JOSEPH SEGRAIN, Plaintiff, Appellant, v. WALTER DUFFY, alias, individually and in his official capacity as a Correctional Officer at the Rhode Island Department of Corrections; JAMES GLENDINNING, alias, individually and in his official capacity as a Correctional Officer at the Rhode Island Department of Corrections; RHODE ISLAND DEPARTMENT OF CORRECTIONS; WAYNE T. SALISBURY, JR., alias, in his official capacity as Acting Director at the Rhode Island Department of Corrections; RONALD MELEO, alias, individually and in his official capacity as a Correctional Officer at the Rhode Island Department of Corrections, Defendants, Appellees, PATRICIA ANNE COYNE-FAGUE, alias, individually; JOHN DOES 1-5, alias, individually and in their official capacity as Correctional Officers at the Rhode Island Department of Corrections, Defendants.
No. 23-1854
September 23, 2024
Hon. William E. Smith, U.S. District Judge
Before Montecalvo, Lipez, and Rikelman, Circuit Judges.
Jared A. Goldstein, with whom Prisoners’ Civil Rights Litigation Clinic, Roger Williams University School of Law was on brief, for appellant.
James J. Arguin, Special Assistant Attorney General, for appellees.
MONTECALVO, Circuit Judge. This appeal concerns Joseph Segrain‘s civil lawsuit against the Rhode Island Department of Corrections and several correctional officers for alleged violations of his rights under the Eighth Amendment and various Rhode Island state laws. During all times relevant to this case, Segrain was detained at Rhode Island‘s Adult Correctional Institutions’ (ACI‘s) maximum-security facility in Cranston. He alleges that officers used excessive force against him on June 28, 2018, when they executed a leg-sweep maneuver that knocked him to the ground, sprayed him in the face with pepper spray, and unnecessarily prolonged his pain from the pepper spray by holding him in a cell while handcuffed for a significant time before allowing him a decontamination shower. The district court granted summary judgment in favor of the officers on all federal and state claims, and Segrain appealed. For the reasons explained below, we reverse the district court‘s judgment as to the
I. Background
A. Factual Background
“We recount the facts in the light most favorable to [Segrain], who was the non-moving party at summary judgment.” Ing v. Tufts Univ., 81 F.4th 77, 79 (1st Cir. 2023) (quoting Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 172 (1st Cir. 2015)), cert. denied, No. 23-1115, 2024 WL 2116351 (U.S. May 13, 2024).
1. The Leadup to the Alleged Constitutional Violations
Segrain was housed in the Disciplinary Confinement Unit of the ACI, operated by the Rhode Island Department of Corrections (RIDOC), when, on the morning of June 28, 2018, he was escorted from his cell to an area known as the “flats” for shower and recreation time. A corrections officer issued Segrain shower supplies, including a brush, a mirror, and a razor.
About five minutes after Segrain arrived in the flats, appellee Officer Ronald Meleo informed Segrain that he would have only fifteen minutes of out-of-cell time. Segrain debated with Meleo over whether he was entitled to more out-of-cell time and whether he could report a grievance prior to being returned to his cell. In response to the disagreement, other officers were notified about a potential issue with an inmate refusing to leave the flats. Appellee Officers Walter Duffy and James Glendinning then came to the officers’ area, a room separated from the flats by a barred gate. After several minutes of discussion, Duffy, Glendinning, and Meleo, as well as three other corrections officers, walked from the officers’ area through the barred door into the flats. Duffy brought pepper spray with him and told Segrain that force might be used against him if he did not comply. Duffy directed Glendinning to handcuff Segrain, and Segrain complied and was handcuffed without incident.
When Glendinning handcuffed Segrain, Segrain was still holding some of the shower supplies (at least the mirror and the razor) that had been issued to him a few minutes before. Normally at the facility, the corrections officer who issued the shower supplies is responsible for collecting them from an inmate before the inmate is handcuffed and escorted to his cell. No officer asked Segrain to return his shower supplies or gave him an opportunity to do so. The video appears to show that, consistent with Segrain‘s account, Segrain made no attempt to hide the shower supplies from the officers -- the supplies were clearly visible in his hands when the officers entered the flats and handcuffed him.1
After Segrain was handcuffed, Glendinning escorted Segrain from the flats through the doorway into the officers’ area. Segrain walked in the direction in which he was escorted without physical protest. Six officers total -- including Glendinning, Duffy, and Meleo -- were present in the flats while Segrain was handcuffed and escorted out, and one additional officer was present in the officers’ area for at least a portion of that time period.
2. The Leg-Sweep Maneuver
The exact timing of the events that followed is central to the substantive disputes in this case, and thus we discuss their timing in relation to the time stamps on the submitted video recordings of the officers’ area and the holding cell. The video recordings do not include sound and thus do not clarify who said what, and when, during these events. While escorting Segrain out of the flats and into the officers’ area, Glendinning noticed a mirror in Segrain‘s left hand at approximately 4:45 on the officers’ area video. Glendinning testified that he swatted the mirror out of Segrain‘s hand and then noticed the razor
Segrain testified that Glendinning stated at that point, “He has a razor. Drop the razor.”2 Glendinning then applied a leg sweep to knock Segrain to the ground at 4:51 on the video. Only about one or two seconds appear to have elapsed between the time that Glendinning noticed the razor and when he applied the leg sweep. Segrain argues that one or two seconds is not enough time for Glendinning to have both ordered Segrain to drop the razor and given him time to comply with that order.
The officers’ area video does not show the precise moment that Segrain dropped the razor (the angle of the video is such that Segrain‘s hands are blocked by his body at the relevant time), but Segrain landed on the floor at 4:53 and the razor can be seen on the floor behind Segrain‘s back in the video at 4:54. Segrain testified that he dropped the razor while falling or just after he hit the ground, which is consistent with the video.3
3. Use of Pepper Spray
Around the time Segrain landed on the floor, or shortly thereafter, at 4:54 in the video, Duffy sprayed Segrain with pepper spray. At 4:56, the video shows Glendinning picking the razor up off the floor and later tossing it aside, out of Segrain‘s reach. Duffy was standing above the scene at that time and appeared to have a clear view of Glendinning when Glendinning grabbed the razor and tossed it aside. Yet after Glendinning picked up the razor, Duffy sprayed a second burst of pepper spray into Segrain‘s face at approximately 4:57 on the video.4 Segrain testified that from “what [he] recall[s],” he was not “holding the . . . razor by the time the [pepper spray] sprayed,” but it is not clear whether that statement referenced the first spray, the second spray, or both.
Segrain experienced intense pain from the pepper spray -- he was temporarily blinded,
4. Delayed Decontamination
The officers then escorted Segrain into a holding cell that was accessible from the officers’ area. They left him in the holding cell with his hands still handcuffed behind his back and his face wet with pepper spray for approximately thirteen minutes. The video of the inside of the holding cell shows Segrain wandering around blindly in the cell while handcuffed. He appears visibly in pain and appears to be trying to say something to the officers. Consistent with the video, Segrain testified that he called out in pain, stating that he could not breathe and asking the officers to take the handcuffs off so that he could wash his face. Though several officers remained just outside the cell during the time Segrain was held there, the officers do not appear to pay much attention to Segrain, and Segrain testified that “[t]hey‘re not saying nothing. Nobody [wa]s doing anything.” Some of the officers appear to be chatting with each other periodically. Officer Meleo also cleaned up the puddle of pepper spray on the ground while Segrain was in the holding cell.
The video shows Segrain, with his eyes shut, feeling around the cell with his back and handcuffed hands, but he did not find the sink for several minutes. When he did eventually encounter the sink in the corner of the cell, he managed to turn it on with his hands still cuffed. He then repeatedly stuck his face into the stream of water flowing from the sink but did not have the use of his hands to rub the water into his eyes or face. The water eventually began to overflow the sink, and Segrain repeatedly stuck his face into the full sink basin and the water stream overflowing out of the sink. The water flowed out of the cell into the officers’ area, and an officer brought a mop to the area but left it leaning against the wall without using it to mop up the water. The mop remained leaning against the wall, unused, until sometime after Segrain was escorted out of the cell and through the flooded area.
After holding Segrain in the cell for about thirteen minutes, the officers eventually opened the cell door and led him away. The video evidence does not show the exact length of time between when Segrain was released from the cell and when his decontamination shower took place. He testified that it was “25 minutes or longer . . . after [he] got sprayed” before he received a shower and that he saw a nurse for a medical evaluation “like an hour later, if that.” The medical evaluation notes state that the nurse “found no bruises or injuries, inmate is fine.” Segrain testified that the incident caused him to have long-term, nearly constant anxiety and mental anguish.
The appellees have asserted inconsistent reasons for the delay in Segrain‘s decontamination after the incident. Duffy initially asserted in an affidavit that the delay was due to “Segrain‘s act of flooding the cell” when he eventually turned on the sink himself because “the area had to be cleaned for safe transport.” Duffy then testified in his deposition that the delay was initially due to the need to find enough staff to move Segrain to the decontamination area.
5. Use-of-Force Policy
Segrain alleges that the officers’ conduct during these events violated RIDOC‘s use-of-force policy. That policy states that “[t]he use of force against an offender is authorized when an Officer reasonably believes such force is necessary to accomplish,” in relevant part, “[p]rotection of self or others, . . . [c]omplaince with rules and regulations when other methods of control
B. Procedural Background
On July 10, 2019, Segrain filed the present lawsuit in the United States District Court for the District of Rhode Island asserting claims under the federal Constitution and
a claim of violation of the state constitutional prohibition on cruel and unusual punishment against all defendants (count seven). Duffy, Glendinning, and Meleo are sued in both their individual and official capacities.
The defendants filed a motion for summary judgment on all remaining claims. The district court granted that motion in its entirety on September 20, 2023. Specifically, relevant to this appeal, the district court found that no reasonable jury could find that any of the officers’ conduct constituted an Eighth Amendment violation under the U.S. Constitution and granted summary judgment on that basis, without mentioning or discussing the officers’ asserted qualified immunity defense (an issue that both parties briefed before the district court). See Segrain v. Coyne-Fague, No. 19-00372, 2023 WL 6142234, at *6-11 (D.R.I. Sept. 20, 2023). Then, after deciding to exercise supplemental jurisdiction over the remaining state law claims despite its dismissal of all federal claims, the district court individually considered and granted summary judgment in defendants’ favor on each of Segrain‘s five remaining state law claims as to all defendants. Id. at *11-12. Segrain subsequently filed this timely appeal of the district court‘s grant of summary judgment on the Eighth Amendment and state law claims.
II. Standard of Review
We review the district court‘s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party and “giving
III. Discussion
Segrain appeals the district court‘s decision on his Eighth Amendment claim asserting multiple violations by different officers, as well as its decision on five state law claims. We discuss the Eighth Amendment claim first, assessing each of the alleged violations by different officers separately, and then proceed to the state law claims.
A. Eighth Amendment Excessive Force Claim
The objective prong of this analysis requires an injured party to show that “the alleged wrongdoing is objectively ‘harmful enough’ to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). “[D]e minimis uses of physical force” are typically “exclude[d] from constitutional recognition,” as long as “the use of force is not of a sort repugnant to the conscience of mankind.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (quoting Hudson, 503 U.S. at 9-10). The Supreme Court has made clear that it is the force used, and not the injury incurred, that is the focus of the objective prong analysis. See id. To this end, it has explained that “[i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts. An inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.” Id.; see also id. at 37 (explaining that there is no “significant injury” threshold requirement to state an excessive force claim, but that the absence of injury is still one of many relevant considerations under the subjective prong analysis).
The subjective prong of the Eighth Amendment excessive force analysis “turns on ‘whether force was applied in a good 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) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). The factors relevant to this determination, known as the “Whitley factors,” include:
[(1)] the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials, [(2)] the need for the application of force, [(3)] the relationship between the need and the amount of force that was used, [(4)] the extent of the injury inflicted, and [(5)] any efforts made to temper the severity of a forceful response.
Staples, 923 F.3d at 13 (cleaned up) (quoting Whitley, 475 U.S. at 321).
Even if a plaintiff produces sufficient evidence from which a reasonable jury could find an Eighth Amendment violation, a defendant official may still be entitled to summary judgment on that constitutional claim based on qualified immunity. Officers sued in their individual capacity “are entitled to qualified immunity under
“‘Clearly established’ means that, at the time of the officer‘s conduct, the law was ‘sufficiently clear’ that every ‘reasonable official would understand that what [they are] doing’ is unlawful.” Wesby, 583 U.S. at 63 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “A rule is clearly established either when it is ‘dictated by controlling authority or a robust consensus of cases of persuasive authority.‘” Irish v. Fowler, 979 F.3d 65, 76 (1st Cir. 2020) (quoting Wesby, 583 U.S. at 63). “A ‘robust consensus’ does not require the express agreement of every circuit. Rather, sister circuit law is sufficient to clearly establish a proposition of law when it would provide notice to every reasonable officer that [their] conduct was unlawful.” Id.; see also Perry, 94 F.4th at 164.
The Supreme Court has also explained that “‘general statements of the law are not inherently incapable of giving fair and clear warning’ to officers,” White v. Pauly, 580 U.S. 73, 79-80 (2017) (per curiam) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)), and “[a] plaintiff need not find an identical case concluding that a constitutional violation occurred,” Penate, 73 F.4th at 18. However, “in the light of pre-existing law the unlawfulness must be apparent.” White, 580 U.S. at 79-80 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Segrain alleges that multiple separate actions by the officers on June 28, 2018 constitute Eighth Amendment violations, but the district court granted summary
1. Leg Sweep by Officer Glendinning
First, Segrain argues that Officer Glendinning used excessive force against him in violation of the Eighth Amendment when he executed a leg sweep to knock Segrain to the ground. The district court ruled that the leg sweep did not meet the standard for either the objective or the subjective prongs of the analysis and thus was not an Eighth Amendment violation. See Segrain, 2023 WL 6142234, at *7-8.6 But we “may affirm the judgment on any ground made manifest by the record.” Minturn v. Monrad, 64 F.4th 9, 14 (1st Cir. 2023). We affirm the dismissal of the leg sweep claim against Glendinning based on the second prong of the qualified immunity analysis: we hold that Glendinning is entitled to qualified immunity on this claim because Segrain has not established that the leg sweep constituted a violation of a clearly established right as of June 28, 2018. And given this conclusion, we need not reach the question of “whether under the facts alleged [Glendinning‘s leg sweep] conduct violated a constitutional
right.” Johnson v. City of Biddeford, 92 F.4th 367, 375 n.6 (1st Cir. 2024); see also Perry, 94 F.4th at 146 (“We have discretion to bypass the first step [of the qualified immunity analysis] if we conclude that the right was not clearly established at the time of its alleged violation.“).
Segrain does not point us to either a First Circuit case or a sufficient consensus of persuasive authority clearly establishing that Glendinning‘s use of a leg sweep under the circumstances was an Eighth Amendment violation. Rather, Segrain references only two out-of-circuit decisions, both published prior to June 28, 2018, in support of his argument that the leg sweep could constitute such a violation.7 The primary case he cites is Griffin v. Hardrick, a Sixth Circuit case in which the plaintiff, a person detained pre-trial, alleged that two officers each grabbed one of her arms and led her down a hallway after she “act[ed] in a non-compliant manner with regard to . . . instructions she received from [a] nurse.” 604 F.3d 949, 951 (6th Cir. 2010). When the plaintiff resisted, one of the officers “stuck out his leg to trip” her (an action that the officer referred to as a “leg-sweep
Griffin does not provide clear notice to every reasonable officer that conduct such as the leg sweep Glendinning executed against Segrain under those circumstances was unlawful in 2018. The Griffin court determined that the objective element was satisfied based on a lack of dispute that the detained person “suffered serious pain.” Id. at 954. But as we explained above, the relevant question is whether the force applied, not the injury incurred, was greater than de minimis.
Segrain also cites Treats v. Morgan, a case in which the plaintiff, an incarcerated person, alleged that he was “[pepper] sprayed without warning, thrown down to the floor, and handcuffed” by correctional officers. 308 F.3d 868, 872 (8th Cir. 2002). Those uses of force occurred after he declined one officer‘s demand that he take a copy of a form he had signed acknowledging the confiscation of a radio from his cell and sought to speak with a lieutenant about whether taking the copy was mandatory. Id. at 870. The plaintiff testified that he “did not intentionally disobey [the officer], use profanity or abusive language, or threaten any correctional officer.” Id. at 872. The Eighth Circuit found that a reasonable jury could conclude that the correctional officers’ conduct of pepper spraying the plaintiff and throwing him to the ground violated his clearly established constitutional rights. Id. at 875.
To demonstrate clearly established law, cases cited need not be “directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741. Treats is analogous in many ways to Segrain‘s case under his version of the facts. However, Treats alone is far from the type of “robust consensus of cases of persuasive authority” necessary to meet the “clearly established” standard. Wesby, 583 U.S. at 63. Accordingly, Glendinning is entitled to qualified immunity on the leg sweep
2. Two Pepper Sprays by Officer Duffy
Segrain next argues that the district court erred in concluding that no reasonable jury could find that Duffy‘s use of pepper spray constituted an
Under the objective prong, the district court concluded that “the evidence demonstrates that Defendant Duffy used the minimal amount of force necessary to maintain order.” Segrain, 2023 WL 6142234, at *9. However, the district court based this conclusion on its view of the timing of Duffy‘s two uses of pepper spray in relation to the time at which Segrain dropped the razor. See id. The district court explained the sequence of events as follows:
As Defendant Glendinning applied the leg sweep, [Segrain] continued to grasp the razor, posing a serious threat to himself and others. By the time [Segrain] hit the floor the razor was still in his hands. It was not until the second use of pepper spray that [Segrain] dropped the razor and Defendant Duffy heard Defendant Glendinning inform the other officers that [Segrain] dropped the razor. Once Defendant Glendinning informed Defendant Duffy that he released the razor, Defendant Duffy ceased the use of the pepper spray.
Id. As we explained in the background section above, this rendition of the sequence of events is based on an erroneous view of the video evidence and application of the summary judgment standard. A reasonable jury could conclude that Segrain dropped the razor either as he was falling to the ground from Glendinning‘s leg sweep or just after he hit the ground.8 Either way, the video evidence leaves no doubt that Segrain dropped the razor and Glendinning grabbed the razor off the floor before Duffy pepper sprayed Segrain for the second time. Furthermore, viewing the facts in the light most favorable to Segrain and drawing all rational inferences in his favor, a reasonable jury could conclude that Duffy had a clear view of Glendinning grabbing the razor off the floor to toss it out of Segrain‘s reach before Duffy applied the second spray to Segrain‘s face.
Under this view of the sequence of events, a reasonable jury may conclude that Duffy‘s use of pepper spray was a greater than de minimis use of force. A substantial body of caselaw suggests that the application of pepper spray to a person‘s face after the person has already been fully subdued can be considered greater than de minimis force. In the First Circuit, we have stated generally that the “excessive use of tear gas by prison officials can amount to an
And in certain cases, the type of physical reaction an incarcerated person has to the pepper spray could establish that the force used was greater than de minimis. See Tedder v. Johnson, 527 F. App‘x 269, 274 (4th Cir. 2013) (finding a genuine issue of material fact on the objective component of an
Here, Segrain alleges that he experienced intense pain from the pepper spray, was temporarily blinded, felt unable to breathe, and felt like he was going to die. The video of Segrain in the holding cell appears to support Segrain‘s allegations of pain and temporary blindness. Based on the evidence of Segrain‘s physical reactions to the spray in addition to the other evidence related to the sequence of events described above, a reasonable jury could consider Duffy‘s use of pepper spray against Segrain to be a greater than de minimis use of force.
b. Subjective Prong
We hold that the district court also erred in its analysis of Duffy‘s use of pepper spray under the subjective prong. There, the district court concluded that Duffy‘s use of pepper spray “was in good faith” because Segrain “created a threat to the corrections officers and himself when he failed to drop the razor in his hands despite orders to do so and attempts to remove it from his hands.” Segrain, 2023 WL 6142234, at *9. It further concluded that “[t]he threat did not cease when Defendant Glendinning applied the leg sweep” because “[i]t was not until Defendant Duffy released the second microburst [of pepper spray] that Defendant Glendinning announced he had the razor“; and “[o]nce [Segrain] dropped the razor, the threat extinguished and the officers used no further force.” Id. Once again, this rendition of the facts reflects a flawed application of the summary judgment standard. A reasonable jury could conclude that Segrain dropped the razor before Duffy applied the second burst of pepper spray. They could further conclude that Duffy could see Glendinning grab and toss the razor out of Segrain‘s reach before Duffy pepper sprayed Segrain a second time.
Although the subjective prong of the
As a reminder, the Whitley factors include: (1) the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials, (2) the need for the application of force, (3) the relationship between the need and the amount of force that was used, (4) the extent of the injury inflicted, and (5) any efforts made to temper the severity of a forceful response. Staples, 923 F.3d at 13 (cleaned up) (quoting Whitley, 475 U.S. at 321). Applying these factors to the facts viewed in the light most favorable to Segrain, a reasonable jury could view the extent of the threat to the safety of staff and inmates as low where Segrain was handcuffed and surrounded by six officers, where the alleged potential weapon was a prison-issued shaving razor,9 and where the jury could find that Segrain did not intentionally retain the razor after leaving the shower area or intend to use it for any nefarious purpose. Instead, the jury could find that Segrain only held the razor because the officers failed to follow their usual protocol of collecting the razor back from Segrain prior to escorting him out of the shower area and he did not have any other opportunity to return the razor. A reasonable jury could further conclude that Duffy could and should have perceived that the threat was low or non-existent certainly before his second spray, particularly given he had already sprayed Segrain once. The jury could conclude that Duffy should have perceived this before he applied pepper spray for the second time because by that time, Segrain had dropped the razor and Glendinning had grabbed the razor to toss it out of Segrain‘s reach -- in clear view of Duffy. See Furnace, 705 F.3d at 1029 (“[T]he district court properly found that it remained a disputed fact whether [the incarcerated person] posed a threat to the officers, such that they were justified in discharging pepper spray on [them].“).
Under the second factor and this view of the facts, the jury could find that there was no need for the application of force in the form of pepper spray, particularly after the first spray, because Segrain no longer (or never) presented any threat to the officers, himself, or other inmates at that time.10 See Furnace, 705 F.3d at 1029
the jury could find that the amount of force used was disproportionately high in relation to the minimal or nonexistent need for force. See Danley, 540 F.3d at 1309 (“Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is disproportionate to the need.“).
Under the fourth factor, the extent of the injuries suffered, a reasonable jury could find that the application of pepper spray to Segrain‘s face caused him temporary blindness, difficulty breathing, and physical pain in the immediate aftermath of the spray. Segrain does not allege that he experienced any longer-term physical injuries. Nor is it necessary that Segrain allege a lasting injury to prevail on his
Finally, under the fifth factor, a reasonable jury could find that the “efforts made to temper the severity of a forceful response” -- the use of pepper spray -- were lacking, Staples, 923 F.3d at 13 (quoting Whitley, 475 U.S. at 321), or that the circumstances following the forceful response weighed against Duffy, see Iko v. Shreve, 535 F.3d 225, 240 (4th Cir. 2008). Although the officers eventually took Segrain to receive a decontamination shower, as they were required to under RIDOC policy, the jury could conclude that the officers unnecessarily and substantially prolonged the pain Segrain experienced from the pepper spray.11 The video and testimonial evidence shows that Segrain was left handcuffed while in the holding cell so that he could not use his hands to wash the pepper spray off his face, and that no officer helped him locate the sink in the corner of the room while he was calling out in pain and wandering blindly around the cell.
Indeed, over the course of the thirteen minutes during which Segrain was in the cell, the video shows the officers milling about outside the holding cell, not appearing to be occupied for much of the time or in a rush to move Segrain to another location. The rationale the officers have given for the delay in treating Segrain has also been inconsistent: Duffy initially asserted in an affidavit that the delay was due to “Segrain‘s act of flooding the cell” because “the area had to be cleaned for safe transport.” But the officers’ area video appears to refute that explanation. Specifically, that video shows Segrain being taken out of the holding cell before anyone mopped up the water. Duffy then testified, and the district court appeared to conclude, that the delay was due to the need to find enough staff to move Segrain to the decontamination area. See Segrain, 2023 WL 6142234, at *10
(noting that Duffy “delayed decontamination to seek out staff to transport Plaintiff to decontamination“). A jury could also choose to disbelieve this alternative rationale after viewing the officers’ area video, which shows numerous officers lingering in or around the officers’ area who did not appear to be occupied during the time Segrain was in the cell.
Viewing this evidence in the light most favorable to Segrain, a reasonable jury could conclude that the officers could and should have moved more quickly to temper the severity of the effects of the pepper spray by promptly decontaminating Segrain, and that there was no sufficient justification for the delay.12
Given that a reasonable jury could find that a majority of these factors weigh against Duffy for the reasons described above, the jury could reasonably infer that Duffy‘s use of pepper spray was “maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21 (citation omitted); see Tedder, 527 F. App‘x at 273 (concluding that “[a]pplication of the Whitley factors would permit a trier of fact to” find malice, in part because “there [was] evidence suggesting that there was no need for the application of force at the time that [the officer] applied it” and “the record contain[ed] sufficient facts from which a trier of fact could conclude that [the incarcerated person] posed no threat at all“). Accordingly, the jury could find that both the objective and subjective prongs of the excessive force analysis were satisfied, and thus that Duffy‘s use of pepper spray against Segrain constituted an
Appellees argue that, even if Duffy‘s use of pepper spray constituted an
Because there is “sufficient evidence to make out an excessive force claim, [Duffy] is not entitled to qualified immunity on the first” step of the qualified immunity analysis. Toledo-Dávila, 813 F.3d at 72. At this summary judgment stage, we find that Duffy is also not entitled to qualified immunity on the second step because, for the reasons set out below, clearly established law as of June 28, 2018 prohibited Duffy from unnecessarily spraying Segrain with pepper spray at a time when he was restrained and did not pose any reasonable threat.
As noted above, this circuit has acknowledged that, under some circumstances, “excessive use of tear gas by prison officials can amount to an
The Fourth Circuit cited Seventh Circuit precedent dating back to 1984 to explain that “[i]t is generally recognized that ‘it is a violation of the
The Ninth Circuit has “agree[d] with [its] sister circuits that ‘it is generally recognized that it is a violation of the
Finally, a district court in this circuit has ruled that an officer‘s “use of [pepper spray] on a defenseless and non-resistant inmate” can be considered “non-de minimis force ‘applied maliciously and sadistically for the very purpose of causing harm.‘” Perry v. Dickhaut, 125 F. Supp. 3d 285, 297 (D. Mass. 2015) (quoting Skinner v. Cunningham, 430 F.3d 483, 488 (1st Cir. 2005)). The court there denied qualified immunity at summary judgment to an officer who had sprayed an incarcerated person six times when the person refused to comply with an order to return to a cell, including at least two sprays after he had stopped resisting. Id. at 297-98. The court concluded:
Given the circumstances surrounding [the officer‘s] use of [pepper spray] -- especially the timing of the fifth and sixth sprays -- a reasonable juror could conclude that [the officer] was fed up with Plaintiff for being disruptive, and purposefully retaliated by spraying Plaintiff in the face after [they] had stopped resisting. Any reasonable prison official would have understood that such a malicious infliction of unnecessary pain -- even if did not result in enduring injury -- would violate a prisoner‘s constitutional rights. Therefore, [the officer] is not entitled to qualified immunity on the excessive force claim.
In light of this body of caselaw, we conclude that “a robust consensus of persuasive authority,” Irish, 979 F.3d at 77, has established that the use of pepper spray by prison officials against a detained person when that person is no longer resisting and no longer presents any reasonable safety threat is an
not pose any reasonable threat constitutes an
Prison regulations governing correctional officers’ conduct can also be relevant to determining whether a right was clearly established. See Hope v. Pelzer, 536 U.S. 730, 741-44 (2002) (looking to Alabama Department of Corrections regulations to support the conclusion that prison guards were on notice of constitutional limitations on the use of force and violated clearly established constitutional rights); Irish, 979 F.3d at 77 (“A lack of compliance with state law or procedure does not, in and of itself, establish a constitutional violation, but when an officer disregards police procedure, it bolsters the plaintiff‘s argument . . . that ‘a reasonable officer in [the officer‘s] circumstances would have believed that [their] conduct violated the Constitution.‘” (second alteration in original)); Furnace, 705 F.3d at 1027-28 (“Here, [a prison regulation] bears directly on the situation that the officers confronted, and is therefore relevant to determining whether the officers could have thought their conduct was reasonable and lawful.“); Treats, 308 F.3d at 875 (“Prison regulations governing the conduct of correctional officers are also relevant in determining whether an inmate‘s right was clearly established.“).
RIDOC policy states that “RIDOC Officers may only use force when necessary,” they “may only use the reasonable force necessary to accomplish the required task,” and “[o]nce the threat or resistance displayed by a subject stops or diminishes, force utilized by Officers in response must cease or diminish.” A reasonable jury could find that Duffy used pepper spray unnecessarily against Segrain after any “threat or resistance” by Segrain had “stop[ped] or diminishe[d].” Such an action would violate RIDOC policy, which bolsters Segrain‘s position that a reasonable officer in Duffy‘s circumstances would have known that his conduct was unlawful. See, e.g., Hope, 536 U.S. at 741-44; Irish, 979 F.3d at 77.
Considering the RIDOC regulation on top of the substantial body of caselaw discussed above, we conclude that the law governing Duffy‘s use of unconstitutional excessive force was clearly established at the time of the alleged violation. Accordingly, Duffy is not entitled to qualified immunity for his use of pepper spray against Segrain at this stage of the litigation. “[O]ur denial of immunity on [Segrain‘s] version of the events leaves th[is] claim[] for trial, where [Duffy] may try to persuade the jury that he did not do what he is accused of doing.” Stamps, 813 F.3d at 42 (cleaned up) (quoting Mlodzinski v. Lewis, 648 F.3d 24, 40 (1st Cir. 2011)).
3. Delayed Decontamination by All Three Officers
Segrain argues next that the district court erred in holding that the officers’
To refute the district court‘s conclusion on his decontamination claim, Segrain cites several out-of-circuit cases in support of his argument that a reasonable jury could find that the decontamination delay constituted an
One of the cases Segrain cites, Jacoby v. Mack, 755 F. App‘x 888 (11th Cir. 2018), was published in November 2018 -- too late to be relevant to the analysis of established law as of June 28, 2018. Segrain relies heavily on Danley v. Allen, a case in which the Eleventh Circuit found that holding a man sprayed with pepper spray in a cell with pepper spray in the air and on his clothes for twenty minutes before permitting him to decontaminate could amount to an unconstitutional use of excessive force. 540 F.3d at 1304, 1307-09.14 He also cites Nasseri v. City of Athens, another Eleventh Circuit case that relied on Danley to conclude that an officer‘s confinement of a person detained pre-trial in an unventilated patrol car for an hour without decontamination after they were sprayed by an officer in the face with pepper spray amounted to unconstitutional excessive force. See 373 F. App‘x 15, 18-19 (11th Cir. 2010) (per curiam). Next, Segrain cites a Tenth Circuit decision denying summary judgment to officers on an
Finally, Segrain cites an Eastern District of California decision that did not directly address whether a delay in decontamination supported an
In response, the appellees cite two cases they assert weigh in the opposite direction -- against finding the delayed decontamination to be an
Considering this body of caselaw as a whole, we hold that Segrain has not shown that “a robust consensus of cases of persuasive authority” put the “constitutionality of the officer[s’ alleged] conduct ‘beyond debate.‘” Wesby, 583 U.S. at 63 (quoting al-Kidd, 563 U.S. at 741-42). Many of the cases cited in Williams are distinguishable because they involved significantly longer delays in decontamination than the delay Segrain alleges. Although the other out-of-circuit cases Segrain cites provide more direct support for his claim, see Danley, 540 F.3d at 1307-09; Nasseri, 373 F. App‘x at 18-19; see also Norton, 432 F.3d at 1154, they too are distinguishable and alone do not amount to the “robust consensus” needed to demonstrate clearly established law. This is especially so in the face of the cases appellees cite showing courts finding no constitutional violation for similar conduct or longer decontamination delays than the one alleged here. See Jones, 207 F.3d at 495; Jacoby, 596 F. App‘x at 766-67.
Thus, the law in this area was not “sufficiently clear that every reasonable official would understand that” a delay in decontamination for the length of time Segrain alleges was unlawful. Wesby, 583 U.S. at 63 (cleaned up). Accordingly, the officers are entitled to qualified immunity on Segrain‘s claim that the delay in decontamination violated his
4. “Integral Participant” Theory of Liability Against Meleo
Segrain‘s final
In his opposition to the motion for summary judgment, Segrain outlined the basic law on the integral participant theory of liability with citations to relevant caselaw and asserted that Meleo “was an integral
We have already found that Segrain has not shown that the leg sweep against him violated clearly established law as of June 2018. See supra section III.A.1. Accordingly, we need not reach the issue of whether Meleo‘s conduct in relation to the leg sweep violated the constitution because Meleo, like Glendinning, is entitled to qualified immunity on Segrain‘s claim that the leg sweep was an unconstitutional use of excessive force. Likewise, Meleo is entitled to qualified immunity on Segrain‘s delayed decontamination excessive force claim because the alleged “unlawfulness of” that delay was not “clearly established at the time,” as we concluded above. Wesby, 583 U.S. at 63 (quoting Reichle, 566 U.S. at 664); see supra section III.A.3. That leaves only the excessive force claim based on Duffy‘s use of pepper spray. However, Segrain has not made any argument -- either before the district court or in his opening brief to us -- explaining how Meleo was an “integral participant” in Duffy‘s allegedly unconstitutional use of pepper spray, specifically. Thus, Segrain has waived that claim. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). We affirm the district court‘s grant of summary judgment to Meleo on Segrain‘s
B. State Law Claims
Finally, Segrain appeals the district court‘s grant of summary judgment on his remaining five state law claims: state tort claims for negligent infliction of emotional distress, battery, intentional infliction of emotional distress, and excessive force (counts four, five, eight, and nine); and a state constitutional claim for violation of the right to be free from cruel and unusual punishment under
That brief argument is sufficient to avoid waiver of Segrain‘s challenge to the district court‘s ruling on Segrain‘s cruel and unusual punishment claim under
Our analysis of Duffy‘s use of pepper spray under the
Moving on to Segrain‘s other state law claims, we agree with the appellees that Segrain‘s undeveloped, nonspecific challenge to these claims in his briefing before us is insufficient to avoid waiver of these challenges. Contrary to Segrain‘s assertion that the district court concluded that the legal standards for all of the remaining state law claims “are essentially the same as [the standards for] the Eighth Amendment excessive force claim,” the district court noted multiple aspects of the state law claims that are distinct from or irrelevant to the
We have long held that “[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel‘s work, create the ossature for the argument, and put flesh on its bones.” Zannino, 895 F.2d at 17. Thus, “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Id.; see also, e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010) (finding claim waived where petitioners “h[ad] not formulated any developed argumentation in support of that claim“). Accordingly, we hold that Segrain‘s challenges to his state law claims for negligent infliction of emotional distress, battery, intentional infliction of emotional distress, and excessive force are waived for lack of developed
IV. Conclusion
For the reasons stated above, we reverse the district court‘s judgment as to the