Nos. 17-0327 & 17-0328 —                David Ballard, Kevin McCourt, Jess Mattox, and
                                        Hobert Allen v. Miguel Angel Delgado
                                                                                  FILED
                                                                               April 24, 2019
                                                                             EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
Jenkins, Justice, dissenting:                                                    OF WEST VIRGINIA



               In this case the majority has concluded that the defendant correctional

officers and Warden Ballard are not entitled to qualified immunity in relation to Inmate

Delgado’s claims of excessive force and deliberate indifference arising from the

correctional officers’ efforts to maintain control of Inmate Delgado and the segregation

unit at the Mount Olive Correctional Center. Because I believe these correctional officers

and Warden Ballard are entitled to qualified immunity under the circumstances presented

in this case, I respectfully dissent.



               One of the dispositive questions included in the two-part test for qualified

immunity asks whether, “[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, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). See

also Ballard v. Delgado, No. 17-0327, 2019 WL 1441654, at *7, n.21 (W. Va. Mar. 25,

2019) (explaining, in majority opinion, that, pursuant to Pearson v. Callahan, 555 U.S.

223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009), “[t]rial courts now have the discretion

regarding the order in which [the] two inquiries [for qualified immunity] are considered”).

Based upon the facts of this case, I disagree with the majority that the conduct of the



                                                1
correctional officers or Warden Ballard violated Mr. Delgado’s constitutional rights, either

by using excessive force or by deliberate indifference.



              First, there was no excessive force in this case. Inmate Delgado clearly was

a problem inmate. He was in the segregation unit, where he had been housed for six years,

due to his chronic insubordination. The record in this case reflects that, on the day of the

incident in question, Inmate Delgado became belligerent and verbally assaultive when the

nurse did not respond quickly enough, in his mind, to his attempt to ask a question. The

nurse was escorted from the area, but Inmate Delgado’s disruptive conduct continued.

Despite multiple loud, clear, verbal commands to cease creating a disturbance, Inmate

Delgado continued in his defiant behavior, and it began to spread to other inmates, who

also started yelling. After their verbal attempts to deescalate the situation had no effect,

the correctional officers warned Inmate Delgado that they would use OC spray if he

continued to disregard their commands. Thereafter, a correctional officer deployed two,

one-second bursts of OC spray into Inmate Delgado’s cell. Deploying two, one-second

bursts of OC spray under these conditions was not excessive force, and was not done for

the purpose of inflicting pain; rather, it was a discretionary act that became necessary as a

result of Inmate Delgado’s continued raucous conduct, and was a final attempt to restore

order in the segregation unit. See Iko v. Shreve, 535 F.3d 225, 240 (4th Cir. 2008)

(recognizing 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’” (quoting Williams v.

                                             2
Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)) (some emphasis added). Because the

correctional officers deployed the OC spray in an effort to restore order, and not for the

purpose of inflicting pain, and because such force was used only after their verbal attempts

to calm the situation were ignored, the correctional officers are entitled to qualified

immunity.



              Likewise, the correctional officers were not deliberately indifferent to Inmate

Delgado’s medical needs. This claim is primarily based upon the delay in decontaminating

Inmate Delgado. As the majority observes, the deliberate indifference analysis has an

objective and a subjective component. See Germain v. Metheny, 539 F. App’x 108, 109

(4th Cir. 2013). “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, [291], 50 L. Ed. 2d 251 (1976).” Iko, 535 F.3d

at 241; Delgado at *12. The objective component requires an inmate to “objectively show

that the deprivation suffered or injury inflicted was ‘sufficiently serious.’” Id. (Citation

omitted). A “sufficiently serious medical need is one that requires medical treatment.” Id.

(Emphasis added). Although Inmate Delgado complained of the effects of the OC spray,

the record simply lacks objective evidence that Inmate Delgado suffered a sufficiently

serious injury that required medical treatment.        Furthermore, during the delay of

approximately one hour before the decontamination process was completed, the

correctional officers did not demonstrate subjective deliberate indifference. The record

shows that, after the OC spray was deployed, Inmate Delgado was able to wash his hands

                                             3
and splash his face with water while still in his cell. Thereafter, Inmate Delgado was taken

to the recreation yard for further decontamination of his face and eyes. Inmate Delgado

complains about the denial of his request to have his handcuffs removed while he was in

the recreation yard so that he could remove his shirt, but the denial was based upon issues

of safety and security. In this regard it should not be overlooked that Inmate Delgado

already is serving a sentence of life without mercy, and he has been in the segregation unit

for six years as a result of his repeated insubordination; thus, safety and security are valid

concerns. Also during this time, Inmate Delgado was taken to the nurse for a medical

evaluation, and, after his cell was decontaminated, he was taken to the shower to complete

his decontamination process. Accordingly, the evidence was insufficient to establish

deliberate indifference, and the correctional officers were entitled to qualified immunity.1



              For the foregoing reasons, I respectfully dissent.




              The correctional officers’ entitlement to qualified immunity would render
              1

moot the supervisory liability claim against Warden Ballard.
                                              4
