Michael Rivera v. Redfern

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-1554

___________

MICHAEL RIVERA,

Appellant

v.

LT. REDFERN, SCI Benner Township; C.O. SHRECK, SCI

Benner Township; C.O. MONSELL, SCI Benner Township;

NURSE PHIL ROGERS, SCI Benner Township

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-21-cv-01118)

Magistrate Judge: Honorable Susan E. Schwab

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Argued on February 7, 2024

Before: HARDIMAN, SCIRICA, and SMITH, Circuit

Judges.

(Filed: April 11, 2024)

Megha Ram [Argued]

Devi Rao

Roderick & Solange MacArthur Justice Center

501 H Street NE, Suite 275

Washington, D.C. 20002

Counsel for Appellant

Michelle Henry

Michael J. Scarinci [Argued]

J. Bart DeLone

Office of Attorney General of Pennsylvania

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Counsel for Appellees

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Michael Rivera appeals the District Court’s summary

judgment in favor of four prison officials on his Eighth

2

Amendment deliberate indifference claim. Because the

officials are entitled to qualified immunity, we will affirm.

I1

On June 20, 2020, Rivera was a Pennsylvania state

prisoner confined in the restricted housing unit. At

approximately 5:45 p.m., Rivera was inside an open-air

telephone cage when he overheard prison officials preparing to

forcibly extract inmate Ryan Miller from a nearby cell. Miller

was “covering and uncovering his door,” which was “slowing

down” prison operations. App. 107. His behavior also

presented “a safety issue,” as prisoners who cover their cell

doors sometimes hurt themselves or even commit suicide. Id.

Anticipating that prison officials would use pepper spray,

Rivera informed them that exposing him to secondhand pepper

spray, while he was unprotected in an open-air cage, would

cause him to suffer an asthma attack. For nearly 90 minutes,

Rivera implored prison officials to escort him back to his cell

located 25 to 30 feet away on the same floor, stating that he

would not be adversely affected by the pepper spray there. The

officials refused, claiming there was no one available to take

Rivera to his cell because of the ongoing preparations to extract

Miller. Shortly past 7:00 p.m., after Miller had repeatedly

refused to exit his cell, prison officials donned gas masks and

1

At summary judgment, we view the evidence in the light most

favorable to Rivera and draw all reasonable inferences in his

favor. Peroza-Benitez v. Smith, 994 F.3d 157, 164 (3d Cir.

2021). Where there are multiple “interpretation[s]” of video

footage, “we are [similarly] bound to choose the interpretation

most favorable to [Rivera].” Rush v. City of Philadelphia, 78

F.4th 610, 618 (3d Cir. 2023).

3

released pepper spray into Miller’s cell. After Miller was

removed, prison officials escorted him to the psychiatric ward.

Rivera began coughing, sneezing, and experiencing a

drowning-like sensation within three minutes of the pepper

spray being deployed in Miller’s cell. Even after a prison

official brought Rivera his asthma inhaler and took him back

to his cell, his severe symptoms continued. Hearing Rivera

coughing and vomiting, a prisoner in the neighboring cell

requested medical attention on Rivera’s behalf. Rivera then

received a nebulizer breathing treatment, which abated his

symptoms.

After exhausting his administrative remedies under the

Prison Litigation Reform Act, Rivera sued for damages against

prison officials in their individual capacities under 42 U.S.C.

§ 1983.2 Rivera argued that the officials had acted with

deliberate indifference to the substantial risk of a serious harm

to him, in violation of the Eighth Amendment to the United

States Constitution, when they refused to return him to his cell

before deploying pepper spray against Miller.

Without deciding whether there was a constitutional

violation, the District Court granted summary judgment to the

2

The District Court dismissed Rivera’s claims for damages

against the prison officials in their official capacities as barred

by state sovereign immunity. Rivera v. Redfern, 2023 WL

2139827, *10–11 (M.D. Pa. Feb. 21, 2023). Because Rivera

had been transferred to a different prison, the District Court

also dismissed his claims for declaratory and injunctive relief

as moot. Id. at *11–12. Rivera does not challenge these

holdings on appeal.

4

prison officials, concluding that “the law was not clearly

established such as to put the defendants on notice that

spraying a targeted burst of [pepper] spray into another

prisoner’s cell 50–60 feet away from an inmate with asthma

violates the Eighth Amendment.” Rivera v. Redfern, 2023 WL

2139827, *7 (M.D. Pa. Feb. 21, 2023) (footnote omitted).

Rivera timely appealed.3

II

“We exercise plenary review of the District

Court’s . . . summary judgment and the legal issues

underpinning a claim of qualified immunity,” Halsey v.

Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014), and we may affirm

for any reason supported by the record, see Baloga v. Pittston

Area Sch. Dist., 927 F.3d 742, 751 (3d Cir. 2019). Summary

judgment is warranted only if, when the evidence is viewed in

the light most favorable to the non-moving party, “there is no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law.” Williams v. Bitner,

455 F.3d 186, 190 (3d Cir. 2006) (cleaned up).

The Supreme Court has instructed us to “‘think hard,

and then think hard again,’ before addressing both qualified

immunity and the merits of an underlying constitutional

claim.” District of Columbia v. Wesby, 583 U.S. 48, 62 n.7

(2018) (quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)).

This is because “[t]here are cases in which it is plain that a

constitutional right is not clearly established but far from

obvious whether in fact there is such a right.” Pearson v.

Callahan, 555 U.S. 223, 237 (2009). Consistent with this

3

The District Court had jurisdiction under 28 U.S.C. §§ 1331

and 1343. We have jurisdiction under 28 U.S.C. § 1291.

5

directive, we conclude the prison officials are shielded from

liability under qualified immunity because “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) (cleaned up).

A

“To determine whether a right was ‘clearly established,’

we conduct a two-part inquiry.” Peroza-Benitez v. Smith, 994

F.3d 157, 165 (3d Cir. 2021). We begin by “defin[ing] the right

allegedly violated at the appropriate level of specificity.” Sharp

v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012). “This inquiry

must be undertaken in light of the specific context of the case,

not as a broad general proposition.” Davenport v. Borough of

Homestead, 870 F.3d 273, 281 (3d Cir. 2017) (quoting

Mullenix v. Luna, 577 U.S. 7, 12 (2015)).

In this case, we define the alleged constitutional

violation largely as Rivera does: prison officials may not

“ignore[] . . . repeated pleas to move [a prisoner] prior to

exposing him to pepper spray despite ‘know[ing]’ that

deploying pepper spray without moving him would cause him

to suffer an asthma attack,” where exposure could be

substantially reduced without materially hindering

institutional interests. Rivera Br. 13 (third alteration in

original) (quoting App. 12).

B

Having defined the specific right at issue, we assess

whether it was “sufficiently clear that a reasonable official

would understand that what he [was] doing violate[d] that

right.” Saucier v. Katz, 533 U.S. 194, 202 (2001). See also

6

Mullenix, 577 U.S. at 12 (“[Q]ualified immunity protects all

but the plainly incompetent or those who knowingly violate the

law.”) (cleaned up). We agree with the District Court that

Rivera fails to demonstrate that this specific right has been

clearly established by: (1) binding precedent from the Supreme

Court or the Third Circuit, see Fields v. City of Philadelphia,

862 F.3d 353, 361 (3d Cir. 2017); or (2) “a robust consensus of

cases of persuasive authority” in our sister circuits, Clark v.

Coupe, 55 F.4th 167, 181 (3d Cir. 2022) (citation omitted).

Rivera relies primarily on our decision in Atkinson v.

Taylor, which held that prison officials were not entitled to

qualified immunity when they allegedly “exposed [a prisoner],

with deliberate indifference, to constant smoking in his cell for

over seven months.” 316 F.3d 257, 268 (3d Cir. 2003). While

we do not require “precise factual correspondence between the

case at issue and a previous case,” Peroza-Benitez, 994 F.3d at

166 (cleaned up), Atkinson does not place the constitutional

question here “beyond debate,” Ashcroft v. al-Kidd, 563 U.S.

731, 741 (2011). Unlike in Atkinson, where prison officials

gave no reason for declining to move the prisoner, 316 F.3d at

259–61, prison officials here were confronted with competing

institutional concerns. As Rivera admitted: (1) prison protocol

puts all normal restricted housing unit procedures on pause

while prison officials are preparing to forcibly extract a

prisoner, see App. 93; and (2) all prisoners ordinarily have to

be escorted everywhere in the restricted housing unit by at least

two officers per prisoner, see App. 88. Rivera emphasizes that

“there is no prison policy or procedure that precluded any of

the [prison officials] from returning him to his cell prior to their

us[e] of [pepper] spray.” App. 123. Even if true, Atkinson sheds

no light on how prison officials should prioritize conflicting

penological interests. So Atkinson did not clearly establish that

7

reasonable prison officials in this case would have known that

their decision to focus exclusively on Miller’s extraction

violated Rivera’s Eighth Amendment rights.

None of the other cases Rivera cites fares any better in

showing that the Eighth Amendment violation alleged here

was clearly established. For example, in Clement v. Gomez, the

Ninth Circuit reasoned that a “fail[ure] to institute adequate

prison policies for minimizing the effects of pepper spray on

bystander inmates” “may lead to liability”—if “‘in light of the

duties assigned to specific officers or employees, the need for

more or different training is obvious, and the inadequacy so

likely to result in violations of constitutional rights, that the

policy-makers . . . can reasonably be said to have been

deliberately indifferent to the need.’” 298 F.3d 898, 905 (9th

Cir. 2002) (emphasis added) (quoting City of Canton v. Harris,

489 U.S. 378, 390 (1989)). Even if Clement alone sufficed to

constitute “a robust consensus of cases of persuasive authority”

in our sister circuits, Clark, 55 F.4th at 181, the alleged Eighth

Amendment violation here does not implicate the training of

prison officials. Clement is thus inapposite. And out-of-circuit

cases showing that the use of pepper spray satisfies the

objective component of the Eighth Amendment deliberate

indifference framework fail for the same reason as Atkinson:

they do not address whether prison officials violate

constitutional rights when they prioritize the health and safety

of one prisoner over another. See Rivera Br. 35 (citing, for

example, Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010),

for the proposition that “where chemical agents are used

unnecessarily, without penological justification, . . . that use

8

satisfies the Eighth Amendment’s objective harm

requirement”).

Finally, while we may “take into account district court

cases, from within the Third Circuit or elsewhere,” Peroza-

Benitez, 994 F.3d at 165–66, the district court cases Rivera

cites do not help him. For example, in Roberts v. Luther, the

district court concluded that the plaintiff “had a clearly

established right, protected by the Eighth Amendment, to be

free from the use of ‘massively excessive’ amounts of [pepper]

spray designed to inflict unnecessary pain.” 2021 WL

5233318, *7 (M.D. Pa. Nov. 10, 2021) (emphasis added).

Rivera does not make that claim here, nor could he on the facts

of the case. We thus agree with the District Court that the

caselaw “is not such that ‘every reasonable official would

interpret it to establish the particular rule [Rivera] seeks to

apply.’” Rivera, 2023 WL 2139827, at *10 (quoting Wesby,

583 U.S. at 63).

C

Rivera makes two arguments in an effort to overcome

this dearth of on-point caselaw. First, Rivera cites our decision

in Beers-Capitol v. Whetzel for its proposition that “a

defendant cannot have qualified immunity if she was

deliberately indifferent.” 256 F.3d 120, 142 n.15 (3d Cir.

2001). “Although a panel of this court is bound by, and lacks

authority to overrule, a published decision of a prior panel, . . .

a panel may reevaluate a precedent in light of intervening

authority.” Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.

1996). Our reasoning in Beers-Capitol that the constitutional

merits and qualified immunity inquiries collapse into one

requires such reevaluation in light of subsequent Supreme

Court precedent. In Taylor v. Riojas, the Court evaluated

9

whether a “reasonable correctional officer could have

concluded that . . . it was constitutionally permissible to house

Taylor in . . . deplorably unsanitary conditions” after already

determining that “at least some officers involved in Taylor’s

ordeal were deliberately indifferent to the conditions of his

cells.” 592 U.S. 7, 8–9 (2020). This decision makes clear that

courts must evaluate the constitutional merits of a claim

separate and apart from the question of whether the state actors

are entitled to qualified immunity because the law was not

clearly established.

Second, Rivera suggests that the constitutional violation

here was obvious. We disagree because the facts of this case

are far afield from cases in which we or the Supreme Court

have applied the obviousness exception. See, e.g., Taylor, 592

U.S. at 7–8 (confining an inmate in cells covered in feces);

Hope, 536 U.S. at 733–35 (handcuffing an inmate to a hitching

post for several hours without regular water or bathroom

breaks); Mack v. Yost, 63 F.4th 211, 233–34 (3d Cir. 2023)

(intentionally suppressing religious worship); Dennis v. City of

Philadelphia, 19 F.4th 279, 290 (3d Cir. 2021) (framing

criminal defendants with fabricated evidence).

* * *

The prison officials in this case faced conflicting

obligations. By choosing to forcibly extract Miller from his cell

without first returning Rivera to his cell, they knowingly

caused Rivera to suffer an asthma attack. But because that

decision was not made in derogation of clearly established law,

the officials are entitled to qualified immunity. We will affirm

the District Court’s judgment to that effect.

10