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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                       January 31, 2013

                                      No. 12-30143                       Lyle W. Cayce
                                                                              Clerk

SYLVESTER MARTIN,

                                                 Plaintiff-Appellee
v.

RONNIE SEAL, Lieutenant; BRUCE FORBES, Emergency Medical
Technician; BRUCE STEWART, Sergeant; WENDY SEAL, Licensed Practical
Nurse; DENNIS LARAVIA, Medical Doctor; KIMBERLY WARNER, Licensed
Clinical Social Worker,

                                                 Defendants-Appellants



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11–CV–726


Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM:*
                           I. FACTUAL BACKGROUND
       Plaintiff-Appellee Sylvester Martin (“Martin”) is an inmate at the Rayburn
Correctional Center (“RCC”) in Angie, Louisiana.                 Defendants-Appellants
(collectively “Appellants”) are employees of the Louisiana Department of
Corrections. Dr. Dennis Laravia, Emergency Medical Technician (“EMT”) Bruce

      *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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Forbes, EMT Bruce Stewart, Nurse Wendy Seal, and Licensed Clinical Social
Worker (“LCSW”) Kimberly Warner are medical personnel who treated Martin
on at least one occasion. Lt. Ronnie Seal is a correctional officer at RCC.
       On December 14, 2010, Martin started to act erratically upon returning
to his cell from a hearing in court. After Martin yelled, “I’m suicidal and I’m
going to kill myself,” Lt. Ronnie Seal contacted Kimberly Warner in the mental
health department, who recommended that Martin be placed on “standard
suicide watch” against his will. On suicide watch, Martin remained inside of his
cell and was not restrained in any way. Shortly after being placed on suicide
watch, Martin began to rack down (violently shake the cell bars) and jump on his
bed.1 Prison guards ordered Martin to stop several times, but Martin refused
and stated that he was “not living in [that] cell or [that] tier.”
       Lt. Seal called the prison’s medical department and asked if it would be
safe for him to use non-toxic deep freeze chemical spray to restrain Martin. Lt.
Seal spoke with EMT Bruce Forbes, who then contacted Dr. Dennis Laravia, who
authorized Lt. Seal to use chemical spray against Martin. When Martin began
to rack down and jump on his bed again, Lt. Seal warned him to stop or be
subjected to the use of deep freeze chemical spray. Martin persisted in his
behavior and Lt. Seal applied chemical spray to Martin’s upper torso. Once
Martin had been subdued, Lt. Seal and two other guards entered his cell,



       1
          The parties dispute whether Martin actually began to jump on his bed and rack
down before or after the initial chemical spraying. Martin claims that he was sprayed
twice, without warning, prior to Lt. Seal’s receipt of permission from Dr. Laravia.
Although the district court did not address this particular issue in the opinion below,
Martin acknowledges that, at the very least, he repeatedly refused to follow the orders of
Kimberly Warner and Lt. Seal to undress pursuant to standard suicide watch procedures
prior to being sprayed with chemicals.

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                                     No. 12-30143

restrained him, and brought him to the lobby to be examined by EMT Bruce
Forbes. Forbes examined Martin, determined that he was fine, and offered him
a shower, after which he was escorted back to his cell.
      Once Martin returned to his cell, he began to rack down and jump on the
bed. Lt. Seal again advised Martin that he would be sprayed with deep freeze
if he continued to act in this manner. Martin ignored Lt. Seal’s warnings and
was sprayed a second time. When Martin calmed down, Lt. Seal and two guards
brought him out of his cell to be examined by Nurse Wendy Seal. Nurse Seal
examined Martin, found no apparent injuries, and referred him to mental health
after he threatened to continue his bad behavior despite knowing that he would
be sprayed again. Martin then took a second shower and was returned to his
cell.2 The parties dispute whether Martin suffered any asthma-related problems
as a result of Lt. Seal’s use of chemical spray to restrain him. While Martin
contends that he experienced trouble breathing after being sprayed, the prison
records and video footage of the two recorded incidents suggest that any physical
harm Martin suffered was temporary and de minimis. Furthermore, in spite of
Martin’s claim that he suffered lasting injuries (aggravated asthma symptoms
and back pain) as a result of the sprayings, prison records demonstrate that, in
the months following the incident, Martin was evaluated by medical personnel
who determined that he was not injured and did not need additional treatment.
      Martin brought suit against Appellants under 42 U.S.C. § 1983, alleging
violations of the Eighth Amendment and Louisiana state law. Appellants moved

      2
        Two of the incidents where Martin was restrained using chemical spray and then
examined by EMT Forbes and Nurse Seal were recorded on the prison’s surveillance
camera. Martin, however, alleges that Lt. Seal sprayed him at least once before setting up
the camera, while Lt. Seal maintains that the camera began recording prior to the first
spraying.

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for summary judgment on the basis of qualified immunity. The district court
denied the motion for summary judgment as to Martin’s claims of excessive force
and deliberate indifference, ruling that Appellants were not entitled to qualified
immunity. Appellants timely appealed.


                          II. STANDARD OF REVIEW
      Under the collateral order doctrine, this Court has jurisdiction to review
“a district court’s order denying qualified immunity, to the extent that it turns
on an issue of law.” Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006)
(quoting Behrens v. Pelletier, 516 U.S. 299, 311 (1996)) (internal quotation marks
omitted). On interlocutory appeal, this Court “lacks ‘the power to review the
district court’s decision that a genuine factual dispute exists,’” and instead can
“consider ‘only whether the district court erred in assessing the legal significance
of the conduct that the district court deemed sufficiently supported for purposes
of summary judgment.’” Id. at 345 (quoting Kinney v. Weaver, 367 F.3d 337, 347
(5th Cir. 2004) (en banc)). Thus, taking the plaintiff’s version of the facts as
true, this Court reviews de novo “only the purely legal question of whether the
district court erred in concluding as a matter of law that officials are not entitled
to qualified immunity on that given set of facts.” Id. (citation, internal quotation
marks, and alteration omitted).


                                 III. ANALYSIS
      All three issues on appeal concern the district court’s denial of qualified
immunity to Appellants on Martin’s Eighth Amendment claims for excessive
force and deliberate indifference. This Court determines whether an official is


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entitled to qualified immunity by asking (1) “whether the facts alleged, taken in
the light most favorable to the party asserting the injury, show that the
[official’s] conduct violated a constitutional right,” and (2) “if the allegations
could make out a constitutional violation, . . . whether the right [violated] was
clearly established.” Mace v. City of Palestine, 333 F.3d 621, 623–24 (5th Cir.
2003) (citation and internal quotation marks omitted). We exercise “discretion
in deciding which of the two prongs of the qualified immunity analysis should
be addressed first,” Lockett v. City of New Orleans, 607 F.3d 992, 998 (5th Cir.
2010), and here we find it appropriate to assess initially whether Appellants
violated Martin’s Eighth Amendment rights.3                The district court failed to
properly evaluate whether Martin alleged a claim for excessive force under
applicable Fifth Circuit precedent, and erroneously concluded that Appellants
exhibited deliberate indifference to Martin’s serious medical needs. As a result,
we reverse the district court’s denial of summary judgment and remand for
additional consideration on the claim of excessive force, and we render summary
judgment in favor of Appellants on the claims of deliberate indifference.
       A.      Excessive Force
       The “core judicial inquiry” into a plaintiff’s claim of excessive force under
the Eighth Amendment is “whether force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992). We look to five nonexclusive factors
to make this determination: “1. the extent of the injury suffered; 2. the need for
the application of force; 3. the relationship between this need and the amount of

       3
         As our analyses of Martin’s claims under the first prong are dispositive, we need
not reach the question of whether Martin’s allegedly violated constitutional rights were
clearly established at the time of the incident.

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force used; 4. the threat reasonably perceived by the responsible officials; and 5.
any efforts made to temper the severity of a forceful response.” Baldwin v.
Stalder, 137 F.3d 836, 839 (5th Cir. 1998) (citation omitted). In evaluating these
factors (the “Hudson factors”), this Court views the facts and makes inferences
in the manner most favorable to the non-moving party. See Petta v. Rivera, 143
F.3d 895, 902–03 (5th Cir. 1998).
      Appellants claim that the district court erred by not considering all of the
Hudson factors in its denial of qualified immunity. While the district court
evaluated the need for Lt. Seal’s application of chemical spray to detain Martin,
it did not expressly consider any of the other factors that, under Hudson, could
bear on the court’s finding of excessive force. More specifically, the district court
did not assess the extent of the injury suffered by Martin, the relationship
between the need for force and the type of force actually used (chemical spray),
the threat perceived by Lt. Seal and the other officers, or the efforts made by Lt.
Seal and the medical personnel to temper the severity of the force used. While
there may be a set of facts under which a single Hudson factor is so compelling
as to overshadow the others and alone warrant a finding of excessive force, that
is not the case here. In other words, although the district court was not required
to conduct an extensive analysis of each Hudson factor, its failure to even
acknowledge any of the other four factors when Appellants clearly pleaded facts
relevant to those issues resulted in a decision that unjustifiably prioritizes one
Hudson factor—the alleged need for force against Martin—above all others.
      Both parties have set forth several additional facts not mentioned in the
opinion below that should have been considered in the district court’s qualified
immunity analysis. First, both Appellants and Martin offer evidence regarding


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the extent of Martin’s injuries and the amount of force used by Lt. Seal.
Appellants contend that Martin suffered only de minimis injuries after the
chemical sprayings. The district court similarly noted that “it is questionable
whether plaintiff experienced a ‘serious medical need’ as a result of the spraying.
The medical records indicate that he did not, and the video records show that
plaintiff was back on his feet and quite hale and hearty soon after the
sprayings.” While Martin need not show that his injuries were significant, see
Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010), “the extent of injury suffered by
an inmate is one factor that may suggest whether the use of force could plausibly
have been thought necessary in a particular situation,” Hudson, 503 U.S. at 7
(citation and internal quotation marks omitted); see also Wilkins, 130 S. Ct. at
1178 (“The extent of the injury may also provide some indication of the amount
of force applied.”).
      On the other hand, Martin pleaded facts suggesting that the severity of his
injuries (or lack thereof) did not accurately reflect the amount of force used. For
example, Martin offered prison records showing that, although Lt. Seal claimed
to have only sprayed him twice, the can of chemical spray weighed less than it
should have after only two uses. He also offers the affidavit of another prisoner,
Richard Lay, who corroborates Martin’s claim that Lt. Seal sprayed him a total
of three times.
      The district court also did not address Appellants’ arguments regarding
the relationship between the need for chemical spray and the amount of spray
actually used. Even taking as true Martin’s testimony alleging that Lt. Seal
sprayed him in retaliation for his previous assault of another correctional




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officer,4 the district court did not acknowledge that, prior to being sprayed at all,
Martin ignored multiple orders to remove his clothes after being put on suicide
watch, and later ignored orders to stop racking his cell bars and jumping on his
bed. In his brief, Martin admits that he resisted these orders. By glossing over
these details, the district court may have missed facts relevant to the
consideration of whether Lt. Seal used excessive force given the progression of
events.
           Finally, the district court did not mention the efforts of Appellants to
temper the severity of the chemical sprayings by providing Martin with medical
attention and offering him a shower after each incident. Lt. Seal not only
warned Martin that he would be sprayed with a chemical agent if he did not
cease his disruptive behavior, but also arranged for the provision of medical care
immediately after each spraying. Under Hudson, such actions are relevant to
a determination of whether the force used was appropriate under the
circumstances or an excessive reaction to a perceived threat.
       Although none of these aforementioned factors is alone dispositive here,
the district court erred in failing to acknowledge that both parties proffered
facts relevant to the broader Hudson analysis. See, e.g., Crawford v. Lynaugh,
No. 93-2010, 1993 WL 391367, at *3 (5th Cir. Sept. 20, 1993) (unpublished) (“The
extent of the injuries suffered is but one factor to be considered in determining
the validity of an excessive force claim. The district court therefore erred in
viewing this factor as dispositive, and abused its discretion in dismissing
[prisoner’s] claim on this ground.”). We are not responsible for weighing the

       4
         On the date of this incident, Martin pleaded guilty to battery on another
correctional officer. As a result, Martin alleged that Lt. Seal threatened to harm him if he
ever became involved in another physical confrontation with an officer.

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facts in a qualified immunity dispute and instead “may consider only whether
the district court erred in assessing the legal significance of the conduct that the
district court deemed sufficiently supported for purposes of summary judgment.”
Gobert, 463 F.3d at 345 (citation and internal quotation marks omitted). Once
Martin alleged an injury due to Lt. Seal’s use of excessive force, the district court
was required to determine whether that claim was constitutionally
cognizable—a determination that should have involved consideration of the
applicable Hudson factors. See Jones v. Primrose, 176 F. App’x 518, 519 (5th Cir.
2006) (unpublished) (“Whether [an] allegation of injury is constitutionally
cognizable requires consideration of the Hudson factors.”) (citing Baldwin, 137
F.3d at 838–39).
      The district court failed to consider material facts relevant to Martin’s
claim of excessive force, thus resulting in a denial of qualified immunity on the
sole basis that Appellants failed to show a need for their use of force against
Martin.    Although Martin may have pleaded facts sufficient to withstand
Appellants’ motion for summary judgment, we decline to affirm the district
court’s decision without further consideration of these other issues.            See
Crawford, 1993 WL 391367, at *3 (remanding the case to the district court to
consider all of the Hudson factors in determining whether the defendants used
excessive force). In the absence of a more thorough Hudson analysis, the district
court should not have determined that Lt. Seal violated Martin’s Eighth
Amendment rights and thus should not have denied Appellants’ request for
qualified immunity.
      B.     Deliberate Indifference to Martin’s Asthma
      The second issue on appeal is whether Appellants acted with deliberate


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indifference to Martin’s asthma by authorizing the use of a chemical spray to
restrain him. This Court has held that a prison official acts with deliberate
indifference in violation of the Eighth Amendment if (1) there was a “substantial
risk of serious harm” to the plaintiff, and (2) “prison officials acted or failed to
act with deliberate indifference to that risk.” Gobert, 463 F.3d at 345–46. This
standard requires the plaintiff to show that the prison officials “refused to treat
him, ignored his complaints, intentionally treated him incorrectly, or engaged
in any similar conduct that would clearly evince a wanton disregard for any
serious medical needs.” Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752,
756 (5th Cir. 2001) (citation and quotation marks omitted).                  “Deliberate
indifference is an extremely high standard to meet.” Id.
      The district court determined that Appellants were not entitled to
qualified immunity because the purported absence of complete medical records
created disputed issues of material fact as to whether Martin’s asthma
constituted a serious medical need.5             This holding, however, disposes of
Appellants’ qualified immunity defense without assessing the second prong of
the analysis, whether Appellants acted with deliberate indifference to Martin’s
asthma.     Martin, not Appellants, had the burden to plead facts sufficient to
show deliberate indifference and overcome a qualified immunity defense. See
Gobert, 463 F.3d at 345 n.14 (noting that once a qualified immunity defense has
been raised, “plaintiff has the burden to rebut the qualified immunity defense
by establishing that the official’s allegedly wrongful conduct violated clearly


      5
          Appellants deny Martin’s allegation and the district court’s finding that the
medical records provided by RCC were incomplete. The record on appeal demonstrates
that, at a minimum, several pages of Martin’s medical records were produced, including
the reports related to the use of chemical spray during the incidents at issue.

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established law.” (citation and quotation marks omitted)). The district court
relieved Martin of this burden and effectively shifted it onto Appellants by
denying them qualified immunity based solely on the purported inadequacy of
Martin’s medical records.
      The fact that Martin has asthma—which Appellants do not dispute—does
not alone present an issue of material fact sufficient to overcome a defense of
qualified immunity. Martin not only needed to prove “objective exposure to a
substantial risk of serious harm,” Gobert, 463 F.3d at 345, but also that the
prison officials actively disregarded that risk, Adames v. Perez, 331 F.3d 508,
512 (5th Cir. 2003). Thus, even assuming that the RCC withheld parts of
Martin’s medical records showing that Martin had severe asthma, Martin’s
claim for deliberate indifference still fails since he did not demonstrate that
Appellants had the requisite mens rea; that they “were actually aware of the risk
[of using chemical spray on an asthmatic inmate], yet consciously disregarded
it.” Lawson v. Dallas Cnty., 286 F.3d 257, 262 (5th Cir. 2002). Martin’s bare
assertion that even “a layperson would understand and know from his or her
own life experiences that spraying an asthmatic with chemical spray will cause
serious pain and suffering” does not suffice to show deliberate indifference. See
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002) (“Conclusional allegations and
denials, speculation, improbable inferences, unsubstantiated assertions, and
legalistic argumentation do not adequately substitute for specific facts showing
a genuine issue for trial.”).
      Martin’s contention that Dr. Laravia had previously told Lt. Seal that he
could not use chemical agents against Martin is insufficient to show deliberate
indifference.   At most, this would show that Dr. Laravia “failed to act


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reasonably,” which is inadequate to support an inference of deliberate
indifference.   See Domino, 239 F.3d at 756 (“[T]he ‘failure to alleviate a
significant risk that [a prison official] should have perceived, but did not’ is
insufficient to show deliberate indifference.” (quoting Farmer v. Brennan, 511
U.S. 825, 838 (1994))).
      Appellants’ authorization of the use of chemical spray against Martin was
a medical judgment that does not rise to the level of “wanton disregard for
[Martin’s] serious medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th
Cir. 1985). At best, Martin suggests that Appellants decided to use chemical
spray after concluding that it would not cause a severe asthma attack or
otherwise threaten Martin’s health. Deliberate indifference, we have previously
held, “exists wholly independent of an optimal standard of care.” Gobert, 463
F.3d at 349. While perhaps negligent or even an exercise of poor judgment,
Appellants’ conduct does not constitute deliberate indifference. See Farmer, 511
U.S. at 835 (“[D]eliberate indifference describes a state of mind more
blameworthy than negligence.”).
      Moreover, Appellants have alleged facts (uncontroverted by Martin and
supported by video footage) that, after each round of chemical treatment, they
examined Martin, determined that he was not injured, and offered him a shower.
Such actions counter Martin’s allegations of deliberate indifference. See, e.g.,
Gobert, 463 F.3d at 346 n.24 (“Medical records of sick calls, examinations,
diagnoses, and medications may rebut an inmate’s allegations of deliberate
indifference.” (quoting Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995)
(internal quotation marks omitted)). While Martin claims that, in conducting
one of these examinations, EMT Forbes intentionally touched him in a manner


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that Forbes knew would inflict pain instead of actually treating him, this
conduct does not rise to the level of a constitutional violation under the Eighth
Amendment.      See Gobert, 463 F.3d at 346; see also Broussard v. Nelson,
12-30677, 2012 WL 6605769, at *1 (5th Cir. Dec. 19, 2012) (unpublished)
(“[Plaintiff] characterizes [medical personnel’s] examin[ation of] him . . . as ‘fake’
and ‘lame’, but his dissatisfaction with that examination is an insufficient basis
for an Eighth Amendment claim.”). As Martin has failed to satisfy the “stringent
standard” for showing deliberate indifference to his asthma, see Brown v. Bryan
Cnty., 219 F.3d 450, 457 (5th Cir. 2000), we reverse the district court’s denial of
summary judgment on this ground.
      C.     Deliberate Indifference to Martin’s Other Medical Needs
      Martin’s third and final claim alleges that Appellants acted with
deliberate indifference to his “various other medical conditions.”          Martin’s
briefing on this issue is woefully inadequate and does not even specify with any
amount of detail which “various other medical conditions” were ignored.
Essentially, Martin suggests that the use of chemical spray in the incident
discussed above resulted in a “serious medical need” that was ignored by medical
personnel for several months. The district court declined to grant Appellants
qualified immunity because the medical records provided by Martin were
“insufficient . . . to assess these claims.” Martin has not alleged that Appellants
entirely failed to provide him with medical care after the sprayings, as such a
contention would be clearly contradicted by video footage. Instead, he appears
to assert that Appellants violated the Eighth Amendment by refusing to provide
him with additional medical treatment in the months after the incident.
Appellants’ refusal to provide additional treatment, without more, constitutes


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“a classic example of a matter for medical judgment.” Gobert, 463 F.3d at 346
(quoting Domino, 239 F.3d at 756) (internal quotation marks omitted). As such,
it takes on the appearance of a claim for “[u]nsuccessful medical treatment, acts
of negligence, or medical malpractice” that we have previously held “do not
constitute deliberate indifference.” Id.
      For the same reasons discussed in the previous section, the district court
erred in relieving Martin of the burden of pleading facts sufficient to show that
Appellants exhibited deliberate indifference to his other medical needs,
particularly in light of video footage and statements from Appellants showing
the provision of medical care to Martin after each of the chemical sprayings.
Moreover, Martin has not identified with any specificity the ailments or
symptoms (aside from asthma and a vague reference to back pain) he claims
were caused by Appellants’ alleged deliberate indifference. Accordingly, we
reverse the district court’s denial of qualified immunity on Martin’s claim of
deliberate indifference to his other medical needs.


                             IV. CONCLUSION
      The district court erred in denying Appellants’ motion for summary
judgment on the issue of excessive force without an adequate evaluation of the
five Hudson factors, particularly since some of the unaddressed facts may have
had implications for that claim. Additionally, the district court erred in denying
Appellants’ motion for summary judgment on the claims of deliberate
indifference, since Martin entirely failed to plead facts that “rise[] to the level
of egregious intentional conduct required to satisfy the exacting deliberate
indifference standard.” Gobert, 463 F.3d at 351. As a result, we reverse the


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district court’s denial of summary judgment, remand for reconsideration of
Martin’s excessive force claim, and render summary judgment in favor of
Appellants on the deliberate indifference claims.




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