Alireza A. NASSERI, Plaintiff-Appellant, v. CITY OF ATHENS, Alabama, Fred Millward, Wesley Little, Defendants-Appellees.
No. 09-11473.
United States Court of Appeals, Eleventh Circuit.
April 8, 2010.
When attributing the actions of co-conspirators for sentencing purposes—including the application of cross-references—the guidelines provide for consideration, “in the case of a jointly undertaken criminal activity[,] [of] all reasonably foreseeable acts аnd omissions of others in furtherance of the jointly undertaken criminal activity.”
Reasonable foreseeability and conduct within the scope of the agreement are two separate elements that the government must рrove in order to hold a defendant accountable for co-conspirator actions. United States v. Reese, 67 F.3d 902, 907-09 (11th Cir.1995) (holding that the district court erred in attributing certain quantities of cocaine to the defendants based only on their basic knowledge of the organization).
Although Gutierrez did not personally participate in the Escobedo murders, and there was no evidence that hе had direct knowledge the murders would occur, the record demonstrates that he willingly associated himself with an organization that he knew both carried guns and used guns on others. Furthermore, Gutierrez‘s actions after the Escobedo murders took place indicated his complicity in a conspiracy whose acts were becoming increasingly violent. These actions indicate that the possibility that a murder—or murders—would occur in furtherance of the Varela Drug Ring‘s activities was something that was both reasonably foreseeable to Gutierrez and within the scope of his participation in the conspiracy. Accordingly, we hold that the district court did not err in applying the
AFFIRMED.
Henry F. Sherrod, III, Henry F. Sherrod III, PC, Florence, AL, for Plaintiff-Appellant.
Jeffrey T. Kelly, William W. Sanderson, Jr., Lanier Ford Shaver & Payne, P.C., Huntsville, AL, for Defendants-Appellees.
Before HULL, WILSON and FARRIS,* Circuit Judges.
Alireza Nasseri appeals the district court‘s order granting qualified immunity at summary judgment for Defendants Fred Millward and Wesley Little in an action brought pursuant to
I. Excessive Force Claims
Nasseri first claims that Officer Little‘s use of pepper spray was excessive force. We review Nasseri‘s claim under the Fourteenth Amendment.2 An excessive force claim under the Fourteenth Amendment requires appliсation of the same standard as under the Eighth Amendment. Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir. 2008). The test is whether the use of force “shocks the conscience and it necessarily will if the force was applied . . . maliciously and sadistically for the very purpose of causing harm.” Id. at 1307 (citations and quotations omitted). We consider five factors under the “shocks the conscience” test, as set forth in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986):
(1) the need for force; (2) the relationship between that need and the amount of force used; and (3) the extent of the resulting injury. In addition to those three factors we consider as fourth and fifth factors “the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official on the basis of facts known to them, and any efforts mаde to temper the severity of a forceful response.”
Danley, 540 F.3d at 1307 (citing and quoting Whitley, 475 U.S. at 321, 106 S.Ct. at 1085).
We have indicated previously that under the third factor, the initial use of pepper spray is not necessarily a constitutional violation. See id. at 1308. The initial use of pepper spray does not cause any substantial or long-lasting injury and may be “‘a very reasonable alternative to escalating a physical struggle.‘” Id. (quoting Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir.2002)). The extent of injury is only one factor in a Fourteenth Amendment excessive force claim and is not dispositive. See Wilkins v. Gaddy, — U.S. —, 130 S.Ct. 1175, — L.Ed.2d — (2010).3
Taken in the light most-favorable to Nasseri, the facts in this case are that
If there were nothing before us but this initial use of pepper spray, we would conclude that Nasseri has failed to show that Little acted maliciously and sadistically to cause Nasseri harm, and thus there would be no Fourteenth Amendment excessive force violation. See Danley, 540 F.3d at 1307. Little was permitted to use some force in controlling the situation and preventing it from escalating. While in hindsight it may not appear that use of pepper spray against Nassеri was required, Little‘s one-time use of pepper spray in this context does not shock the conscience. The district court correctly granted qualified immunity to Little.
What happened next, however, when added to the initial pepper spray, states a Fourteenth Amendment claim for excessive force against Millward. After Defendant Little sprayed Nasseri and Solomon, ambient pepper spray contaminated the rest of the jail. Defendant Millward and Officer Jarrett evacuated all detainees and prisoners, including Nasseri, from the jail in order to wait for the air to clear. Defendant Millward placed Nasseri in the back of a patrol car while all of the other approximately 11-12 inmates were placed outside standing against the wall of the jail. Once outside, the officers permitted the other detainees to decontaminate themselves from the pepper spray, including allowing them fresh air and access to running water (a hose outside) to use on their faces. The record does not reflect that the other detainees, who, excеpt for Solomon and Shelnutt, were unsecured, caused any commotion outside the jail or threatened the officers.
After Millward placed the choking and gasping Nasseri in the patrol car, Nasseri tried to stick his head through an eight to ten inch opening in a rear window of the car and yelled for medical help. Millward heard Nasseri yelling and returned to the cаr twice; at one point, Millward closed the window that separates the front and rear portions of the patrol car. Nasseri called for help throughout the time that he was in the vehicle, stating that he could not breathe. Although Millward claims he did not know Nasseri had been subjected to pepper spray, Nasseri states Millward did know. Nasseri remained in the car for around an hour and was never permitted to decontaminate. When Nasseri was later removed from the car, he repeatedly
In Danley, this Court construed a similar factual claim as alleging both an excessive force claim and a deliberate indifference claim, applying different standards for each. Danley, 540 F.3d at 1306-07. The Danley Court reasoned that although a jailer‘s initial use of pepper spray on a pretrial detainee would not have been excessive force standing alone, the use of pepper spray coupled with a 20-minute confinement in a small poorly-ventilated cell without decontamination violated the fifth Whitley factor of whether jailers “temper[ed] the severity of [their] forceful response.” Id. at 1308. The Court held that confinement without decontamination constituted a “single course of conduct” inseparable from the initial use of pepper spray, which was excessive force under the Whitley test. Id. at 1307-09.
Under Nasseri‘s version of events, Officer Millward‘s continued confinement of him in an unventilated patrol car without decontamination constituted excessive force. Under this version, after being sprayed, Nasseri was cooperating, wаs not posing a threat to himself, the officers, or other detainees, and repeatedly cried out for medical help. Although Little‘s initial use of pepper spray does not “shock the conscience,” there was no need to then confine Nasseri in a poorly-ventilated car for an hour without decontamination. It is excessive force for a jailer to continue using force against a prisoner who already has been subdued. Danley, 540 F.3d at 1309. That is what Nasseri describes in this case. The district court accordingly erred in granting qualified immunity to Millward on Nasseri‘s excessive force claim. Nasseri stated a constitutional violation, and, as the Court reiterated in Danley, Nasseri is not required also to show violation of a clearly estаblished right for his Fourteenth Amendment excessive force claim.5
II. Deliberate Indifference Claim
Nasseri also claims that Millward ignored his request for medical attention after being sprayed by Little and that this was deliberate indifference to a serious medical need. Deliberate indifference to a prisoner‘s medical needs violates the Eighth Amendment. Pretrial detainees are afforded the same protections as prisoners, except that a pretrial detainee brings a deliberate indifference claim via the Fourteenth Amendment. Id. at 1310. To prove deliberate indifference, a plaintiff must show: (1) a serious medical need; (2) the defendant‘s deliberate indifference to that need; and (3) causation between that indifference and the plaintiff‘s injury. Id. (citing Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir.2007)).
A. Serious Medical Need
There are two ways to prove serious medical need. Id. Onе is if delay in treating the condition worsens it, and the other is if the need “is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor‘s attention.” Id. at 1310-11 (quotations omitted). Both tests apply in this case. Under the first
B. Deliberate Indifference to Need
To meet the second element, Nasseri must prove “(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence.”6 Id. at 1312 (quotation omitted, alteration in original).
Looking to the first prong of this subjective test, and reading the evidence in the light most favorable to Nasseri, Millward knew there was a risk of serious harm to Nasseri. Nasseri had been choking and gagging and spitting blood. Pepper spray was visible on Nasseri‘s face. Millward also allowed all the other prisoners to decontaminate, including Solomon and Shelnutt. Millward must have known that Nasseri was exposed to pepper spray and should have allowed Nasseri to decontaminate.
Nasseri meets the second prong as well. While Nasseri was in the car, Millward disregarded the risk when he did not allow Nasseri to decontaminate himself. He also disregarded the risk by not allowing Nasseri to seek medical attention.
Turning to the third prong, “[w]hen prison guards ignore without explanation a prisoner‘s serious medical condition that is known or obvious to them, the trier of fact may infer deliberate indifference.” Id. (quoting Bozeman v. Orum, 422 F.3d 1265, 1273 (11th Cir.2005)). Here, Millward‘s explanation was that he did not decontaminate Nаsseri because he did not believe Nasseri was sprayed directly and did not know Nasseri was yelling in the car because of his exposure to pepper spray. Under Nasseri‘s version of events, Millward knew that Nasseri and the other detainees had been exposed to pepper spray. Millward permitted all other detainees, including the violent Solomon and Shelnutt, to decontaminate, yet he ignored without plausible explanation Nasseri‘s known exposure to pepper spray. The district court indicated that because Millward faced a chaotic and unusual situation outside the jail he had a legitimate reason for ignoring Nasseri. However, the record does not support this characterization, and a trier of fact could properly find no chaotic and unusual situation existed outside the jail. Taken in the light most favorable to Nasseri, a fact finder could infer that Millward ignored Nasseri‘s medical condition without explanation.
C. Causation
The third element of the deliberate indifference test is also met. In the light most favorable to Nasseri, the facts show that Millward‘s failure tо decontaminate Nasseri and provide Nasseri with medical treatment led to Nasseri‘s claimed development of RADS
Millward nonetheless argues that he is entitled to qualified immunity on Nasseri‘s deliberate indifference claim. He attempts to distinguish Danley by arguing that Millward did not mock Nasseri, was focused on the other prisoners, and the situation was chaotic. Danley states that “when jailеrs are aware of serious medical needs they may not ignore them or provide grossly inadequate care.” Danley, 540 F.3d at 1313. The Danley Court concluded that qualified immunity did not apply in that situation. As Nasseri has established that Millward was aware of his serious medical need and ignored it, Nasseri has stated a violation of his Fourteenth Amendment rights.
Nasseri also has shown that Millward violated a right that was clearly established.7 The Court stated in Danley that after a detainee was quieted by pepper spray and was no longer a disruption or threat, a jailer‘s refusal to permit decontamination for 20 minutes after use of pepper spray violated a clearly established right because existent “general legal principles” were enough to clearly establish the right. Danley, 540 F.3d at 1313.
The distriсt court accordingly erred in granting qualified immunity to Millward on Nasseri‘s excessive force and deliberate indifference claims. The district court correctly granted qualified immunity to Little.
AFFIRMED in part, REVERSED and REMANDED in part for further proceedings.