McCoy v. Alamu

• Decision Date: 11 February 2020
• Docket Number: No. 18-40856,18-40856
• Citation: 950 F.3d 226
• Parties: Prince MCCOY, Sr., Plaintiff–Appellant, v. Mr. ALAMU, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

950 F.3d 226

Prince MCCOY, Sr., Plaintiff–Appellant,

v.Mr. ALAMU, Defendant–Appellee.

No. 18-40856

United States Court of Appeals, Fifth Circuit.

FILED February 11, 2020

Prince McCoy, Sr., Pro Se.

Penelope Maley, Assistant Attorney General, Office of the Attorney General, Office of the Solicitor General, Briana Marie Webb, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Defendant-Appellee.

Before JOLLY, SMITH, and COSTA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Texas prisoner Prince McCoy sued Mr. Alamu, a correctional officer, under 42 U.S.C. § 1983 for allegedly violating his Eighth Amendment rights. He claimed that Alamu had sprayed him in the face with a chemical agent without provocation. The district court granted summary judgment for Alamu on the basis of qualified immunity ("QI"), dismissed McCoy’s official-capacity claim, and denied McCoy’s motions to amend his complaint. We affirm.

I.

McCoy was incarcerated in the prison’s administrative segregation block. The parties agree that Alamu sprayed McCoy with a chemical agent after a different prisoner had twice thrown liquids on Alamu. They disagree about almost everything else.

Start with McCoy’s side of the story. On that day in 2016, Alamu came by McCoy’s cell block. As Alamu approached the cell of Marquieth Jackson, one of McCoy’s neighboring inmates, Jackson threw some water on Alamu. Alamu radioed a sergeant, "who dealt with the matter." About an hour and a half later, Alamu returned to conduct a roster count. Again, Jackson doused Alamu with water. Angered, Alamu grabbed his chemical spray and yelled "where you at?" repeatedly at Jackson. McCoy’s fellow inmates screamed "you can’t spray him!" But because Jackson had blocked the front of his cell with sheets, Alamu couldn’t do anything. Two minutes passed. Alamu re-holstered the spray and walked toward McCoy’s cell, asking for McCoy’s name and prisoner number. As McCoy approached the front of the cell to inform him, Alamu "sprayed [McCoy] directly in the face with his [chemical] spray for no reason at all."

Alamu remembers things differently. He states that after being "chunked with an unknown liquid" by Jackson, he "immediately ... ran away from the cell for cover." As he approached McCoy’s cell, he "went blank" after McCoy threw "an unknown weapon" at him, striking him in the face. Feeling that his "life was in danger," "the next thing that crossed [his] mind was to use" the spray. He characterized his panicked reaction as an "involuntary action." Documents in the record suggested that the "weapon" was a "piece of rolled toilet paper." McCoy denies throwing anything.

The parties agree that immediately after spraying McCoy, Alamu initiated the Incident Command System over the radio. Prison staff arrived with a video camera, and medical personnel checked on McCoy, who was provided "[c]opious amounts of water and fresh air" to wash off the chemicals. In the video,¹ McCoy, pacing around the cell, stated that he couldn’t breathe, but a nurse—speaking to the camera—noted that McCoy was "moving around just fine" and was breathing "with no distress."

The Use of Force Report found that McCoy hadn’t suffered any injuries, but McCoy alleged that he had burning skin and eyes, congested lungs, difficulty breathing, stomach pain, vision impairment, anxiety, nightmares, depression, and other emotional distress. The Report concluded that Alamu’s use of force was unnecessary and inconsistent with prison rules, and he was placed on three months’ probation.

Both McCoy and Alamu supported their versions of the events with competent summary judgment evidence. McCoy relied mainly on his allegations and declarations from neighboring inmates who witnessed the events and confirmed his story. Alamu leaned on the findings in the Use of Force Report and the video.

McCoy sued Alamu for damages in his official and personal capacities, contending that the spraying was excessive force in dereliction of the Eighth Amendment. The district court granted summary judgment for Alamu on the basis of QI for the individual-capacity claim, dismissed the official-capacity claim as barred by the Eleventh Amendment, and denied McCoy leave to amend his complaint. McCoy appeals pro se .

II.

We address the summary judgment "de novo , applying the same standards as the district court." Arenas v. Calhoun , 922 F.3d 616, 620 (5th Cir. 2019). When an officer invokes QI, "the burden then shifts to the plaintiff, who must rebut the defense by establishing a genuine fact [dispute] as to whether the official’s allegedly wrongful conduct violated clearly established law." Brown v. Callahan , 623 F.3d 249, 253 (5th Cir. 2010). The plaintiff must show that (1) "the officer violated a federal statutory or constitutional right" and (2) "the unlawfulness of the conduct was clearly established at the time." Rich v. Palko , 920 F.3d 288, 294 (5th Cir.) (quotation marks omitted), cert. denied , ––– U.S. ––––, 140 S. Ct. 388, 205 L.Ed.2d 217 (2019). We still view the evidence in the light most favorable to the plaintiff. See Bourne v. Gunnels , 921 F.3d 484, 492 (5th Cir. 2019).

A.

The first QI prong requires McCoy to show a genuine factual dispute about whether Alamu used excessive force. Brown , 623 F.3d at 253. In evaluating that claim, "the core judicial inquiry 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, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). We focus on the prison official’s "subjective intent" and determine it "by reference to the well-known Hudson factors." Cowart v. Erwin , 837 F.3d 444, 452–53 (5th Cir. 2016). They are "(1) the extent of the injury suffered, (2) the need for the application of force, (3) the relationship between that need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful response." Bourne , 921 F.3d at 491 (cleaned up).

The district court held that McCoy hadn’t shown a requisite factual dispute. The evidence showed Alamu had acted in self-defense and in a good-faith effort to maintain discipline, and McCoy had provided only "bare allegations" that Alamu acted with sadistic intent.

Though the court assumed (based on the Use of Force Report) that there was little need for the spray, the remaining Hudson factors weighed for Alamu, who presented evidence that he reasonably perceived "a threat from McCoy." Jackson, the court noted, "had twice thrown liquids on Alamu," creating a safety risk. Alamu had "tempered the use of force ... by using only a short burst of spray, rather than the whole can, and by ending the incident immediately after the spray." And McCoy’s injuries were minor, because, in the Use of Force video, McCoy never complained about his eyes, and he was "walking and talking with no detectible breathing issues."²

McCoy contends that the district court erroneously resolved genuine factual disputes, and we agree. The court needed to accept McCoy’s "version of the disputed facts as true" and determine whether they "constitute[d] a violation of a constitutional right." Carroll v. Ellington , 800 F.3d 154, 169 (5th Cir. 2015). It did the opposite, crediting Alamu ’s version and resolving factual disputes in his favor. That was error. See Bourne , 921 F.3d at 492.

The court noted that Alamu had presented evidence that he reacted involuntarily after sensing a threat from McCoy. But McCoy disputed that account. He alleged that Alamu had grown frustrated with Jackson and arbitrarily took out his anger on McCoy by spraying him "for no reason at all." So far from providing merely "conclusory allegations," McCoy specifically alleged that he had done nothing to provoke Alamu, and McCoy backed it up with declarations of fellow inmates who’d witnessed the events. That was competent summary judgment evidence. See FED. R. CIV. P. 56(c)(4).

Indeed, McCoy’s version of the disputed facts demonstrates a constitutional violation. The use of chemical spray is certainly not "a per se violation of the Eighth Amendment," even where the targeted "inmate is locked in his cell." Soto v. Dickey , 744 F.2d 1260, 1270 (7th Cir. 1984). Instead, "the appropriateness of the use must be determined by the facts and circumstances of the case." Id. Officials may use chemical spray where "reasonably necessary to prevent riots or escapes or to subdue recalcitrant prisoners." Clemmons v. Greggs , 509 F.2d 1338, 1340 (5th Cir. 1975). But they cannot do so "for the sole purpose of punishment or the infliction of pain." Soto , 744 F.2d at 1270.

On McCoy’s adequately supported view of the facts, there was no need to "subdue" McCoy—it was Jackson, not McCoy, who was "recalcitrant." Granted, prison officials can use pepper spray on even a non-offending inmate (such as McCoy) if doing so will help stifle a broader disturbance. See Baldwin v. Stalder , 137 F.3d 836, 840–41 (5th Cir. 1998). But there is no allegation of any melee beyond Jackson’s aquatic mischief. Instead, McCoy alleges that Alamu sprayed him—confined to his cell—"for no reason at all."

Thus, even accepting the district court’s view that the injuries were minor and that Alamu tempered the use of force,³ McCoy has shown genuine disputes as to whether there was any need for force, whether the force used was proportionate, and whether Alamu reasonably perceived any threat from McCoy. Viewing the evidence in McCoy’s favor, the Hudson factors thus suggest that Alamu was motivated by a bare desire to harm McCoy. See Bourne , 921 F.3d at 493.

That conclusion squares with unpublished decisions of ours and of our sister circuits. In Chambers v. Johnson , 372 F. App'x 471, 472 (5th Cir. 2010) (per curiam), we affirmed a denial of QI to officers who "emptied two cans of chemical irritant into [the plaintiff’s]...