             Case: 15-14023   Date Filed: 05/02/2016   Page: 1 of 15


                                                        [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-14023
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 2:12-cv-00488-SPC-MRM

STEPHEN MCNEELEY,

                                                Plaintiff - Appellee,

versus

NORMAN WILSON,
Lieutenant,
SERGIO BERTUZZI,
Corporal,
ANTHONY FENECH,
Deputy,
NICHOLAS RISI,
Deputy,
DAVID COX,
Deputy,
MARK GEYER,
Deputy,

                                                Defendants - Appellants,

JOHN DOE #1, etc., et al.,

                                                Defendants.
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                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                  (May 2, 2016)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Defendants-Appellants Norman Wilson, Sergio Bertuzzi, Anthony Fenech,

Nicholas Risi, David Cox, and Mark Geyer appeal the district court’s denial of

summary judgment on the basis of qualified immunity in favor of Stephen

McNeeley, an inmate at Charlotte County Jail in Punta Gorda, Florida. The

complaint, filed pursuant to 42 U.S.C. § 1983, alleges that the Defendants violated

McNeeley’s civil rights when they sprayed him with chemical agents, placed him

in four-point restraints for four hours without a decontamination shower, and then

returned him to his contaminated cell. Among other things, he brought an Eighth

Amendment claim based on deliberate indifference to his serious medical needs

against Bertuzzi, Fenech, Cox, Geyer, and Risi; an unlawful conditions-of-

confinement claim against Bertuzzi and Wilson; and supervisory liability against

Bertuzzi and Wilson. On appeal, the Defendants argue that the district court erred

in denying their motions for summary judgment seeking qualified immunity on




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these claims because no clearly established constitutional rights were violated.

After careful review, we affirm in part, reverse in part, and remand.1

       We review de novo a district court’s ruling on a summary judgment motion

based on qualified immunity, and resolve all issues of material fact in favor of the

plaintiff.   McCullough v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009).

Summary judgment is proper 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). “[G]enuine disputes of facts are those in which the evidence

is such that a reasonable jury could return a verdict for the non-movant.” Mann v.

Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quotation omitted). “For

factual issues to be considered genuine, they must have a real basis in the

record.” Id. (quotation omitted). “[M]ere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005).

       The relevant facts -- at the summary judgment stage -- are these. McNeeley

has been incarcerated in various Florida prisons since 1999. McNeeley was at the

Charlotte County Jail in September 2008 when the incidents at issue occurred. On

September 5 and 6, McNeeley complained several times to corrections officers that
1
 McNeeley also moved to dismiss this appeal for lack of jurisdiction, but an eariler panel of this
Court disagreed. After further review, our holding remains the same. Because the district
court’s order denying the Defendants’ motions for summary judgment on qualified immunity
grounds rests in part on conclusions of law, the order is immediately appealable under the
collateral order doctrine.
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next-door inmate Bruce Swartz (or Schwartz) was creating a noise disturbance by

screaming and beating on the walls. When McNeeley was told Swartz would not

be relocated to a different cell, he papered his cell window and kicked on his cell

door in an attempt to force a meeting with Corporal Bertuzzi, the jail’s daytime

watch commander. In response, Bertuzzi went to McNeeley’s cell on September 7

with Deputies Fenech, Cox, and Risi. Bertuzzi and Fenech brought canisters of

chemical agents. At least three canisters were sprayed into McNeeley’s food port,

which he attempted to block with his sleeping pad. Risi thrust a broomstick

through the food port to clear the mattress pad and struck McNeeley’s wrist, and

part of the broomstick broke off inside McNeeley’s cell. After the mattress pad

was pulled out through the food port, McNeeley continued to disobey demands by

the officers to slide his hands through the food slot for handcuffing and to give

back the broomstick, and Fenech continued to spray chemical agents.

      About one hour after the initial spraying, a Corrections Emergency Response

Team (CERT) extracted McNeeley from his cell and bound him in a four-point

restraint chair in the jail’s recreation yard. Defendants Geyer and Risi were on the

CERT team, and Wilson was the watch commander at the time. The CERT team

denied requests by McNeeley to decontaminate, and bound his wrists so tightly

that he began to lose circulation. The nurse on duty ordered the restraints loosened

after approximately one hour. She later testified she was worried and upset about


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injuries to McNeeley’s right hand. No other inmate that she was aware of had ever

been restrained for so long after being pepper sprayed. McNeeley complained that

he was having extreme difficulty breathing, his skin was burning, and his eyes

were red; the nurse testified that “[h]e was tearing and his eyes were red . . . [a]nd

he said his skin was burning.” After about three hours in the restraint chair,

McNeeley was allowed to shower for approximately five to ten minutes. Then he

was returned to his cell, which he asserts had not been decontaminated. He

continued to seek medical attention up to three months after the spraying for

cracked and peeling skin and his injured wrist. He also continued to write medical

requests complaining that his eyes were bothering him.

      Section 1983 supplies a remedy to a plaintiff “who can prove that a person

acting under color of state law committed an act that deprived [him] of some right,

privilege, or immunity protected by the Constitution or laws of the United States.”

Hale v. Tallapoosa, 50 F.3d 1579, 1582 (11th Cir. 1995). Even if a plaintiff can

make out the elements of a section 1983 claim, government officials may raise

qualified immunity as an affirmative defense. Qualified immunity shields

government officials sued in their individual capacities from liability against a

plaintiff’s § 1983 claims if the officials’ conduct did not “violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010)


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(quotation omitted). “The initial inquiry in a qualified immunity case is whether

the public official proves ‘that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.’” Id. at 1254 n.19 (quoting

Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). If so, the court must

ascertain: (1) “whether the plaintiff’s allegations, if true, establish a constitutional

violation”; and (2) “whether the right violated was ‘clearly established.’” Id. at

1254.    That right may be established by “specific statutory or constitutional

provisions; principles of law enunciated in relevant decisions; and factually similar

cases already decided by state and federal courts in the relevant jurisdiction.”

Goebert v. Lee Cty., 510 F.3d 1312, 1330 (11th Cir. 2007). The courts are

“afforded the flexibility to determine that the right allegedly violated was not

clearly established without deciding whether a constitutional violation occurred at

all.” Maddox v. Stephens, 727 F.3d 1109, 1121 (11th Cir. 2013).

        For starters, the Defendants were acting within the scope of their

discretionary authority when the incidents took place. “To determine whether an

official was engaged in a discretionary function, we consider whether the acts the

official undertook ‘are of a type that fell within the employee’s job

responsibilities.’” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.

2004) (quotation omitted). In applying this test, “we look to the general nature of

the defendant’s action, temporarily putting aside the fact that it may have been


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committed for an unconstitutional purpose, in an unconstitutional manner, to an

unconstitutional extent, or under constitutionally inappropriate circumstances.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004).

Because there is no genuine issue of material fact concerning whether inmate

discipline and control is a primary job responsibility for the Defendants, we agree

that their acts -- regardless of whether these acts were improper -- were well within

the scope of their discretionary authority.

      We next turn to the Defendants’ argument that the district court erred in

denying them summary judgment on their qualified immunity defense to

McNeeley’s deliberate indifference claim. A plaintiff inmate may state an Eighth

Amendment claim by challenging either: (1) the deliberate indifference to serious

medical need; (2) the specific conditions of confinement; or (3) the excessive use

of force. Thomas v. Bryant, 614 F.3d 1288, 1303 (11th Cir. 2010). “A serious

medical 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.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1307

(11th Cir. 2009) (quotation omitted). A serious medical need may also be found

when the need is worsened by a delay in treatment. Id. Either way, the medical

need must be one that, if left unattended, poses a substantial risk of serious harm.

Id. Deliberate indifference requires a showing of subjective knowledge of a risk of


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serious harm and disregard of that risk by conduct that is more than gross

negligence. Danley v. Allen, 540 F.3d 1298, 1312 (11th Cir. 2008), overruled in

part on other grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).

      In Danley, the plaintiff alleged deliberate indifference to a serious medical

need based on the defendant jailers’ refusal to decontaminate him after spraying

him with chemical agents. Danley claimed that the jailers had sprayed him at close

range for three to five seconds in the doorway of a small, poorly ventilated cell,

and pushed him into that small cell for about twenty minutes, while he screamed he

could not breath and the jailers laughed at him. Id. at 1304. The jailers then

allowed him a two-minute shower and returned him to a group cell, which was also

insufficiently ventilated.   Id.    Danley alleged that he had suffered chemical

conjunctivitis and bronchospasms because of the delay in treatment. Id. at 1305.

      In holding that the plaintiff had stated a claim, we stressed that “[t]he serious

medical needs Danley alleges . . . are the effects of prolonged exposure to pepper

spray with inadequate decontamination and poor ventilation, not the immediate

effects of the pepper spray.” Id. at 1311. As for deliberate indifference, we said

that “[t]he allegations in the complaint are that the jailers took only ineffective

measures to remedy the need and then mocked Danley and ignored his pleas for

help.” Id. at 1313. We also noted that the jailers allowed Danley only a two-

minute decontamination shower, while the jail’s own policy required a fifteen-


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minute shower in order to ameliorate the effects of the spray.            Id. at 1312.

Concluding that Danley had stated a clearly established serious medical need and

the jailers’ deliberate indifference, we stated simply that “the jailers forced Danley

to wait for too long before allowing him to shower,” which resulted in needless

pain, breathing problems, and inflamed eyes. Id. at 1311.

      Here, McNeeley put forth evidence to suggest that he had been sprayed a

substantial amount by one of the officers who taunted him by saying, “I drowned

your ass in hotsauce didn’t I,” and, “Burn motherf---er burn.” There was also

evidence that when the CERT officers -- Geyer and Risi -- extracted him from his

cell and bound him in a four-point restraint chair, they refused to allow him to

decontaminate even though he complained that he was having extreme difficulty

breathing, his skin was burning, and his eyes were red. At that point, about an

hour had passed since the spraying, and McNeeley was complaining about its

effects. Corporal Bertuzzi was not on the CERT team, but admitted that he

photographed McNeeley being put into the restraint chair. About four hours after

being sprayed, McNeeley was allowed to shower for approximately five to ten

minutes. When returned to his cell, which he says had not been decontaminated,

he continued to complain about his eyes for some amount of time and to seek

medical attention up to three months for cracked, peeling skin and a wrist injury.




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         This Court said 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 proper

decontamination violated a clearly established right because existent “general legal

principles” were enough to clearly establish the right. 540 F.3d at 1313. Here, the

record contains evidence that Corporal Bertuzzi and Deputies Risi and Geyer knew

that McNeeley had been pepper-sprayed; heard his complaints while he was being

put into the restraint chair; and were aware that he was not allowed to

decontaminate his person for four hours. Even if McNeeley was able to partially

self-decontaminate in his cell by putting water on his eyes, Danley noted that a

two-minute shower could be insufficient for decontamination -- especially here,

where McNeeley continued to complain loudly about an hour later when they were

restraining him. Moreover, although the Defendants point to evidence that his skin

and wrist issues are unrelated to the September 7 incident, there is also evidence

suggesting otherwise.         Thus, based on Danley, Defendants Bertuzzi, Risi and

Geyer were on notice that delaying a proper decontamination for over twenty

minutes despite complaints about the effects of pepper spray could result in a

clearly established constitutional violation.            The district court did not err in

denying them qualified immunity at the summary judgment stage on McNeeley’s

deliberate indifference claim. 2


2
    To the extent the Defendants dispute McNeeley’s complaints about his mental illness and his
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       As for Deputies Fenech and Cox, however, there is no evidence that they

witnessed McNeeley being put into the restraint chair, or that they were otherwise

aware of his requests for decontamination. Danley emphasized that the jailers

there laughed while the plaintiff complained about the effects of pepper spray, and

ignored his pleas for help. We cannot say that it is clearly established under the

law that officers who apply pepper spray to an inmate, do not hear his complaints,

and are not around while he is being denied decontamination can be held liable for

deliberate indifference. We, therefore, reverse the denial of summary judgment for

Fenech and Cox on McNeeley’s deliberate indifference claim.

       While we agree that summary judgment was properly denied for certain

Defendants on McNeeley’s deliberate indifference claim, we cannot say the same

for his conditions-of-confinement claim against Lieutenant Wilson and Corporal

Bertuzzi. To challenge the conditions of confinement, a prisoner must make “an

objective showing of a deprivation or injury that is sufficiently serious to constitute

a denial of the minimal civilized measure of life’s necessities and a subjective

showing that the official had a sufficiently culpable state of mind.” Thomas, 614

F.3d at 1303 (11th Cir. 2010) (quotation omitted).                   The plaintiff must show

“extreme deprivations” and the deliberate indifference of the defendants.                           Id.



injured wrist, we do not read his brief as raising these issues as separate claims; rather, he
appears to argue that his mental illness and wrist injury exacerbated the effects of the delay in
decontamination.
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McNeeley’s conditions-of-confinement claim is based on: (1) the failure to protect

McNeeley from “noise torture” caused by inmate Swartz in light of McNeeley’s

mental illness; (2) the failure to decontaminate McNeeley before restraining him in

the chair; (3) the failure to decontaminate his cell; (4) McNeeley’s placement in a

contaminated cell for days; and (5) the delay in providing medical treatment.

         Here, the district court erred in denying Defendants Wilson and Bertuzzi

summary judgment on their qualified immunity defense to McNeeley’s conditions-

of-confinement claim. Unlike in Danley, McNeeley was not restrained in the cell

in which he had been pepper-sprayed; rather, he was moved to the yard when he

was placed in the restraint chair. While he claims that the cell in which he was

sprayed -- and later returned to -- was never decontaminated, it is undisputed that

several hours had passed since he was sprayed, and he does not say -- as in Danley

-- that the cell was poorly ventilated. Nor does McNeeley say that he actually

complained to the officers about the effects of the pepper spray on him before he

was placed in the restraint chair.        Moreover, Danley involved deliberate

indifference and excessive force claims; not conditions of confinement. It even

goes so far as to suggest that failing to decontaminate a cell, or the prisoner

himself, from pepper spray would not constitute a conditions-of-confinement

claim.     Danley, 540 F.3d at 1308-09 (“[S]ubjecting a prisoner to special

confinement that causes him to suffer increased effects of environmental


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conditions -- here, the pepper spray lingering in the air and on him -- can constitute

excessive force. This circumstance is to be distinguished from environmental

conditions that generally affect the inmates in the jail, which are analyzed as

conditions of confinement claims.”) (citations omitted). In any event, McNeeley

cites no law clearly establishing a conditions-of-confinement claim based on the

failure to decontaminate the prisoner or his cell from pepper spray.

      Nor, moreover, does he offer any law clearly establishing a conditions-of-

confinement claim based on “noise torture.” Rather, the very case he cites disputes

this notion. See Hargrove v. Henderson, 1996 WL 467516, at *8 n.4 (M.D. Fla.

Aug. 13, 1996), aff’d, 124 F.3d 221 (11th Cir. 1997) (“Since there is no clearcut

standard delineating permissible levels of noise in the prison setting, the law in this

area is not clearly established.”). As a result, we are compelled to reverse the

denial of qualified immunity at the summary judgment stage for Wilson and

Bertuzzi on the conditions-of-confinement claim.

      Finally, we are unpersuaded by Lieutenant Wilson and Corporal Bertuzzi’s

argument that the district court erred in denying them summary judgment on their

qualified immunity defense to the supervisory liability claim. “[S]upervisors are

liable under § 1983 either when the supervisor personally participates in the

alleged constitutional violation or when there is a causal connection between

actions of the supervising official and the alleged constitutional violation.”


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Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (quotation omitted).

“A causal connection can be established by, inter alia, facts which support an

inference that the supervisor directed the subordinates to act unlawfully or knew

that the subordinates would act unlawfully and failed to stop them from doing so.”

Id. (quotation omitted). Here, there is evidence in the record that both Bertuzzi and

Wilson knew McNeeley had been sprayed with pepper spray; both were present an

hour later when he was put in the four-point restraints chair, and complaining

about the effects of pepper spray; and neither did anything to allow him proper

decontamination. The Defendants also admit in the reply brief that Lieutenant

Wilson knew McNeeley was being held in the chair without a decontamination

shower for several hours after being sprayed with chemical agents. Danley clearly

established that these allegations articulate an Eighth Amendment violation, and

thus Lieutenant Wilson and Corporal Bertuzzi were not entitled to summary

judgment on the supervisory liability claim.

      In short, we affirm the district court’s denial of summary judgment for

Bertuzzi, Risi and Geyer on the deliberate indifference claim, and affirm the

district court’s denial of summary judgment for Wilson and Bertuzzi on the

supervisory liability claim. However, we reverse the denial of summary judgment

for Fenech and Cox on the deliberate indifference claim, reverse the denial of




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summary judgment for Wilson and Bertuzzi on the conditions-of-confinement

claim, and remand for further proceedings consistent with this opinion.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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