                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________           FILED
                                                        U.S. COURT OF APPEALS
                                     No. 09-11473         ELEVENTH CIRCUIT
                                                              APRIL 8, 2010
                               ________________________
                                                               JOHN LEY
                                                                CLERK
                         D. C. Docket No. 07-00946-CV-5-VEH

ALIREZA A. NASSERI,


                                                                          Plaintiff-Appellant,

                                             versus

CITY OF ATHENS, ALABAMA,
FRED MILLWARD,
WESLEY LITTLE,

                                                                       Defendants-Appellees.


                               ________________________

                       Appeal from the United States District Court
                          for the Northern District of Alabama
                             _________________________
                                     (April 8, 2010)

Before HULL, WILSON and FARRIS,* Circuit Judges.

PER CURIAM:

       *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
       Alireza Nasseri appeals the district court’s order granting qualified immunity

at summary judgment for Defendants Fred Millward and Wesley Little in an action

brought pursuant to 42 U.S.C. § 1983 alleging violations of the Fourteenth

Amendment, including excessive force and deliberate indifference to serious

medical needs.1 We reverse in part on the excessive force claim and reverse on the

deliberate indifference claim.

       We review the district court’s grant of summary judgment de novo. Mann v.

Taser Intern, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009). Summary judgment is

appropriate when “there is no genuine issue as to any material fact and the moving

party is entitled to a judgment as a matter of law.” Oliver v. Fiorino, 586 F.3d 898,

904 (11th Cir. 2009). We consider “all the facts and reasonable inferences in the

light most favorable to the non-moving party.” Mann, 588 F.3d at 1303.

I.     Excessive Force Claims

       Nasseri first claims that Officer Little’s use of pepper spray was excessive

force. We review Nasseri’s claim under the Fourteenth Amendment.2 An


       1
         Nasseri does not challenge the district court’s grant of summary judgment for the City
of Athens.
       2
          We have indicated previously “the precise point at which a seizure ends (for purposes
of Fourth Amendment coverage) and at which pretrial detention begins (governed until a
conviction by the Fourteenth Amendment) is not settled in this Circuit.” Hicks v. Moore, 422
F.3d 1246, 1253 n.7 (11th Cir. 2005). However, Nasseri filed his claim solely under the
Fourteenth Amendment, specifically identified himself as a pre-trial detainee, and indicated that

                                                2
excessive force claim under the Fourteenth Amendment requires application of the

same standard as under the Eighth Amendment. Danley v. Allen, 540 F.3d 1298,

1306 (11th Cir. 2008). The test is whether the use of force “shocks the conscience

and it necessarily will if the force was applied . . . maliciously and sadistically for

the very purpose of causing harm.” Id. at 1307 (citations and quotations omitted).

We consider five factors under the “shocks the conscience” test, as set forth in

Whitley v. Albers, 475 U.S. 312 (1986):

       (1) the need for force; (2) the relationship between that need and the
       amount of force used; and (3) the extent of the resulting injury. In
       addition to those three factors we consider as fourth and fifth factors
       “the extent of the threat to the safety of staff and inmates, as
       reasonably perceived by the responsible official on the basis of facts
       known to them, and any efforts made to temper the severity of a
       forceful response.”


Danley, 540 F.3d at 1307 (citing and quoting Whitley, 475 U.S. at 321, 106

S. Ct. at 1085).

       We have indicated previously that under the third factor, the initial use of

pepper spray is not necessarily a constitutional violation. See id. at 1308. The

initial use of pepper spray does not cause any substantial or long-lasting injury and



the constitutional violation was for cruel and unusual punishment. Nasseri first attempted to
assert a Fourth Amendment excessive force claim in his opposition to summary judgment.
However, this assertion was too late, and we consider the claim only under the Fourteenth
Amendment. See Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004).

                                              3
may be “‘a very reasonable alternative to escalating a physical struggle.’” Id.

(quoting Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002)). The extent of

injury is only one factor in a Fourteenth Amendment excessive force claim and is

not dispositive. See Wilkins v. Gaddy, __ U.S. __, 130 S. Ct. 1175, __ (2010).3

       Taken in the light most-favorable to Nasseri, the facts in this case are that

Nasseri was handcuffed, with his hands behind his back, and seated in a chair in

the booking room at the jail. Three officers and approximately 11-12 inmates were

present at the jail. Defendant Millward went to discuss charges with Shelnutt, an

arrestee in a room adjacent to the booking room where Nasseri was sitting in

handcuffs. Shelnutt attacked Millward. Non-defendant officer Wesley Jarrett,

who was at the time in the booking room with Plaintiff Nasseri, moved to assist

Millward in the other room. As Jarrett went to assist Millward, arrestee Solomon,

who also was in the booking room with Plaintiff Nasseri, attacked Officer Jarrett

from behind. Little was in the adjacent dispatch room during these two

altercations, and he heard the fight in the booking room between Officer Jarrett and

arrestee Solomon. Little came to the booking room, found Jarrett and Solomon

struggling with each other on the floor, and sprayed Solomon with a burst of



       3
        “An inmate who is gratuitously beaten by guards does not lose his ability to pursue an
excessive force claim merely because he has the good fortune to escape without serious injury.”
Wilkins, 130 S. Ct. at __.

                                               4
pepper spray. Nasseri, then only a few feet away from Jarrett and Solomon, told

Little to “stop that mess.” According to Nasseri, Little took a few steps toward

Nasseri and sprayed him in the face from a close distance with pepper spray,

telling Nasseri to “shut up.”4

          If there were nothing before us but this initial use of pepper spray, we would

conclude that Nasseri has failed to show that Little acted maliciously and

sadistically to cause Nasseri harm, and thus there would be no Fourteenth

Amendment excessive force violation. See Danley, 540 F.3d at 1307. Little was

permitted to use some force in controlling the situation and preventing it from

escalating. While in hindsight it may not appear that use of pepper spray against

Nasseri was required, Little’s one-time use of pepper spray in this context does not

shock the conscience. The district court correctly granted qualified immunity to

Little.

          What happened next, however, when added to the initial pepper spray, states

a Fourteenth Amendment claim for excessive force against Millward. After

Defendant Little sprayed Nasseri and Solomon, ambient pepper spray

contaminated the rest of the jail. Defendant Millward and Officer Jarrett evacuated

all detainees and prisoners, including Nasseri, from the jail in order to wait for the


          4
              Little denies being aware of Nasseri and denies spraying Nasseri with pepper spray.

                                                     5
air to clear. Defendant Millward placed Nasseri in the back of a patrol car while all

of the other approximately 11-12 inmates were placed outside standing against the

wall of the jail. Once outside, the officers permitted the other detainees to

decontaminate themselves from the pepper spray, including allowing them fresh air

and access to running water (a hose outside) to use on their faces. The record does

not reflect that the other detainees, who, except for Solomon and Shelnutt, were

unsecured, caused any commotion outside the jail or threatened the officers.

      After Millward placed the choking and gasping Nasseri in the patrol car,

Nasseri tried to stick his head through an eight to ten inch opening in a rear

window of the car and yelled for medical help. Millward heard Nasseri yelling

and returned to the car twice; at one point, Millward closed the window that

separates the front and rear portions of the patrol car. Nasseri called for help

throughout the time that he was in the vehicle, stating that he could not breathe.

Although Millward claims he did not know Nasseri had been subjected to pepper

spray, Nasseri states Millward did know. Nasseri remained in the car for around an

hour and was never permitted to decontaminate. When Nasseri was later removed

from the car, he repeatedly complained to Millward of breathing problems and

requested medical care during the booking process, but Millward did not provide

it. Nasseri claims he has since developed Reactive Airway Dysfunction Syndrome


                                           6
(RADS), more likely than not from his prolonged exposure to pepper spray.

      In Danley, this Court construed a similar factual claim as alleging both an

excessive force claim and a deliberate indifference claim, applying different

standards for each. Danley, 540 F.3d at 1306-07. The Danley Court reasoned that

although a jailer’s initial use of pepper spray on a pretrial detainee would not have

been excessive force standing alone, the use of pepper spray coupled with a 20-

minute confinement in a small poorly-ventilated cell without decontamination

violated the fifth Whitley factor of whether jailers “temper[ed] the severity of

[their] forceful response.” Id. at 1308. The Court held that confinement without

decontamination constituted a “single course of conduct” inseparable from the

initial use of pepper spray, which was excessive force under the Whitley test. Id. at

1307-09.

      Under Nasseri’s version of events, Officer Millward’s continued

confinement of him in an unventilated patrol car without decontamination

constituted excessive force. Under this version, after being sprayed, Nasseri was

cooperating, was not posing a threat to himself, the officers, or other detainees, and

repeatedly cried out for medical help. Although Little’s initial use of pepper spray

does not “shock the conscience,” there was no need to then confine Nasseri in a

poorly-ventilated car for an hour without decontamination. It is excessive force for


                                           7
a jailer to continue using force against a prisoner who already has been subdued.

Danley, 540 F.3d at 1309. That is what Nasseri describes in this case. The district

court accordingly erred in granting qualified immunity to Millward on Nasseri’s

excessive force claim. Nasseri stated a constitutional violation, and, as the Court

reiterated in Danley, Nasseri is not required also to show violation of a clearly

established right for his Fourteenth Amendment excessive force claim.5

II.    Deliberate Indifference Claim

       Nasseri also claims that Millward ignored his request for medical attention

after being sprayed by Little and that this was deliberate indifference to a serious

medical need. Deliberate indifference to a prisoner’s medical needs violates the

Eighth Amendment. Pretrial detainees are afforded the same protections as

prisoners, except that a pretrial detainee brings a deliberate indifference claim via

the Fourteenth Amendment. Id. at 1310. To prove deliberate indifference, a

plaintiff must show: (1) a serious medical need; (2) the defendant’s deliberate

indifference to that need; and (3) causation between that indifference and the

plaintiff's injury. Id. (citing Goebert v. Lee County, 510 F.3d 1312, 1326 (11th Cir.

2007)).


       5
        The Court stated that “there is no room for qualified immunity” in a Fourteenth
Amendment excessive force case because the conduct required is so extreme that no reasonable
person could believe it was lawful. Danley, 540 F.3d at 1310.

                                              8
A.     Serious Medical Need

       There are two ways to prove serious medical need. Id. One is if delay in

treating the condition worsens it, and the other is if the need “is one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that

even a lay person would easily recognize the necessity for a doctor's attention.” Id.

at 1310-11 (quotations omitted). Both tests apply in this case. Under the first test,

Nasseri claims he would not have suffered the long-term injury he alleges if he had

been allowed to decontaminate immediately. See id. at 1310. Under the second

test, Nasseri had watering eyes, was coughing, had difficulty breathing, and was

spitting blood. All of this would have been so obvious that even a lay person such

as Officer Millward would easily have recognized the necessity for a doctor’s

attention. See id. at 1310-11.

B.     Deliberate Indifference to Need

       To meet the second element, Nasseri must prove “(1) subjective knowledge

of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than

[gross] negligence.”6 Id. at 1312 (quotation omitted, alteration in original).

       6
         It is argued that there is an intra-circuit split concerning whether the third prong of this
standard should be “more than mere negligence” or “more than [gross] negligence.” Compare,
e.g., Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004), and Mann v. Taser Int’l, 588 F.3d
1291, 1307 (11th Cir. 2009), with Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (per
curiam), and Goebert v. Lee County, 510 F.3d 1312, 1326–27 (11th Cir. 2007). However, this is
not at issue in this case, as Nasseri meets the “more than gross negligence” standard.

                                                  9
      Looking to the first prong of this subjective test, and reading the evidence in

the light most favorable to Nasseri, Millward knew there was a risk of serious harm

to Nasseri. Nasseri had been choking and gagging and spitting blood. Pepper

spray was visible on Nasseri’s face. Millward also allowed all the other prisoners

to decontaminate, including Solomon and Shelnutt. Millward must have known

that Nasseri was exposed to pepper spray and should have allowed Nasseri to

decontaminate.

      Nasseri meets the second prong as well. While Nasseri was in the car,

Millward disregarded the risk when he did not allow Nasseri to decontaminate

himself. He also disregarded the risk by not allowing Nasseri to seek medical

attention.

      Turning to the third prong, “‘[w]hen prison guards ignore without

explanation a prisoner's serious medical condition that is known or obvious to

them, the trier of fact may infer deliberate indifference.’” Id. (quoting Bozeman v.

Orum, 422 F.3d 1265, 1273 (11th Cir. 2005)). Here, Millward’s explanation was

that he did not decontaminate Nasseri because he did not believe Nasseri was

sprayed directly and did not know Nasseri was yelling in the car because of his

exposure to pepper spray. Under Nasseri’s version of events, Millward knew that

Nasseri and the other detainees had been exposed to pepper spray. Millward


                                         10
permitted all other detainees, including the violent Solomon and Shelnutt, to

decontaminate, yet he ignored without plausible explanation Nasseri’s known

exposure to pepper spray. The district court indicated that because Millward faced

a chaotic and unusual situation outside the jail he had a legitimate reason for

ignoring Nasseri. However, the record does not support this characterization, and a

trier of fact could properly find no chaotic and unusual situation existed outside the

jail. Taken in the light most favorable to Nasseri, a fact finder could infer that

Millward ignored Nasseri’s medical condition without explanation.

C.    Causation

      The third element of the deliberate indifference test is also met. In the light

most favorable to Nasseri, the facts show that Millward’s failure to decontaminate

Nasseri and provide Nasseri with medical treatment led to Nasseri’s claimed

development of RADS

D.    Qualified Immunity

        Millward nonetheless argues that he is entitled to qualified immunity on

Nasseri’s deliberate indifference claim. He attempts to distinguish Danley by

arguing that Millward did not mock Nasseri, was focused on the other prisoners,

and the situation was chaotic. Danley states that “when jailers are aware of serious

medical needs they may not ignore them or provide grossly inadequate care.”

                                           11
Danley, 540 F.3d at 1313. The Danley Court concluded that qualified immunity

did not apply in that situation. As Nasseri has established that Millward was aware

of his serious medical need and ignored it, Nasseri has stated a violation of his

Fourteenth Amendment rights.

       Nasseri also has shown that Millward violated a right that was clearly

established.7 The Court stated in Danley that after a detainee was quieted by

pepper spray and was no longer a disruption or threat, a jailer’s refusal to permit

decontamination for 20 minutes after use of pepper spray violated a clearly

established right because existent “general legal principles” were enough to clearly

establish the right. Danley, 540 F.3d at 1313.

       The district court accordingly erred in granting qualified immunity to

Millward on Nasseri’s excessive force and deliberate indifference claims. The

district court correctly granted qualified immunity to Little.

       AFFIRMED in part, REVERSED and REMANDED in part for further

proceedings.




       7
         Unlike Fourteenth Amendment excessive force claims, a defendant in a Fourteenth
Amendment deliberate indifference claim may assert qualified immunity if the right alleged to
be violated was not clearly established. See id. at 1313 (analyzing Fourteenth Amendment
deliberate indifference claim, requiring plaintiff to show the violation of a clearly established
right, and concluding the “general legal principles announced by our decisions in this area of law
are enough to make the right violated clearly established”).

                                                12
