A right is clearly established for purposes of qualified immunity “when it is sufficiently clear that every reasonable officer would have understood that what he is doing violates that right.” (quotation marks omitted)
How later courts described this case
- A right is clearly established for purposes of qualified immunity “when it is sufficiently clear that every reasonable officer would have understood that what he is doing violates that right.” (quotation marks omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CHRISTOPHER BOWDEN,
Plaintiff,
v. Case No.: 2:22-cv-671-SPC-KCD
D. SNIDER, M. FROST and
ANDREW BENNETT,
Defendants.
/
OPINION AND ORDER
Before the Court is Defendants’ Motion for Summary Judgment (Doc. 64)
and responsive filings from the plaintiff and the defendants.
Background
Plaintiff Christopher Bowden is a prisoner of the Florida Department of
Corrections. On June 21, 2022, he was imprisoned at Charlotte Correctional
Institution. Bowden sues Warden Derek Snider, Captain Moses Frost, and
Officer Andrew Bennett over Bennett’s use of pepper spray on June 21, 2022.
The incident was documented by surveillance and hand-held cameras. The
parties have also submitted declarations, incident reports, Bowden’s inmate
records, and the transcript of Bowden’s deposition.
The incident started on the morning of June 21, 2022, but the parties
dispute precisely when and how. According to Bowden, he had a discussion
with Snider about some grievances Bowden had filed about his housing
assignment. Bowden says he threatened to sue Snider, who told Frost to “get
him cleared,” which Bowden understood as the first step in the prison’s
procedure for the use of chemical agents. (Doc. 64-9 at 12-18). Snider and
Frost both deny this conversation occurred. (Doc. 64-5 at 2; Doc. 64-6 at 2).
But Frost obtained the pepper spray cannister later used on Bowden from the
Main Control Unit at 10:00 a.m., about an hour and a half before any defense
witness claims Bowden caused a disturbance. (Doc. 64-6 at 2; Doc. 64-2 at 16).
Bowden testified that Lieutenant Kathleen Larson and a mental health
professional came to his cell later that morning and asked what was going on.
Bowden acknowledges he was mad and pacing his room but was composed
enough to say what happened. He denies raising his voice or otherwise causing
a disturbance. (Doc. 64-9 at 19-20). When they left, Bowden attempted to calm
down by smoking a joint of a synthetic substance similar to marijuana and
reading a book on his bed. (Doc. 20).
According to the defendants, the incident began when officers attempted
to conduct a routine search of Bowden’s cell around 11:30 a.m. Larsen states
that Bowden was creating a disturbance by kicking the cell door, yelling, and
refusing to submit to hand restraints. (Doc. 64-7 at 2). Larsen and Snider
state that Snider authorized the use of chemical agents on Bowden at 11:55
a.m. if necessary to bring Bowden into compliance. (Doc. 64-5 at 2; Doc. 64-7
at 2)
At about 12:07 p.m., Larson approached Bowden’s cell. This is when the
video recording starts, and the Court has carefully reviewed the footage.
Bowden indeed was quietly reading a book on his bed. Bowden agreed to
submit to hand restraints, and a male officer conducted a visual strip search
through the window on the cell door. While Bowden called the officers “stupid,
said things like, “I hate you,” and questioned orders, he complied. Just as
Bowden was putting his boxers back on, Frost approached Bowden’s cell and
ordered him to strip again. Bowden appeared frustrated at the order and
raised his voice, but he complied with the second strip search. When Frost told
Bowden to lean forward, Bowden said something the Court cannot discern.
Frost stopped giving instructions, said “alright,” and stepped away from the
cell door. The officers immediately began preparing to administer chemical
agents. (Doc. 65-1).
At about 12:13 p.m., Bennett sprayed three one-second bursts of
chemical agents into Bowden’s cell. As the officers were unlocking the cell door
and preparing to spray, Bowden repeatedly said, “I’m trying to comply.”
Bennett sprayed the agents into the cell while Bowden shielded himself with a
blanket. It appears Bennett used a nozzle setting to deliver the chemicals into
Bowden’s cell as a fog. The officers closed the cell door again. Officers left
Bowden in his cell for a few minutes while he coughed and cleared his sinuses.
At about 12:18 p.m., Larson again approached Bowden’s cell and asked if he
would comply with orders. Bowden said he tried and repeatedly asked if he
could “cuff up.” At about 12:23 p.m., Bowden submitted to a third strip search
and hand restraints. (Doc. 65-1).
Bowden physically complied with orders outside the cell but was verbally
confrontational with officers. As Bowden put it, “I was talking shit and I was
pissed off.” (Doc. 64-9 at 34). Frost ordered Bowden to stop talking, but
Bowden continued to taunt officers after being locked in the shower. The
officers made no move to turn the shower on, and Bennett sprayed Bowden
with another three one-second bursts of chemical agents at about 12:27 p.m.,
this time using a spray setting to target Bowden directly. The defendants
claim Larson told Bennett to spray Bowden, but the video shows that Frost
gave the order. (Doc. 65-1).
At about 12:33 p.m., Bowden submitted to hand restraints and was
escorted to another shower for a cold-water decontamination. After Larsen
turned off the shower, Bowden told the officers he still had gas on him, but
they did not allow him to continue decontaminating. The officers then escorted
Bowden to a medical examination room for a post-use-of-force physical. (Doc.
65-2). No injuries were noted. (Doc. 64-2 at 27). Bowden told the nurse his
body was still burning from the chemicals, but he had no other injuries. (Doc.
64-9 at 46). After the physical, Bowden was returned to his cell. (Doc. 65-2).
Legal Standard
Summary judgment is appropriate only when the Court is satisfied that
“there is no genuine issue as to any material fact” and the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The initial
burden falls on the movant, who must identify the portions of the record “which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). A genuine issue of material fact
exists if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). To defeat summary judgment, the non-movant must “go beyond the
pleadings, and present affirmative evidence to show that a genuine issue of
material facts exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006).
In reviewing a motion for summary judgment, the Court views the
evidence and all reasonable inferences drawn from it in the light most
favorable to the non-movant. See Battle v. Bd. of Regents, 468 F.3d 755, 759
(11th Cir. 2006). But “[a] court need not permit a case to go to a jury…when
the inferences that are drawn from the evidence, and upon which the non-
movant relies, are ‘implausible.’” Mize v. Jefferson Cnty. Bd. of Educ., 93 F.3d
739, 743 (11th Cir. 1996). If the moving party demonstrates entitlement to
judgment as a matter of law, the non-moving party must establish each
essential element to that party’s case. Howard v. BP Oil Co., Inc., 32 F.3d 520,
524 (1994).
Discussion
Bowden asserts Eighth Amendment claims against the defendants based
on theories of excessive force, failure to intervene, and deliberate indifference.
He also asserts claims of assault and battery under Florida law. Before
addressing Bowden’s causes of action, the Court considers the parties’ factual
disputes.
The videos submitted by the defendants generally corroborate Bowden’s
version of the events and contradict the defendants. When Larson approached
Bowden’s cell to give the “final order” before resorting to chemical agents,
Bowden was laying on his bunk reading a book. He offered to “cuff up” and
complied with a strip search. Bowden just had time to put his boxers back on
when Frost ordered him to submit to another strip search. Bowden questioned
the order but complied. Bowden has argued throughout this case that Frost
intentionally created a pretext to justify the use of chemical agents, and that
is a reasonable interpretation of the facts depicted in the video.
The video also undercuts the defendants’ attempt to insulate Frost from
the decision to use chemical agents by claiming Larson gave Bennett the order
to spray Bowden. The video suggests Frost made the decision in both
instances. While Larson can be heard instructing Bennett to apply three one-
second bursts in the first instance, the officers were already preparing to spray
at that point. And Frost clearly gave the order in the second instance. The
Court finds the defendants’ blatant misrepresentation of the facts concerning.
There is also a genuine dispute over Snider’s participation in the use of
force. Bowden testifies Snider told Frost to “get him cleared”—meaning, begin
the process of using pepper spray on Bowden. While Snider and Frost deny
that Snider gave that order, the video evidence does not make it implausible.
Construing the video in Bowden’s favor, a reasonable jury could find that Frost
created a pretext for the use of chemical agents to fulfill Snider’s alleged order.
That finding would be supported by the fact that Frost retrieved the canister
of chemical agents before any officer claims Bowden began causing a
disturbance. Whether Snider gave the order for the use of force against
Bowden is an issue for a jury to decide.
A. Excessive Force
The core judicial inquiry in 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.” Sconiers v. Lockhart, 946 F.3d
1256, 1265 (11th Cir. 2020) (quoting Wilkins v. Gaddy, 559 U.S. 34, 37 (2010)).
A prisoner asserting an excessive force claim must establish two elements: “the
official must have both ‘acted with a sufficiently culpable state of mind’ (the
subjective element), and the conduct must have been ‘objectively harmful
enough to establish a constitutional violation.’” Id. (quoting Hudson v.
McMillian, 503 U.S. 1, 8 (1992)). A claim satisfies the subjective element if the
excessive force was “sadistically and maliciously applied for the very purpose
of causing harm.” Id. The objective component “focuses on whether the
official’s actions were harmful enough or sufficiently serious to violate the
constitution.” Id. (cleaned up).
The defendants are not entitled to summary judgment on this claim.
While prison officials may use chemical agents to gain the compliance of
recalcitrant inmates, the record here does not prove that Bowden was causing
a disruption or refusing orders. See Thomas v. Bryant, 614 F.3d 1288, 1310
(11th Cir. 2010). Thus, a reasonable jury could find that each defendant
participated in the use of force on Bowden solely to punish him and cause him
harm. That is sufficient for the subjective component of an Eighth Amendment
claim.
Bowden can also satisfy the objective component. The Eleventh Circuit
has recognised that “where chemical agents are used unnecessarily, without
penological justification, or for the very purpose of punishment or harm, that
use satisfies the Eighth Amendment’s objective harm requirement.” Id. at
1311. And “being pepper sprayed sadistically and without penological
justification is not a routing discomfort of confinement.” Thompson v. Smith,
805 F. App’x 893, 905 (11th Cir. 2020).
Bowden states he experienced physical pain from the chemical agents on
his skin, which lingered because officers ended his decontamination shower
before he was able to fully remove the chemicals. Bowden was not able to
completely clean himself until his next shower two or three days later. He
developed a rash, and his skin was peeling “really bad.” (Doc. 64-9 at 52).
Bowden also claims he suffered psychological injuries such that a psychiatrist
increased the dosage of the mood stabilizers he was already prescribed. A
reasonable jury could find these injuries sufficiently serious to violate the
Constitution.
What is more, the defendants are not entitled to qualified immunity.
Cases like Thomas and Thompson demonstrate that Bowden’s right to be free
from the unnecessary and unjustified use of chemical agents is clearly
established. See Rivas-Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (A right is
clearly established for purposes of qualified immunity “when it is sufficiently
clear that every reasonable officer would have understood that what he is doing
violates that right.” (quotation marks omitted)).
B. Failure to Intervene
The Eleventh Circuit has recognized “that an officer can be liable for
failing to intervene when another officer uses excessive force.” Priester v. Cty.
of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000). But such liability
“only arises when the officer is in a position to intervene and fails to do so.” Id.
Snider argues he was not in a position to intervene because he was not present
when the use of force occurred. In most cases, that would be fatal to a failure-
to-intervene claim. But Snider did have a reasonable opportunity to prevent
the use of force. According to Bowden’s version of the events—which a
reasonable jury could believe—Snider gave Frost the order to “get him cleared”
earlier in the morning. It follows that Snider could reasonably anticipate that
Bowden would be sprayed whether or not it was justified. Snider had an
opportunity to intervene when Larson contacted him to request authorization
to use chemical agents in accordance with FDOC policy. But Snider approved
the use of pepper spray.
A reasonable jury could find Snider liable for failing to intervene.
C. Assault and Battery
The defendants argue Bowden’s state tort claims are barred by Fla. Stat.
§ 768.28(9)(a), which protects state employees acting within the scope of their
employment from personal liability unless the employee “acted in bad faith or
with malicious purpose or in a manner exhibiting wanton and willful disregard
of human rights, safety or property.” See Pena v. Marcus, 715 F. App’x 981,
988 (11th Cir. 2017). “Bad faith is defined as actual malice and willful and
wanton conduct is worse than gross negligence and more reprehensible and
unacceptable than mere intentional conduct.” Id. (quotation marks and
citation omitted). “To determine whether an officer’s actions are an assault
and battery, courts inquire whether the officer’s use of force was reasonable.”
Id.
The defendants argue they acted reasonably based on their account of
the use of force and the events leading up to it. But as the Court discusses
above, the video evidence contradicts much of the defendants’ story. A
reasonable jury could find that each defendant acted in bad faith or with willful
disregard to Bowden’s safety and constitutionally protected rights. The
defendants have not established immunity from Bowden’s state tort claims.
D. Physical Injury
The defendants next argue Bowden cannot recover compensatory
damages because he did not suffer physical injuries that were more than de
minimis. 42 U.S.C. § 1997e(e) bars prisoners from bringing civil actions “for
mental or emotional injury suffered while in custody without a prior showing
of physical injury[.]” To satisfy the statute, “the physical injury must be more
than de minimis, but need not be significant.” Dixon v. Toole, 225 F. App’x 797,
799 (11th Cir. 2007) (quoting Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir.
1999)).
The Eleventh Circuit has held that “temporary injuries arising from an
unlawful pepper spraying” can be greater than de minimis. Thompson, 805 F.
App’x at 903. In Thompson, the court found the following alleged injuries
sufficiently serious:
Mr. Thompson says he was pepper sprayed and left with the
chemical agents on his face for approximately twenty minutes;
experienced coughing, difficulty breathing, and a prolonged
burning sensation; was forced to take an extended shower to
exacerbate the effects of the pepper spray; and was returned to a
cell that remained contaminated with pepper-spray residue.
Id. at 904-05. Bowden’s physical injuries were similar, and in some ways
worse. Officers ended his cold-water decontamination early, and Bowden was
not able to completely remove the chemicals from his skin until his next shower
two or three days later. By that point, Bowden had a rash and peeling skin.
Construing the evidence in Bowden’s favor, the Court finds Bowden suffered
more than de minimis physical injuries.
E. Declaratory and Injunctive Relief
Finally, the defendants argue Bowden is not entitled to declaratory or
injunctive relief because he was transferred to a different facility. That is true.
The general rule in the Eleventh Circuit “is that a transfer or release of a
prisoner from prison will moot that prisoner’s claims for injunctive and
declaratory relief.” Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007).
Because Bowden is no longer incarcerated at Charlotte C.I., his request for
these prospective remedies is moot. See id.
Accordingly, it is now
ORDERED:
Defendants’ Motion for Summary Judgment (Doc. 64) is GRANTED as
to Bowden’s claims for declaratory and injunctive relief. The motion is
otherwise DENIED.
DONE and ORDERED in Fort Myers, Florida on December 23, 2024.
UNITED STATES DISTRICTJUDGE
SA: FTMP-1
Copies: All Parties of Record
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