Iko v. Shreve

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BENNY IKO, Personal representative 

of the Estate of Ifeanyi A. Iko;

LOREEN JONES, as parent and next

friend of her minor son, BI;

CHRISTINE IKO,

Plaintiffs-Appellees,

v.

JAMES SHREVE, Lieutenant; BRIAN

CLISE, Correctional Officer; LYN

DETRICK, Correction Officer; JASON

HARBAUGH, Correctional Officer;

MARK RALEY, Correctional Officer;

ADAM WHITACRE, Correction Officer;

RUSSELL SUDER, Correctional

Sergeant; PAUL F. DEFFIBAUGH,

Correctional Officer,  No. 07-7569

Defendants-Appellants,

and

JON P. GALLEY, Warden;

CORRECTIONAL OFFICERS; JOHN DOES

I THROUGH VI, WESTERN

CORRECTIONAL INSTITUTION; MICHAEL

JACOBS, Correction Lieutenant;

ALLAN HALL, Correctional Sergeant;

ROBERT TICHNELL; RUSSELL ZANG,

Correctional Lieutenant, Western

Correctional Institution; LOUISE

GORDON, Chief of Security, Western

Correctional Institution,

Defendants.



2 IKO v. SHREVE

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Deborah K. Chasanow, District Judge.

(8:04-cv-03731-DKC)

Argued: May 14, 2008

Decided: August 6, 2008

Before MICHAEL and DUNCAN, Circuit Judges,

and Henry F. FLOYD, United States District Judge for the District

of South Carolina, sitting by designation.

Dismissed in part and affirmed in part by published opinion. Judge

Duncan wrote the opinion, in which Judge Michael and Judge Floyd

joined.

COUNSEL

ARGUED: Stephanie Judith Lane-Weber, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,

for Appellants. Paul Lawrence Knight, O’CONNOR & HANNAN,

LLP, Washington, D.C., for Appellees. ON BRIEF: Douglas F.

Gansler, Attorney General of Maryland, Baltimore, Maryland, for

Appellants. Gary C. Adler, ROETZEL & ANDRESS, LPA, Washing-

ton, D.C., for Appellees.

OPINION

DUNCAN, Circuit Judge:

Ifeanyi Iko ("Iko"), an inmate in a Maryland state correctional

facility, died after being forcibly removed from his cell and trans-

ferred to another cell by a team of seven correctional officers

("Appellants," or the "officers"). Iko’s estate and family ("Plaintiffs")

IKO v. SHREVE 3

filed this survival and wrongful death action against the officers pur-

suant to 42 U.S.C. § 1983. The officers moved for summary judgment

based on qualified immunity. The district court granted the motion in

part, finding the officers entitled to qualified immunity from suit for

certain of their actions but not for others.

The officers filed this interlocutory appeal, asserting that they are

entitled to qualified immunity from the entire action. Plaintiffs have

moved to dismiss the appeal, arguing that this court has no jurisdic-

tion to consider it because it improperly calls for revisiting whether

there remains a genuine dispute of material fact. We find that the offi-

cers’ appeal, though attempting to re-litigate certain factual disagree-

ments, also presents legal questions regarding whether the officers are

entitled to qualified immunity as to certain claims when the facts are

viewed in the light most favorable to Plaintiffs. We therefore dismiss

the appeal in part, and affirm the district court’s denial of qualified

immunity in part, because Plaintiffs have alleged facts sufficient to

show that the officers violated certain of Iko’s clearly established

Eighth Amendment rights.

I.

A.

"[C]ourts are required to view the facts and draw reasonable infer-

ences in the light most favorable to the party opposing the summary

judgment motion. In qualified immunity cases, this usually means

adopting . . . the plaintiff’s version of the facts." Scott v. Harris, 127

S. Ct. 1769, 1774-75 (2007) (internal quotations, alterations, and cita-

tions omitted). At the same time, "[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the record,

so that no reasonable jury could believe it, a court should not adopt

that version of the facts for purposes of ruling on a motion for sum-

mary judgment." Id. at 1776. In particular, where, as here, the record

contains an unchallenged videotape capturing the events in question,

we must only credit the plaintiff’s version of the facts to the extent

it is not contradicted by the videotape. See id.1

1

Indeed, the videotape in Scott proved instrumental in the Court’s deci-

sion. In reversing, the Court found that the plaintiff’s version of the facts

4 IKO v. SHREVE

Iko was a long-time inmate at Western Correctional Institution

("WCI"), a large state prison in Cumberland, Maryland. Iko had been

involved in a number of violent prison incidents dating to 1992,

including assaults on correctional officers and other inmates. Some of

these incidents involved spitting or biting. Iko had also exhibited

intermittent mental-health problems, with "periods of well-adjusted

socially appropriate behavior" punctuated by violent outbursts and

other "reclusive[,] uncooperative behavior." J.A. 219.

The events leading to Iko’s death began on April 28, 2004, when

Iko was involved in a violent altercation with his cellmate. Correc-

tional officers broke up the fight by administering pepper spray to the

inmates.2 Iko was taken for medical attention and moved to an isola-

tion cell.

Appellant Lieutenant James Shreve ("Lt. Shreve"), the manager of

Iko’s housing unit, attempted to initiate conversation with Iko several

times after the fight, but had difficulty communicating with him. Iko

responded to Lt. Shreve’s entreaties by "just kind of star[ing] at

[him]" or by "sp[eaking] to [him] in a language that [Lt. Shreve]

didn’t understand." J.A. 211. Because Lt. Shreve generally found Iko

to be "a very intelligent person to talk to [who] can speak English,"

he became concerned about this behavior and requested that someone

from the prison’s psychology department visit Iko. Id.

Over the next two days, three different members of the prison

mental-health staff visited Iko in his temporary cell. Though Iko was

communicative during some of those visits, his erratic behavior con-

tinued. On April 30, 2004, prison psychologist Dr. Janet Hendershot

was "utterly discredited by the record [such] that no reasonable jury

could have believed him." Id. at 1776. The Court concluded that the

Court of Appeals erred in "rel[ying] on such visible fiction; it should

have viewed the facts in the light depicted by the videotape." Id.

2

Plaintiffs suggest that the officers responding to the fight handled Iko

violently, citing the testimony of several inmates who allegedly wit-

nessed the incident. The district court did not admit this testimony for

purposes of analyzing the officers’ motion for summary judgment, and

that determination has not been challenged on appeal. The testimony is

therefore not properly before us.

IKO v. SHREVE 5

("Dr. Hendershot") recommended that Iko be transferred to a cell in

the "Special Observation Housing" ("SOH") unit, where he would

receive more frequent observation and medical attention. The transfer

was scheduled for later that day.

Just prior to the scheduled transfer, Dr. Hendershot encouraged Iko

to "cuff up" by inserting his wrists through a slot in the cell door, so

that he would not have to be transferred by force. When Iko did not

respond, the chief of security and the prison warden authorized his

transfer to an SOH cell by force.

To effectuate the transfer, prison authorities utilized a procedure

called a "cell extraction." A team of seven correctional officers (the

"extraction team") was assembled, led by Lt. Shreve. Each member

of the team was assigned a role. For example, one officer was respon-

sible for restraining the inmate’s left leg and one his right. The team

members wore protective vests, gas masks, gloves, and hard knee and

elbow caps. Standing prison procedures authorized the extraction

team to use force if and to the extent necessary to secure compliance.

The cell extraction was videotaped pursuant to state policy.3

The general sequence of the events of the transfer is undisputed,

and comports with the depiction in the videotape. Immediately prior

to the cell extraction, Iko lay passively on the floor of his cell. Lt.

Shreve told Iko that he could avoid the use of force if he came to the

door to be handcuffed. When Iko did not move, Lt. Shreve deployed

a pepper spray "fogger"4 for several seconds through the door slot. Lt.

3

According to the Maryland Secretary of the Department of Public

Safety and Correctional Services:

[C]ell extractions are videotaped in order to make a record of the

event. The videotape is reviewed by correctional staff and super-

visors to assess the conduct of the correctional staff and inmate

and, if appropriate, to take any administrative, disciplinary, or

law enforcement actions. The videotape is considered an integral

part of any investigation into the circumstances of the cell

extraction.

J.A. 333.

4

Unlike a personal-use sprayer that releases a targeted stream, the

"foggers" used here disperse the irritant in a diffuse mist.

6 IKO v. SHREVE

Shreve then shut the slot door. When Iko did not come to the door,

Lt. Shreve deployed another short burst of pepper spray. As he was

doing so, Iko came to the door with his wrists and hands in front of

him and his palms face down, and inserted them through the slot

where the pepper spray was being deployed. Several officers then

began shouting that Iko should instead turn around and place his

hands behind his back and through the slot. When Iko did not do so,

Lt. Shreve administered another burst of pepper spray, and Iko again

lay down on the floor of his cell. Lt. Shreve and another officer each

released a final burst of pepper spray and prepared to enter the cell.

Plaintiffs’ expert estimates that pepper spray was dispersed into Iko’s

cell for approximately nine to fourteen seconds in total. It is undis-

puted that at no point during the spraying did Iko respond violently

or in a confrontational manner.

Iko was lying still on the floor when the extraction team entered

his cell. They secured Iko’s arms in metal handcuffs behind his back

and his legs in shackles, and placed a spit mask over his head.5

The extraction team lifted Iko from the floor and, pursuant to stan-

dard cell-extraction procedure, walked him to a nearby medical room

to be examined by a nurse. The nurse explained to Iko that she was

there to offer medical treatment, but he did not respond, instead hang-

5

Though not a standard part of the cell-extraction procedure, the use

of a spit mask may be authorized for an inmate with a history of spitting

or biting. As explained by the district court below, the type of spit mask

used here was

a hood that covers the wearer’s face and head, . . . fastened by

tying two straps under the armpits and through two loops in the

back. A thin cloth, similar to the type used in doctors’ surgical

masks, covers the wearer’s nose and mouth. A mesh material

covers the wearer’s eyes and back of his head. The instructions

accompanying the spit mask read, "WARNING: IMPROPER

USE OF THE SPIT NET MAY CAUSE INJURY OR DEATH

. . . Wearer must be under constant visual supervision and should

NEVER be left unattended. DO NOT USE on anyone that is . . .

having difficulty breathing."

Iko v. Galley, No. 8:04-CV-3731-DKC, slip op. at 38 (D. Md. September

17, 2007) (latter two omissions in original).

IKO v. SHREVE 7

ing his head as the officers propped him up. The nurse can be heard

on the videotape commenting that Iko did not appear to be reacting

to the pepper spray. After about a minute in the medical room, Iko

suddenly collapsed forward. The officers caught him and directed him

into a nearby wheelchair for transportation to the SOH cell. At no

point did the nurse provide any medical treatment to Iko or even come

into physical contact with him. Nor did the officers at any point

remove Iko’s spit mask or decontaminate him or his clothing, which

was saturated with pepper spray. The officers then wheeled Iko to the

SOH cell via an outdoor path, carrying Iko’s legs in front of the

wheelchair to keep them from dragging on the ground.

Upon his arrival at the SOH cell, Iko was placed face down on the

floor. The officers dispatched someone to locate nylon "flex cuffs" to

replace Iko’s metal handcuffs. While the officers waited for the flex

cuffs to arrive, they continued to restrain Iko by kneeling and other-

wise exerting downward pressure on various parts of his body, includ-

ing his head, neck, shoulders, stomach, waist and legs. The videotape

confirms, for example, that at least one officer was kneeling, in hard

knee caps, on Iko’s back and shoulders throughout this process. After

several minutes of constant pressure, the flex cuffs arrived. The offi-

cers exchanged the handcuffs and exited the cell, leaving Iko face

down, arms restrained behind his back, and spit mask still on. After

he left the cell, Lt. Shreve offered that Iko could come to the slot to

have his cuffs removed, but Iko did not respond. The officers left.

Dr. Hendershot instructed the SOH staff to monitor Iko every fif-

teen minutes. At least one SOH staff member observed through the

cell door that Iko was still breathing upon his arrival to the SOH unit.

SOH staff soon became concerned, however, that Iko was not moving

from his face-down position on the cell floor. After initially being

denied permission by prison officials to enter the cell because of Iko’s

alleged dangerousness, SOH staff finally obtained authorization to

enter, finding Iko dead. A state medical examiner later concluded that

Iko "died of Asphyxia (the asphyxia was caused by chemical irritation

of the airways by pepper spray, facial mask placement, compressional

and positional mechanisms)." J.A. 1143.

8 IKO v. SHREVE

B.

As a result of Iko’s death, Plaintiffs sued the officers in the United

States District Court for the District of Maryland pursuant to 42

U.S.C. § 1983, claiming that the officers violated Iko’s Eighth

Amendment right to be free from cruel and unusual punishment.

Plaintiffs also alleged a number of Maryland state constitutional and

tort claims. The officers moved for summary judgment, asserting,

inter alia, qualified immunity from the federal claims. The district

court granted the motion in part, but denied it as to three portions of

Plaintiffs’ § 1983 action: (1) the claim that Lt. Shreve used excessive

force in deploying a large quantity of pepper spray (the "excessive

pepper spray claim"); (2) the claim that the officers used excessive

force in applying pressure to Iko in the SOH cell while waiting for

the flex cuffs to arrive (the "excessive pressure claim"); and (3) the

claim that the officers showed deliberate indifference to Iko’s medical

needs after he was doused in pepper spray (the "medical needs claim").6

The district court held that, for each of these claims, Plaintiffs had

alleged facts that, if proven true, would subject the officers to liability

for violating Iko’s Eighth Amendment rights.7

The officers timely filed this interlocutory appeal, challenging the

district court’s partial denial of their motion for summary judgment.

6

The district court granted qualified immunity to the officers regarding

Plaintiffs’ claims that the use of restraints during the cell extraction con-

stituted excessive force, and that the use of a spit mask and the failure

to provide medical care in the SOH cell showed deliberate indifference

to a medical need. Plaintiffs do not appear to contest these rulings on this

interlocutory appeal. The district court also refused to grant summary

judgment regarding the pendent state law claims. We would be reticent

to review those pendent claims in this appellate posture, see Johnson v.

Jones, 515 U.S. 304, 318 (1995), and the parties do not request that we

do so.

7

The district court likewise denied summary judgment to Lt. Shreve on

Plaintiffs’ claim that he is liable as a supervisor for the actions of the rest

of the officers. The parties do not separately argue this claim on appeal,

instead assuming it rises and falls with the officers’ liability for the same

acts. We therefore decline to revisit the district court’s denial of sum-

mary judgment on this claim.

IKO v. SHREVE 9

Plaintiffs moved to dismiss the appeal, arguing that this court does not

have jurisdiction to entertain it under Johnson v. Jones, 515 U.S. 304.

We address Plaintiffs’ jurisdictional challenge first, as we must. See

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)

("[E]very federal appellate court has a special obligation to satisfy

itself . . . of its own jurisdiction." (internal quotations omitted)).

II.

A.

The doctrine of qualified immunity protects government officials

from liability for violations of constitutional rights that were not

clearly established at the time of the challenged conduct. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is an "im-

munity from suit rather than a mere defense to liability; and like an

absolute immunity, it is effectively lost if a case is erroneously per-

mitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Thus, though interlocutory appeals are generally disallowed, "a dis-

trict court’s denial of a claim of qualified immunity, to the extent that

it turns on an issue of law, is [immediately appealable] notwithstand-

ing the absence of a final judgment," under the collateral-order doc-

trine. Id. at 530 (emphasis added); see also Behrens v. Pelletier, 516

U.S. 299, 301 (1996); Johnson v. Jones, 515 U.S. at 313; Winfield v.

Bass, 106 F.3d 525, 528 (4th Cir. 1997) (en banc).

Plaintiffs argue that we lack jurisdiction to hear this appeal because

none of the questions presented on appeal "turns on an issue of law"

related to qualified immunity. See id. at 530. Instead, Plaintiffs con-

tend, the officers would have us revisit the district court’s assessment

of whether genuine issues of material fact make summary judgment

inappropriate. Since Johnson v. Jones prevents such an inquiry, see

515 U.S. at 314, Plaintiffs conclude that we lack jurisdiction over the

officers’ entire appeal.

Plaintiffs are correct that we lack jurisdiction to re-weigh the evi-

dence in the record to determine whether material factual disputes

preclude summary disposition. See id., 515 U.S. at 319-20 ("[A]

defendant, entitled to invoke a qualified immunity defense, may not

appeal a district court’s summary judgment order insofar as that order

10 IKO v. SHREVE

determines whether or not the pretrial record sets forth a ‘genuine’

issue of fact for trial."); see also Buonocore v. Harris, 65 F.3d 347,

360 (4th Cir. 1995). That does not mean, however, that there may not

remain purely legal questions relating to qualified immunity that can

and should be resolved at this stage in the litigation. See Johnson v.

Jones, 515 U.S. at 318 (pointing out that, had the district court "deter-

mined that beating respondent violated clearly established law, peti-

tioners could have sought review of that determination"). This court,

sitting en banc, summarized the distinction:

[W]e possess jurisdiction to consider an appeal from a deci-

sion of a district court rejecting a government official’s

claim of entitlement to qualified immunity to the extent that

the official maintains that the official’s conduct did not vio-

late clearly established law. Alternatively, to the extent that

the appealing official seeks to argue the insufficiency of the

evidence to raise a genuine issue of material fact—for

example, that the evidence presented was insufficient to

support a conclusion that the official engaged in the particu-

lar conduct alleged—we do not possess jurisdiction . . . to

consider the claim and, therefore, may not do so absent

some independent jurisdictional base. In other words, we

possess no jurisdiction over a claim that a plaintiff has not

presented enough evidence to prove that the plaintiff’s ver-

sion of the facts actually occurred, but we have jurisdiction

over a claim that there was no violation of clearly estab-

lished law accepting the facts as the district court viewed

them.

Winfield, 106 F.3d 525, 529-30 (4th Cir. 1997) (internal citations

omitted).

As Winfield makes plain, our first task on appeal is to separate the

district court’s legal conclusions regarding entitlement to qualified

immunity, over which we have jurisdiction, from its determinations

regarding factual disputes, over which we do not. The task is compli-

cated by the fact that nearly every "decision of a district court denying

a governmental official’s request for summary judgment based upon

qualified immunity will encompass" both a factual and a legal deter-

mination—"that the facts are sufficiently controverted to warrant a

IKO v. SHREVE 11

trial and that the legal right purportedly violated was clearly estab-

lished." Id. at 529 (emphasis added). We must therefore carefully

"consider the order entered by the district court to assess the basis for

its decision." Id. (citing Johnson v. Jones, 515 U.S. at 319). If sum-

mary judgment was denied as to a particular claim solely because

there is a genuine issue of material fact, that claim is not immediately

appealable and we lack jurisdiction to consider it. If instead summary

judgment was denied as to a particular claim because the officers

were found, on the facts viewed most favorably to Plaintiffs, to have

violated Iko’s clearly established constitutional rights, that claim is

properly before us.

Once the district court’s decision has been so parsed, we must also

examine the parties’ appellate arguments to ensure that we only con-

sider those legal questions formally raised on appeal. See id. at 530.8

It is to the application of these jurisdictional principles to this appeal

that we now turn.

B.

We must assess, for each of the three claims presented on

appeal—the excessive pepper spray claim, the excessive pressure

claim, and the medical needs claim—whether the district court

decided the claim based on qualified immunity, and if so, whether the

officers challenge that legal determination on appeal.

1.

We begin with the district court’s analysis regarding the excessive

pepper spray claim. The court found that a number of genuine issues

of fact remained unresolved, including whether Iko complied with the

officers’ orders during the extraction. See Iko v. Galley, No. 8:04-CV-

8

This step is particularly important in interlocutory appeals regarding

qualified immunity, because a party can so focus its appellate argument

on factual disputes that it fails to raise a single legal question appropriate

for appellate review. See, e.g., Johnson v. Jones, 515 U.S. at 314 (dis-

missing appeal because the Court could not "find any ‘separate’ [legal]

question—one that is significantly different from the fact-related legal

issues that likely underlie the plaintiff[s’] claim on the merits").

12 IKO v. SHREVE

3731-DKC, slip op. at 27, 60. This finding is precisely the type of fac-

tual determination over which we lack jurisdiction at this stage in the

litigation. See Johnson v. Jones, 515 U.S. at 314.

The district court also held, however, that "[t]he existing case law

. . . gave [Lt.] Shreve fair warning that multiple applications of pepper

spray against a passive inmate who made at least some attempt at

compliance, received no subsequent decontamination, and was forced

to wear a spit mask, was unlawful," and that Lt. Shreve was therefore

"not entitled to qualified immunity for his use of pepper spray." Iko

v. Galley, No. 8:04-CV-3731, slip op. at 32 (emphasis added). This

determination is plainly legal in nature, and immediately appealable

under the collateral-order doctrine. See Mitchell, 472 U.S. at 530.

Our jurisdictional analysis does not end there, however, as we must

assure ourselves that the officers raised the appropriate legal question

on appeal, and did not merely focus on rehashing the factual dispute

below. We agree with Plaintiffs that the officers’ appellate argument

on this claim asks us to revisit a number of factual disputes. As

explained in their briefs and extensively at oral argument, however,

the officers also argue that the right to be free from an excessive

deployment of force by pepper spray was not clearly established—a

question of law that does not require us to revisit any factual disputes.

We possess jurisdiction over such a legal determination. See Johnson

v. Jones, 515 U.S. at 316.9

9

We do not find Plaintiffs’ citation to Buonocare to mandate a differ-

ent result. In that case, the district court had denied qualified immunity

to two officers who had searched the plaintiff’s home. On appeal, this

court held that the plaintiff had alleged the violation of a right protected

by the Fourth Amendment, and that the right was clearly established,

rendering a denial of qualified immunity appropriate. See 65 F.3d at 356-

57. This court expressly did not consider the officers’ appeals insofar as

they sought review of whether the record set forth a genuine issue of fact.

See id. at 361. Instead of affirming the district court’s denial of qualified

immunity, however, this court dismissed the appeals. See id.

Plaintiffs suggest that the disposition in Buonocare, namely that the

appeals were dismissed instead of the order below being affirmed, con-

trols the disposition here. Viewed holistically, however, Buonocare sup-

ports the approach we take today: deciding the legal questions related to

IKO v. SHREVE 13

Having parsed the district court’s findings and conclusions regard-

ing the excessive pepper spray claim and scrutinized the officers’

arguments made on appeal, we find a legal question that is ripe for

our review. The pure issue of law is whether, "accepting the facts as

the district court viewed them," Winfield, 106 F.3d at 530, and as sup-

ported by the videotape, see Scott, 127 S. Ct. at 1776, Lt. Shreve’s

continued use of pepper spray against Iko violated his clearly estab-

lished constitutional right to be free from excessive force.

2.

With respect to the medical needs claim, the district court’s order

likewise comprises appealable conclusions of law and non-appealable

determinations regarding facts. For example, the court found that

"Plaintiffs have set forth sufficient proof to raise a genuine issue of

material fact regarding whether the extraction team . . . consciously

disregarded a known risk of harm to [Iko] by failing to insist that he

be examined." Iko v. Galley, No. 8:04-CV-3731-DKC, slip op. at 42-

43. As before, we have no jurisdiction to determine whether Plaintiffs

have indeed come forward with sufficient facts to avoid summary

judgment. See Johnson v. Jones, 515 U.S. at 314. The district court,

however, also went on to hold that, in light of its reading of "existing

case law[,] . . . [the officers are not] entitled to qualified immunity

under these circumstances." Iko v. Galley, No. 8:04-CV-3731-DKC,

slip op. at 43-44 (emphasis added). Again, on appeal, the officers

argue about the contours of their legal duty to address Iko’s medical

needs and whether existing case law clearly established that he be

treated, on the facts accepted by the district court. There is, therefore,

a legal question appropriate for our review at this time: whether the

officers’ failure to secure medical care for Iko after he was doused in

pepper spray and collapsed in the medical room violated Iko’s clearly

established right to have his medical needs addressed.

qualified immunity without passing on the district court’s decision that

factual disputes persist. Furthermore, to the extent that Buonocare can be

said to be inconsistent with our hearing the instant appeals, the proper

procedures governing cases in this posture were clarified one year later

by the Supreme Court’s decision in Behrens, 516 U.S. 299 (1996) (find-

ing jurisdiction and reversing), as construed by this court sitting en banc

in Winfield, 106 F.3d 525 (4th Cir. 1997) (same).

14 IKO v. SHREVE

3.

Finally, with respect to the excessive pressure claim, Plaintiffs

insist that the district court failed to consider the officers’ qualified

immunity defense at all, instead basing its finding solely on the exis-

tence of factual disputes regarding the level of force necessary to

restrain Iko in the SOH cell. Because the district court so limited its

analysis on this claim, Plaintiffs contend, there is no related legal

question for the officers to appeal at this time. We agree.

The district court did not construe the officers’ filings as raising the

defense of qualified immunity with respect to this aspect of Plaintiffs’

claims. See Iko v. Galley, No. 8:04-CV-3731-DKC, slip op. at 33. It

cabined its analysis, therefore, to a direct review, without the overlay

of qualified-immunity doctrine, of whether a factual dispute made

summary judgment inappropriate. The court noted that, on the one

hand, the officers may have restrained Iko "in a good faith effort to

maintain control while flex cuffs were located to replace his metal

handcuffs." Id. at 35. On the other hand, the court pointed out, it was

not clear why the flex cuffs were not more readily available, and why

such force was required when Iko "was not resisting and had been

passive throughout the [transfer]." Id. The officers alleged that Iko

had a history of performing feats of great strength in resisting

restraints, and that their use of pressure was "commensurate with the

officers’ need for security." Id. at 36. The district court concluded that

"it is not possible to determine as a matter of law whether [the offi-

cers] inflicted unnecessary and wanton pain and suffering." Id. at 35

(internal quotations omitted). "Given the conflicting inferences from

the record," the court denied summary judgment as to this aspect of

Plaintiffs’ claims. Id. at 36.

We find that the district court’s analysis can only be viewed as a

determination that factual disputes persisted, rendering summary

judgment inappropriate. The officers’ protestations that the district

court misread their filings, and that they had raised a qualified immu-

nity defense to this claim, even if accurate, do not change the fact that

we may only review those legal issues decided by the district court

and subsequently argued on appeal. See Winfield, 106 F.3d at 529.

Because the district court denied, by virtue of conflicting factual

inferences, summary judgment on the claim that the application of

IKO v. SHREVE 15

pressure to Iko constituted excessive force, there is no legal issue on

appeal on which we could base jurisdiction. Therefore, this aspect of

the officers’ appeal must be dismissed.

In sum, we are left with two legal questions, one regarding the

excessive pepper spray claim and the other regarding the medical

needs claim. It is to these two legal questions that we now turn.

III.

We review de novo the district court’s partial denial of the officers’

motion for summary judgment based on qualified immunity. See

Johnson v. Caudill, 475 F.3d 645, 650 (4th Cir. 2007).

Under the doctrine of qualified immunity, "government officials

performing discretionary functions generally are shielded from liabil-

ity for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable

person would have known." Harlow, 457 U.S. at 818. A court first

determines whether any right was violated, and, if so, whether that

right was clearly established. See Miller v. Prince George’s County,

Md., 475 F.3d 621, 626-27 (4th Cir. 2007).

Officials’ actions violate a "clearly established" constitutional right

only if, "in the light of preexisting law[,] the unlawfulness" of the

actions is apparent. Anderson v. Creighton, 483 U.S. 635, 640 (1987).

"We do not require of such officials the legal knowledge culled ‘by

the collective hindsight of skilled lawyers and learned judges,’ but

instead only ‘the legal knowledge of an objectively reasonable official

in similar circumstances at the time of the challenged conduct.’"

Johnson v. Caudill, 475 F.3d at 650 (quoting Jackson v. Long, 102

F.3d 722, 731 (4th Cir. 1996)). "Officials are not liable for bad

guesses in gray areas; they are liable for transgressing bright lines."

Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). In the end,

the lodestar for whether a right was clearly established is whether the

law "gave the officials ‘fair warning’ that their conduct was unconsti-

tutional." Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292,

313 (4th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)).

16 IKO v. SHREVE

Here, Plaintiffs argue that the officers violated Iko’s clearly estab-

lished Eighth Amendment rights to be free from excessive force and

to receive adequate medical care, and are thus not entitled to qualified

immunity on their § 1983 claims. The Eighth Amendment prohibits

the infliction of "cruel and unusual punishments." U.S. Const. amend.

VIII. In the prison context, it "protects inmates from inhumane treat-

ment and conditions while imprisoned." Williams v. Benjamin, 77

F.3d 756, 761 (4th Cir. 1996). An inmate’s Eighth Amendment claim

involves a subjective component and an objective component. "Spe-

cifically, Eighth Amendment analysis necessitates inquiry as to

whether the prison official acted with a sufficiently culpable state of

mind (subjective component) and whether the deprivation suffered or

injury inflicted on the inmate was sufficiently serious (objective com-

ponent)." Id. These requirements spring from the text of the amend-

ment itself; absent intentionality, a condition imposed on an inmate

cannot properly be called "punishment," and absent severity, such

punishment cannot be called "cruel and unusual." See Wilson v.

Seiter, 501 U.S. 294, 298-300 (1991). The specific showings neces-

sary to prove each component, however, "var[y] according to the

nature of the alleged constitutional violation." Hudson v. McMillian,

503 U.S. 1, 5 (1992). We therefore flesh out the components further

in the context of each of the two Eighth Amendment violations before

us.

A.

First, Plaintiffs claim that the amount of pepper spray used during

the extraction constituted excessive force. The district court denied

Lt. Shreve’s claim of qualified immunity on this claim, finding that

Lt. Shreve violated Iko’s clearly established right to be free from

excessive force. We agree.

1.

An injury is sufficiently serious for purposes of the objective com-

ponent 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

(rejecting the argument that "minor" injuries are not actionable).10

10

This rule comports with "society’s expectations" regarding the use of

force: if an inmate can show the malevolence required to prove the sub-

IKO v. SHREVE 17

Lt. Shreve argues that Iko did not suffer at all from the pepper

spray. He contends that pepper spray is "a non-lethal gas which is

widely available" and that Iko "showed no symptoms of distress or

pain." Appellants’ Br. at 33. The state’s own medical examiner, how-

ever, suggested that the pepper spray may have contributed to Iko’s

asphyxia and death. The district court, recognizing these conflicting

accounts, found that issues of material fact remained regarding

whether and to what extent the pepper spray contributed to Iko’s

death. Of course, we can only resolve the legal question here:

whether, in the light most favorable to Plaintiffs, Iko’s injury from the

use of such quantity of pepper spray rose above the level of de mini-

mus harm. Accepting as we must that Plaintiffs might be able to

prove that Iko’s death resulted from the excessive use of pepper

spray, we easily conclude that Plaintiffs satisfy the objective compo-

nent of their excessive force claim at this stage in the litigation.

Plaintiffs must also show that Lt. Shreve acted with a "sufficiently

culpable state of mind" (the subjective component). Wilson, 501 U.S.

at 298. The state of mind required in excessive force claims is "wan-

tonness in the infliction of pain." Whitley v. Albers, 475 U.S. 312, 322

(1986). Put differently, the "core judicial inquiry" regarding the sub-

jective 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." Hudson, 503 U.S. at 7.

The Supreme Court has set forth four non-exclusive factors to

assist courts in assessing whether an officer has acted with "wanton-

ness": (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 sever-

ity of a forceful response." Whitley, 475 U.S. at 321 (internal quota-

tions omitted) (applying these factors in a prison riot case); see

Hudson, 503 U.S. at 7 (extending the Whitley standard "to all allega-

jective component, the actual injury suffered as a result of such malevo-

lence need not be great for "contemporary standards of decency [to be]

violated." Id. at 9.

18 IKO v. SHREVE

tions of excessive force"). We now consider those factors in light of

the circumstances before us.

With respect to the first criterion, there is no question that some

dispersal of pepper spray was warranted in carrying out the cell

extraction. The Maryland Division of Corrections Directive governing

the use of force, DCD 110-23 (the "Use of Force Directive"), permits

the use of pepper spray in a cell extraction "to incapacitate the inmate

prior to committing staff" to the procedure. J.A. 588. Plaintiffs con-

cede that pepper spray is a commonly used method of incapacitating

inmates for this purpose. Lt. Shreve can therefore demonstrate that

there was a "need for the application of force" because Iko did not ini-

tially comply with orders to "cuff up."

We next consider the relationship between the need for force and

the amount of force that was used. Lt. Shreve testified that he was

trained to use pepper spray until the inmate complied with orders.

This contention cannot help Lt. Shreve on appeal, however, because

the district court found that a genuine issue of material fact remained

regarding whether Iko’s offering of his hands through the door slot

constituted "compliance" with the order to "cuff up" or not. As evi-

dent in the videotape and as found by the district court, Iko remained

docile and passive throughout the cell extraction, and proffered his

hands through the door, albeit in front of rather than behind him. In

the light most favorable to Plaintiffs, then, Lt. Shreve deployed sev-

eral additional bursts of pepper spray even after Iko attempted to

comply with orders. Moreover, the Use of Force Directive governing

the extraction unequivocally states that "[o]nly the minimal amount of

chemical agents necessary shall be used in a given situation." J.A. 590

(emphasis in original). Under the second Whitley factor, these facts

tend to show that the amount of force used was disproportionate to

the need for force.

Likewise, the threat reasonably perceived by Lt. Shreve must have

decreased as the spraying continued. Despite Lt. Shreve’s character-

ization of Iko as "recalcitrant," Appellants’ Br. at 28, Iko never

reacted violently or otherwise became confrontational. Indeed, Lt.

Shreve’s final burst of pepper spray was deployed after Iko had lain

down on the floor of his cell. The third factor therefore also favors

Plaintiffs.

IKO v. SHREVE 19

Finally, far from trying to ameliorate the effects of the pepper

spray, Lt. Shreve and the extraction team never changed Iko’s cloth-

ing, never removed the spit mask covering his nose and mouth, and

never secured him any medical treatment for the exposure. As dis-

cussed more fully below, this failure to provide medical treatment

directly contradicted the Use of Force Directive, which states that

"[m]edical treatment shall be given to all persons exposed to chemical

agents." J.A. 590. The fourth factor—any efforts made to temper the

severity of a forceful response—thus favors Plaintiffs as well.

All told, these factors combine to provide an inference that Lt.

Shreve wantonly inflicted pain upon Iko by deploying an excessive

amount of pepper spray. As a matter of law, then, the facts viewed

in the light most favorable to Plaintiffs support a finding that Lt.

Shreve violated Iko’s constitutional right to be free from excessive

force.

2.

Lt. Shreve can still enjoy qualified immunity from suit if he can

show that this constitutional right was not clearly established at the

time of Iko’s death. The district court found that the right here was

clearly established. We agree.

We 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." Williams, 77

F.3d at 763 (internal quotations omitted) (emphasis added). Notwith-

standing this clear pronouncement, Lt. Shreve attempts to distinguish

Williams on the grounds that it involved the use of mace, not pepper

spray. Williams’s use of "or other chemical agents," id., plainly

reaches the use of pepper spray, and evinces the principle that

"‘[c]learly established’ . . . includes not only already specifically adju-

dicated rights, but those manifestly included within more general

applications of the core constitutional principle invoked." Pritchett v.

Alford, 973 F.2d 307, 314 (4th Cir. 1992). Because Lt. Shreve had

"‘fair warning’ that [his] conduct was unconstitutional," Ridpath, 447

F.3d at 313, we hold that Iko’s right to be free from excessive use of

20 IKO v. SHREVE

pepper spray was clearly established, preventing an award of qualified

immunity to Lt. Shreve on the facts before us.11

B.

Next, we turn to Plaintiffs’ claim that the officers demonstrated

deliberate indifference to Iko’s medical needs when they failed to pro-

vide him with medical treatment after he was pepper sprayed. The

district court denied the officers qualified immunity on this claim,

noting that the officers’ training and existing case law at the time

required decontamination after the use of such an irritant. We agree.

Claims that prison officials failed to provide adequate medical care

to an inmate, like excessive force claims, sound in the Eighth Amend-

ment. Williams, 77 F.3d at 761. 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 (1976).

Beginning with the objective component, a "serious . . . medical

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." Henderson v. Shea-

han, 196 F.3d 839, 846 (7th Cir. 1999) (internal quotations omitted).

The officers argue that Iko did not appear fazed by the pepper spray,

and therefore Iko did not have a serious medical need at the time he

11

Lt. Shreve’s citation to Grayson v. Peed, 195 F.3d 692 (4th Cir.

1999), is unavailing. In Grayson, pepper spray was deployed once

against an inmate when he attempted to crawl out of his cell, and again

the next day when he tried to escape his cell by "jamming his foot in the

doorway." Id. at 694. Though the inmate later died from an ensuing

struggle with prison officials, this court found that the officers had not

used excessive force against the inmate. Id. at 696. Aside from the pas-

sage of time between the two uses of pepper spray, Grayson differs sub-

stantially from this case because the inmate indisputably remained

belligerent and kept trying to escape. Id. at 694. Grayson hardly suggests

that five bursts of pepper spray are appropriate for an inmate who had

not become confrontational.

IKO v. SHREVE 21

was in the medical room. This argument fails for two reasons. First,

the state’s own medical examiner credited the pepper spray as con-

tributing to Iko’s death of asphyxia. It seems axiomatic that an inmate

who dies in this way must have suffered some serious medical need

that caused his death. Second, even a lay person would infer from

Iko’s medical room collapse that he was in need of medical attention.

We conclude that Iko suffered from an objectively serious medical

need after the pepper-spraying.

Plaintiffs must also show the subjective component—deliberate

indifference. An officer is deliberately indifferent only when he

"knows of and disregards" the risk posed by the serious medical needs

of the inmate. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The

subjective component therefore sets a particularly high bar to recov-

ery. See Grayson, 195 F.3d at 695 ("Deliberate indifference is a very

high standard—a showing of mere negligence will not meet it.").

This court has identified two slightly different aspects of an offi-

cial’s state of mind that must be shown in order to satisfy the subjec-

tive component in this context. First, actual knowledge of the risk of

harm to the inmate is required. Young v. City of Mt. Ranier, 238 F.3d

567, 575-76 (4th Cir. 2001); see also Parrish ex rel. Lee v. Cleveland,

372 F.3d 294, 303 (4th Cir. 2004) ("It is not enough that the officer[ ]

should have recognized it."). Beyond such knowledge, however, the

officer must also have "recognized that his actions were insufficient"

to mitigate the risk of harm to the inmate arising from his medical

needs. Parrish, 372 F.3d at 303 (emphasis added).

With respect to knowledge of the risk of harm to Iko, the officers

here undoubtedly possessed actual knowledge of the risk to Iko posed

by their use of pepper spray. The Use of Force Directive itself

requires that "medical treatment shall be given to all persons exposed

to chemical agents." J.A. 590 (emphasis added). The chief of security

at the WCI confirms that it is standard procedure for an inmate to be

seen by a nurse and have his vital signs checked after a cell extrac-

tion. This court has also recognized that decontamination is the usual

remedy for the pain associated with chemical irritants. Williams, 77

F.3d at 763.

The officers here were all aware that Iko had been doused in pep-

per spray; they had witnessed Lt. Shreve deploy it just minutes earlier

22 IKO v. SHREVE

and had seen its effects first-hand when they entered the cell, with

their gas masks on, to shackle Iko. Most significantly, the officers

witnessed Iko collapse forward in the medical room, caught him, and

directed him into a wheelchair. It is inconceivable that the officers

here were not subjectively aware, even as lay persons not trained in

medicine, that Iko was in need of medical attention after his collapse.

As explained above, however, under the high "deliberate indiffer-

ence" standard, even subjective knowledge of Iko’s medical needs is

not enough; the officers must have actually known that their response

was inadequate to address those needs (the second part of the subjec-

tive component). Parrish, 372 F.3d at 303. It is this element that the

officers most vociferously challenge on appeal, contending that they

were entitled to defer to the actions and medical decisions of the

nurse. In essence, the officers argue that they believed they could del-

egate Iko’s medical care to the nurse and be relieved of any further

duty to monitor Iko’s health. The officers cite to Miltier v. Beorn, 896

F.2d 848 (4th Cir. 1990), and to Spruill v. Gillis, 372 F.3d 218 (3d

Cir. 2004), for support. As explained by the Third Circuit:

If a prisoner is under the care of medical experts . . ., a non-

medical prison official will generally be justified in believ-

ing that the prisoner is in capable hands. This follows natu-

rally from the division of labor within a prison. Inmate

health and safety is promoted by dividing responsibility for

various aspects of inmate life among guards, administrators,

physicians, and so on. Holding a non-medical prison official

liable in a case where a prisoner was under a physician’s

care would strain this division of labor.

Id. at 236; see also Miltier, 896 F.2d at 854-55 (finding prison offi-

cials not subject to supervisory liability for conduct of subordinate

medical staff when supervisors had "closely monitored" the health of

the inmate).

This case does not, however, present a situation in which prison

officials might be held liable for the actions or inactions of a medical

professional. The officers face liability for their own decisions, made

while Iko was in their charge. The proposition elucidated in Spruill

and Miltier—that a distant prison official can generally rely on his

IKO v. SHREVE 23

medical staff’s examinations and diagnoses—is therefore irrelevant to

the issue before us.

This case is further distinguishable from the precedent on which

the officers seek to rely because it is undisputed that Iko received no

medical treatment whatsoever. There was therefore no medical opin-

ion to which the officers could have deferred. Instead, the question

here is whether the officers should be permitted to defer to the nurse’s

apparent decision not to treat Iko after he was pepper sprayed, and

after he collapsed in their presence. The officers contend that Iko’s

silence in the face of the nurse’s questioning constituted a refusal of

medical treatment. Whether Iko’s silence constituted a refusal is a

question of fact that we cannot resolve, however. In the light most

favorable to Plaintiffs, the facts show that Iko was nonresponsive to

the nurse’s inquiries, then collapsed in plain sight, but never received

medical treatment.

The officers also contend that Iko was able to breathe fresh air for

a few minutes while he was wheeled from the medical room to the

SOH unit via an outdoor path, and that this provided an adequate

alternative to receiving actual medical care. The Use of Force Direc-

tive provides that "[m]edical treatment shall be given to all persons

exposed to chemical agents," J.A. 590 (emphasis added), and does not

allow for "fresh air" to be substituted for medical treatment. We note

as well that it is undisputed that, during Iko’s foray outside, he still

wore a skin-tight, pepper-spray soaked spit mask over his mouth and

nose.

All told, viewing the facts in the light most favorable to Plaintiffs,

the officers’ actions—namely, shuttling Iko into a wheelchair upon

his collapse without seeking any medical evaluation or even decon-

tamination—were an insufficient response to Iko’s serious medical

needs. Because those needs were objectively serious and the officers

were subjectively aware of that seriousness and chose to do nothing,

the officers’ actions on these facts violated Iko’s Eighth Amendment

right to adequate medical care.12

12

Neither can the officers succeed in showing that this right was not

clearly established. The right to adequate medical care had already been

carefully circumscribed in the caselaw, with its objective and subjective

components spelled out to ensure that only the most wanton indifference

goes punished. The officers therefore had "‘fair warning’ that their con-

duct was unconstitutional." Ridpath, 447 F.3d at 313.

24 IKO v. SHREVE

The district court therefore properly denied the officers’ assertion

of qualified immunity as to this claim.

IV.

In sum, we find that we lack jurisdiction over one of the three

claims presented on appeal, the claim that the application of pressure

to Iko in the SOH cell constituted excessive force, because the district

court denied summary judgment on the sole ground that issues of

material fact remained. With respect to the other two claims, we

affirm the district court’s denial of qualified immunity, and thus sum-

mary judgment, to Lt. Shreve regarding the amount of pepper spray

used against Iko and to the officers regarding their deliberate indiffer-

ence to Iko’s medical needs. The appeal is therefore

DISMISSED IN PART AND AFFIRMED IN PART.