Sylvester Martin v. Ronnie Seal

Case: 12-30143 Document: 00512131090 Page: 1 Date Filed: 01/31/2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 31, 2013

No. 12-30143 Lyle W. Cayce

Clerk

SYLVESTER MARTIN,

Plaintiff-Appellee

v.

RONNIE SEAL, Lieutenant; BRUCE FORBES, Emergency Medical

Technician; BRUCE STEWART, Sergeant; WENDY SEAL, Licensed Practical

Nurse; DENNIS LARAVIA, Medical Doctor; KIMBERLY WARNER, Licensed

Clinical Social Worker,

Defendants-Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:11–CV–726

Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.

PER CURIAM:*

I. FACTUAL BACKGROUND

Plaintiff-Appellee Sylvester Martin (“Martin”) is an inmate at the Rayburn

Correctional Center (“RCC”) in Angie, Louisiana. Defendants-Appellants

(collectively “Appellants”) are employees of the Louisiana Department of

Corrections. Dr. Dennis Laravia, Emergency Medical Technician (“EMT”) Bruce

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should

not be published and is not precedent except under the limited circumstances set forth in

5TH CIR. R. 47.5.4.

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Forbes, EMT Bruce Stewart, Nurse Wendy Seal, and Licensed Clinical Social

Worker (“LCSW”) Kimberly Warner are medical personnel who treated Martin

on at least one occasion. Lt. Ronnie Seal is a correctional officer at RCC.

On December 14, 2010, Martin started to act erratically upon returning

to his cell from a hearing in court. After Martin yelled, “I’m suicidal and I’m

going to kill myself,” Lt. Ronnie Seal contacted Kimberly Warner in the mental

health department, who recommended that Martin be placed on “standard

suicide watch” against his will. On suicide watch, Martin remained inside of his

cell and was not restrained in any way. Shortly after being placed on suicide

watch, Martin began to rack down (violently shake the cell bars) and jump on his

bed.1 Prison guards ordered Martin to stop several times, but Martin refused

and stated that he was “not living in [that] cell or [that] tier.”

Lt. Seal called the prison’s medical department and asked if it would be

safe for him to use non-toxic deep freeze chemical spray to restrain Martin. Lt.

Seal spoke with EMT Bruce Forbes, who then contacted Dr. Dennis Laravia, who

authorized Lt. Seal to use chemical spray against Martin. When Martin began

to rack down and jump on his bed again, Lt. Seal warned him to stop or be

subjected to the use of deep freeze chemical spray. Martin persisted in his

behavior and Lt. Seal applied chemical spray to Martin’s upper torso. Once

Martin had been subdued, Lt. Seal and two other guards entered his cell,

1

The parties dispute whether Martin actually began to jump on his bed and rack

down before or after the initial chemical spraying. Martin claims that he was sprayed

twice, without warning, prior to Lt. Seal’s receipt of permission from Dr. Laravia.

Although the district court did not address this particular issue in the opinion below,

Martin acknowledges that, at the very least, he repeatedly refused to follow the orders of

Kimberly Warner and Lt. Seal to undress pursuant to standard suicide watch procedures

prior to being sprayed with chemicals.

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restrained him, and brought him to the lobby to be examined by EMT Bruce

Forbes. Forbes examined Martin, determined that he was fine, and offered him

a shower, after which he was escorted back to his cell.

Once Martin returned to his cell, he began to rack down and jump on the

bed. Lt. Seal again advised Martin that he would be sprayed with deep freeze

if he continued to act in this manner. Martin ignored Lt. Seal’s warnings and

was sprayed a second time. When Martin calmed down, Lt. Seal and two guards

brought him out of his cell to be examined by Nurse Wendy Seal. Nurse Seal

examined Martin, found no apparent injuries, and referred him to mental health

after he threatened to continue his bad behavior despite knowing that he would

be sprayed again. Martin then took a second shower and was returned to his

cell.2 The parties dispute whether Martin suffered any asthma-related problems

as a result of Lt. Seal’s use of chemical spray to restrain him. While Martin

contends that he experienced trouble breathing after being sprayed, the prison

records and video footage of the two recorded incidents suggest that any physical

harm Martin suffered was temporary and de minimis. Furthermore, in spite of

Martin’s claim that he suffered lasting injuries (aggravated asthma symptoms

and back pain) as a result of the sprayings, prison records demonstrate that, in

the months following the incident, Martin was evaluated by medical personnel

who determined that he was not injured and did not need additional treatment.

Martin brought suit against Appellants under 42 U.S.C. § 1983, alleging

violations of the Eighth Amendment and Louisiana state law. Appellants moved

2

Two of the incidents where Martin was restrained using chemical spray and then

examined by EMT Forbes and Nurse Seal were recorded on the prison’s surveillance

camera. Martin, however, alleges that Lt. Seal sprayed him at least once before setting up

the camera, while Lt. Seal maintains that the camera began recording prior to the first

spraying.

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for summary judgment on the basis of qualified immunity. The district court

denied the motion for summary judgment as to Martin’s claims of excessive force

and deliberate indifference, ruling that Appellants were not entitled to qualified

immunity. Appellants timely appealed.

II. STANDARD OF REVIEW

Under the collateral order doctrine, this Court has jurisdiction to review

“a district court’s order denying qualified immunity, to the extent that it turns

on an issue of law.” Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006)

(quoting Behrens v. Pelletier, 516 U.S. 299, 311 (1996)) (internal quotation marks

omitted). On interlocutory appeal, this Court “lacks ‘the power to review the

district court’s decision that a genuine factual dispute exists,’” and instead can

“consider ‘only whether the district court erred in assessing the legal significance

of the conduct that the district court deemed sufficiently supported for purposes

of summary judgment.’” Id. at 345 (quoting Kinney v. Weaver, 367 F.3d 337, 347

(5th Cir. 2004) (en banc)). Thus, taking the plaintiff’s version of the facts as

true, this Court reviews de novo “only the purely legal question of whether the

district court erred in concluding as a matter of law that officials are not entitled

to qualified immunity on that given set of facts.” Id. (citation, internal quotation

marks, and alteration omitted).

III. ANALYSIS

All three issues on appeal concern the district court’s denial of qualified

immunity to Appellants on Martin’s Eighth Amendment claims for excessive

force and deliberate indifference. This Court determines whether an official is

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entitled to qualified immunity by asking (1) “whether the facts alleged, taken in

the light most favorable to the party asserting the injury, show that the

[official’s] conduct violated a constitutional right,” and (2) “if the allegations

could make out a constitutional violation, . . . whether the right [violated] was

clearly established.” Mace v. City of Palestine, 333 F.3d 621, 623–24 (5th Cir.

2003) (citation and internal quotation marks omitted). We exercise “discretion

in deciding which of the two prongs of the qualified immunity analysis should

be addressed first,” Lockett v. City of New Orleans, 607 F.3d 992, 998 (5th Cir.

2010), and here we find it appropriate to assess initially whether Appellants

violated Martin’s Eighth Amendment rights.3 The district court failed to

properly evaluate whether Martin alleged a claim for excessive force under

applicable Fifth Circuit precedent, and erroneously concluded that Appellants

exhibited deliberate indifference to Martin’s serious medical needs. As a result,

we reverse the district court’s denial of summary judgment and remand for

additional consideration on the claim of excessive force, and we render summary

judgment in favor of Appellants on the claims of deliberate indifference.

A. Excessive Force

The “core judicial inquiry” into a plaintiff’s claim of excessive force under

the Eighth Amendment 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). We look to five nonexclusive factors

to make this determination: “1. the extent of the injury suffered; 2. the need for

the application of force; 3. the relationship between this need and the amount of

3

As our analyses of Martin’s claims under the first prong are dispositive, we need

not reach the question of whether Martin’s allegedly violated constitutional rights were

clearly established at the time of the incident.

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force used; 4. the threat reasonably perceived by the responsible officials; and 5.

any efforts made to temper the severity of a forceful response.” Baldwin v.

Stalder, 137 F.3d 836, 839 (5th Cir. 1998) (citation omitted). In evaluating these

factors (the “Hudson factors”), this Court views the facts and makes inferences

in the manner most favorable to the non-moving party. See Petta v. Rivera, 143

F.3d 895, 902–03 (5th Cir. 1998).

Appellants claim that the district court erred by not considering all of the

Hudson factors in its denial of qualified immunity. While the district court

evaluated the need for Lt. Seal’s application of chemical spray to detain Martin,

it did not expressly consider any of the other factors that, under Hudson, could

bear on the court’s finding of excessive force. More specifically, the district court

did not assess the extent of the injury suffered by Martin, the relationship

between the need for force and the type of force actually used (chemical spray),

the threat perceived by Lt. Seal and the other officers, or the efforts made by Lt.

Seal and the medical personnel to temper the severity of the force used. While

there may be a set of facts under which a single Hudson factor is so compelling

as to overshadow the others and alone warrant a finding of excessive force, that

is not the case here. In other words, although the district court was not required

to conduct an extensive analysis of each Hudson factor, its failure to even

acknowledge any of the other four factors when Appellants clearly pleaded facts

relevant to those issues resulted in a decision that unjustifiably prioritizes one

Hudson factor—the alleged need for force against Martin—above all others.

Both parties have set forth several additional facts not mentioned in the

opinion below that should have been considered in the district court’s qualified

immunity analysis. First, both Appellants and Martin offer evidence regarding

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the extent of Martin’s injuries and the amount of force used by Lt. Seal.

Appellants contend that Martin suffered only de minimis injuries after the

chemical sprayings. The district court similarly noted that “it is questionable

whether plaintiff experienced a ‘serious medical need’ as a result of the spraying.

The medical records indicate that he did not, and the video records show that

plaintiff was back on his feet and quite hale and hearty soon after the

sprayings.” While Martin need not show that his injuries were significant, see

Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010), “the extent of injury suffered by

an inmate is one factor that may suggest whether the use of force could plausibly

have been thought necessary in a particular situation,” Hudson, 503 U.S. at 7

(citation and internal quotation marks omitted); see also Wilkins, 130 S. Ct. at

1178 (“The extent of the injury may also provide some indication of the amount

of force applied.”).

On the other hand, Martin pleaded facts suggesting that the severity of his

injuries (or lack thereof) did not accurately reflect the amount of force used. For

example, Martin offered prison records showing that, although Lt. Seal claimed

to have only sprayed him twice, the can of chemical spray weighed less than it

should have after only two uses. He also offers the affidavit of another prisoner,

Richard Lay, who corroborates Martin’s claim that Lt. Seal sprayed him a total

of three times.

The district court also did not address Appellants’ arguments regarding

the relationship between the need for chemical spray and the amount of spray

actually used. Even taking as true Martin’s testimony alleging that Lt. Seal

sprayed him in retaliation for his previous assault of another correctional

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officer,4 the district court did not acknowledge that, prior to being sprayed at all,

Martin ignored multiple orders to remove his clothes after being put on suicide

watch, and later ignored orders to stop racking his cell bars and jumping on his

bed. In his brief, Martin admits that he resisted these orders. By glossing over

these details, the district court may have missed facts relevant to the

consideration of whether Lt. Seal used excessive force given the progression of

events.

Finally, the district court did not mention the efforts of Appellants to

temper the severity of the chemical sprayings by providing Martin with medical

attention and offering him a shower after each incident. Lt. Seal not only

warned Martin that he would be sprayed with a chemical agent if he did not

cease his disruptive behavior, but also arranged for the provision of medical care

immediately after each spraying. Under Hudson, such actions are relevant to

a determination of whether the force used was appropriate under the

circumstances or an excessive reaction to a perceived threat.

Although none of these aforementioned factors is alone dispositive here,

the district court erred in failing to acknowledge that both parties proffered

facts relevant to the broader Hudson analysis. See, e.g., Crawford v. Lynaugh,

No. 93-2010, 1993 WL 391367, at *3 (5th Cir. Sept. 20, 1993) (unpublished) (“The

extent of the injuries suffered is but one factor to be considered in determining

the validity of an excessive force claim. The district court therefore erred in

viewing this factor as dispositive, and abused its discretion in dismissing

[prisoner’s] claim on this ground.”). We are not responsible for weighing the

4

On the date of this incident, Martin pleaded guilty to battery on another

correctional officer. As a result, Martin alleged that Lt. Seal threatened to harm him if he

ever became involved in another physical confrontation with an officer.

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facts in a qualified immunity dispute and instead “may consider only whether

the district court erred in assessing the legal significance of the conduct that the

district court deemed sufficiently supported for purposes of summary judgment.”

Gobert, 463 F.3d at 345 (citation and internal quotation marks omitted). Once

Martin alleged an injury due to Lt. Seal’s use of excessive force, the district court

was required to determine whether that claim was constitutionally

cognizable—a determination that should have involved consideration of the

applicable Hudson factors. See Jones v. Primrose, 176 F. App’x 518, 519 (5th Cir.

2006) (unpublished) (“Whether [an] allegation of injury is constitutionally

cognizable requires consideration of the Hudson factors.”) (citing Baldwin, 137

F.3d at 838–39).

The district court failed to consider material facts relevant to Martin’s

claim of excessive force, thus resulting in a denial of qualified immunity on the

sole basis that Appellants failed to show a need for their use of force against

Martin. Although Martin may have pleaded facts sufficient to withstand

Appellants’ motion for summary judgment, we decline to affirm the district

court’s decision without further consideration of these other issues. See

Crawford, 1993 WL 391367, at *3 (remanding the case to the district court to

consider all of the Hudson factors in determining whether the defendants used

excessive force). In the absence of a more thorough Hudson analysis, the district

court should not have determined that Lt. Seal violated Martin’s Eighth

Amendment rights and thus should not have denied Appellants’ request for

qualified immunity.

B. Deliberate Indifference to Martin’s Asthma

The second issue on appeal is whether Appellants acted with deliberate

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indifference to Martin’s asthma by authorizing the use of a chemical spray to

restrain him. This Court has held that a prison official acts with deliberate

indifference in violation of the Eighth Amendment if (1) there was a “substantial

risk of serious harm” to the plaintiff, and (2) “prison officials acted or failed to

act with deliberate indifference to that risk.” Gobert, 463 F.3d at 345–46. This

standard requires the plaintiff to show that the prison officials “refused to treat

him, ignored his complaints, intentionally treated him incorrectly, or engaged

in any similar conduct that would clearly evince a wanton disregard for any

serious medical needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,

756 (5th Cir. 2001) (citation and quotation marks omitted). “Deliberate

indifference is an extremely high standard to meet.” Id.

The district court determined that Appellants were not entitled to

qualified immunity because the purported absence of complete medical records

created disputed issues of material fact as to whether Martin’s asthma

constituted a serious medical need.5 This holding, however, disposes of

Appellants’ qualified immunity defense without assessing the second prong of

the analysis, whether Appellants acted with deliberate indifference to Martin’s

asthma. Martin, not Appellants, had the burden to plead facts sufficient to

show deliberate indifference and overcome a qualified immunity defense. See

Gobert, 463 F.3d at 345 n.14 (noting that once a qualified immunity defense has

been raised, “plaintiff has the burden to rebut the qualified immunity defense

by establishing that the official’s allegedly wrongful conduct violated clearly

5

Appellants deny Martin’s allegation and the district court’s finding that the

medical records provided by RCC were incomplete. The record on appeal demonstrates

that, at a minimum, several pages of Martin’s medical records were produced, including

the reports related to the use of chemical spray during the incidents at issue.

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established law.” (citation and quotation marks omitted)). The district court

relieved Martin of this burden and effectively shifted it onto Appellants by

denying them qualified immunity based solely on the purported inadequacy of

Martin’s medical records.

The fact that Martin has asthma—which Appellants do not dispute—does

not alone present an issue of material fact sufficient to overcome a defense of

qualified immunity. Martin not only needed to prove “objective exposure to a

substantial risk of serious harm,” Gobert, 463 F.3d at 345, but also that the

prison officials actively disregarded that risk, Adames v. Perez, 331 F.3d 508,

512 (5th Cir. 2003). Thus, even assuming that the RCC withheld parts of

Martin’s medical records showing that Martin had severe asthma, Martin’s

claim for deliberate indifference still fails since he did not demonstrate that

Appellants had the requisite mens rea; that they “were actually aware of the risk

[of using chemical spray on an asthmatic inmate], yet consciously disregarded

it.” Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002). Martin’s bare

assertion that even “a layperson would understand and know from his or her

own life experiences that spraying an asthmatic with chemical spray will cause

serious pain and suffering” does not suffice to show deliberate indifference. See

Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (“Conclusional allegations and

denials, speculation, improbable inferences, unsubstantiated assertions, and

legalistic argumentation do not adequately substitute for specific facts showing

a genuine issue for trial.”).

Martin’s contention that Dr. Laravia had previously told Lt. Seal that he

could not use chemical agents against Martin is insufficient to show deliberate

indifference. At most, this would show that Dr. Laravia “failed to act

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reasonably,” which is inadequate to support an inference of deliberate

indifference. See Domino, 239 F.3d at 756 (“[T]he ‘failure to alleviate a

significant risk that [a prison official] should have perceived, but did not’ is

insufficient to show deliberate indifference.” (quoting Farmer v. Brennan, 511

U.S. 825, 838 (1994))).

Appellants’ authorization of the use of chemical spray against Martin was

a medical judgment that does not rise to the level of “wanton disregard for

[Martin’s] serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th

Cir. 1985). At best, Martin suggests that Appellants decided to use chemical

spray after concluding that it would not cause a severe asthma attack or

otherwise threaten Martin’s health. Deliberate indifference, we have previously

held, “exists wholly independent of an optimal standard of care.” Gobert, 463

F.3d at 349. While perhaps negligent or even an exercise of poor judgment,

Appellants’ conduct does not constitute deliberate indifference. See Farmer, 511

U.S. at 835 (“[D]eliberate indifference describes a state of mind more

blameworthy than negligence.”).

Moreover, Appellants have alleged facts (uncontroverted by Martin and

supported by video footage) that, after each round of chemical treatment, they

examined Martin, determined that he was not injured, and offered him a shower.

Such actions counter Martin’s allegations of deliberate indifference. See, e.g.,

Gobert, 463 F.3d at 346 n.24 (“Medical records of sick calls, examinations,

diagnoses, and medications may rebut an inmate’s allegations of deliberate

indifference.” (quoting Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995)

(internal quotation marks omitted)). While Martin claims that, in conducting

one of these examinations, EMT Forbes intentionally touched him in a manner

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that Forbes knew would inflict pain instead of actually treating him, this

conduct does not rise to the level of a constitutional violation under the Eighth

Amendment. See Gobert, 463 F.3d at 346; see also Broussard v. Nelson,

12-30677, 2012 WL 6605769, at *1 (5th Cir. Dec. 19, 2012) (unpublished)

(“[Plaintiff] characterizes [medical personnel’s] examin[ation of] him . . . as ‘fake’

and ‘lame’, but his dissatisfaction with that examination is an insufficient basis

for an Eighth Amendment claim.”). As Martin has failed to satisfy the “stringent

standard” for showing deliberate indifference to his asthma, see Brown v. Bryan

Cnty., 219 F.3d 450, 457 (5th Cir. 2000), we reverse the district court’s denial of

summary judgment on this ground.

C. Deliberate Indifference to Martin’s Other Medical Needs

Martin’s third and final claim alleges that Appellants acted with

deliberate indifference to his “various other medical conditions.” Martin’s

briefing on this issue is woefully inadequate and does not even specify with any

amount of detail which “various other medical conditions” were ignored.

Essentially, Martin suggests that the use of chemical spray in the incident

discussed above resulted in a “serious medical need” that was ignored by medical

personnel for several months. The district court declined to grant Appellants

qualified immunity because the medical records provided by Martin were

“insufficient . . . to assess these claims.” Martin has not alleged that Appellants

entirely failed to provide him with medical care after the sprayings, as such a

contention would be clearly contradicted by video footage. Instead, he appears

to assert that Appellants violated the Eighth Amendment by refusing to provide

him with additional medical treatment in the months after the incident.

Appellants’ refusal to provide additional treatment, without more, constitutes

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“a classic example of a matter for medical judgment.” Gobert, 463 F.3d at 346

(quoting Domino, 239 F.3d at 756) (internal quotation marks omitted). As such,

it takes on the appearance of a claim for “[u]nsuccessful medical treatment, acts

of negligence, or medical malpractice” that we have previously held “do not

constitute deliberate indifference.” Id.

For the same reasons discussed in the previous section, the district court

erred in relieving Martin of the burden of pleading facts sufficient to show that

Appellants exhibited deliberate indifference to his other medical needs,

particularly in light of video footage and statements from Appellants showing

the provision of medical care to Martin after each of the chemical sprayings.

Moreover, Martin has not identified with any specificity the ailments or

symptoms (aside from asthma and a vague reference to back pain) he claims

were caused by Appellants’ alleged deliberate indifference. Accordingly, we

reverse the district court’s denial of qualified immunity on Martin’s claim of

deliberate indifference to his other medical needs.

IV. CONCLUSION

The district court erred in denying Appellants’ motion for summary

judgment on the issue of excessive force without an adequate evaluation of the

five Hudson factors, particularly since some of the unaddressed facts may have

had implications for that claim. Additionally, the district court erred in denying

Appellants’ motion for summary judgment on the claims of deliberate

indifference, since Martin entirely failed to plead facts that “rise[] to the level

of egregious intentional conduct required to satisfy the exacting deliberate

indifference standard.” Gobert, 463 F.3d at 351. As a result, we reverse the

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district court’s denial of summary judgment, remand for reconsideration of

Martin’s excessive force claim, and render summary judgment in favor of

Appellants on the deliberate indifference claims.

15