Rivera v. Redfern

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL RIVERA, : CIVIL NO: 1:21-CV-01118

:

Plaintiff, : (Magistrate Judge Schwab)

:

v. :

:

LIEUTENANT REDFERN, et al., :

:

Defendants. :

:

MEMORANDUM OPINION

I. Introduction.

The plaintiff Michael Rivera contends that the defendants violated the

Eighth Amendment by subjecting him to secondhand oleoresin capsicum spray

(“OC spray”) knowing that he has asthma. Currently before the court is the motion

for summary judgment filed by the defendants, who contend that they are entitled

to qualified immunity as to Rivera’s claims for damages against them in their

individual capacities, that the Eleventh Amendment bars his claim for damages

against them in their official capacities, and that his claims for declaratory and

injunctive relief are moot. For the reasons set forth below, we will grant the

defendants’ motion for summary judgment.

II. Background and Procedural History.

Rivera, who is representing himself, began this action by filing a complaint

in the Court of Common Pleas of Centre County, Pennsylvania. The complaint

concerns an incident involving the use of OC spray that occurred at the State

Correctional Institution Benner Township (SCI Benner Township) in June 2020,

and it names four officers or employees of SCI Benner Township: (1) Lieutenant

Redfern; (2) Corrections Officer Schreck;1 (3) Corrections Officer Monsell; and

(4) Nurse Phil Rogers.

In June 2021, the defendants removed the case to this court and filed an

answer to the complaint. The parties then consented to proceed before a magistrate

judge pursuant to 28 U.S.C. § 636(c), and the case was referred to the undersigned.

We set case management deadlines, and we tried to settle the case. After the case

did not settle, the defendants filed a motion for summary judgment. That motion is

ripe, and for the reasons set forth below, we will grant that motion.

III. Summary Judgment Standards.

The defendants move for summary judgment under Rule 56(a) of the Federal

Rules of Civil Procedure, which provides that “[t]he court shall grant summary

1 Rivera refers to this defendant as both Shreck and as Schreck. We will

refer to this defendant as Schreck because that is how defense counsel refers to

him.

judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “Through summary adjudication the court may dispose of those claims that

do not present a ‘genuine dispute as to any material fact’ and for which a jury trial

would be an empty and unnecessary formality.” Goudy-Bachman v. U.S. Dept. of

Health & Human Services, 811 F. Supp. 2d 1086, 1091 (M.D. Pa. 2011) (quoting

Fed. R. Civ. P. 56(a)).

The moving party bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the record that

demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the

nonmoving party bears the burden of proof, the moving party may discharge that

burden by “‘showing’—that is, pointing out to the district court—that there is an

absence of evidence to support the nonmoving party’s case.” Id. at 325.

Once the moving party has met its burden, the nonmoving party may not rest

upon the mere allegations or denials of its pleading; rather, the nonmoving party

must show a genuine dispute by “citing to particular parts of materials in the

record, including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials” or “showing

that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.

R. Civ. P. 56(c). If the nonmoving party “fails to make a showing sufficient to

establish the existence of an element essential to that party’s case, and on which

that party will bear the burden at trial,” summary judgment is appropriate. Celotex,

477 U.S. at 322.

Summary judgment is also appropriate if the nonmoving party provides

merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence

supporting the nonmoving party and more than some metaphysical doubt as to the

material facts. Id. at 252. “Where the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party, there is no ‘genuine issue for

trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986).

The substantive law identifies which facts are material, and “[o]nly disputes

over facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A

dispute about a material fact is genuine only if there is a sufficient evidentiary

basis that would allow a reasonable fact finder to return a verdict for the non-

moving party. Id. at 248–49.

When “faced with a summary judgment motion, the court must view the

facts ‘in the light most favorable to the nonmoving party.’” N.A.A.C.P. v. N.

Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v.

Harris, 550 U.S. 372, 380 (2007)). At the summary judgment stage, the judge’s

function is not to weigh the evidence or to determine the truth of the matter; rather

it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at

249. The proper inquiry of the court “is the threshold inquiry of determining

whether there is the need for a trial—whether, in other words, there are any

genuine factual issues that properly can be resolved only by a finder of fact

because they may reasonably be resolved in favor of either party.” Id. at 250.

Summary judgment is warranted, after adequate time for discovery, against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will bear the burden

of proof at trial. Celotex, 477 U.S. at 322. “Under such circumstances, ‘there can

be no genuine issue as to any material fact, since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.’” Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d

Cir. 2002) (quoting Celotex, 477 U.S. at 323). “[S]ummary judgment is essentially

‘put up or shut up’ time for the non-moving party: the non-moving party must

rebut the motion with facts in the record and cannot rest solely on assertions made

in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group, Ltd.

v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

IV. Material Facts.

Here, in accordance with Local Rule 56.1, the defendants filed a statement

of material facts, and Rivera filed a response. Where the facts set forth by the

defendants are undisputed, we cite to the defendants’ statement of material facts

(doc. 24) and Rivera’s response thereto (doc. 29).

In addition to responding to the defendants’ statement of material facts,

Rivera submitted a document entitled “Plaintiff’s Statement of Disputed Facts.”

See doc. 30. In this document, without pointing to record evidence, Rivera merely

sets forth seven questions regarding the ultimate issues in this case. Id. Under our

local rules, this is not a proper way to oppose the defendants’ statement of material

facts, and we will not consider this document further.

Rivera also submitted a declaration made under penalty of perjury in

opposition to the motion for summary judgment. See doc. 31 at 1–7. In accordance

with our duty to “construe all facts and inferences in favor of the nonmoving

party[,]” Peroza-Benitez v. Smith, 994 F.3d 157, 164 (3d Cir. 2021) (quoting

Santini v. Fuentes, 795 F.3d 410, 419 (3d Cir. 2015)), for purposes of the pending

summary judgment motion, we accept as true the facts set forth in Rivera’s

declaration. But Rivera’s declaration also contains legal conclusions, which we do

not accept as true.

Rivera also submitted a declaration made under penalty of perjury from

another inmate—Gene Brown. See doc. 31 at 8–11. Brown substantially

corroborates Rivera’s version of the events, and in setting forth the material facts,

we rely on Brown’s declaration as well as Rivera’s.

The following facts are the material facts for purposes of the pending

summary judgment motion. The incident at issue in this case occurred on June 20,

2020, in the Restricted Housing Unit (“RHU”) of SCI Benner Township. Doc. 24

¶ 1; Doc. 29 ¶ 1. At approximately 5:30 p.m.,2 defendants Schreck and Monsell

escorted Rivera to the telephone cage. Doc. 24 ¶ 2; Doc. 29 ¶ 2. The telephone

cage was an open-air cage. Doc. 31 ¶ 4. It was located on the lower level of the

RHU pod, and it was approximately 25–30 feet away from Rivera’s cell, which

was also located on the lower level. Doc. 24 ¶ 3; Doc. 29 ¶ 3. On a normal

evening, Rivera would have been permitted to remain in the telephone cage for 30

minutes. Doc. 24 ¶ 6; Doc. 29 ¶ 6.

Approximately halfway through his time in the telephone cage, Rivera heard

defendant Redfern request that defendant Schreck stand by cell JA2023 for

2 Sometimes, the defendants refer to both military time and civilian time,

and sometimes, they refer to only military time. For ease of reference, we have

converted all times to civilian times.

observation, and he noticed that Monsell had left the pod. Doc. 24 ¶ 7; Doc. 29 ¶ 7.

Recognizing that the officers were preparing to use force against the inmate in cell

JA2023, Rivera immediately informed defendants Redfern and Schreck that he is

asthmatic and that exposure to secondhand OC spray while in the open-air cage

would trigger him to have an asthma attack. Doc. 31 at 2, ¶ 6. He requested to be

returned to his cell, explaining that he would not be adversely affected by the use

of OC spray if he were inside his cell. Id. Defendants Redfern and Schreck

ignored his request. Id.

Later, when defendant Monsell was performing his regularly scheduled

rounds and wellness checks in the RHU, Rivera spoke to him also. Id. at 3, ¶ 9.

Rivera explained to Monsell that being unnecessarily exposed to secondhand OC

spray while in the open-air cage would cause him to have an asthma attack, and he

asked Monsell to return him to his cell. Id. Monsell also ignored Rivera’s request.

Id.

Between approximately 5:45 p.m. and 7:00 p.m., defendants Redfern and

Monsell entered the pod more then two times each, and each time that they did so,

Rivera reiterated his request to be returned to his cell. Id. at 4, ¶ 11. The

defendants ignored these requests. Id. Defendant Schreck could see and hear

Rivera pleading with defendants Redfern and Monsell to return him to his cell. Id.

at 4, ¶ 12. And while in the telephone cage, Rivera also spoke to defendant

Schreck numerous times about how unreasonable they were being by not returning

him to his cell. Id.

Inmate Gene Brown, who was in cell JA1024, states that from his cell, he

heard Rivera asking defendants Schreck, Monsell, and Redfern to have him

escorted back to his cell before the use of OC spray. Doc. 31 at 8–9, ¶¶ 2, 5. He

also heard Rivera inform Redfern and Schreck that he was asthmatic and that he

would be strongly affected by the OC spray. Id. at 9, ¶ 5. The officers told Rivera

that there was not enough RHU staff available to escort him back to his cell due to

the ongoing preparation for the use of force. Id.

At about 6:45 p.m., defendant Rogers entered the pod for the first time. Doc.

31 at 4, ¶ 13. As Rogers passed the telephone cage, Rivera explained to him that

he is asthmatic and that being unnecessarily exposed to OC spray while in the

open-air cage would cause him to have an asthma attack. Id. Rogers responded: “I

know.” Id. And when Rivera asked Rogers to return him to his cell, Rogers

responded: “I’ll let Redfern know.” Id.

Brown also overheard Rivera inform defendant Rogers that he is asthmatic

and that he would be strongly affected by the OC spray. Doc. 31 at 9, ¶ 7. And in

response to Rivera’s request to be returned to his cell, he heard Rogers respond:

“What can I do, Rivera? That’s not up to me, that’s on Redfern.” Id.

Closed circuit video footage captured at least some of the relevant events at

issue here; the footage submitted by the defendants shows the outside of cell

JA2023 from an angle pointing toward the RHU exit from 6:21 p.m. through 7:15

p.m. Doc. 24 ¶ 12; Doc. 29 ¶ 12.3 During this time period, Officer Schreck is seen

standing outside of cell JA2023. Doc. 24 ¶ 13; Doc. 29 ¶ 13. The defendants

contend that from the video, it does not appear that Officer Schreck communicates

with Rivera until he leaves the unit around 6:40 p.m. Doc. 24 ¶ 14. But as Rivera

points out, the video lacks audio. Doc. 29 ¶ 14. And from our review of the video,

the video shows defendant Schreck at times standing on the second tier looking in

the direction of the telephone cage. We cannot tell from the video whether he is

speaking to Rivera.

The video also does not show any of the other defendants—Redfern,

Monsell, or Rogers—on the unit from 6:21 p.m. through 6:40 p.m. or from 6:42

p.m. through 7:12 p.m. Doc. 24 ¶ 15. But a little after 6:40 p.m., Redfern is seen

3 Rivera objects that the defendants “purposely omitted over an hour of

video footage, in an attempt to obfuscate [his] claims that he spoke to each

Defendant personally, and informed each Defendant that unnecessarily exposing

[him] to secondhand OC spray in the open-air telephone cage would adversely

affect his asthma.” Doc. 29 ¶ 12. As set forth above, we accept as true, Rivera’s

statements in his declaration regarding what he told the defendants.

entering the unit, walking right up to JA2023, and he is seen leaving two minutes

later. Id.4

Handheld video footage begins with defendant Redfern identifying that it is

7:04 p.m. Doc. 24 ¶ 16; Doc. 29 ¶ 16.5 Redfern explains that he has had an on-

going issue with an inmate6 covering and uncovering his door, which is slowing

down the operations of the RHU and is a safety issue because officers cannot

always get a visual on the inmate. Doc. 24 ¶ 17; Doc. 29 ¶ 17. The inmate was

given an order to leave his cell, but he refused, causing defendant Redfern to form

a compliance team. Doc. 24 ¶ 18; Doc. 29 ¶ 18. Defendant Monsell was operating

the handheld camera, and defendant Rogers was also present. Doc. 24 ¶ 19; Doc.

29 ¶ 19.

4 Rivera purports to dispute these facts by pointing out that the defendants

have not submitted the video of the entire incident. Be that as it may, Rivera has

not pointed to evidence that at those specific times, the defendants were on the

block. Nevertheless, as set forth above, we accept his statements of fact in his

declaration that he spoke to the defendants. This is so, even though there may be

some discrepancies about the exact times that events happened. In this regard, we

note that the defendants’ timeline of the events is also not without discrepancies.

For example, as set forth later, they say that the compliance team entered the RHU

at around 7:12 p.m., but they also say that the OC spray was applied at 7:09 p.m.

See doc. 24 ¶¶ 20, 24. Clearly, the OC spray was not applied before the

compliance team entered the RHU.

5 Unlike the closed circuit video footage, the footage from the handheld

camera contains audio.

6 To be clear, the inmate to whom Redfern is referring is not Rivera; it is the

inmate in cell JA2023.

According to Rivera, at approximately 7:00 p.m., the defendants entered the

pod wearing protective gas masks. Doc. 31 ¶ 14. Rivera again asked defendant

Rogers to have him returned to his cell before OC spray was used, and Rogers

responded: “What do you want me to do, Rivera? That’s up to Redfern.” Id.

According to the defendants, the compliance team enters the RHU at or

around 7:12 p.m. Doc. 24 ¶ 20; Doc. 29 ¶ 20. On the video, Rivera can be seen

standing in the telephone cage as officers pass by him to climb the steps. Doc. 24

¶ 21; Doc. 29 ¶ 21.7 The compliance team climbs the stairs, turns left, and walks to

the third cell on the right. Doc. 24 ¶ 23; Doc. 29 ¶ 23. OC spray was applied into

the cell at 7:09 p.m. Doc. 24 ¶ 24; Doc. 29 ¶ 24.8 Throughout this time, defendants

Redfern, Monsell, and Rogers, as well as the rest of the compliance team, were

focused on dealing with the inmate who needed to be removed from his cell. Doc.

24 ¶ 25; Doc. 29 ¶ 25. The compliance team escorted the inmate off the pod,

followed by defendants Redfern, Rogers, and Monsell. Doc. 24 ¶ 26; Doc. 29 ¶ 26.

When the inmate is being escorted off of the pod, Rivera is again seen on the

video in the telephone cage. Doc. 24 ¶ 27; Doc. 29 ¶ 27. At this point, Rivera

shows no signs of distress or a need for medical treatment. Doc. 24 ¶ 28; Doc. 29

7 According to the defendants, Rivera makes no comments towards the

officers at this time. Doc. 24 ¶ 22. In support of this assertion, the defendants point

to the video. Id. But we cannot tell from the video what, if anything, Rivera said to

the defendants as they were passing him or as they were climbing the stairs.

8 Again, we note the discrepancy in the defendants’ timeline. See supra n.4.

¶ 28.9 Rivera testified during his deposition that his asthma kicked in within three

minutes of the compliance team coming down the stairs and exiting the pod. Doc.

24 ¶ 29; Doc. 29 ¶ 29. According to Rivera, he experienced severe difficulty

breathing, dizziness, coughing, sneezing, strong eye irritation, and vomiting. Doc.

31 at 5–6, ¶¶ 19, 21. After about five minutes, an officer returned to the pod and

obtained Rivera’s asthma pump for him. Doc. 24 ¶ 30; Doc. 29 ¶ 30. Rivera was

then escorted back to his cell for five to ten minutes before being escorted to

receive additional medical treatment. Doc. 24 ¶ 31; Doc. 29 ¶ 31.10

When Rivera was still in the telephone cage, Inmate Brown witnessed him

having an asthma attack, and after Rivera was returned to his cell, Inmate Brown

could hear Rivera coughing and vomiting. Doc. 31 at 9–10, ¶¶ 8, 10.

The OC spray was deployed in cell JA2023, which was up the stairs, and

several cell doors passed the landing; “probably double” the distance away from

9 Rivera purports to deny this statement, objecting again that the defendants

have not submitted a video of the entire incident. Doc. 29 ¶ 28. But Rivera has not

pointed to record evidence to create a genuine factual dispute about whether he

was showing signs of distress or need for medical treatment at the point when the

inmate was escorted off the pod.

10 Rivera claims that the defendants violated his Eighth Amendment rights

by allowing him to be exposed to secondhand OC spray despite knowing that he

has asthma, but he does not argue that the defendants denied him medical

treatment once his asthma flared. Doc. 24 ¶¶ 32, 33; Doc. 29 ¶¶ 32, 33.

the telephone cage as compared to Rivera’s cell. Doc. 24 ¶ 4; Doc. 29 ¶ 4.11

Nevertheless, according to Rivera, if he had been in his cell, instead of the open-air

telephone cage, when the OC spray was used, he would not have suffered an

asthma attack. Doc. 31 at 7, ¶ 26. If Rivera had been in his cell when the OC spray

was deployed, he would have placed a wet rag over his face, but he still may have

started sneezing and his eyes may still have watered. Doc. 24 ¶ 5; Doc. 29 ¶ 5.

Rivera testified that during a use-of-force incident, all normal RHU

procedures are on pause. Doc. 24 ¶ 8; Doc. 29 ¶ 8.12 These events usually take

11 Given that cell JA2023 was twice the distance from the telephone cage as

from Rivera’s cell, doc. 24 ¶ 4; doc. 29 ¶ 4, and as set forth earlier, the telephone

cage was approximately 25–30 feet away from Rivera’s cell, doc. 24 ¶ 3; doc. 29

¶ 3, it follows that cell JA2023 was approximately 50-60 feet away from the

telephone cage.

12 Although Rivera purported to deny this statement, we conclude that there

is no genuine dispute of fact. The defendants cite to Rivera’s deposition testimony

to support this assertion. Rivera, however, “disagrees with the characterization of

his deposition testimony as if it is prison policy and procedure.” Doc. 29 ¶ 8. And

he argues that just because there is a pause of normal activities, does not mean that

the defendants could not have returned him to his cell before the use-of-force

incident. Id. But he has not pointed to record evidence creating a genuine dispute

of fact regarding whether during a use-of-force incident all normal RHU

procedures are on pause. Nevertheless, we understand Rivera’s argument, and our

conclusion that there is no genuine dispute of fact here does not foreclose that

argument. And, as set forth below, we accept Rivera’s assertion in his declaration

that there was no prison policy or procedure that precluded the defendants from

returning him to his cell prior to the use of the OC spray.

about an hour to ninety minutes to execute. Doc. 24 ¶ 9; Doc. 29 ¶ 9.13 All

inmates, including Rivera, must be escorted everywhere in the RHU regardless of

their status. Doc. 24 ¶ 10; Doc. 29 ¶ 10.14 Escorts to and from a cell required at

least two officers per inmate. Doc. 24 ¶ 11; Doc. 29 ¶ 11.15 Still, according to

Rivera, there is no prison policy or procedure that precluded the defendants from

returned him to his cell prior to their use of OC spray. Doc. 31 at 5, ¶ 18.

V. Discussion.

The defendants contend that they are entitled to qualified immunity from

Rivera’s claim for damages against them in their individual capacities. They also

contend that the claims for damages against them in their official capacities are

barred by the Eleventh Amendment. And they contend that Rivera’s requests for

declaratory and injunctive relief are moot.16 We address each contention in turn.

13 Rivera objects to his testimony being characterized as prison policy, but

he has not pointed to evidence creating a genuine dispute of fact. See supra n.12.

14 Rivera objects to his testimony being characterized as prison policy, but

he has not pointed to evidence creating a genuine dispute of fact. See supra n.12.

15 Rivera objects to his testimony being characterized as prison policy, but

he has not pointed to evidence creating a genuine dispute of fact. See supra n.12.

16 The defendants fold their argument regarding mootness into their Eleventh

Amendment argument. For clarity, we treat the mootness argument as a separate

argument.

A. Qualified immunity bars Rivera’s claims for damages against the

defendants in their individual capacities.

The defendants are entitled to qualified immunity from Rivera’s claims for

damages against them in their individual capacities.

Despite their participation in constitutionally impermissible conduct,

government officials “may nevertheless be shielded from liability for civil

damages if their actions did not violate ‘clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Hope v.

Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Qualified immunity ensures that before officers are subjected to suit, they

have notice that their conduct is unlawful. Id. “Qualified immunity balances two

important interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “If the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent public

official should know the law governing his conduct.” Harlow, 457 U.S. at 818–19.

The qualified immunity analysis has two prongs. Pearson, 555 U.S. at 232.

One prong of the analysis is whether the facts that the plaintiff has alleged or

shown make out a violation of a constitutional right. Id. The other prong of the

analysis is whether the right was clearly established. Saucier v. Katz, 533 U.S. 194,

201 (2001). The court is permitted to exercise its discretion in deciding which of

the two prongs of the qualified-immunity analysis should be addressed first

considering the circumstances of the particular case. Pearson, 555 U.S. at 236.

Thus, the court may forego difficult constitutional issues and award qualified

immunity to a defendant if it is apparent that the defendant did not violate rights

that were clearly established at the time the defendant acted. Id. In fact, the

Supreme Court has stressed “that lower courts ‘should think hard, and then think

hard again,’ before addressing both qualified immunity and the merits of an

underlying constitutional claim.” D.C. v. Wesby, 138 S. Ct. 577, 589 n.7 (2018)

(quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)). Here, given that we

conclude that the law was not clearly established such as to put the defendants on

notice that spraying a targeted burst of OC spray into another prisoner’s cell 50-60

feet17 away from an inmate with asthma violates the Eighth Amendment, we will

decide the claim based on qualified immunity without deciding whether there was,

in fact, a constitutional violation.

The Eighth Amendment prohibits inhumane conditions of confinement.

Clark v. Coupe, 55 F.4th 167, 179 (3d Cir. 2022). Eighth Amendment claims have

both an objective element and a subjective element. Ricks v. Shover, 891 F.3d 468,

473 (3d Cir. 2018), “To determine whether prison officials have violated the

17 See supra n.11.

Eighth Amendment, we apply a two-prong test: (1) the deprivation must be

‘objectively, sufficiently serious; a prison official’s act or omission must result in

the denial of the minimal civilized measure of life’s necessities’; and (2) the prison

official must have been ‘deliberate[ly] indifferen[t] to inmate health or safety.’”

Porter v. Pennsylvania Dept of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (quoting

Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

Here, both Rivera and the defendants frame Rivera’s claims as Eighth

Amendment conditions-of-confinement claims. See doc. 28 (Rivera’s brief) at 2

(setting forth the deliberate indifference standard); doc. 23 (defendants’ brief) at 12

(same). Because this is how the parties frame the claims, this is also how we will

frame the claims.18 Although the general parameters of an Eighth Amendment

18 When OC spray is directed at a particular prisoner, however, the claim is

analyzed as an Eighth Amendment excessive force claim. See Gibson v. Flemming,

837 F. App’x 860, 862 (3d Cir. 2020) (analyzing claim that prisoner was sprayed

with OC spray as an Eighth Amendment excessive force claim). When prison

officials are accused of using excessive force in violation of the Eighth

Amendment, the inquiry “is whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.”

Hudson v. McMillian, 503 U.S. 1, 7 (1992). The standard for an Eighth

Amendment excessive force claim (whether force was applied maliciously and

sadistically to cause harm) is different from the standard for an Eighth Amendment

conditions-of-confinement claim (whether the defendants were deliberately

indifferent to the inmate’s health or safety). When the claim is an Eighth

Amendment claim about exposure to secondhand OC spray (or similar chemical

sprays), some courts, as in the cases cited later, apply the deliberate indifference

standard applicable to conditions-of-confinement claims. But some apply the

Eighth Amendment excessive-force framework. See, e.g., Redmond v. Crowther,

882 F.3d 927, 936 (10th Cir. 2018) (reasoning that “[w]hich framework applies

conditions-of-confinement claim are clearly established, for qualified immunity

purposes, the law cannot be defined at such “a high level of generality.” Ashcroft v.

al-Kidd, 563 U.S. 731, 742 (2011); see also City of Tahlequah, Oklahoma v. Bond,

142 S. Ct. 9, 11 (2021) (“We have repeatedly told courts not to define clearly

established law at too high a level of generality.”).

“To determine whether a right was ‘clearly established,’ we conduct a two-

part inquiry.” Peroza-Benitez, 994 F.3d at 165. “First, we must ‘define the right

allegedly violated at the appropriate level of specificity.’” Id. (quoting Sharp v.

Johnson, 669 F.3d 144, 159 (3d Cir. 2012)). “This requires us to frame the right

‘in light of the specific context of the case, not as a broad general proposition.’” Id.

(quoting Saucier, 533 U.S. at 201). “Second, we must ask whether that right was

‘clearly established’ at the time of its alleged violation, i.e., whether the right was

‘sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” Id. (quoting Saucier, 533 U.S. at 202). “This is an ‘objective

(albeit fact-specific) question,’ where ‘[an officer]’s subjective beliefs . . . are

irrelevant.’” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).

turns not on whom the force was applied to but, rather, on why the officials

deployed the force in the first place” and since the decision to use CS gas involved

the use or force to restore order, the excessive-force framework applies even to

claims by prisoners who were not the intended target of the CS gas). Here, as

mentioned above, we apply the conditions-of-confinement framework. But our

conclusion that the defendants are entitled to qualified immunity would not change

even if we applied the excessive-force framework.

“To be clearly established, a legal principle must have a sufficiently clear

foundation in then-existing precedent.” Wesby, 138 S. Ct. at 589. In other words,

“[t]he rule must be ‘settled law,’ which means it is dictated by ‘controlling

authority’ or ‘a robust ‘consensus of cases of persuasive authority.’” Id. at 589–90

(internal citations omitted). “It is not enough that the rule is suggested by then-

existing precedent.” Id. at 590. Rather, “[t]he precedent must be clear enough that

every reasonable official would interpret it to establish the particular rule the

plaintiff seeks to apply.” Id.

Still, “the facts of the existing precedent need not perfectly match the

circumstances of the dispute in which the question arises.” Williams v. Sec’y

Pennsylvania Dep’t of Corr., 848 F.3d 549, 570 (3d Cir. 2017). “A public official

does not get the benefit of ‘one liability-free violation’ simply because the

circumstance of his case is not identical to that of a prior case.” Peroza-Benitez,

994 F.3d at 166 (quoting Kopec v. Tate, 361 F.3d 772, 778 (3d Cir. 2004)). But if

the law did not put the officer on notice that his conduct would be clearly unlawful,

qualified immunity is appropriate. Bayer v. Monroe County Children & Youth

Services, 577 F.3d 186, 193 (3d Cir. 2009). “In other words, ‘existing precedent

must have placed the statutory or constitutional question beyond debate.’” Reichle

v. Howards, 566 U.S. 658, 664 (2012) (quoting al-Kidd, 563 U.S. at 741). “This

exacting standard ‘gives government officials breathing room to make reasonable

but mistaken judgments’ by ‘protect[ing] all but the plainly incompetent or those

who knowingly violate the law.’” City & Cnty. of San Francisco v. Sheehan, 575

U.S. 600, 611 (2015) (quoting al-Kidd, 563 U.S. at 743).

In determining if a right was clearly established, ‘“[t]he ultimate question is

whether the state of the law when the offense occurred’ gave the prison officials

‘fair warning’ that their conduct violated [the plaintiff’s] Eighth Amendment

right.” Clark, 55 F.4th at 181 (quoting L.R. v. Sch. Dist. of Philadelphia, 836 F.3d

235, 247 (3d Cir. 2016)). “To determine whether such ‘fair warning’ existed, we

search first for ‘factually analogous’ cases in the Supreme Court, and then turn our

inquiry to whether ‘binding opinions from our own Court; were in existence.” Id.

(quoting Peroza-Benitez, 994 F.3d at 165). “If neither source provides relevant

caselaw, we consider whether ‘a robust consensus of cases of persuasive authority

in the Court of Appeals could clearly establish a right for purposes of qualified

immunity.’ Id. (quoting L. R., 836 F.3d at 248) “Finally, ‘[w]e may also take into

account district court cases, from within the Third Circuit or elsewhere.’” Id

(quoting Peroza-Benitez, 994 F.3d at 166).

The defendants contend that they “are entitled to qualified immunity because

it is not clearly established that secondhand exposure to OC spray in response to

another inmate’s actions across the block, would violate an individual’s rights.”

Doc. 23 at 9. We agree.

Neither the defendants nor Rivera cite to any Supreme Court or published

Third Circuit cases that are on point. Nor have we found any. Further, the parties

do not point to (and we have not found) a “robust consensus of cases of persuasive

authority in the Court of Appeals.” Clark 55 F.4th at 181. And although both

Rivera and the defendants point to some lower court cases, those cases, which are

not directly on point, would not alert a reasonable official that just because an

inmate has asthma that means that he is at substantial risk of serious injury by a

secondhand exposure to OC spray where that the OC spray was sprayed inside

another prisoner’s cell and the inmate with asthma was approximately 50-60 feet

away. In fact, the case law points in the opposite direction. See, e.g., Davis v.

Thomas, 558 F. App’x 150, 155 (3d Cir. 2014) (affirming grant of summary

judgment to defendants because, among other reasons, the “defendants showed

through competent medical evidence that [the plaintiff’s] asthma condition was not

so serious that he could never be near the use of pepper spray, or that he risked

serious damage to his future health if exposed to second-hand pepper spray” and

the plaintiff’s “personal opinion to the contrary will not suffice to defeat the

defendants’ motion for summary judgment”); Stroman v. Wetzel, No. 1:16-CV-

2543, 2020 WL 1531325, at *5 (M.D. Pa. Mar. 31, 2020) (granting summary

judgment to defendants as to Eighth Amendment claim brought by inmate with

asthma based on exposure to secondhand exposure to OC spray concluding that the

inmate failed to establish a constitutional violation because he had not shown that

the defendants were actually aware that he had asthma and actually knew that the

OC spray could reach his cell and potentially cause harm and also concluding that

the defendants are entitled to qualified immunity because the “[d]efendants simply

could not have recognized that their use of OC spray in response to another

inmate’s actions across the block would violate a ‘clearly established statutory or

constitutional right[] of which a reasonable person would have known’”); Johnson

v. Palockovich, No. CIV.A.4:04-CV-1804, 2007 WL 431890, at *5 (M.D. Pa. Feb.

5, 2007) (granting motion to dismiss Eighth Amendment claim based on

secondhand exposure to pepper spray and concluding “even assuming arguendo”

that the defendants knew that the plaintiff had asthma, they did not act with

deliberate indifference given that there were no facts alleged that indicate that the

defendants were “subjectively aware that the direct and isolated use of pepper

spray upon the unruly inmate would cause a substantial risk that the Plaintiff would

suffer an asthma attack” where “the pepper spray was not wantonly dispersed

throughout the cell block, but administered to a single, particular inmate, contained

within his cell”); but see Roberts v. Luther, No. 1:21-CV-00958, 2021 WL

5233318, at *7 (M.D. Pa. Nov. 10, 2021) (concluding that inmates have a clearly

established right under the Eighth Amendment “to be free from the unnecessary

use of chemical agents without penological justification” and “to be free from the

use of ‘massively excessive’ amounts of OC spray designed to inflict unnecessary

pain” and denying qualified immunity at the motion-to-dismiss stage of the

proceedings based on the plaintiff’s allegations that he suffered adverse effects

after OC spray was used on five separate incidents—two of which “involved the

use of ‘massively excessive’ amounts of OC spray on inmates in cells within close

proximity to” the plaintiff’s cell; one of which involved the use of ‘“massively

excessive’ amounts of OC spray in the area directly in front of” the plaintiff’s cell;

and two of which involved officers spraying ‘“massive amounts of OC spray

directly into the RHU’s central air system”).19

Because the case law is not such that “every reasonable official would

interpret it to establish the particular rule the plaintiff seeks to apply,” Wesby, 138

S. Ct. at 590, the defendants are entitled to qualified immunity from Rivera’s claim

for damages against them in their individual capacities.

19 Roberts is distinguishable from this case because unlike in Roberts, here

Rivera does not argue that there was no penological justification for use of the OC

spray to remove the other inmate from his cell. Moreover, here massively

excessive amounts of OC spray were not used. Our review of the video shows that

a targeted burst of OC was sprayed directly into the other prisoner’s cell through

the wicket on the cell door.

B. Rivera’s claim for damages against the defendants in their official

capacities are barred by the Eleventh Amendment.

The defendants contend that the claims for damages against them in their

official capacities should be dismissed because they are barred by the Eleventh

Amendment.

“Our federalist system of government accords respect for the sovereignty of

the States in a variety of ways, including the Eleventh Amendment to the United

States Constitution, which immunizes States from suits brought in federal court by

both their own citizens and citizens of other States.” Maliandi v. Montclair State

Univ., 845 F.3d 77, 81 (3d Cir. 2016). The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or

by Citizens or Subjects of any Foreign State.

U.S. Const. Amend. XI. Although its text appears to restrict only the Article III

diversity jurisdiction of the federal courts, the Eleventh Amendment has been

interpreted ‘“to stand not so much for what it says, but for the presupposition . . .

which it confirms.”’ Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)

(quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). That

presupposition is that each state is a sovereign entity in our federal system and it is

inherent in the nature of sovereignty that a sovereign is not amenable to suit unless

it consents. Id.

“Immunity from suit in federal court under the Eleventh Amendment is

designed to preserve the delicate and ‘proper balance between the supremacy of

federal law and the separate sovereignty of the States.’” Karns v. Shanahan, 879

F.3d 504, 512 (3d Cir. 2018) (quoting Alden v. Maine, 527 U.S. 706, 757 (1999)).

It “serves two fundamental imperatives: safeguarding the dignity of the states and

ensuring their financial solvency.” Id. It serves those interests by barring suits

against the nonconsenting states. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73

(2000) (stating that “the Constitution does not provide for federal jurisdiction over

suits against nonconsenting States”); Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 100 (1984) (“It is clear, of course, that in the absence of consent a suit

in which the State or one of its agencies or departments is named as the defendant

is proscribed by the Eleventh Amendment.”).

There are two circumstances when the Eleventh Amendment does not bar a

suit against a state or state agency. First, a state may waive its Eleventh

Amendment immunity by consenting to suit. College Savings Bank v. Florida

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999). Second,

Congress may abrogate a state’s Eleventh Amendment immunity when it

unequivocally intends to do so and when it acts pursuant to a valid grant of

constitutional authority. Geness v. Admin. Off. of Pennsylvania Cts., 974 F.3d 263,

269–70 (3d Cir. 2020). Neither of those circumstances are present here. The

Commonwealth of Pennsylvania has not waived its Eleventh Amendment

immunity. See 42 Pa. Stat. and Cons. Stat. Ann. § 8521(b) (“Nothing contained in

this subchapter shall be construed to waive the immunity of the Commonwealth

from suit in Federal courts guaranteed by the Eleventh Amendment to the

Constitution of the United States.”); Downey v. Pennsylvania Dep’t of Corr., 968

F.3d 299, 310 (3d Cir. 2020) (“Pennsylvania has not waived its sovereign

immunity defense in federal court.”). And 42 U.S.C. § 1983, under which Rivera

brings his claims, does not override a state’s Eleventh Amendment immunity.

Quern v. Jordan, 440 U.S. 332 (1979).

Further, claims for damages against a state official in his or her official

capacity are barred by the Eleventh Amendment. Official-capacity suits are “only

another way of pleading an action against an entity of which an officer is an

agent.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). In an

official-capacity suit, the entity of which the officer is an agent is the real party in

interest. Kentucky v. Graham, 473 U.S. 159, 166 (1985). As such, claims against

state officials in their official capacities for damages are treated as suits against the

state and are barred by the Eleventh Amendment. Christ the King Manor, Inc. v.

Sec’y U.S. Dep’t of Health & Hum. Servs., 730 F.3d 291, 318 (3d Cir. 2013).

Thus, Rivera’s claims against the defendants in their official capacities for

damages are barred by the Eleventh Amendment.

Claims against a state official in his or her official capacity for prospective

declaratory or injunctive relief are not barred by the Eleventh Amendment. See Ex

parte Young, 209 U.S. 123 (1908). Thus, we turn to Rivera’s claims for such

relief.

C. Rivera’s claims for declaratory and injunctive relief are moot.

In addition to damages, Rivera seeks declaratory and injunctive relief. See

doc. 1-2 (complaint) ¶¶ 41–42. Because Rivera is no longer incarcerated in the

RHU at SCI Benner Township, the defendants contend that his claims for

declaratory and injunctive relief are moot.

Article III of the Constitution limits the judicial power of the United States

to “cases” and “controversies.” U.S. Constitution, art. III, § 2. “This case-or-

controversy limitation, in turn, is crucial in ‘ensuring that the Federal Judiciary

respects the proper—and properly limited—role of the courts in a democratic

society.’” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 539 (3d Cir. 2017)

(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). “And courts

enforce it ‘through the several justiciability doctrines that cluster about Article III,’

including ‘standing, ripeness, mootness, the political-question doctrine, and the

prohibition on advisory opinions.’” Id. (quoting Toll Bros., Inc. v. Twp. of

Readington, 555 F.3d 131, 137 (3d Cir. 2009)).

This case involves mootness, which is “a doctrine that ‘ensures that the

litigant’s interest in the outcome continues to exist throughout the life of the

lawsuit,’” and which “is ‘concerned with the court’s ability to grant effective

relief.’” Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (quoting Freedom

from Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 476

(3d Cir. 2016), and Cty. of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d

Cir. 2001)). “[F]ederal courts may adjudicate only actual, ongoing cases or

controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). And “[i]t is

a basic principle of Article III that a justiciable case or controversy must remain

‘extant at all stages of review, not merely at the time the complaint is filed.’”

United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (quoting Arizonans for

Official English v. Arizona, 520 U.S. 43, 67 (1997)). “Federal courts may not

‘decide questions that cannot affect the rights of litigants in the case before them’

or give ‘opinion[s] advising what the law would be upon a hypothetical state of

facts.’” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Lewis, 494 U.S. at

477).

“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’

for purposes of Article III—‘when the issues presented are no longer “live” or the

parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike,

Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).

In other words, “a case is moot if ‘developments occur during the course of

adjudication that eliminate a plaintiff’s personal stake in the outcome of a suit or

prevent a court from being able to grant the requested relief.’” Hamilton, 862 F.3d

at 335 (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–99 (3d Cir.

1996)).

Once a prisoner who is complaining about his conditions of confinement is

transferred from the prison about which he is complaining, the court generally

cannot grant him meaningful prospective relief because he would not benefit from

that relief. Thus, with limited exceptions, his claims for declaratory20 and

injunctive relief are moot. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003)

(stating that “[a]n inmate’s transfer from the facility complained of generally

moots the equitable and declaratory claims”); Marshall v. Pa. Dep’t of Corr., 499

F. App’x 131, 134 (3d Cir. 2012) (concluding that because Marshall “asked for an

injunction that restrains SCI–Mahanoy officials from violating his civil rights, but

20 “The purpose of a declaratory judgment is to ‘declare the rights of

litigants.’” CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir.

2013) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995)). Although

“[t]here is no question that a plaintiff can request declaratory relief to remedy

alleged ongoing violations of her constitutional rights[,]” a “[d]eclaratory judgment

is not meant to adjudicate alleged past unlawful activity.” Wenzig v. Serv. Emps.

Int’l Union Loc. 668, 426 F. Supp. 3d 88, 100 (M.D. Pa. 2019), aff’d sub nom.

Diamond v. Pennsylvania State Educ. Ass’n, 972 F.3d 262, 265 (3d Cir. 2020).

“The remedy is thus by definition prospective in nature.” CMR D.N. Corp., 703

F.3d at 628.

he has now been transferred out from under their control[,] . . . the District Court

was unable to fashion any form of meaningful relief against these defendants, and

thus the motion for injunctive relief was moot”).

“Like most rules, mootness has exceptions and ‘when a litigant is unable to

meet the requirements of the general mootness inquiry, the litigant may invoke an

exception to the mootness doctrine to gain judicial review.’” Hamilton, 862 F.3d at

335 (quoting Chong v. Dist. Dir., INS, 264 F.3d 378, 384 (3d Cir. 2001)). One

exception to “the mootness doctrine [is] for a controversy that is ‘capable of

repetition, yet evading review.’” Kingdomware Techs., Inc. v. United States, 579

U.S. 162, 170 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17). But “[t]hat

exception is ‘narrow’ and ‘applies only in exceptional situations[.]’” County of

Butler v. Governor of Pennsylvania, 8 F.4th 226, 231 (3d Cir. 2021) (quoting

Hamilton, 862 F.3d at 335). “A dispute qualifies for that exception only ‘if (1) the

challenged action is in its duration too short to be fully litigated prior to its

cessation or expiration, and (2) there is a reasonable expectation that the same

complaining party will be subjected to the same action again.’” United States v.

Sanchez-Gomez, 138 S. Ct. 1532, 1540 (2018) (quoting Turner v. Rogers, 564 U.S.

431, 439–440 (2011)). “There must be more than a theoretical possibility of the

action occurring against the complaining party again; it must be a reasonable

expectation or a demonstrated probability.” County of Butler, 8 F.4th 226 at 231.

And it is the plaintiff’s “burden to show that the ‘capable of repetition yet evading

review’ exception applies.” Id.

Here, Rivera invokes the “capable of repetition yet evading review”

exception to mootness; he asserts that he could be transferred back to SCI Benner

Township. But Rivera has not met his burden of showing that the exception

applies. Whether Rivera will ever again be incarcerated at SCI Benner Township

is speculative. On top of that, even if he were returned to SCI Benner Township, it

is speculative whether he would again be incarcerated in the RHU. Further, even if

he were returned to the RHU at SCI Benner Township, it is speculative whether he

would be in the open-air telephone cage at a time when OC spray is being used on

another inmate across the block. Such speculation is not sufficient to show that

there is a reasonable expectation that Rivera will again be faced with the same

conditions about which he is complaining in this case. See Hamilton, 862 F.3d at

336 (“[M]ore than speculation is required to invoke the capable-of-repetition

exception.”); Abdul-Akbar v. Watson, 4 F.3d 195, 206–07 (3d Cir. 1993) (finding

request for injunctive relief moot and rejecting speculation that the prisoner could

again be incarcerated on the same prison unit about which he was complaining).

Thus, Rivera has not met his burden under the “capable of repetition yet evading

review” exception. Accordingly, his claims for declaratory and injunctive relief

are moot.21

VI. Conclusion.

For the foregoing reasons, we will grant the defendants’ motion for

summary judgment. An appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

21 In his brief, Rivera also suggests that these claims are not moot because he

is challenging a policy and he is still subject to such policy. But Rivera has not

pleaded, nor presented, his claims as based on a policy. And a passing suggestion

in a brief cannot change the nature of a claim. In any event, Rivera has not

presented any evidence of a policy.