IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                   January 2019 Term

                                                           FILED
                                                       March 25, 2019
                      No. 17-0327                          released at 3:00 p.m.
                                                       EDYTHE NASH GAISER, CLERK
                                                       SUPREME COURT OF APPEALS
                                                            OF WEST VIRGINIA



  DAVID BALLARD, KEVIN MCCOURT, JESS MATTOX,
              AND HOBERT ALLEN,
            Defendants Below, Petitioners

                           v.

             MIGUEL ANGEL DELGADO,
              Plaintiff Below, Respondent


     Appeal from the Circuit Court of Kanawha County
            The Honorable Joanna Tabit, Judge
               Civil Action No. 15-C-1885

                      AFFIRMED


                         AND



                      No. 17-0328




  DAVID BALLARD, KEVIN MCCOURT, JESS MATTOX,
              AND HOBERT ALLEN,
            Defendants Below, Petitioners

                           v.
                            MIGUEL ANGEL DELGADO,
                             Plaintiff Below, Respondent


                   Appeal from the Circuit Court of Kanawha County
                            Honorable Joanna Tabit, Judge
                             Civil Action No. 15-C-1885

                                      AFFIRMED


                               Submitted: January 8, 2019
                                 Filed: March 25, 2019



John P. Fuller, Esq.                                  Lydia C. Milnes, Esq.
Betsy L. Stewart, Esq.                                Mountain State Justice, Inc.
Michael W. Taylor, Esq.                               Clarksburg, West Virginia
Bailey & Wyant, PLLC                                  Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioners
Kevin McCourt, Jess Mattox,
and Hobert Allen

William E. Murray, Esq.
Natalie N. Matheny, Esq.
Anspach Meeks Ellenberger LLP
Charleston, West Virginia
Counsel for the Petitioner David Ballard

JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE JENKINS dissents and reserves the right to file a dissenting opinion.
                              SYLLABUS BY THE COURT



              1. “A circuit court’s denial of summary judgment that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under the

‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660

(2009).



              2. “This Court reviews de novo the denial of a motion for summary judgment,

where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm

Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).



              3. “The circuit court’s function at the summary judgment stage is not to weigh

the evidence and determine the truth of the matter, but is to determine whether there is a

genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).



              4. “The ultimate determination of whether qualified or statutory immunity bars

a civil action is one of law for the court to determine. Therefore, unless there is a bona fide

dispute as to the foundational or historical facts that underlie the immunity determination,

the ultimate questions of statutory or qualified immunity are ripe for summary disposition.”

Syl. Pt. 1, Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649 (1996).


                                               i
              5. “A circuit court’s order denying summary judgment on qualified immunity

grounds on the basis of disputed issues of material fact must contain sufficient detail to

permit meaningful appellate review. In particular, the court must identify those material facts

which are disputed by competent evidence and must provide a description of the competing

evidence or inferences therefrom giving rise to the dispute which preclude summary

disposition.” Syl. Pt. 4, W.Va. Dep’t of Health & Human Res. v. Payne, 231 W.Va. 563, 746

S.E.2d 554 (2013).



              6. “‘On a motion for summary judgment all papers of record and all matters

submitted by both parties should be considered by the court.’ Syl. Pt. 2, Aetna Cas. & Sur.

Co. v. Fed. Ins. Co. of NY, 148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. Pt. 3, Ford v.

Dickerson, 222 W.Va. 61, 662 S.E.2d 503 (2008).




                                              ii
WORKMAN, Justice:



              In these consolidated appeals, the petitioners (defendants below), David

Ballard, Warden at Mount Olive Correction Center (“MOCC”),1 and Kevin McCourt, Jess

Mattox, and Hobert Allen, correctional officers at MOCC (collectively the “petitioners”),

appeal the Circuit Court of Kanawha County’s March 9, 2017, order through which it denied

their motions for summary judgment based on qualified immunity in this excessive force

action brought under 42 United States Code §1983 (2012)2 (“§ 1983”). The circuit court

found that the petitioners were not entitled to summary judgment because there are genuine

issues of material fact concerning the excessive force, deliberate indifference, and

supervisory liability claims brought against them by the respondent (plaintiff below), Miguel

Delgado, an inmate at MOCC (“Inmate Delgado”). The circuit court further found that if it




       1
        Effective July 1, 2018, the correctional facility positions formerly designated as
“wardens” are now designated “superintendents.” See W.Va. Code § 15A-5-3 (2018 Supp.).
Mr. Ballard is no longer the superintendent at MOCC, however, he held the title of “warden”
at MOCC at all times relevant to the case at bar. Accordingly, we refer to Mr. Ballard herein
as “Warden Ballard.”
       2
          See 42 U.S.C. § 1983, in part (“Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .”).

                                               1
is ultimately determined that the petitioner officers violated the Eighth Amendment3 through

use of excessive force and deliberate indifference, Inmate Delgado’s tort claims were also

viable. Following our review of the briefs, the arguments of counsel, the appendix record

submitted, and the applicable law, this Court finds no reversible error and affirms the circuit

court’s denial of summary judgment based on qualified immunity grounds.



                          I. Facts and Procedural Background4

              Shortly before midnight on May 23, 2015, Nurse Joyce Coleman, accompanied

by Officers McCourt and Brandon Mooney,5 was distributing medications to prisoners in the

Quilliams II Unit (“Unit”), a segregation unit at MOCC, which is a state correctional facility

located in Mt. Olive, West Virginia.6 Medications are dispensed to inmates through what is

sometimes referred to as a “bean hole,” which is a narrow slot in the solid steel cell doors

through which food trays and medications are passed. Inmate Delgado alleges that during



       3
        U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
       4
        These factual allegations have been gleaned from the parties’ briefs and the appendix
record, which includes a partial transcript of Warden Ballard’s deposition testimony taken
on June 10, 2016, in a federal action brought by an MOCC inmate, as well as a transcript of
Inmate Delgado’s deposition taken in the instant action.
       5
         Officer Mooney is not a party to this action. There is some indication in the
appendix record that he died before this action was brought.
       6
         The Quilliams II Unit is a solitary confinement unit that houses inmates who have
been placed on administrative segregation. The parties sometime refer to the Unit as a “pod.”

                                              2
this particular “pill pass,” he repeatedly told Nurse Coleman that he had a question. When

she did not respond, he asked Officer McCourt, one of the officers accompanying Nurse

Coleman, to tell the nurse that he had a question. Inmate Delgado states that Nurse Coleman

then approached his cell door and asked, “What is it? I’m busy.” He responded that he had

a question to which she replied she was busy dealing with a thousand other inmates.

According to Inmate Delgado, after further discussion with Nurse Coleman, he became

frustrated and threatened to report her to the board of nursing, prompting her to shout the

address of the nursing board through his cell door. Inmate Delgado replied that he already

had the board’s address, adding “if you don’t care, quit your job, go home, and kill yourself.”

Officer McCourt interjected, warning Inmate Delgado that he was getting close to a “write-

up,”7 Delgado responded, “listen, I don’t care. You go home too and kill yourself.” The

officers and Nurse Coleman then left his cell door to complete the pill pass, after which they

exited the Unit.



                Inmate Delgado alleges that after Nurse Coleman and the officers left his cell

door, he lay down on his bed, put on his headphones, and listened to music. He states that

approximately ten minutes later, Officers McCourt, Mooney, and Maddox returned to his cell

door to re-engage with him. He contends that Officer Mooney told him that he was “tired

of my smart mouth and my attitude with the nurses,” that they were “fed up with it,” and that


       7
           A “write-up” appears to be a disciplinary report that is filed against an inmate.

                                               3
I was “going to get a write-up.” Inmate Delgado responded, “[w]rite it up, write it up,” after

which Officer Mooney said, “you got a smart mouth. I’m going to spray you[,]” referring

to Oleoresin Capsicum pepper spray (“OC”).8 Inmate Delgado avers that he replied, “[g]o

ahead, spray me. If that’s what you want to do, go ahead and spray me.” He then spun

around to place his lower back against the slot in his cell door to try to block the spray from

dispersing throughout his cell.9 He states that he was not quick enough, and the first spray10

went along the wall of his cell; however, the second spray struck his lower back, soaking his

clothing. Inmate Delgado contends that the rest of the Unit was quiet during this entire

incident and that the only disturbance was the one created by the correctional officers.



              Upon being sprayed with OC, Inmate Delgado states that he immediately began

to suffer from burning eyes and skin and restricted airways causing him to feel as if he could

not breathe. After deploying the OC spray, the officers closed the slot in the cell door and

departed. Inmate Delgado used the sink in his cell to splash water on his face and hands in

an attempt to lessen the burning effects of the OC spray but, within minutes, the officers shut



       8
       In written post-incident reports, the officers state that the spray they used on Inmate
Delgado was MK-9 Sabre Red Phantom OC, also referred to as “Mark IX.”
       9
          Apparently, Inmate Delgado had prior experience upon which to base his evasive
efforts as he had been sprayed with OC spray while locked in his solitary confinement cell
on five occasions.
       10
           Inmate Delgado learned through his administrative grievance concerning this
incident that it was Officer McCourt who deployed the OC spray into his cell.

                                              4
off the water to his cell. Inmate Delgado states that when he asked why his water had been

shut off, Officer Allen told him they had done it “so you won’t decontaminate yourself.”

Approximately ten minutes later, Officers McCourt, Allen, and Mattox returned to Inmate

Delgado’s cell to take him to the recreation yard for decontamination. Inmate Delgado

testified that his hands were cuffed behind his back in a twisting fashion that caused him so

much pain in his shoulder that he fell to his knees while the officers simultaneously

disregarded his protestations that they were hurting him. Other than an inmate yelling to ask

why his water had been shut off,11 Inmate Delgado states that the rest of the Unit continued

to remain quiet.



              Once they arrived in the recreation yard, Inmate Delgado states that Officer

Allen turned on the water in a large sink. When he asked how the decontamination would

proceed when he could not remove his clothing that was soaked with OC spray as he was

handcuffed, he contends that Officer Allen accused him of refusing decontamination.

Another officer told Inmate Delgado to go ahead and remove his clothing, but refused to

remove his handcuffs, at which point the officers again accused him of refusing

decontamination. Thereafter, Inmate Delgado was taken to see Nurse Coleman for a medical

evaluation.


       11
           Inmate Delgado explained that his cell in the Unit was connected to three other
cells with two on the bottom and two cells above. When the officers shut off the water to his
cell, it was shut off to all four cells.

                                             5
                Inmate Delgado states that he was seated at a table in a multipurpose room with

Officers Mattox and Allen on either side of him when Nurse Coleman approached him,

asking him what was wrong. He told her about his shoulder pain caused by the officers

twisting his arm and wrist at an awkward angle before cuffing him and that his buttocks and

back were on fire because of the pepper spray. Inmate Delgado alleges that Nurse Coleman

neither touched nor examined him but, instead, walked to the other side of the table, sat

down, and began reading a book.12 Approximately one hour after the OC spray was deployed

into his locked isolation cell, Inmate Delgado was allowed to shower. He was then returned

to his cell, which had been decontaminated.



                Offering a different account of these events, Officers McCourt and Mooney

filed incident reports in which they stated that Inmate Delgado became verbally combative

with Nurse Coleman, telling her to “go kill yourself,” but also threatening, “im [sic] going

to kill you bitch,” the latter of which Inmate Delgado denies. These officers also reported

that Inmate Delgado told them “fuck you CO”13 as they escorted Nurse Coleman away from

his cell following his verbal exchange with her. As for their reason for later returning to

Inmate Delgado’s cell, these officers reported that they did so to attempt to “deescalate” or

“calm” him. According to the reports of the petitioner officers and Officer Mooney, Inmate


       12
            Inmate Delgado did not name Nurse Coleman as a defendant in this action.
       13
            Presumably “CO” is used to refer to the correctional officers.

                                               6
Delgado ignored their multiple, loud, and clear verbal commands to cease creating a

disturbance14 that was spreading to other inmates who were yelling from within their locked

cells in the Unit, which prompted Officer Mooney to open the slot in Inmate Delgado’s

locked cell door through which Officer McCourt deployed “two one second burst[s]” of OC

spray into the cell. The officers state this “very low level” use of force was utilized to gain

Inmate Delgado’s compliance and restore order to the Unit.15 Regarding the water being

turned off to Inmate Delgado’s cell after the OC spray was deployed, Officer McCourt stated

in his Incident Report that Officers Mooney and Mattox turned off the water “[i]n order to

allow [Delgado] to deescalate[.]” Officer Mattox stated in his Incident Report that the water




       14
          The Incident Report filed by Officer Mooney stated that Inmate Delgado was
“continuously yelling and cursing.” Officer Mattox stated in his Incident Report that Inmate
Delgado was “highly agitated, yelling and cursing at Officers Mooney and McCourt” and that
other inmates in the Unit were beginning to yell. Officer McCourt indicated in his Incident
Report that Inmate Delgado was “creating a disturbance” and that “other inmates in the
[Unit] began to yell.”
       15
           The appendix record contains a copy of the West Virginia Division of Corrections
Policy Directive 312.02 (“DOC Policy Directive 312.02”), which sets forth a Force
Continuum. The Intermediate Control Tactics Soft provides that it is “a level of control used
for any level of resistance by an inmate when lower levels of control have failed” and that
this level of control “may include . . . personally carried chemical agent[.]” This Policy
Directive further provides that such chemical agent “must be employed in the manner as set
forth in the manufacturer’s recommendations” because “[a]ny deviation from those
requirements may increase the potential for injury[.]” The appendix record also contains a
copy of the instruction label for the particular OC used against Delgado. See supra note 8.
These instructions provide that the OC should not be discharged at distances of fewer than
six feet from the intended target because exposure in a closer range can cause damage to soft
body tissue, in addition to being a skin, eye, and respiratory irritant, and that decontamination
should begin “as soon as possible” after restraining the inmate.

                                               7
was shut off “due to Inmate Delgado’s prior history to prevent him from flooding his cell and

unit.”



              The petitioner officers further allege that approximately ten minutes after the

OC spray was deployed, Inmate Delgado was placed in mechanical wrist restraints and

removed from his cell at which point leg restraints were also applied. He was escorted by

Officers Mattox and Mooney to the recreation yard for decontamination where they contend

he refused decontamination. Next, Inmate Delgado was taken for medical assessment by

Nurse Coleman. Officer Mattox stated in his Incident Report that “[d]uring the medical

assessment, there were no injuries to be noted for Inmate Delgado[.]” Officer Allen stated

in a memorandum that Inmate Delgado was “medically assessed by LPN Joyce Coleman.”

Similarly, a confidential Use of Force Committee Report to Warden Ballard states that

Inmate Delgado “was medically assessed by LPN Coleman and medically cleared to return

to his cell.” Inconsistent with these reports, Nurse Coleman, the individual who was to have

performed this medical assessment, stated in her Incident Report that Inmate Delgado refused

medical assessment.



              Following Inmate Delgado’s exhaustion of his administrative remedies

concerning this incident, he filed the instant action against the petitioners seeking monetary

damages, as well as injunctive relief. See 42 U.S.C. § 1983. He asserted violations of his


                                              8
federal constitutional rights,16 including allegations that the correctional officers used

excessive force against him in violation of the Eighth Amendment. More specifically,

Inmate Delgado alleged that Officer McCourt violated his “constitutional rights to safety .

. . and to be free from cruel and unusual punishment by indiscriminately utilizing . . . OC

pepper spray, through excessive and nontrivial force against [him], as a sadistic and

malicious form of punishment, rather than adhering to clearly established law, [and] proper

disciplinary procedures[.]” He alleged the petitioner officers were “deliberately indifferent

to [his] medical need for decontamination in a manner that caused [him] an unnecessary and

wanton infliction of pain.” A claim of assault and battery was also asserted against Officer

McCourt and intentional infliction of emotional distress against the petitioner officers.



              In addition, Inmate Delgado asserted a claim of supervisory liability against

Warden Ballard.17 He alleged that Warden Ballard’s actions violated his constitutional rights

through his promulgation and implementation of policies and internal orders that exposed

him and other inmates confined in the segregation units at MOCC “to unnecessary and


       16
         Delgado also asserted claims under the Fourteenth Amendment of the United States
Constitution and the West Virginia Constitution, which he voluntarily dismissed.
       17
            The circuit court found that Inmate Delgado’s claims seeking prospective
injunctive relief against Warden Ballard in his official capacity were not subject to a
qualified immunity analysis and, therefore, “summary judgment based on qualified immunity
[did] not apply to those claims.” See Camreta v. Greene, 563 U.S. 692, 706 n.5 (2011)
(qualified immunity unavailable in actions to enjoin future conduct). This ruling is not a
subject of this appeal.

                                             9
unreasonable uses of force when such uses of force were not justified, but rather

administered as wanton forms of punishment.” In support of this claim, Inmate Delgado’s

evidence included: (1) an inmate’s inquiry concerning whether there was “martial law” in

the Quilliams Units and an MOCC lieutenant’s written response that stated:               “PER

WARDEN, MARTIAL LAW IS A CONDITION THAT MOCC UTILIZES[;]” (2) an

MOCC major’s email to prison administrators and employees on which Warden Ballard was

copied and which advised that officers “do not have to give efforts to temper to those locked

up in our Seg units[;]” (3) the testimony of an MOCC correctional officer during a

disciplinary hearing that “there’s martial law going on right now” and that “they told me that

came from the Warden[;]” and the deposition testimony of Warden Ballard in which he

confirmed that “efforts to temper are not required in the segregation . . . units.” Also, Inmate

Delgado testified during his deposition to having heard correctional officers discuss martial

law in the Quilliams Units, explaining it was his

              understanding from what the officers say, the paperwork I’ve
              seen, say we were under Martial Law and that we could be
              sprayed for any reason or for no reason at all. And that there
              was a memo that I read that the staff working in Quilliams did
              not need to temper their efforts of a forceful response meaning
              that we were - - we could be victimized by the officers at any
              time. That there was nothing we could do about it.

Inmate Delgado further testified that he and many other inmates in the segregation units were

regularly subjected to the use of OC spray for minor infractions, such as yelling through the

doors of their locked isolation cells. He maintains that the subject incident exemplifies how


                                              10
correctional officers implemented this policy of martial law “and/or the suspension of the

requirement that officers should make ‘efforts to temper’ the use of force against inmates on

the isolation units.”



              In further support of his supervisory liability claim, Inmate Delgado alleged in

his complaint, inter alia, that Warden Ballard’s directive not to give efforts to temper “was

in direct violation of clearly established law”;18 that it was objectively unreasonable and an

“unawarranted invasion” upon his clearly established rights under the Eighth Amendment;

that the MOCC policy of martial law, which permits any level of force to be used without

efforts to temper, creates a “pervasive and unreasonable risk that inmates, including

[himself], will be maliciously and sadistically harmed by the use of force for the purpose of

punishment and without regard for the need for force;” and that Warden Ballard had actual

and constructive knowledge of the numerous incidents of excessive force in the segregation

units, had approved policies and practices of martial law, and then acted with deliberate

indifference through his failure to stop the abusive and excessive uses of force.




       18
           See Whitley v. Albers, 475 U.S. 312, 321 (1986) (establishing standard for
evaluating Eighth Amendment excessive force claims arising out of prison situations and
directing courts to consider, inter alia, whether correctional officers made “any efforts [] to
temper the severity of a forceful response” in determining whether force used was excessive)
(emphasis added).

                                              11
               The petitioners filed motions for summary judgment in which they asserted

entitlement to qualified immunity from Inmate Delgado’s claims. Inmate Delgado filed

responses in opposition to the motions. During the final pretrial conference, the circuit court

fully entertained counsels’ arguments on these dispositive motions. The hearing transcript

reveals that the circuit court asked counsel several questions during the course of the hearing

concerning the parties’ conflicting factual accounts. The circuit court also confirmed its

understanding of the petitioner officers’ arguments, asking: “[Y]ou’re arguing that your

clients are entitled to qualified immunity, that these were discretionary actions, and that they

did this in good faith, and that there’s no violation of clearly established laws as it relates to

any actions that they took?” The correctional officers’ counsel responded in the affirmative.

After hearing the arguments of counsel, the circuit court stated:

               [U]nder the circumstances, I do believe that there are genuine
               issues of material fact as to whether or not there was excessive
               force.

               ••••

                      I think there are issues . . . when you look at the Whitley19
               factors to the need for the application of the force, the
               relationship between that need and the amount of force used,
               and, frankly, the threat reasonably perceived by the officials.

               ••••



       19
          In Whitley v. Albers, 475 U.S. 312 (1986), the Supreme Court established the
standard for evaluating Eighth Amendment excessive force claims in the context of prisons,
as discussed more fully infra.

                                               12
                         And I just think it’s appropriate to let those issues go
                before the jury, and I do believe that the remaining tort claims
                flow from that. I think that they’re factual issues, so they’ll go
                to the jury[.]

(Footnote added). The circuit court also concluded during the hearing that there were

disputed facts related to the supervisory liability claim against Warden Ballard, observing

that if evidence was not elicited as Inmate Delgado’s counsel anticipates, the court would “do

the appropriate thing at the directed verdict stage.”



                The circuit court directed Inmate Delgado’s counsel to prepare an order

denying the summary judgment motions. Counsel did so, submitting a proposed order to

which the petitioners objected.20 Over those objections, the circuit court entered a seventeen-

page order on March 6, 2017, denying the petitioners’ motions for summary judgment based

on qualified immunity. The circuit court found that summary judgment was improper

because the resolution of the immunity and the substantive claims were dependent upon a

determination of conflicting evidence. This appeal followed.



                                   II. Standard of Review

                We are asked to determine whether the circuit court erred in denying summary

judgment to the petitioners based on their assertion of qualified immunity. While the denial



       20
            The petitioners filed a joint motion for rehearing.

                                               13
of summary judgment is generally not subject to appellate review, we have carved out an

exception, holding that “[a] circuit court’s denial of summary judgment that is predicated on

qualified immunity is an interlocutory ruling which is subject to immediate appeal under the

‘collateral order’ doctrine.” Syl. Pt. 2, Robinson v. Pack, 223 W.Va. 828, 679 S.E.2d 660

(2009). Further, “[t]his Court reviews de novo the denial of a motion for summary judgment,

where such a ruling is properly reviewable by this Court.” Syl. Pt. 1, Findley v. State Farm

Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002). In conducting our de novo

review, we “must draw any permissible inference from the underlying facts in the light most

favorable to the party opposing the motion.” Painter v. Peavy, 192 W.Va. 189, 192, 451

S.E.2d 755, 758 (1994) (citations omitted). This matter being properly before us, the parties’

arguments will be considered against this plenary standard.



                                      III. Discussion

              In addition to challenging the denial of their dispositive motions based on

qualified immunity, the petitioners also challenge the circuit court’s order denying summary

judgment as being deficient and unsupported by the record. We consider each of these

issues, in turn, below.

                                  A. Qualified Immunity

              Inmate Delgado asserts, and the petitioners do not dispute, that federal law

controls our analysis because the claims to which qualified immunity are being asserted arise


                                             14
under federal law. Our case law makes clear this Court’s “approach to matters concerning

immunity historically has followed federal law due in large part to the need for a uniform

standard when, as in the case before us, public officers are sued in state court for violations

of federal civil rights pursuant to 42 U.S.C. § 1983.” City of Saint Albans v. Botkins, 228

W.Va. 393, 398, 719 S.E.2d 863, 868 (2011); see also Robinson, 223 W.Va. at 834, 769

S.E.2d at 666 (citation omitted) (“federal law is controlling when public officials are sued

in state court for violations of federal rights under 42 U.S.C. § 1983”). As we earlier

explained in State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992),

                     [a]nother reason for utilizing the federal law is the
              holding in Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110
              L.Ed.2d 332 (1990), that in Section 1983 litigation a state may
              not create an immunity for state officials that is greater than the
              federal immunity. The Court in Howlett pointed out that Section
              1983 suits could be brought in state courts and that under the
              Supremacy Clause, federal substantive law must be applied in
              such actions.

Chase Sec., Inc., 188 W.Va. at 359, 424 S.E.2d at 594 (footnote omitted); accord W.Va.

Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W.Va. 492, 504 n.13, 766 S.E.2d 751, 763

n.13 (2014) (citations omitted) (explaining that “nothing herein serves to supplant the federal

§ 1983 jurisprudence regarding immunity or actionable claims thereunder inasmuch as ‘in

Section 1983 litigation a state may not create an immunity for state officials that is greater

than the federal immunity.’”); see also Howlett, 496 U.S. 356 (observing that states may not

create immunity greater than federal immunity in § 1983 litigation brought in state courts);

Hutchison v. City of Huntington, 198 W.Va. 139, 152 n.17, 479 S.E.2d 649, 662 n.17 (1996)

                                              15
(“[S]tate immunity laws are not applicable to § 1983 actions.”). Accordingly, federal law

will guide our analysis in determining whether the circuit court erred in denying summary

judgment to the petitioners based on their assertion of qualified immunity.



              In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Supreme Court of the United

States addressed qualified immunity, holding that “government officials performing

discretionary functions, generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id. 818. The Supreme Court has crafted a two-part

test for courts to apply in ruling on a qualified immunity issue. The first inquiry is,

when“[t]aken in the light most favorable to the party asserting the injury, do the facts alleged

show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194,

201 (2001). If answered in the affirmative, then the second inquiry is “whether the right was

clearly established[?]”21 Id.




       21
          While these Saucier considerations remain in tact, the Supreme Court receded from
the order of this two-part analysis in Pearson v. Callahan, 555 U.S. 223 (2009). Trial courts
now have the discretion regarding the order in which these two inquiries are considered. Id.
at 236.

                                               16
                      i. Eighth Amendment Excessive Force Claims
                        Against the Petitioner Correctional Officers

                The petitioner officers assert entitlement to qualified immunity concerning

Inmate Delgado’s excessive force claims. In this regard,

                        [t]he ultimate determination of whether qualified or
                statutory immunity bars a civil action is one of law for the court
                to determine. Therefore, unless there is a bona fide dispute as
                to the foundational or historical facts that underlie the immunity
                determination, the ultimate questions of statutory or qualified
                immunity are ripe for summary disposition.

Hutchison, 198 W.Va. at 144, 479 S.E.2d at 654, syl. pt. 1. Under this standard, the

petitioner officers contend they are entitled summary judgment based on qualified immunity

because they did not violate any clearly established constitutional rights. They argue that

their use of OC spray against Inmate Delgado was a discretionary act in response to his

refusal to comply with their clear verbal commands to stop creating a disturbance that was

spreading to other cells in the Unit. More specifically, they assert that Officer McCourt

engaged in a discretionary function within his duties as a correctional officer when he

deployed OC spray into Inmate Delgado’s locked, solitary cell, and that such use is approved

as an “Intermediate Control Tactics Soft.”22 Arguing further, the petitioner officers state that

“[p]rison officials do not violate the U.S. Const. Amend. VIII whenever it appears in

retrospect that the infliction of pain during a security measure could theoretically have been

avoided” and that the question “ultimately turns on ‘whether force was applied in a good


       22
            See supra note 15.

                                               17
faith effort to maintain or restore discipline or maliciously and sadistically for the very

purpose of causing harm.’” Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (citation

omitted).



              Conversely, Inmate Delgado argues in support of the circuit court’s

determination that genuine issues of material fact exist concerning his claim of excessive

force where the officers’ version of events is directly contradicted by him and where he

offered evidence of prison policies and directives that may have contributed to the alleged

use of excessive force. Rather than a discretionary measure employed when he allegedly

failed to conform to the petitioner officers’ verbal commands, Inmate Delgado denies being

given any specific directives by the officers. Instead, he contends that he was sprayed solely

in retaliation for his admittedly rude comments to Nurse Coleman and with a malicious intent

to cause him pain, which violates his Eighth Amendment rights. He reports that Officer

Mooney told him that he was “tired of his smart mouth and attitude with the nurses” and that

“they were fed up with it” immediately prior to the OC being sprayed into his locked cell.

He further claims the officers intentionally failed to properly decontaminate him for

approximately one hour thereafter.



              Under a qualified immunity analysis, we must determine whether the petitioner

officers’ alleged conduct violated a clearly established constitutional right. Harlow, 457 U.S.


                                              18
at 818; Saucier, 533 U.S. at 201. More specific to the instant mater, we must determine

whether their use of OC spray against Inmate Delgado violated his right under the Eighth

Amendment,23 which “protects inmates from inhumane treatment and conditions while

imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “It is obduracy and

wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited

by the Cruel and Unusual Punishments Clause[.]” Whitley, 475 U.S. at 319.



                   In this regard, the Fourth Circuit “held over a decade ago that ‘[i]t is generally

recognized that it is a violation of the Eighth Amendment for prison officials to use mace,

tear gas or other chemical agents in quantities greater than necessary or for the sole purpose

of infliction of pain.’” Iko v. Shreve, 535 F.3d 225, 235 (4th Cir. 2008) (emphasis added)

(citation omitted); see also Greene v. Feaster, 733 F. App’x 80, 82 (4th Cir. 2018) (“It has

long been established that prison officials violate the Eighth Amendment by using ‘mace, tear

gas or other chemical agents in quantities greater than necessary or for the sole purpose of

infliction of pain’”) (citation omitted). Accordingly, Inmate Delgado’s right to be free from

excessive force through the use of OC spray in a manner that violates the Eighth Amendment

was clearly established for purposes of a qualified immunity analysis. See Saucier, 533 U.S.

at 201.




          23
               See supra note 3.

                                                   19
              In determining whether the petitioner officers’ deployment of OC spray against

Inmate Delgado constituted excessive force, we must examine the claim under subjective

(state of mind) and objective (seriousness of injury or deprivation) components. Id. at 238.

While the state of mind required in excessive force claims is “wantonness in the infliction

of pain[,]” Whitley, 475 U.S. at 322, the “‘core judicial inquiry’ regarding the subjective

component of 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.’” Iko, 535

F.3d at 239 (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).



              In Whitley, the United States Supreme Court discussed the factors to be

considered in conducting this core judicial inquiry in the recognition of the deference

afforded to prison administrators in the adoption of policies and practices that they

determined to be necessary to maintain discipline and institutional security. To that end, the

Supreme Court set forth factors to consider in excessive force claims, which were later

summarized in Iko, as follows:

                      The Supreme Court has set forth four non-exclusive
              factors to assist courts in assessing whether an officer has acted
              with “wantonness”: (1) “the need for the application of force”;
              (2) “the relationship between the need and the amount of force
              that was used”; (3) the extent of any reasonably perceived threat
              that the application of force was intended to quell; and (4) “any
              efforts made to temper the severity of a forceful response.”
              Whitley, 475 U.S. at 321, 106 S.Ct. 1078 (internal quotations
              omitted) (applying these factors in a prison riot case)[.]


                                             20
Iko, 535 F.3d at 239. At the time Iko was decided, the United States Supreme Court had

already extended these Whitley factors beyond prison riots to all allegations of excessive

force. See Hudson, 503 U.S. at 6-7 (“[W]e hold that whenever prison officials stand accused

of using excessive physical force in violation of the Cruel and Unusual Punishments Clause,

the core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith

effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”); see

also Mann v. Scott, No. 0:14-3474-RMG, 2015 WL 5165198, at *5 (D.S.C. Sept. 1, 2015)

(“Use of chemical munitions on prisoners may or may not constitute excessive force, and the

Whitley factors depend on the circumstances surrounding the application of the chemical

munitions and any treatment and decontamination following.”).



              While it is clear from the authorities discussed herein that the use of chemical

agents can constitute excessive force, the petitioner officers argue that under the four Whitley

factors recounted above, their use of OC spray in this instance did not constitute excessive

force. They assert that the need for the use of force, the first Whitley factor, occurred when

Inmate Delgado ignored their clear verbal commands to stop creating a disturbance.

Regarding the second Whitley factor, they argue that the amount of force used was

appropriate to the need, as it was a low level of force employed to restore order to the Unit.

They maintain that the third Whitley factor was likewise met because Inmate Delgado’s

yelling and cursing, even from within his locked isolation cell, was spreading throughout the


                                              21
Unit, which can escalate to the kicking of cell doors and can threaten prison security. They

contend the fourth Whitley factor is equally met where they first endeavored to gain Inmate

Delgado’s compliance with verbal commands.



              Conversely, Inmate Delgado argues that the officers’ conduct fails on all four

Whitley factors. He insists there was no need for any use of force because he was not posing

a threat to anyone nor was there any threat to prison security. He states that he was alone in

his locked isolation cell, lying on his bed wearing his headphones and listening to music

when the officers returned to his cell door to re-engage with him. He maintains the entire

Unit was quiet at that time, other than the disturbance being created by the officers, and that

he did not ignore clear verbal commands because none were given. Cf. Tedder v. Johnson,

527 F. App’x 269 (4th Cir. 2013) (reversing award of summary judgment in favor of

defendants on inmate’s excessive force claim where officer pepper sprayed inmate for failing

to obey order when inmate posed no threat and was complying).24 Further, regarding whether

the officers deployed the OC spray against him in retaliation and punishment for his earlier

comments to Nurse Coleman, Inmate Delgado testified that Officer Mooney told him

immediately before the OC spray was deployed that he was tired of his “‘smart mouth and

attitude with the nurses’” and “‘they were fed up with it.” See id. at 273 (reversing award



       24
         On remand, the jury found in favor of inmate Tedder, which was upheld in Tedder
v. Johnson, 583 F. App’x 276 (4th Cir. 2014).

                                              22
of summary judgment on inmate’s excessive force claim where officer’s verbal statements

showed malicious intent); Orem v. Rephann, 523 F.3d 442, 447 (4th Cir. 2008), abrogated

on other grounds by Estate of Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d

89 (4th Cir. 2016) (observing that evidence of defendant’s motives is relevant to subjective

component of excessive force claim).



              Turning to the objective component of an excessive force claim, which looks

to the deprivation suffered or injury inflicted, the Iko court explained that “[a]n injury is

sufficiently serious for purposes of the objective component of an Eighth Amendment

excessive force claim as long as it rises above the level of de minimus harm. Hudson, 503

U.S. at 9-10, 112 S.Ct. 995 (rejecting argument that ‘minor’ injuries are not actionable).”

Iko, 535 F.3d at 238; see also Hudson, 503 U.S. at 13 (Blackmun, J., concurring in the

judgment) (“The Court today appropriately puts to rest a seriously misguided view that pain

inflicted by an excessive use of force is actionable under the Eighth Amendment only when

coupled with ‘significant injury,’ e.g., injury that requires medical attention or leaves

permanent marks”). Hence, the focus is “not on the severity of any injuries inflicted, but

rather on ‘the nature of the force, which must be ‘nontrivial.’” Tedder, 527 F. App’x at 272

(quoting Wilkins v. Gaddy, 559 U.S. 34 (2010)). As the court in Tedder found, “Tedder’s

adverse physical reaction to the pepper spray–gagging, breathing difficulty, and

vomiting–establishes that the nature of the force . . . was nontrivial.” Tedder, 527 F. App’x


                                             23
at 274. Likewise, in Harper v. Blagg, No. 2:13-cv-19796, 2015 WL 6509131 (S.D. W.Va.

Oct. 28, 2015), the federal district court observed that “[c]ourts previously found that similar

adverse physical reactions to pepper spray or other chemical munitions were sufficient to

create genuine issues of material fact as to the objective inquiry of an excessive force claim.”

Id. at *12; see also Blount v. Farmer, No. 7:14CV00418, 2015 WL 4404810, at *3 (W.D.

Va. July 17, 2015) (denying correctional officer’s motion for summary judgment on objective

inquiry of excessive force claim where inmate alleged pepper spray caused “coughing,

sneezing, excessive mucus, and a painful burning sensation on his skin that lasted for a whole

day.”). Here, Inmate Delgado alleges that his eyes and skin burned and his airways were so

restricted that he felt as if he could not breathe following the deployment of OC spray against

him, which symptoms are akin to those in Tedder and Harper. He further alleges mental and

emotional distress and humiliation, which are similar to the inmate’s additional allegations

in Harper.



              While the petitioners do not challenge the physical reactions caused by the

deployment of OC spray, they argue that Inmate Delgado’s injuries were insufficient to rise

to the level of an Eighth Amendment violation under the objective component of the

excessive force analysis. Certainly, not “every malevolent touch by a prison guard gives rise

to a federal cause of action. See Johnson v. Glick, 481 F.2d, at 1033 (‘Not every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a


                                              24
prisoner’s constitutional rights’).” Hudson, 503 U.S. at 9. We nonetheless also recognize

that “‘[t]he use of excessive physical force against a prisoner may constitute cruel and

unusual punishment [even] when the inmate does not suffer serious injury.’” Wilkins, 559

U.S. at 34 (citation omitted) (emphasis added). Moreover, as the Supreme Court of the

United States has explained,

              [w]hen prison officials maliciously and sadistically use force to
              cause harm, contemporary standards of decency always are
              violated. See Whitley, supra, at 327. This is true whether or not
              significant injury is evident. Otherwise, the Eighth Amendment
              would permit any physical punishment, no matter how diabolic
              or inhuman, inflicting less than some arbitrary quantity of injury.
              Such a result would have been as unacceptable to the drafters of
              the Eighth Amendment as it is today.

Hudson, 503 U.S. at 9.



              While we express no view on the merits of Inmate Delgado’s claims and

understand that a purpose of qualified immunity is to eliminate the burden of defending

against a meritless claim,25 summary judgment is only appropriate if “there is no genuine

issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of

law.” W.Va. R. Civ. P. 56(c). We must draw “any permissible inference from the underlying



       25
            See Matson v. Wagner, 236 W.Va. 488, 500, 781 S.E.2d 936, 948 (2015)
(“[Q]ualified immunity is more than a defense to liability because, in many cases, it confers
upon governmental bodies and public officials the right not to be subject to the burden of trial
at all. The very heart of qualified immunity is that it spares the defendant from having to go
forward with an inquiry into the merits of the case.”).

                                               25
facts in the light most favorable to the party opposing the motion.” Painter, 192 W.Va. at

192, 451 S.E.2d at 758. “In qualified immunity cases, this usually means adopting . . . the

plaintiff’s version of the facts.” Scott v. Harris, 550 U.S. 372, 378 (2007).26 In doing so,

we find there are genuine issues of material fact that precluded awarding summary judgment

based on qualified immunity to the petitioner officers. See, e.g., Pritchett v. Alford, 973 F.2d

307, 313 (4th Cir. 1992) (“If there are genuine issues of historical fact respecting the officer’s

conduct or its reasonableness under the circumstances, summary judgment is not appropriate,

and the issue must be reserved for trial.”). These material issues of fact permeate both the

subjective and objective components of this excessive force claim.




       26
           Other courts have denied summary judgment, finding that inmate’s version of
events, which was provided in his or her own deposition testimony, created material issues
of fact and credibility issues to be determined by a jury. See, e.g., Skelly v. Okalossa Cty. Bd.
of Cty. Comm’rs, 415 F. App’x 153, 155 (11th Cir. 2011) (vacating district court’s award of
summary judgment to defendants and finding plaintiff’s deposition testimony not “so
fantastic or internally inconsistent that no reasonable jury could credit it”; that “this is the
classic case of the plaintiff swearing to one set of facts and the defendants swearing to
another set of facts”; that plaintiff’s testimony directly contradicts officers’ version of events;
and concluding it “is up to the jury to determine whom to believe and what actually
transpired”); Galberth v. Durkin, No. 9:14-CV-115, 2017 WL 4326076, *8 (N.D.N.Y. Sept.
27, 2017) (citation omitted) (adopting magistrate’s recommended findings and decision to
deny summary judgment and which observed that plaintiff’s excessive force claims relied
almost exclusively on his own deposition testimony; that rational jury could credit plaintiff’s
description of alleged assaults by correctional officers; that “although plaintiff’s
inconsistencies provide ‘ammunition for cross-examination,’ they do not provide a basis for
this court to recommend dismissal of his excessive force claims as a matter of law”; and
setting forth string cite of other cases where plaintiff’s account of events was sufficient to
withstand summary judgment).

                                                26
              Under the objective component, there are genuine issues of material fact

concerning the seriousness of Inmate Delgado’s injuries.         Regarding the subjective

component, there are genuine issues of material fact regarding whether the petitioner

officers’ use of force was necessary and whether the amount of force used was necessary to

the need (the first and second Whitley factors); whether Inmate Delgado was presenting any

reasonably perceived threat at the time the OC spray was used against him (the third Whitley

factor); and whether any efforts were made to temper the severity of their forceful response

(the fourth Whitley factor). See Whitley, 475 U.S. at 320-21



              We find compelling support for our conclusion in the similar excessive force

claims brought in federal court by other inmates housed in the segregation units at MOCC

in which dispositive motions based on qualified immunity were denied. For example, in

Smith v. Hypes, No. 2:14-cv-17001, 2017 WL 1016982 (S.D. W.Va. Feb. 21, 2017), the

magistrate judge recommended denying a correctional officer’s motion for summary

judgment based on qualified immunity in an excessive force action brought by an inmate

housed in a segregation unit at MOCC. The magistrate concluded, after considering the

evidence in the light most favorable to the inmate, that “a reasonable officer should have

known that pepper spraying an inmate who had previously, but was not currently . . . creating

a disturbance . . . could be construed as malicious and sadistic punishment and not an action




                                             27
done in a good faith effort to restore order.” Id. at *10.27 There are other cases where the

United States District Court for the Southern District of West Virginia has denied summary

judgment in excessive force actions brought by other inmates housed in the segregation units

at MOCC against Warden Ballard and various correctional officers arising out of being

sprayed with OC as a result of alleged prison policies and directives. See Harper v.

Barbagallo, No. 2:14-cv-07529, 2016 WL 5419442 (S.D. W.Va. Sept. 27, 2016) (denying

motions to dismiss based on qualified immunity on excessive force and supervisory liability

claims where inmate alleged he was sprayed with OC through the food slot in his locked cell

door for insulting officer in MOCC segregation units); Cantrell v. Ballard, 2016 WL

5660339 (S.D. W.Va. Sept. 29, 2016) (adopting magistrate’s proposed findings and

recommendation denying motion for summary judgment based on qualified immunity finding

genuine issues of material fact on claims of excessive force and supervisory liability where

inmate was sprayed with OC for allegedly kicking cell door while alone in his locked cell in

MOCC segregation unit and for incident involving his placement in restraint chair); Douty

v. Rubenstein, No. 2:13-32832, 2016 WL 11481145 (S.D. W.Va. Apr. 27, 2016)

(magistrate’s proposed findings and recommendation to deny summary judgment based on

qualified immunity finding genuine issues of material fact concerning the Whitley factors

where inmate was sprayed with OC for allegedly yelling profanities at officers and creating



       27
         See Hypes, 2017 WL 988118 (S.D. W.Va. Mar. 14, 2017) (adopting magistrate’s
proposed findings and recommendation).

                                            28
a volatile atmosphere while locked alone in his segregation cell at MOCC);28 Harper v.

Blagg, No. 2:13-cv-19796, 2015 WL 6509131 (S.D. W.Va. Oct. 28, 2015) (denying summary

judgment on qualified immunity finding genuine issues of material fact in each Whitley factor

in Eighth Amendment excessive force claim arising out of incident where inmate was

sprayed with OC in MOCC segregation unit). The United States Court of Appeals for the

Fourth Circuit ruled similarly when it vacated the district court’s award of summary

judgment to the defendants based on qualified immunity in prisoner’s excessive force claim.

Greene, 733 F. App’x 80. The Fourth Circuit found that based on prisoner’s sworn

allegations, it was objectively unreasonable for the officer to pepper spray the prisoner absent

provocation because it had “long been established that prison officials violate the Eighth

Amendment by using ‘mace, tear gas or other chemical agents in quantities greater than

necessary or for the sole purpose of infliction of pain.’” Id. at 82 (citation omitted).



              As we have long held, “[t]he circuit court’s function at the summary judgment

stage is not to weigh the evidence and determine the truth of the matter, but is to determine

whether there is a genuine issue for trial.” Painter, 192 W.Va. at 190, 451 S.E.2d at 756,

syl. pt. 3. In considering the allegations in the light most favorable to Inmate Delgado, a

reasonable jury could find that the OC spray was deployed against him unnecessarily and was



       28
         See Douty, 2016 WL 3349325 (S.D. W.Va. June 15, 2016) (adopting magistrate’s
proposed findings and recommendation).

                                              29
done “maliciously and sadistically to cause harm[,]” rather than in “a good-faith effort to

maintain or restore discipline[.]” Hudson, 503 U.S. at 7. We find these issues are properly

left to a jury’s determination.



                  ii. Eighth Amendment Deliberate Indifference Claim
                       Against the Petitioner Correctional Officers

              Inmate Delgado also asserts that the petitioner officers were deliberately

indifferent to his serious medical needs. As the Fourth Circuit has explained, in order

              [t]o prevail on an Eighth Amendment claim of inadequate
              medical care, an inmate must allege acts or omissions
              sufficiently harmful to constitute deliberate indifference to a
              serious medical need. Estelle v. Gamble, 429 U.S. 97, 106, 97
              S.Ct. 285, 50 L.Ed.2d 251 (1976). First, he must objectively
              show that the deprivation suffered or injury inflicted was
              “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834,
              114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A sufficiently serious
              medical need is one that requires medical treatment. Brice v.
              Virginia Beach Corr. Cntr., 58 F.3d 101, 104 (4th Cir. 1995).
              Then, the inmate must show that the defendant acted with
              deliberate indifference to his serious medical need. Farmer, 511
              U.S. at 834, 114 S.Ct. 1970.

Germain v. Metheny, 539 F. App’x 108, 109 (4th Cir. 2013). “Again, there is a subjective and

an objective component to showing a violation of the right. The plaintiff must demonstrate

that the officers acted with ‘deliberate indifference’ (subjective) to the inmate’s ‘serious

medical needs’ (objective). Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d

251 (1976).” Iko, 535 F.3d at 241.



                                            30
              In the context of establishing a deliberate indifference claim under the Eighth

Amendment, a “sufficiently serious medical need is one that requires medical treatment.”

Germain, 539 F. App’x at 109. The appendix record contains a copy of American

Correctional Association, Standards for Adult Correctional (“ACA”) Institutions 4-4203 (4th

ed. 2003), which requires “[i]mmediate medical examination and treatment . . . in all

instances involving the use of a weapon or chemical agent.” West Virginia Division of

Corrections Policy Directive 313.02 (“DOC Policy Directive 313.02”), also in the appendix

record, is based, in part, on ACA standard 4-4203 and provides that “[a]ll persons injured in

an incident receive immediate medical examination and treatment.” Even assuming, as the

officers argue, that they were not responsible for medically assessing Inmate Delgado, their

alleged delay in properly and timely decontaminating him can constitute deliberate

indifference. See, e.g., McNeeley v. Wilson, 649 F.App’x 717, 723 (8th Cir. 2016) (finding

district court had not erred in denying corrections officers qualified immunity at summary

judgment stage on inmate’s deliberate indifference claim where corrections officers “were

on notice that delaying a proper decontamination for over twenty minutes despite prisoner’s

complaints about the effects of pepper spray could result in a clearly established

constitutional violation”); Stewart v. Stewart, 60 F.App’x 20 (9th Cir. 2003) (finding

prisoner’s complaint satisfied objective component of deliberate indifference claim where

he alleged prison officials knew of his injuries after exposure to pepper spray but delayed

medical treatment and decontamination shower).


                                             31
                Regarding whether Inmate Delgado’s injuries, as recounted above, were

“sufficiently serious” under the objective component of an excessive force claim, the

physical reactions he suffered due to being sprayed with OC have been found to meet the

objective component of an excessive force claim. See, e.g., Tedder, 527 F. App’x at 274

(concluding that plaintiff “created a genuine issue of material fact on the objective

component of his Eighth Amendment excessive force claim” where his “adverse physical

reactions to the pepper spray–gagging, breathing difficulty, and vomiting–establishe[d] that

the nature of the force [the defendant correctional officer] used against [him] was

nontrivial”).



                Turning to the subjective component of a deliberate indifference claim, the

officer must have actual knowledge of the risk of harm to the inmate, and he must also have

recognized that his actions were insufficient to mitigate the risk of harm to the inmate arising

from his medical needs. Iko, 535 F.3d at 241. Here, such recognition was arguably supplied

by DOC Policy Directive 313.02, which provides that “[a]ll persons injured in an incident

receive immediate medical examination and treatment.” Moreover, product literature in the

appendix record shows that the effects of MK-9 Phantom OC, the OC spray used in this

instance, can include coughing, choking, gagging, difficulty breathing, vomiting, and that its

disbursement less than six feet away can cause soft tissue damage, which symptoms have

been found to be nontrivial, as discussed above.


                                              32
              Here, the petitioner officers assert that any alleged errors in the

decontamination process that occurred following their deployment of OC spray against

Inmate Delgado were the result of their discretionary decisions. They further assert that the

initial delay in removing Inmate Delgado from his cell for purposes of decontamination was

attributable to their need to obtain a video camera to record the cell extraction. Arguing

further, they contend that their discretionary refusal to remove Inmate Delgado's mechanical

wrist restraints, as he had requested, was to ensure safety and security on the recreation yard

where the decontamination process was to occur. They maintain there is no evidence that

they knowingly disregarded an excessive risk to inmate health or safety, adding there was

some self-decontamination when Inmate Delgado splashed water on his hands and face in

his cell prior to what they refer to as his “water supply being exhausted.”29



              As recounted above, Inmate Delgado offers a significantly different version of

events. He maintains the officers shut off the water to his cell for the expressly stated

purpose of preventing him from self-decontaminating, which caused him to continue to

suffer the effects of the OC spray. Then, the officers waited for a period of time before

taking him to the recreation yard for the purpose of beginning the decontamination process

and where they refused to remove his handcuffs, effectively preventing any preliminary

       29
          Although the petitioners euphemistically employ the word “exhaustion,” which
implies the simple depletion of a limited quantity, they admit to having purposefully shut off
the water supply to Inmate Delgado’s cell.

                                              33
decontamination. Thereafter, he was taken to a multiple purpose room where he should have

been medically assessed, but Nurse Coleman read a book instead. Through all of this, he

remained in clothing soaked with OC spray, again causing him to continue to suffer pain.

In total, Inmate Delago asserts that approximately one hour elapsed before he was allowed

to shower and finally remove the OC spray from his body.



              Again, we express no view on the merits of Inmate Delgado’s deliberate

indifference claim. However, in drawing “any permissible inference from the underlying

facts in the light most favorable to the party opposing the motion[,]” Painter, 192 W.Va. at

192, 451 S.E.2d at 758, and in adopting . . . [his] version of the facts[,]” Scott, 550 U.S. at

378, we find there are genuine issues of material fact concerning the objective and subjective

components of Inmate Delgado’s deliberate indifference claim. In particular, there are

genuine issues of material fact regarding the extent of Inmate Delgado’s injuries, as well as

the officers’ actions and inactions toward him following the deployment of the OC spray.

These material issues of fact prevent us from awarding summary judgment to the petitioner

officers on the basis of qualified immunity. It will be for a jury, not this Court, to determine

the truth of the matter.




                                              34
               iii. Supervisory Liability Claim Against Warden Ballard

              Warden Ballard asserts that he should be immune from Inmate Delgado’s

supervisory liability claim. He argues that his administrative policy-making functions are

grounded in his adherence to certain policies in the treatment of inmates at MOCC.

Although denying he had declared “martial law” in the segregation units at MOCC, Warden

Ballard contends that any directive that “efforts to temper” were not required in the

segregation units would not violate any statute or constitutional rights through which

entitlement to qualified immunity would be foreclosed. Lastly, Warden Ballard maintains

that he cannot be liable under any theory of supervisory liability.



              We begin by observing that supervisory liability is not premised upon

respondeat superior but upon “a recognition that supervisory indifference or tacit

authorization of subordinates’ misconduct may be a causative factor in the constitutional

injuries they inflict on those committed to their care.” Slakan v. Porter, 737 F.2d 368, 372

(4th Cir. 1984). To defeat qualified immunity on a claim of supervisory liability, a plaintiff

must show that it was clearly established at the time of the subordinate’s conduct that the

supervisor could be held liable under § 1983 for constitutional violations committed by the

subordinate; that the supervisor knew that the degree of force being used was

unconstitutional; and that a reasonable person in the supervisor’s position would have known




                                             35
that his actions were unlawful. Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir. 1994). Necessary

to the establishment of supervisory liability are the following three elements:

               (1) that the supervisor had actual or constructive knowledge that
               his subordinate was engaged in conduct that posed “a pervasive
               and unreasonable risk” of constitutional injury to citizens like
               the plaintiff; (2) that the supervisor’s response to that knowledge
               was so inadequate as to show “deliberate indifference to or tacit
               authorization of the alleged offensive practices,”; and (3) that
               there was an “affirmative causal link” between the supervisor’s
               inaction and the particular constitutional injury suffered by the
               plaintiff.

Shaw, 13 F.3d at 799 (citations omitted).



               Turning to the first Shaw factor, a plaintiff must show “(1) the supervisor’s

knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a

pervasive and unreasonable risk of constitutional injury to the plaintiff.” Id. (citing Slakan,

737 F.2d at 373). These factors are met here.



               At the time of the subject incident, the law was clearly established that the use

of pepper spray on a inmate who is passive or attempting some compliance can constitute

excessive force. See Iko, 535 F.3d at 235; see also Treats v. Morgan, 308 F.3d 868, 872 (8th

Cir. 2002) (internal citations omitted) (denying qualified immunity to officer who sprayed

inmate with pepper spray, recognizing that “ order and discipline are important in running

a correctional institution, but that does not authorize the arbitrary use of force, . . . nor does


                                               36
it justify punitive use of force on difficult inmates not posing a real threat to other persons

or raising security concerns”). Further, the appendix record contains evidence that shows

Warden Ballard had the authority and responsibility for the administration and operation of

MOCC, including the safety and security of inmates, and for ensuring that MOCC employees

abide by MOCC policies and procedures, including the policy that correctional officers were

not required to temper force in their interactions with inmates housed in the segregation units

at MOCC. Regarding Warden Ballard’s knowledge that his subordinates were engaged in

uses of force, there is evidence that he reviews all inmate grievances, all incident reports filed

by correctional officers, and all Use of Force Review Committee reports. Through these

administrative processes and reports, Warden Ballard would have been aware of the OC

spray being used against inmates housed in the segregation units. And, because inmates must

exhaust their administrative remedies prior to filing a court action,30 Warden Ballard would

have been aware of these uses of force prior to him being named as a defendant in the

multiple federal lawsuits listed above.



               Regarding Warden Ballard’s response to his awareness of the use of OC spray

on inmates in the segregation units and whether there is a link between his actions and the

       30
          See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“exhaustion requirement [under
Prison Litigation Reform Act] applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force
or some other wrong.”).


                                               37
alleged constitutional injury, Shaw, 13 F.3d at 799, we have the allegation that he had

declared “martial law” in the segregation units. Although he testified during his deposition

that he had not done so, again, there is conflicting evidence. For example, when an MOCC

inmate housed in the segregation units completed a Unit Team Request Form, asking whether

a correctional officer had been truthful in telling him that the segregation units were under

“Martial Law[,]” a lieutenant provided a written response that stated: “Per warden, martial

law is a condition that MOCC utilizes.” There is also an audio-recording of a disciplinary

hearing during which an MOCC correctional officer testified that “[t]here’s martial law

going on right now” and “they told me that came from the Warden.” In addition, Inmate

Delgado testified during his deposition concerning his understanding from correctional

officers that the segregation units were “under Martial Law and that we could be sprayed for

any reason or for no reason at all.”



              Based on the evidence summarized above, a reasonable jury could conclude

that Warden Ballard had actual, subjective awareness of a pervasive and unreasonable risk

posed by his correctional officers who were allegedly engaging in unnecessary and

untempered force against inmates housed in the segregation units as a result of prison

policies and directives, which is the first Shaw factor. This same evidence could also lead

a jury to find that the second and third Shaw factors were also met: that Warden Ballard’s

response to the knowledge of the risk being posed was so inadequate as to show “‘deliberate


                                             38
indifference to or tacit authorization of the alleged offensive practices,’” particularly when

he confirmed during his deposition testimony that a correctional officer cannot be

reprimanded for not using “confrontational avoidance measures”with inmates housed in a

segregation unit; and “that there was an ‘affirmative causal link’ between [Warden Ballard’s]

inaction and the particular constitutional injury suffered by the plaintiff.” Shaw, 13 F.3d at

799 (citation omitted); see also Slakan, 737 F.2d at 376 (citation omitted) (observing that

causation may be proved directly “‘where the policy commands the injury of which the

plaintiff complains . . . . [o]r may be supplied by [the] tort principle that holds a person liable

for the natural consequences of his actions.’”). Indeed, some, if not all, of this same evidence

prompted the federal district court to deny Warden Ballard’s motion for summary judgment

based on qualified immunity, finding

               there are material issues of fact as to whether Defendant Ballard
               authorized the use of “martial law.” Construing the evidence in
               a light most favor[able] to Plaintiff, the undersigned finds
               evidence exists indicating that Defendant Ballard was aware of
               an unreasonable risk of harm or misconduct by Defendants and
               failed to take corrective action.

See Douty, 2016 WL 3349325, at *17;31 see also Cantrell, 2016 WL 5660339 (adopting

magistrate’s proposed findings and recommendation denying motion for summary judgment



       31
          Inmate Delgado represents that when the parties proceeded to trial after summary
judgment was denied in Douty, a jury found Warden Ballard liable for supervisory liability,
assessing punitive damages, based on facts nearly identical to those in the case at bar. Douty,
2:13-cv-32832 (S.D. W.Va. July 24, 2017), Dkt. No. 267 (proposed judgment order; entry
pending).

                                                39
based supervisory liability claim against Warden Ballard based on some of this same

evidence).



              Given the genuine issues of material fact in this matter, we cannot determine

whether Warden Ballard is entitled to summary judgment based on qualified immunity. As

with the claims against the petitioner officers, it will be for a jury to determine the factual

disputes entangled with the supervisory liability claim asserted against Warden Ballard.



                 B. Sufficiency of Order Denying Summary Judgment

              The petitioners assert that the circuit court erred by entering a summary

judgment order, which was prepared by Inmate Delgado’s counsel32 and which they argue

contains inaccurate factual findings33 and conclusions of law that were not set forth by the

circuit court on the record during the hearing on their summary judgment motions. They

further assert that Inmate Delgado did not attach any exhibits to his response to the summary




       32
          West Virginia Trial Court Rule 24 expressly provides for our trial courts to direct
counsel to prepare orders. Moreover, this Court has ruled that when an order entered by a
circuit court is one that has been prepared by a party, we will only disturb the order if the
findings are clearly erroneous. Kalwar v. Liberty Mut. Ins. Co., 203 W.Va. 2, 7, 506 S.E.2d
39, 44 (1998). Here, we do not find the circuit court’s findings to be clearly erroneous.
       33
          The petitioners’ argument in this regard is generalized and does not specifically set
forth these alleged inaccuracies.

                                              40
judgment motions to support what his counsel would later rely upon in drafting the summary

judgment order that the circuit court entered.



              Labeling petitioners’ arguments as “perplexing,” Inmate Delgado asserts the

circuit court’s seventeen-page order contains a lengthy recital of the evidence in the light

most favorable to him, the nonmoving party, as well as the legal standard for qualified

immunity and summary judgment before concluding there are genuine issues of material fact

precluding the granting summary judgment at this stage. He further asserts that the

petitioners complain only generally about the circuit court’s factual findings without

identifying any specific facts that they contend are not in the record.



              We have previously addressed the sufficiency of circuit court orders in this

context, holding that

              [a] circuit court’s order denying summary judgment on qualified
              immunity grounds on the basis of disputed issues of material
              fact must contain sufficient detail to permit meaningful appellate
              review. In particular, the court must identify those material facts
              which are disputed by competent evidence and must provide a
              description of the competing evidence or inferences therefrom
              giving rise to the dispute which preclude summary disposition.

Payne, 231 W.Va. at 566, 746 S.E.2d at 556-57, syl. pt. 4. We find the circuit court’s order

meets the Payne standard.




                                              41
               Further, and notwithstanding the petitioners’ arguments to the contrary, trial

courts are not required to make their findings during a hearing.34 As we explained in Legg

v. Felinton, 219 W.Va. 478, 637 S.E.2d 576 (2006),

               [i]t is a paramount principle of jurisprudence that a court speaks
               only through its orders. See State v. White, 188 W.Va. 534, 536
               n.2, 425 S.E.2d 210, 212 n.2 (1992) (“[H]aving held that a court
               speaks through its orders, we are left to decide this case within
               the parameters of the circuit court’s order.” (citations omitted));
               State ex rel. Erlewine v. Thompson, 156 W.Va. 714, 718, 207
               S.E.2d 105, 107 (1973) (“A court of record speaks only through
               its orders[.]” (citations omitted)).

Legg, 219 W.Va. at 483, 637 S.E.2d at 581. Moreover, the mere preparation of an order at

a circuit court’s direction does not mean the court is obligated to enter it. It is clearly within

the authority of a circuit court to alter or amend a proposed order in anyway it deems

appropriate.



               Having reviewed the transcript of the hearing on the summary judgment

motions, we find that the circuit court allowed the parties to fully address their varying

positions on the facts and the law. In addition to the circuit court’s thorough order, it is

equally clear that the court was fully prepared for the hearing and had reviewed all relevant

materials and applicable law. Indeed, we are left with the firm conviction that the circuit



       34
          Although the petitioners assert that the circuit court did not specifically address the
basis for its denial of qualified immunity during oral argument, we note the absence of any
specific requests or objections in this regard by the petitioners during the motions hearing.

                                               42
court understood the legal issues being raised, the parties conflicting factual allegations, and

their respective positions on the issue of qualified immunity,35 all of which is adequately

reflected in the circuit court’s lengthy order. Rather than being deficient or inaccurate, we

find the circuit court’s well-reasoned order sufficiently addresses the parties’ disparate

factual allegations and the legal standards upon which the court’s decision was based.



              Further criticizing the circuit court’s order, the petitioners assert that the order

may only contain statements made during the motions hearing or can only be based on

exhibits attached to Inmate Delgado’s responses in opposition to their motions for summary

judgment. We find no merit in this argument. In fact, when ruling “‘[o]n a motion for

summary judgment all papers of record and all matters submitted by both parties should be

considered by the court.’ Syllabus Point 2, Aetna Cas. & Sur. v. Fed. Ins. Co. of New York,

148 W.Va. 160, 133 S.E.2d 770 (1963).” Syl. Pt. 3, Ford v. Dickerson, 222 W.Va. 61, 662

S.E.2d 503 (2008) (emphasis added). Similarly, West Virginia Rule of Civil Procedure 56(c)

provides, in part, that the “judgment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with affidavits, if



       35
          The hearing transcript reveals that the petitioners had a full opportunity to explain
their qualified immunity arguments, which the circuit court then summarized during the
hearing, asking: “[Y]ou’re arguing that your clients are entitled to qualified immunity, that
these were discretionary actions, and that they did this in good faith, and that there’s no
violation of clearly established laws as it relates to any actions that they took?” The
petitioners’ counsel replied in the affirmative.

                                              43
any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Id. (emphasis added). Accordingly, we find no

error to the extent the circuit court relied upon pleadings or any other “papers of record” in

this action when rendering its decision. Aetna Cas. & Sur. Co., 148 W.Va. at 170, 133

S.E.2d at 776.



                 Lastly, in reviewing a motion for summary judgment based on a claim of

qualified immunity, the factual allegations are to be viewed in the light most favorable to the

party opposing the motion. The circuit court did precisely that, explaining on the first page

of said order:

                 The following findings of fact are set forth viewing the record in
                 the light most favorable to the non-moving party, Mr. Delgado,
                 as required for ruling on a motion for summary judgment. See,
                 e.g., Scott v. Harris, 550 U.S. 372, 377 (2007) (“[C]ourts are
                 required to view the facts and draw reasonable inferences in the
                 light most favorable to the party opposing the judgment motion.
                 In qualified immunity cases, this usually means adopting . . . the
                 plaintiff’s version of the facts.”).

(Emphasis added). Accordingly, we find no error in the circuit court’s factual recitation,

particularly where the circuit court’s order also summarized the petitioners’ countervailing

facts.




                                                44
                                    IV. Conclusion

             For the reasons stated above, the circuit court’s March 9, 2017, order denying

summary judgment based on qualified immunity is hereby affirmed.

                                                                                Affirmed.




                                           45
