these uses of force prior to him being named as a defendant in the
multiple federal lawsuits listed above.
Regarding Warden Ballard’s response to his awareness of the use of OC spray
on inmates in the segregation units and whether there is a link between his actions and the
30
See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“exhaustion requirement [under
Prison Litigation Reform Act] applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force
or some other wrong.”).
37
alleged constitutional injury, Shaw, 13 F.3d at 799, we have the allegation that he had
declared “martial law” in the segregation units. Although he testified during his deposition
that he had not done so, again, there is conflicting evidence. For example, when an MOCC
inmate housed in the segregation units completed a Unit Team Request Form, asking whether
a correctional officer had been truthful in telling him that the segregation units were under
“Martial Law[,]” a lieutenant provided a written response that stated: “Per warden, martial
law is a condition that MOCC utilizes.” There is also an audio-recording of a disciplinary
hearing during which an MOCC correctional officer testified that “[t]here’s martial law
going on right now” and “they told me that came from the Warden.” In addition, Inmate
Delgado testified during his deposition concerning his understanding from correctional
officers that the segregation units were “under Martial Law and that we could be sprayed for
any reason or for no reason at all.”
Based on the evidence summarized above, a reasonable jury could conclude
that Warden Ballard had actual, subjective awareness of a pervasive and unreasonable risk
posed by his correctional officers who were allegedly engaging in unnecessary and
untempered force against inmates housed in the segregation units as a result of prison
policies and directives, which is the first Shaw factor. This same evidence could also lead
a jury to find that the second and third Shaw factors were also met: that Warden Ballard’s
response to the knowledge of the risk being posed was so inadequate as to show “‘deliberate
38
indifference to or tacit authorization of the alleged offensive practices,’” particularly when
he confirmed during his deposition testimony that a correctional officer cannot be
reprimanded for not using “confrontational avoidance measures”with inmates housed in a
segregation unit; and “that there was an ‘affirmative causal link’ between [Warden Ballard’s]
inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at
799 (citation omitted); see also Slakan, 737 F.2d at 376 (citation omitted) (observing that
causation may be proved directly “‘where the policy commands the injury of which the
plaintiff complains . . . . [o]r may be supplied by [the] tort principle that holds a person liable
for the natural consequences of his actions.’”). Indeed, some, if not all, of this same evidence
prompted the federal district court to deny Warden Ballard’s motion for summary judgment
based on qualified immunity, finding
there are material issues of fact as to whether Defendant Ballard
authorized the use of “martial law.” Construing the evidence in
a light most favor[able] to Plaintiff, the undersigned finds
evidence exists indicating that Defendant Ballard was aware of
an unreasonable risk of harm or misconduct by Defendants and
failed to take corrective action.
See Douty, 2016 WL 3349325, at *17;31 see also Cantrell, 2016 WL 5660339 (adopting
magistrate’s proposed findings and recommendation denying motion for summary judgment
31
Inmate Delgado represents that when the parties proceeded to trial after summary
judgment was denied in Douty, a jury found Warden Ballard liable for supervisory liability,
assessing punitive damages, based on facts nearly identical to those in the case at bar. Douty,
2:13-cv-32832 (S.D. W.Va. July 24, 2017), Dkt. No. 267 (proposed judgment order; entry
pending).
39
based supervisory liability claim against Warden Ballard based on some of this same
evidence).
Given the genuine issues of material fact in this matter, we cannot determine
whether Warden Ballard is entitled to summary judgment based on qualified immunity. As
with the claims against the petitioner officers, it will be for a jury to determine the factual
disputes entangled with the supervisory liability claim asserted against Warden Ballard.
B. Sufficiency of Order Denying Summary Judgment
The petitioners assert that the circuit court erred by entering a summary
judgment order, which was prepared by Inmate Delgado’s counsel32 and which they argue
contains inaccurate factual findings33 and conclusions of law that were not set forth by the
circuit court on the record during the hearing on their summary judgment motions. They
further assert that Inmate Delgado did not attach any exhibits to his response to the summary
32
West Virginia Trial Court Rule 24 expressly provides for our trial courts to direct
counsel to prepare orders. Moreover, this Court has ruled that when an order entered by a
circuit court is one that has been prepared by a party, we will only disturb the order if the
findings are clearly erroneous. Kalwar v. Liberty Mut. Ins. Co., 203 W.Va. 2, 7, 506 S.E.2d
39, 44 (1998). Here, we do not find the circuit court’s findings to be clearly erroneous.
33
The petitioners’ argument in this regard is generalized and does not specifically set
forth these alleged inaccuracies.
40
judgment motions to support what his counsel would later rely upon in drafting the summary
judgment order that the circuit court entered.
Labeling petitioners’ arguments as “perplexing,” Inmate Delgado asserts the
circuit court’s seventeen-page order contains a lengthy recital of the evidence in the light
most favorable to him, the nonmoving party, as well as the legal standard for qualified
immunity and summary judgment before concluding there are genuine issues of material fact
precluding the granting summary judgment at this stage. He further asserts that the
petitioners complain only generally about the circuit court’s factual findings without
identifying any specific facts that they contend are not in the record.
We have previously addressed the sufficiency of circuit court orders in this
context, holding that
[a] circuit court’s order denying summary judgment on qualified
immunity grounds on the basis of disputed issues of material
fact must contain sufficient detail to permit meaningful appellate
review. In particular, the court must identify those material facts
which are disputed by competent evidence and must provide a
description of the competing evidence or inferences therefrom
giving rise to the dispute which preclude summary disposition.
Payne, 231 W.Va. at 566, 746 S.E.2d at 556-57, syl. pt. 4. We find the circuit court’s order
meets the Payne standard.
41
Further, and notwithstanding the petitioners’ arguments to the contrary, trial
courts are not required to make their findings during a hearing.34 As we explained in Legg
v. Felinton, 219 W.Va. 478, 637 S.E.2d 576 (2006),
[i]t is a paramount principle of jurisprudence that a court speaks
only through its orders. See State v. White, 188 W.Va. 534, 536
n.2, 425 S.E.2d 210, 212 n.2 (1992) (“[H]aving held that a court
speaks through its orders, we are left to decide this case within
the parameters of the circuit court’s order.” (citations omitted));
State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207
S.E.2d 105, 107 (1973) (“A court of record speaks only through
its orders[.]” (citations omitted)).
Legg, 219 W.Va. at 483, 637 S.E.2d at 581. Moreover, the mere preparation of an order at
a circuit court’s direction does not mean the court is obligated to enter it. It is clearly within
the authority of a circuit court to alter or amend a proposed order in anyway it deems
appropriate.
Having reviewed the transcript of the hearing on the summary judgment
motions, we find that the circuit court allowed the parties to fully address their varying
positions on the facts and the law. In addition to the circuit court’s thorough order, it is
equally clear that the court was fully prepared for the hearing and had reviewed all relevant
materials and applicable law. Indeed, we are left with the firm conviction that the circuit
34
Although the petitioners assert that the circuit court did not specifically address the
basis for its denial of qualified immunity during oral argument, we note the absence of any
specific requests or objections in this regard by the petitioners during the motions hearing.
42
court understood the legal issues being raised, the parties conflicting factual allegations, and
their respective positions on the issue of qualified immunity,35 all of which is adequately
reflected in the circuit court’s lengthy order. Rather than being deficient or inaccurate, we
find the circuit court’s well-reasoned order sufficiently addresses the parties’ disparate
factual allegations and the legal standards upon which the court’s decision was based.
Further criticizing the circuit court’s order, the petitioners assert that the order
may only contain statements made during the motions hearing or can only be based on
exhibits attached to Inmate Delgado’s responses in opposition to their motions for summary
judgment. We find no merit in this argument. In fact, when ruling “‘[o]n a motion for
summary judgment all papers of record and all matters submitted by both parties should be
considered by the court.’ Syllabus Point 2, Aetna Cas. & Sur. v. Fed. Ins. Co. of New York,
148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. Pt. 3, Ford v. Dickerson, 222 W.Va. 61, 662
S.E.2d 503 (2008) (emphasis added). Similarly, West Virginia Rule of Civil Procedure 56(c)
provides, in part, that the “judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits, if
35
The hearing transcript reveals that the petitioners had a full opportunity to explain
their qualified immunity arguments, which the circuit court then summarized during the
hearing, asking: “[Y]ou’re arguing that your clients are entitled to qualified immunity, that
these were discretionary actions, and that they did this in good faith, and that there’s no
violation of clearly established laws as it relates to any actions that they took?” The
petitioners’ counsel replied in the affirmative.
43
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Id. (emphasis added). Accordingly, we find no
error to the extent the circuit court relied upon pleadings or any other “papers of record” in
this action when rendering its decision. Aetna Cas. & Sur. Co., 148 W.Va. at 170, 133
S.E.2d at 776.
Lastly, in reviewing a motion for summary judgment based on a claim of
qualified immunity, the factual allegations are to be viewed in the light most favorable to the
party opposing the motion. The circuit court did precisely that, explaining on the first page
of said order:
The following findings of fact are set forth viewing the record in
the light most favorable to the non-moving party, Mr. Delgado,
as required for ruling on a motion for summary judgment. See,
e.g., Scott v. Harris, 550 U.S. 372, 377 (2007) (“[C]ourts are
required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the judgment motion.
In qualified immunity cases, this usually means adopting . . . the
plaintiff’s version of the facts.”).
(Emphasis added). Accordingly, we find no error in the circuit court’s factual recitation,
particularly where the circuit court’s order also summarized the petitioners’ countervailing
facts.
44
IV. Conclusion
For the reasons stated above, the circuit court’s March 9, 2017, order denying
summary judgment based on qualified immunity is hereby affirmed.
Affirmed.
45