Third Circuit Affirms Qualified Immunity for Pennsylvania Guards Who Pepper-Sprayed Asthmatic Prisoner
On April 11, 2024, the U.S. Court of Appeals for the Third Circuit affirmed a grant of qualified immunity (QI) to Pennsylvania Department of Corrections (DOC) guards at the State Correctional Institution in Benner, who doused an asthmatic prisoner with pepper spray while performing a “cell extraction” in his restricted housing unit in June 2020. Though a disappointing loss for prisoner Michael Rivera, the case offers guidance in arguments that do not work in the Third Circuit to overcome QI.
While locked in an open-air telephone cage, Rivera heard guards making plans to storm the cell of another prisoner nearby. He asked to be moved first, fearful they would use pepper spray and it would aggravate his asthma. But they ignored him and proceeded with the cell extraction. Pepper spray was deployed, and Rivera “began coughing, sneezing, and experiencing a drowning-like sensation,” the Court later recalled. The symptoms persisted after he was returned to his cell and given an inhaler, until medical staff provided him with a “nebulizer breathing treatment.”
Rivera filed suit pro se in federal court for the Middle District of Pennsylvania, accusing three guards and a nurse of deliberate indifference to his substantial risk of serious harm, in violation of his Eighth Amendment rights, by needlessly exposing him to pepper spray. The district court granted summary judgment to Defendants, finding them entitled to QI because it was not clearly established at the time that their conduct was unconstitutional. Rivera appealed, but the Third Circuit affirmed.
The Court examined the grant of QI using a two-part inquiry. First the right at issue was defined as that of an asthmatic prisoner not to be exposed to pepper spray, when that prisoner himself has offered an easy way to avoid his own injury. Or, as the Court put it, his risk of exposure “could be substantially reduced without materially hindering institutional interests.” The Court then assessed whether it was “sufficiently clear [so] that a reasonable official” would know he or she was violating this right.
Whether a right is clearly established could be shown by binding precedent from the U.S. Supreme Court or the Third Circuit, or from a “robust consensus of cases of persuasive authority” in other circuits, the Court said. Rivera relied on Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003), where prison officials were denied QI after a prisoner was exposed for months to secondhand smoke in his cell. However, the Third Circuit found that case did “not place the constitutional question … ‘beyond debate.’” Nor did it address security-related issues like those in this situation—the pending cell extraction of another prisoner.
Rivera also argued that Defendants’ unconstitutional conduct was “obvious,” an exception allowed to the “clearly established” standard. But the appellate court disagreed. “By choosing to forcibly extract [another prisoner] from his cell without first returning Rivera to his cell, [officials] knowingly caused Rivera to suffer an asthma attack,” the Court allowed. “But because that decision was not made in derogation of clearly established law, the officials are entitled to qualified immunity.” Thus the district court’s decision was affirmed. Rivera was represented on appeal by attorneys with the Roderick & Solange MacArthur Justice Center in Washington, D.C. See: Rivera v. Redfern, 98 F.4th 419 (3d Cir. 2024).
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