IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION

FILED
2006 Apr-10 PM 01:50 U.S. DISTRICT COURT
N.D. OF ALABAMA

KEVIN DANLEY,

)

)

Plaintiff

)

)

v.

)

)

RUBY ALLEN; JACKIE RIKARD;

and RONNIE WILLIS;

)

)

Defendants.

)

CASE NO.

COMPLAINT

Plaintiff Kevin Danley complains of defendants, stating as follows:

Parties

1. Plaintiff Kevin Danley is of legal age and a citizen and resident of the

state of Alabama.

2. Defendant Ruby Allen was employed as a jailer at the Lauderdale

County Detention Center at all times relevant to the allegations in this complaint.

She is sued in her individual capacity.

3. Defendant Jackie Rikard was employed as the administrator of the

Lauderdale County Detention Center at all times relevant to the allegations in this

complaint and is a resident and citizen of the state of Alabama. She is sued in her

individual capacity.

4. Defendant Ronnie Willis was the Lauderdale County Sheriff at all

times relevant to the allegations in this complaint and is a resident and citizen of the state of Alabama. He is sued in his individual capacity.
Facts 5. On or about July 11, 2004, plaintiff was in custody at the Lauderdale County Detention Center. 6. The larger jail cell in which plaintiff was initially kept did not have a toilet. Plaintiff requested multiple times to be able to use a toilet. Eventually, plaintiff was taken out of the cell in which he was located, which only had a urinal, and taken to a smaller cell that had a toilet in the corner. 7. The toilet available to plaintiff was not clean, and there was no toilet paper. Plaintiff complained but was never given any toilet paper. He went to the bathroom and then came out of the cell. 8. Plaintiff was upset because of how he was being treated, in particular the refusal of toilet paper, and cursed. 9. Defendant Allen told plaintiff, among other things, to shut up, to watch his mouth, and to get back in the cell. In response, plaintiff told defendant Allen that he was done. Defendant Allen told plaintiff to go back in the cell or she was going to spray him. Plaintiff asked defendant Allen why she was “fucking” with him and what “spray me” meant.
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10. Instead of answering plaintiff’s questions, defendant Allen told one of the two jailers present to spray plaintiff.
11. The jailer sprayed plaintiff for approximately 3-5 seconds. As plaintiff was screaming and crying, the two jailers pushed plaintiff back into the smaller cell and closed the door.
12. Plaintiff was having trouble breathing and was hyperventilating. Plaintiff was screaming and crying that he could not breathe and was begging to be let out to breathe. In response, defendant Allen and the two jailers laughed at plaintiff and made fun of him.
13. Defendant Allen and the two other jailers left plaintiff in the small, poorly ventilated cell for approximately 20 minutes.
14. Plaintiff was sprayed without sufficient justification (as plaintiff presented no threat), was sprayed excessively, and was denied prompt medical attention.
15. After approximately 20 minutes, plaintiff was allowed to briefly shower but was not able to sufficiently clean up. After the brief shower, plaintiff was returned to the larger cell. Within approximately 30 minutes, plaintiff’s cellmates were complaining that they were burning from what was on plaintiff.
16. Plaintiff had trouble breathing and complained of trouble breathing throughout the remainder of his time in jail. Plaintiff would lay on the floor and
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try to breathe through the crack under the door. 17. Plaintiff requested medical treatment but was denied medical
treatment. 18. Approximately an hour before he was released, over twelve hours
after plaintiff was sprayed, plaintiff almost blacked out. After this, a jailer took plaintiff to another cell that was better ventilated.
19. The next day, plaintiff was treated by a physician for chemical conjunctivitis in his eye and irritant-induced broncospasm in his lungs. The physician prescribed plaintiff appropriate medication.
20. After the incident, plaintiff personally complained to defendants Rikard and Willis, who, after reviewing the circumstances, ratified and approved of the above-described excessive force.
Count I - 42 U.S.C. § 1983 - Excessive Force 21. On or about July 11, 2004, defendant Allen, who was acting under color of law within the meaning prescribed by 42 U.S.C. § 1983, caused excessive force to be used on plaintiff. Defendant Allen did thereby deprive plaintiff of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States in violation of 42 U.S.C. § 1983. Specifically, defendant Allen violated plaintiff’s right to be free from excessive force
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22. The use of excessive force on plaintiff was pursuant to policies and customs of defendants Rikard and Willis.
23. Prior to the use of force on plaintiff, Rikard and Willis permitted, encouraged, and ratified a pattern and practice of unjustified, unreasonable, and excessive use of force in that they:
a. failed to discipline or prosecute or in any manner deal with known incidents of excessive force; and
b. refused to investigate complaints of excessive force and, instead, officially claimed such incidents were justified and proper.
24. The foregoing acts, omissions, and systemic failures and deficiencies are policies and customs of Rikard and Willis and caused the jailers under their supervision to believe that excessive force was permissible and that complaints of excessive force would not be honestly or properly investigated, with the foreseeable result that jailers would use excessive force on plaintiff and other similarly-situated citizens.
25. Intentionally or with deliberate indifference, defendants Rikard and Willis permitted, encouraged, and ratified a pattern and practice of unjustified, unreasonable, and excessive use of force at the jail.
26. As a result of the conduct of defendants, plaintiff has been caused to suffer physical and emotional injuries and damages, embarrassment, and
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humiliation and has been caused to incur medical bills and other expenses. Other Matters
27. All conditions precedent to the bringing of this suit have occurred. Relief Sought
28. As relief, plaintiff seeks the following: a. That he be awarded such compensatory damages as a jury shall determine from the evidence he is entitled to recover; b. That he be awarded against the individual defendants only such punitive damages as a jury shall determine from the evidence he is entitled to recover; c. That he be awarded prejudgment and postjudgment interest at the highest rates allowed by law; d. That he be awarded the costs of this action, his reasonable attorney’s fees, and his reasonable expert witness fees; e. That he be awarded such other and further relief to which he is justly entitled.
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Respectfully submitted,
Henry F. Sherrod III Alabama Bar No. ASB-1200-D63H HENRY F. SHERROD III, P.C. 119 S. Court St., Suite 200 P. O. Box 606 Florence, Alabama 35631-0606 Phone: 256-764-4141 Fax: 877-684-0802 Email: hsherrod@hiwaay.net Attorney for Plaintiff Jury Demand Plaintiff requests a trial by jury.
Henry F. Sherrod III
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 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

KEVIN DANLEY, Plaintiff,
v. RUBY ALLYN, et al.,
Defendants.

} } } } CIVIL ACTION NO. } 06-J-0680-NW } } } }

FILED
2007 Apr-24 PM 02:34 U.S. DISTRICT COURT
N.D. OF ALABAMA

MEMORANDUM OPINION In the second amended complaint filed by plaintiff, Kevin Danley (“Danley”), he invokes 42 U.S.C. §1983 and seeks damages from five jail personnel who he claims violated his constitutional rights while he was a pretrial detainee and while they were acting under color of state law. All defendants filed motions to dismiss pursuant to Rule 12(b)(6), claiming that they are entitled to qualified immunity. This court denied defendants’ said motions without opinion, as this court, and other courts, had long done where a plaintiff’s allegations of egregious law enforcement misconduct must be taken as true. The court believed that the second amended complaint clearly showed on its face that defendants were not entitled to qualified immunity. In a sharply worded opinion, the Court of Appeals reversed and remanded the case with instructions to this court to

“consider the case in full and to enter reasoned orders which discuss the facts alleged in the second amended complaint and detail the legal analysis used by the district court to reach its conclusions regarding the motions to dismiss.” Danley v. Allen [sic], 480 F.3d 1090 (11th Cir. 2007).
This court assumes that the mandate permits the court to grant some or all of defendants’ Rule 12(b)(6) motions. In fact, the court detects from a between-thelines reading of the appellate opinion that the granting of defendants’ motions might be this court’s safest course of action. The Court of Appeals had before it the same twice amended complaint that this court considered; and it perfectly summarized that complaint as a contention by Danley “that [Danley] was subjected to excessive force and then denied medical treatment when, as a pretrial detainee, detention officers sprayed him with pepper spray.” Id.
This court starts with the premise that if a state actor is qualifiedly immune from a suit brought under §1983, his immunity should be judicially recognized at the earliest practicable moment. This is the rationale that justifies an immediate appeal from a denial of a Rule 12(b)(6) motion based on qualified immunity. In cases where it is apparent from the face of the complaint not only that a defendant was acting within the scope of his discretionary authority during the incident complained of, but that he had no well recognized reason to believe that his
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conduct violated a protected constitutional right, Mitchell v. Forsyth, 472 U.S. 511, 524, 105 S.Ct. 2806, 2814 (1985), provides him a remedy, that is, if the trial court has failed, as this court may have done, to see the obvious. In fact, a defendant arguably has nothing to lose by taking his virtually pre-ordained interim appeal, even if the complaint undeniably alleges that he has committed an act of sadistic, unprovoked violence against the plaintiff. But, does the early appeal encouraged by Mitchell necessarily accomplish its purpose? In some cases, an unfounded interlocutory appeal has the opposite effect. It prolongs the specter of ultimate liability and imposes upon the appealing defendant the substantial legal expense of the appeal. If the defendant loses a costly and time consuming appeal, he can, and probably will, file a motion for summary judgment pursuant to Rule 56. If his Rule 56 motion is also denied, he will probably take a second (or a third?) interlocutory appeal, although this time upon a record that will contain evidentiary material developed during discovery and thus that goes well beyond the bare allegations of the complaint. It appears, then, that a defendant who is willing to forego an appeal at the Rule 12(b)(6) stage, may escape from the litigation thicket quicker by waiting until his Rule 56 opportunity, at which time the facts upon which his qualified immunity defense is based will be clearer and more telling. In the case here being considered, when the Rule 12(b)(6) motions
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are again denied, as they will be for the reasons that follow, the defendants will probably exercise their second right to appeal. They, of course, have the right to do so.
The foregoing musings about the advantages and disadvantages inherent in Mitchell do not alter this court’s clear obligation to follow the mandate of the Court of Appeals, which, as the court reads it, requires a detailed examination of the facts as alleged. The only sure way to do this is to repeat in haec verba the allegations of the second amended complaint, all of which are deemed true for the purpose of pursuing the required qualified immunity analysis. After the amended complaint, in the early paragraphs, introduces three defendants, Ruby Allyn (“Allyn”), Jeff Wood (“Wood”) and Steve Woods (“Woods”), as Danley’s jailers at the Lauderdale County Detention Center, introduces defendant, Jackie Rikard (“Rikard”), as the jail administrator, and introduces defendant, Ronnie Willis (“Willis”), as the Sheriff of Lauderdale County, Danley alleges in paragraphs 7 through 70 as follows: 7. On or about July 11, 2004, plaintiff was arrested on a DUI charge and placed in custody at the Lauderdale County Detention Center. 8. The group jail cell in which plaintiff was initially kept did not have a toilet or any water. Plaintiff requested multiple times to be able to use a toilet.
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Eventually, plaintiff was taken out of the cell and taken to a small cell (5 x 7) that had a toilet in the corner and no water.
9. The toilet available to plaintiff was not sanitary, and there was no toilet paper.
10. Plaintiff complained about the unsanitary toilet and the lack of toilet paper.
11. Plaintiff told defendant Allyn he needed toilet paper (in addition to the usual reasons) to clean the “nasty” toilet so he could sit down.
12. Despite the availability of toilet paper and for no legitimate reason, defendant Allyn refused plaintiff toilet paper.
13. After going to the bathroom, plaintiff was removed from the cell so he could be transferred back to the group cell by three jailers, defendants Ruby Allyn, Jeff Wood, and Steve Woods.
14. While up to this point plaintiff had been calm, plaintiff was upset because of the denial of toilet paper and, after coming out of the cell, asked if he could please have some “fucking” or “damn” toilet paper to wipe himself.
15. Apparently because she did not like his cursing or his tone of voice, in response defendant Allyn told plaintiff, among other things, to shut up, to watch his mouth, and to get back in the cell.
16. There was no legitimate reason for defendant Allyn to order plaintiff back into the cell.
17. Defendant Allyn ordered plaintiff back into the cell solely to punish him for complaining about the lack of toilet paper and for being (in her view) disrespectful to her.
18. In response to defendant Allyn’s telling him to go back into the cell, plaintiff told defendant Allyn that he was done using the toilet.
19. Instead of having plaintiff returned to the group cell, defendant Allyn told plaintiff to go back in the cell or she was going to spray him.
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20. Plaintiff asked defendant Allyn why she was “fucking” with him and what “spray me” meant.
21. In response, for no legitimate security or other reason and solely for the purpose of humiliating and punishing plaintiff, defendant Allyn told one of the two other jailers present, defendant Wood, to spray plaintiff.
22. Defendant Wood sprayed plaintiff.
23. Defendants Allyn and Wood did not perceive plaintiff as a threat.
24. Plaintiff did not say or do anything that these two defendants could reasonably have perceived as a threat or as a justification for any force.
25. Recognizing this fact, defendants Allyn and Wood wrote false reports accusing plaintiff of being violent prior to the spraying in order to justify their actions.
26. Defendant Allyn intentionally tried to provoke plaintiff by denying him toilet paper, telling plaintiff to return to the cell, and then refusing to provide any explanation for her unjustified display of her power over him.
27. While plaintiff did (understandably under the circumstances) question defendant Allyn’s sending him back into the cell given that he had finished using the toilet, plaintiff never refused to obey defendant Allyn. He did not say he would not return to the cell. He merely asked questions.
28. Plaintiff, though understandably upset, was surrounded by three jailers, was unarmed, had not been arrested for a violent crime, was only asking reasonable questions, and was not acting in a threatening manner.
29. Though no force was necessary, if defendant Allyn merely wanted plaintiff back in the small cell immediately, having plaintiff sprayed was unnecessary.
30. Plaintiff was standing in the doorway, and defendant Allyn could have just told the other two jailers to push plaintiff back into the cell, which they did after he was sprayed.
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31. Contrary to jail policy and procedure and manufacturer instructions, which provide for a one-second burst of spray at a distance of over 3 feet, the jailer sprayed plaintiff at close range and for 3-5 seconds.
32. Defendants Allyn, Wood, and Woods knew plaintiff would be sprayed excessively, as at the jail generally and on this shift in particular it was the formal or informal policy to use pepper spray on non-violent inmates as a means of punishment for not showing proper deference.
33. Moreover, despite an opportunity to intervene to stop or mitigate the effects of the excessive use of pepper spray, all three defendants, as explained below, took steps to exacerbate the excessive spraying by denying plaintiff prompt and adequate ventilation, decontamination, and medical care.
34. Because plaintiff was in the doorway of the cell, the spray was not only on plaintiff and his clothes, but also in the air in the small cell.
35. After plaintiff was sprayed, defendants Wood and Woods pushed plaintiff back into the small cell and closed the door.
36. Plaintiff was having trouble breathing and was hyperventilating. Plaintiff was screaming and crying that he could not breathe and was begging to be let out to breathe. Plaintiff’s breathing problems were such that he feared he was going to die.
37. In response, all three defendants laughed at plaintiff and made fun of him. Among other things, Wood and Woods held their hands to their necks in a mockchoking jesture.
38. Defendants Allyn, Wood, and Woods left plaintiff in the small, poorly ventilated cell for approximately 20 minutes as plaintiff screamed and cried and begged for help.
39. Jail policy and procedure and manufacturer instructions provide for inmates upon whom pepper spray has been used to be provided with prompt and adequate
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ventilation and decontamination to, among other things, prevent injury from prolonged exposure, particularly to the eyes and lungs.
40. Among other things, jail policy and procedure and manufacturer instructions provide for inmates upon whom pepper spray has been used to be able to fully decontaminate, including flushing their eyes with water for approximately 15 minutes.
41. If proper decontamination procedures are followed, the effects of the pepper spray ordinarily dissipate after approximately 20 minutes.
42. All three defendants were aware of the harmful effects of prolonged exposure to pepper spray, were aware of the need for prompt and adequate ventilation and decontamination, were aware plaintiff had been sprayed with an excessive amount of pepper spray in a confined area, were aware that the cell into which plaintiff was pushed was small and poorly ventilated and contained pepper spray, listened to plaintiff’s labored breathing and hyperventilating and begging for help, but did nothing for approximately 20 minutes other than make fun of him and tell him that if he did not shut up he would not be let out.
43. Even after plaintiff stopped screaming and begging, it was approximately 10 minutes before plaintiff was removed from the cell.
44. In essence, defendants Allyn, Wood, and Woods intentionally tortured plaintiff by confining him in the 5 x 7 cell after the spraying.
45. Defendants Allyn, Wood, and Woods denied plaintiff prompt ventilation and decontamination and kept plaintiff in the small and poorly ventilated cell solely for the purpose of humiliating and punishing him and not for any legitimate purpose.
46. The denial of prompt and adequate ventilation and decontamination to plaintiff was intended to cause and did cause plaintiff significant unnecessary pain and suffering.
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47. After approximately 20 minutes, defendants permitted plaintiff to briefly shower (less than two minutes) but did not permit him adequate time for effective decontamination.
48. Defendants Allyn, Wood, and Woods denied plaintiff an adequate shower intentionally to prolong the harmful effects of the spray on plaintiff and thereby to inflict further unnecessary and wanton pain and suffering on him.
49. After the brief shower, plaintiff was returned to the group cell. Because plaintiff was not permitted to promptly and adequately decontaminate, within approximately 30 minutes, plaintiff’s cellmates were complaining that their eyes were burning from what was on plaintiff.
50. Because plaintiff was not permitted to promptly and adequately decontaminate and because he was not placed in a ventilated area, plaintiff continued to suffer. Plaintiff had difficulty breathing and complained about his inability to breathe throughout the remainder of his time in jail. Plaintiff would lay on the floor and breathe through the crack under the group cell door. Plaintiff’s eyes continued to burn throughout his jail stay. Plaintiff’s eyes became so swollen he could hardly see.
51. Defendants intentionally did not comply with jail policy and procedure and manufacturer instructions regarding ventilation and decontamination in order to inflict unnecessary and wanton pain and suffering on plaintiff.
52. Plaintiff repeatedly requested medical treatment, but defendants refused to let him see the jail nurse.
53. Approximately an hour before plaintiff was released, over twelve hours after plaintiff was sprayed, plaintiff almost blacked out because of the breathing difficulties he had been having for the prior twelve-plus hours.
54. After another inmate intervened on his behalf with jailers, plaintiff was taken to another cell that was better ventilated. Plaintiff still was not given any medical treatment.
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55. The next day plaintiff was treated by a physician for chemical conjunctivitis in his eye and irritant-induced broncospasm in his lungs. The physician prescribed plaintiff appropriate medication.
56. Plaintiff missed a day of work because of the conduct of defendants.
57. Plaintiff suffered these injuries because of the excessive use of pepper spray and the denial of prompt and adequate ventilation, decontamination, and medical care.
58. Defendants and other jailers who heard plaintiff’s pleas for help and requests for medical treatment were aware of the painful and potentially injurious effects of pepper spray and knew the denial of treatment, including prompt and adequate ventilation and decontamination, would result in the unnecessary and wanton infliction of pain and suffering and could result in significant injury.
59. After the incident, plaintiff personally complained to defendants Rikard and Willis, who, after reviewing the circumstances, ratified and approved of the abovedescribed actions of defendants Allyn, Wood, and Woods.
60. Defendants Rikard and Willis ratified and approved of the conduct of Allyn, Wood, and Woods because their conduct was consistent with de facto jail policy of permitting the excessive and punitive use of pepper spray and the denial of prompt adequate ventilation, decontamination, and medical care for inmates upon whom pepper spray has been used.
61. Prior to this incident, defendants Rikard and Willis were aware, through use of force reports and similar documents, inmate complaints, attorney complaints, jailer complaints, judicial officer complaints, and personal observation that jailers at the Lauderdale Detention Center regularly used pepper spray unnecessarily as a means of punishment and not for legitimate reasons.
62. Prior to this incident, defendants Rikard and Willis were aware, through use of force reports and similar documents, inmate complaints, jailer complaints, attorney complaints, judicial officer complaints, and personal observation that jailers at the Lauderdale Detention Center regularly used pepper spray excessively as a means of punishment and not for legitimate reasons.
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63. Prior to this incident, defendants Rikard and Willis were aware, through use of force reports and similar documents, inmate complaints, jailer complaints, attorney complaints, judicial officer complaints, and personal observation that jailers at the Lauderdale Detention Center regularly denied inmates prompt and adequate ventilation, decontamination, and medical care following pepper spray discharge as a means of punishment and not for legitimate reasons.
64. In response to numerous known incidents involving the punitive use of pepper spray on inmates and the denial of prompt and adequate ventilation, decontamination, and medical care for such inmates, defendants Rikard and Willis took no action. These defendants did not discipline known incidents and did not conduct additional training despite knowledge that pepper spray was being improperly used on a regular basis by jailers and that inmates were being denied proper treatment after spraying incidents.
65. In particular, defendants Rikard and Willis were aware, prior to the incident involving plaintiff, of numerous such incidents on the shift on which Allyn, Wood, and Woods worked. Nevertheless, the jailers engaging in this pattern of abuse were not disciplined for their actions or provided with additional training.
66. The punitive misuse of pepper spray was such a regular occurrence at the Lauderdale County Detention Center that, to the extent it was not explicit policy, it was the de facto policy. Jailers at the Lauderdale Detention Center came to believe that virtually any use (misuse) of pepper spray would be tolerated.
67. More generally, prior to this incident, defendants Rikard and Willis were aware through use of force reports and similar documents, inmate complaints, jailer complaints, attorney complaints, judicial officer complaints, and personal observation that jailers at the Lauderdale Detention Center regularly used force other than pepper spray on inmates as a means of punishment and not for legitimate reasons.
68. In response to known incidents of excessive force, defendants Rikard and Willis regularly failed to discipline or in any effective manner deal with the involved jailers. Jailers who mistreated inmates were either not disciplined at all or
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inadequately disciplined. Clearly excessive uses of force were determined to be justified or simply ignored. 69. The effect of the responses of Rikard and Willis to known incidents of excessive and punitive use of force on inmates was to permit, encourage, and ratify a pattern and practice of unjustified, unreasonable, excessive, and punitive use of force by jailers. 70. The conduct of Rikard and Willis effectively made the excessive use of force on inmates a de facto policy in the Lauderdale Detention Center.
Based on this elaborate set of facts, Danley contends that he was subjected to cruel and unusual punishment and was the victim of deliberate indifference to his observable medical needs in violation of his rights as a pretrial detainee under the Fourteenth Amendment, which incorporates the protections granted by the Eighth Amendment to persons in custody after conviction. The Court of Appeals instructed this court to express its opinion less perfunctorily than it did in its earlier opinion as to whether Danley’s allegations describe deprivations that were contrary to clearly established constitutional principles.
The Court of Appeals did not discuss, or even mention, the heightened pleading standard that defendants urge upon the court. This court agrees with defendants that “a higher pleading standard is alive and well in Eleventh Circuit qualified immunity jurisprudence.” After two amendments to his complaint, Danley can hardly be expected to provide more factual detail, or more specificity,
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than he provides in paragraphs 7 through 70 of his amended complaint. Admittedly, he occasionally slips into conclusory allegations, but he sets forth in graphic detail a series of facts that meet the Eleventh Circuit higher pleading standard. The inquiry, then, is not about the quality of Danley’s pleading, or his rendition of the facts, but whether the facts, as he alleges them, demonstrate conduct by defendants, or any of them, that crosses the constitutional bright line.
Although Justices Stevens and Blackmun did not fully join the five Justice opinion written by Justice O’Connor in Hudson v. McMillian, 503 U.S. 1, 9112 S. Ct. 995, 1000 (1992), the said two Justices did concur sufficiently to provide an irrefutable seven Justice Supreme Court consensus that substantial injury is not required to sustain a claim of cruel and unusual punishment where there is “unnecessary and wanton infliction of pain” (quoting Whitley v. Albers, 475 U.S. 312, 320-321, 109 S.Ct. 1078, 1084-1085 (1986)), and that “contemporary standards of decency always are violated” when “prison officials maliciously and sadistically use force to cause harm.” These concepts were reiterated and reenforced in Hope v. Pelzer, 536 U.S. 730, 737, 122 S.Ct. 2500, 2514 (2002), in which the Supreme Court again explained that the unnecessary and wanton infliction of pain always constitutes the “cruel and unusual punishment” that is constitutionally forbidden. Thus, the “clearly established” test for evaluating such
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an offending circumstance, as enunciated in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982), is met by applying this generalized principle, and there was no need for a particularized “fair warning” beyond the broad warning contained in Hudson. As an interesting aside, John G. Roberts, Jr. (now Chief Justice Roberts), appeared amicus curiae on behalf of Hudson, the prevailing petitioner in Hudson.
The lesson of Hudson, if applied to the facts alleged by Danley, provided more than “fair warning” to all of these defendants that to employ pepper spray as punishment, or for the sadistic pleasure of the sprayers, as distinguished from what is reasonably necessary to maintain prisoner control, is constitutionally prohibited. At the present juncture, Danley’s rendition of the facts, that include taunts, reflects an angry and inexcusable response by the jailers to Danley’s bad language after the dispute over toilet paper that undoubtably aggravated Danley. On the facts as alleged, nothing Danley did or said justified the repeated discharge of pepper spray in his face accompanied by choking gestures. Allyn, Wood and Woods may ultimately give testimony to justify a need to pepper spray Danley, just as they claimed in their work reports after the incident, but as of now, the allegation (and therefore the “fact”) is that those reports were no more than an attempt to cover up their misdeeds.
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Hudson and its progeny fit this case. They provide all the warning that these jailers were entitled to, that is, unless after Hudson and Pelzer were decided the use of pepper spray has become such a routine and recognized prison practice that it has evolved into a practice that meets current standards of decency and has become constitutionally acceptable behavior even when infected with malicious intent. This court does not believe in such an evolution. There is nothing in Danley’s complaint to suggest that he posed a physical threat to any of the defendants or to other inmates. Defendants can point to no case that approves the pepper spraying of an inmate just to shut his mouth.
There is, of course, a difference between the standard to be applied to the three actual pepper sprayers and their supervisors who were not physically present during the use of the spray. That distinction need be explored only if the use of pepper spray by defendants, Allyn, Wood and Woods, crossed the clear boundary of Fourteenth Amendment unconstitutionality, as this court thinks it did. Danley’s allegations are not that Rikard and Willis are liable under a theory of respondeat superior, but that because an unconstitutional practice was created or condoned by them, they became actual participants.
It is true that the burden is not on a jailer to point to a decision that expressly approves of his conduct. The burden is on a plaintiff to show that the
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jailer had every reason to know not to do what he did under the particular circumstances existing at the time of the act. The closest Eleventh Circuit case this court has found on the question of when pepper spraying is permitted and when precluded is Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), a case that predated the incident here under review and therefore clearly established the legal principles applicable to a similar circumstance. It teaches, like Hudson did in a generic way, that pepper spray cannot be used as a device for punishment or retribution. Id. at 1348-1349. Pepper spray can be used only as a means of controlling a pretrial detainee’s dangerous conduct. This court knows that a can of pepper spray, like a police baton or a stun gun can be legitimately used by law enforcement personnel to protect themselves and to maintain control. But, Danley’s conceded verbal belligerence without more did not justify the use of a baton, or of a stun gun, or of pepper spray. Everybody familiar with pepper spray, including these defendants, knew or should have known that pepper spray causes injury and probably likely requires medical intervention after its use.
Vinyard is an Eleventh Circuit case closely on point because it deals expressly with the propriety of using of pepper spray on a person in custody. Like the instant case, Vinyard involved the use of pepper spray after verbal insults by
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the prisoner. There, the detainee, Vinyard, admitted that she “may have become ‘a
little rowdy.’” Id. at 1344. Nevertheless, the Eleventh Circuit held:
While the parties do not cite and we have not located Supreme Court, Eleventh Circuit, or Georgia Supreme Court decisions regarding pepper spray use in the course of an arrest, other courts have addressed its use. Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else. Courts have consistently concluded that using pepper spray is reasonable, however, where the plaintiff was either resisting arrest or refusing police requests, such as requests to enter a patrol car or go to the hospital. Furthermore, “‘as a means of imposing force, pepper spray is generally of limited intrusiveness,’ and it is ‘designed to disable a suspect without causing permanent physical injury.’” Gainor v. Douglas County, 59 F.Supp.2d 1259, 1287 (N.D. Ga. 1998) (quoting Griffin v. City of Clanton, 932 F.Supp. 1359, 1369 (M.D. Ala. 1996). Indeed, pepper spray is a very reasonable alternative to escalating a physical struggle with an arrestee.
Based on Vinyard’s account of the facts, it is abundantly clear to us that during the jail ride Stanfield “used force that was plainly excessive, wholly unnecessary, and, indeed, grossly disproportionate under Graham.” [Lee v. Ferraro, 284 F.3d at 1188, 1198 (11th Cir. 2002)]. Vinyard was under arrest for offenses of minor severity, handcuffed, secured in the back of a patrol car, and posing no threat to Officer Stanfield, herself or the public.
Id. at 1348 (footnotes omitted).
This court notes that the pepper spray used in Vinyard was to “subdue” the
detainee and was not, as here alleged by Danley, for the sadistic pleasure of the
custodial officers. In other words, Danley’s facts suggest much worse behavior by
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the defendants than the defendants in Vinyard. And yet the Eleventh Circuit there had no problem finding a constitutional violation and no qualified immunity for the defendants. This court concludes that after Vinyard any jailer should have known that to repeatedly pepper spray a prisoner in custody, and to seemingly enjoy it, constitutes conduct that is “clearly established” to be a violation of a constitutionally protected right of the prisoner. Of course, the court has not yet heard from the defendants. Ultimately, Danley’s rendition of the facts will be hotly contested. For the moment, however, the facts as Danley alleges them, are true. As such, they preclude, as of now, the defense of qualified immunity interposed by Allyn, Wood and Woods, the three defendants who engaged in the pepper spraying of Danley.
The claim against the two supervising defendants, Rikard and Willis, proceeds, if at all, under a different theory, namely, alleged indirect participation by them in the actions of the pepper sprayers themselves, in the form of creating or maintaining a custom and practice in accordance with which the actual sprayers acted, and thus with the deemed authorization of Rikard and Willis. Whether Danley will be able to prove such a well understood, widespread and constant use of pepper spray that the two supervisory defendants, or either of them, can be deemed to have participated remains to be seen. Meanwhile, to tolerate or
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encourage the sadistic use of pepper spray arguably renders a supervisor liable under 42 U.S.C. § 1983. Without having conducted any discovery, Danley has done a creditable job of alleging facts and circumstances to show that Rikard and Willis created an atmosphere or practice under which the three hands-on employees operated in, and that can create supervisory liability without resort to respondeat superior.
A recent Eleventh Circuit decision that makes a distinction between the liability of a supervisor and the liability of a direct actor is Gonzales v. Reno, 325 F.3d 1228 (11th Cir. 2003). In that case the Eleventh Circuit pointed out:
Plaintiffs state that there is a causal connection between these defendants’ acts and the excessive force used by the agents on the scene, but they do not allege any facts to support this causal connection. Plaintiffs do not allege that these defendants directed the agents on the scene to spray the house with gas, break down the door with a battering ram, point guns at the occupants, or damage property. Id. at 1235. The Eleventh Circuit thereupon granted the motion of the supervisory defendants, including Attorney General Reno, to dismiss under Rule 12(b)(6). This court finds Gonzales distinguishable on its facts. Danley is no more alleging in the instant case that Ricard and Willis actually directed Allyn, Wood and Woods to pepper spray him than Gonzales was alleging that Attorney General Reno actually
19

directed the complained of actions by her agents. As distinguished from Gonzales, Danley alleges facts that, taken as true, demonstrate a custom and practice created by the supervisory defendants upon which their agents acted as if by direction.
Danley’s claim of deliberate indifference is simply an elongation of his complaint of the use of excessive force. It need not be addressed as a distinct constitutional tort. There may be an occasion in which a failure to provide adequate medical treatment to a person who has been appropriately pepper sprayed would be so egregious that it would create a separate cause of action under 42 U.S.C. § 1983, but defendants’ alleged failure to provide adequate medical treatment in this case is no more than a continuation of Danley’s excessive force claim, at least for the purposes only in the Rule 12(b)(6) motions, none of which ask this court to separately consider the excessive force claim and the deliberate indifference claim.
Conclusion Based on the foregoing, the defendants’ motions to dismiss will be denied by separate order. DONE this 24th day of April 2007.
INGE PRYTZ JOHNSON U.S. DISTRICT JUDGE
20

21

 
 United States Court of Appeals
For the Eleventh Circuit

FILED
2008 Sep-23 PM 04:14 U.S. DISTRICT COURT
N.D. OF ALABAMA

No. 07-12328
District Court Docket No. 06-00680-CV -IP J
KEVIN DANLEY, Plaintiff-Appellee,
versus RUBY ALLEN,
Defendant, JACKIE RIKARD, RONNIE WILLIS, RUBY ALLYN, JEFF WOOD, STEVE WOODS,
Defendants-Appellants.

FILED U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug 22,2008
THOMAS K. KAHN CLERK

Appeal from the United States District Court for the Northern District of Alabama

JUDGMENT
It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court.
Entered: August 22, 2008 For the Court: Thomas K. Kahn, Clerk
By: Gilman, Nancy

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

Fll..ED
FOR THE ELEVENTH CIRCUI1 U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 22,2008

No. 07-12328

THOMAS K. KAHN CLERK

KEVIN DANLEY, RUBY ALLEN,

D. C. Docket No. 06-00680-CV-IPJ versus

Plaintiff-Appellee,

JACKIE RIKARD, RONNIE WILLIS, RUBY ALLYN, JEFF WOOD, STEVE WOODS,

Defendant,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Alabama
(August 22, 2008)

Before BLACK and CARNES, Circuit Judges, and RESTANI,* Judge. CARNES, Circuit Judge:
Kevin Danley was arrested for driving under the influence and was taken to jail. While there he had a disagreement with some of the jailers after he was made to use a dirty toilet without any toilet paper. Because Danley failed to obey one of the jailer's orders during the disagreement, another jailer pepper sprayed him. Although pepper spray is an accepted non-lethal means of controlling unruly inmates, Danley contends that the jailers used too much on him, that he was not allowed to wash it off after he calmed down, and that he was denied adequate medical care following the incident. He says he suffered, and he has sued.
Kevin Danley, who had been locked up in the Lauderdale County Detention Center, filed his lawsuit under 42 U.S.C. § 1983, claiming that he was subjected to excessive force and deliberate indifference, both in violation of the Fourteenth Amendment. He named as defendants Ruby Allyn, Jeff Wood, and Steve Woods, who are jailers; Jackie Rikard, the jail administrator; and Ronnie Willis, the sheriff. The central allegations in Danley's complaint are that after he was pepper sprayed at the jail, he was locked in a poorly ventilated cell, prevented from washing off
* Honorable Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by designation.
2

the pepper spray, and denied medical care that he needed as a result of the spraying.
After the district court denied the defendants' motions to dismiss the complaint on qualified immunity grounds, they appealed. We vacated and remanded for further consideration and findings. Danley v. Allen, 480 F.3d 1090, 1092 (11th Cir. 2007). The district court made more findings about the evidence, denied the motions to dismiss again, and the defendants have appealed again.
I.
For now, we take the facts alleged in the complaint as true and construe them in the light most favorable to Danley. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). In that light the facts are that on July 11, 2004 Danley was arrested for driving under the influence and taken to the Lauderdale County, Alabama Detention Center. Once there he was put in a group cell that had no toilet. After asking the jailers several times to use a toilet, Danley was eventually taken "to a small cell (-5 x 7) that had a toilet in the corner and no water." He complained that the toilet was unsanitary and there was no toilet paper, and he told Allyn he needed some in order to "clean the 'nasty' toilet so he could sit down." She refused his request.
3

After Danley finished using the toilet, jailers Allyn, Wood, and Woods began to take him from the small cell back to the larger group cell. Danley was still upset about the lack of toilet paper and asked them "if he could please have some 'fucking' or 'damn' toilet paper to wipe himself." Allyn told Danley to watch his language, to shut up, and to get back into the small cell. Danley replied that he was done using the toilet, and Allyn told him that if he did not get back in the small cell "she was going to spray him." Danley then asked Allyn why she was "fucking" with him and what "spray me" meant. Instead of answering the second part of Danley's question, Allyn decided to show him what she meant. She told Wood to pepper spray Danley, and Wood sprayed him "at close range" for three to five seconds.
Wood and Woods then pushed Danley back into the small cell and closed the door. Because Danley had been in the doorway of the cell when he was sprayed, the spray remained not only on him and his clothes but also in the air of the small, poorly ventilated cell. Danley began having trouble breathing, started to hyperventilate, screamed and cried to the three jailers that he could not breathe, and begged to be let out. The effects were so severe that he "feared he was going to die." In response to his pleas for help, the jailers laughed at Danley and made fun of him; among other things, Wood and Woods held their hands to their necks
4

in a "mock-choking" gesture. They also told Danley that "if he did not shut up he would not be let out."
After ten minutes, Danley quieted down. Still, the three jailers left him in "the small, poorly ventilated cell for approximately 20 minutes," doing nothing to help him while he was suffering. Finally, they took him out of the cell and to a shower, where he was allowed to rinse off. His shower, however, was less than two minutes long, which "did not permit him adequate time for effective decontamination." The jailers then returned Danley to the group cell, which like its smaller counterpart was also insufficiently ventilated. Because he had not been permitted to adequately decontaminate himself, pepper spray still clung to Danley and his clothes. Within thirty minutes of being placed in the group cell, Danley's cellmates began complaining that their eyes were burning because of the residue left on him.
Danley also continued to suffer the effects of the pepper spray once he was back in the group cell. He had difficulty breathing, which he complained about to the jailers for the remainder of his time in the jail. His eyes continued to bum and swelled so badly he could hardly see. Danley's symptoms got so bad that in an attempt to relieve his suffering he laid down on the floor to breathe through the crack under the cell door. Although he repeatedly requested medical treatment, the
5

jailers refused to let him see the jail nurse. At one point Danley "almost blacked out because of the breathing difficulties he had been having for the prior twelveplus hours." According to the allegations in Danley's complaint, the three jailers "intentionally did not comply with jail policy and procedure and manufacturer instructions regarding ventilation and decontamination in order to inflict unnecessary and wanton pain and suffering on" him.
It was not until after another inmate intervened on Danley's behalf that he was taken to another cell that was better ventilated, but he was still not given any medical treatment. Finally, after a total of twelve to thirteen hours of suffering, Danley was released from the jail. He went to his doctor, who treated him for chemical conjunctivitis in his eyes and irritant-induced bronchospasms in his lungs and prescribed him "appropriate medication." Danley's injuries caused him to miss a day of work.
Danley complained about what had happened to him to Rikard, the jail administrator, and to Sheriff Willis. After "reviewing the circumstances" they "ratified and approved" what the three jailers had done to him. According to Danley, before this incident Rikard and Willis knew through "force reports and similar documents, inmate complaints, jailer complaints, attorney complaints, judicial officer complaints, and personal observation" that their jailers regularly
6

punished inmates by denying them adequate ventilation, decontamination, and medical care after they were pepper sprayed. There was a "de facto jail policy" permitting that. And jailers who "engag[ed] in this pattern of abuse," including Allyn, Wood, and Woods, "were not disciplined for their actions or provided with additional training."
After his complaints were ignored by the jail administrator. and sheriff, Danley filed this 42 U.S.C. § 1983 lawsuit. His complaint alleges against Allyn, Wood, and Woods claims of excessive force and deliberate indifference in violation of the Fourteenth Amendment. It also seeks to have Rikard and Willis held liable in their individual capacities for those violations under a theory of supervisory liability.
The defendants responded with Rule 12(b)(6) motions to dismiss on qualified immunity grounds, which the district court denied without any explanation. On the defendants' appeal, we vacated the district court's orders denying the motions to dismiss and remanded with instructions for the court "to consider the case in full and to enter reasoned orders which discuss the facts alleged in the . . . complaint and detail the legal analysis used by the district court to reach its conclusions regarding the motions to dismiss." Danley, 480 F.3d at 1092.
7

On remand, the district court again denied the defendants' motions to dismiss Danley's complaint. In its memorandum opinion, the court explained that the decision in Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995 (1992), had "provided more than 'fair warning' to all of these defendants that to employ pepper spray as punishment, or for the sadistic pleasure of the sprayers, as distinguished from what is reasonably necessary to maintain prisoner control, is constitutionally prohibited." With respect to Rikard and Willis, the district court stated that "Danley has done a creditable j~b of alleging facts and circumstances to show that [they] created an atmosphere or practice under which the three hands-on employees operated in, and that can create supervisory liability." The defendants have appealed again.
n.
As to Danley's excessive force claim, jailers Allyn, Wood, and Woods contend that the district court erred by denying their motion to dismiss on qualified immunity grounds. Qualified immunity shields public officials in their individual capacities from some lawsuits against them arising from torts committed while they are performing a discretionary duty. Goebert v. Lee County, 510 F.3d 1312, 1329 (11th Cir. 2007). No one disputes that Allyn, Wood, and Woods' interactions with Danley occurred while they were engaged in discretionary duties. To
8

overcome the defense of qualified immunity, a plaintiff must show a constitutional or statutory violation and also that the right violated was clearly established at the time. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); Harlow v. Fitz~erald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The defendants argue that Danley has not alleged a constitutional violation and, even if he has, the right they allegedly violated was not clearly established.
There are a number of different types of claims that arise under the Eighth Amendment's cruel and unusual punishment clause, including distinct claims for basic cruel and unusual punishment, for excessive force against prisoners, and for deliberate indifference to prisoners' serious medical needs. Courts apply a different test to each. See, e.~., Kelley v. Hicks, 400 F.3d 1282, 1284 (11th Cir. 2005) (applying the test for an Eighth Amendment deliberate indifference violation); Skrtich v. Thornton, 280 F.3d 1295, 1300-01 (11th Cir. 2002) (applying the test for an Eighth Amendment excessive force violation); Hope v. Pelzer, 240 F.3d 975, 978 & n.7 (11th Cir. 2001) (applying the test for an Eighth Amendment basic cruel and unusual punishment violation), rev'don other ~rounds, 536 U.S. 730, 122 S. Ct. 2508 (2002). Pretrial detainees, who are not protected by the Eighth Amendment, can bring the same claims under the Fourteenth Amendment. See Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005) ("[l]t makes no
9

difference whether [the plaintiff] was a pretrial detainee or a convicted prisoner because 'the applicable standard is the same, so decisional law involving prison inmates applies equally to cases involving ... pretrial detainees.'" (citation omitted) (omission in original)).
The defendants question whether Danley's asserted constitutional violation is actually a single Fourteenth Amendment excessive force claim, as his complaint alleges, or both an excessive force claim and a Fourteenth Amendment basic cruel and unusual punishment claim. The defendants contend that only Danley's initial spraying should be considered under the test for excessive force claims. His twenty-minute confinement in the poorly ventilated cell, the defendants argue, should be considered under the test for basic cruel and unusual punishment claims.
"The plaintiff is the master of the complaint. The plaintiff selects the claims that will be alleged in the complaint." United States v. Jones, 125 F.3d 1418, 1428 (11th Cir. 1997). At the Rule 12(b)(6) stage, Danley is entitled to have the Court consider both the spraying and the twenty minutes of confinement in the small, poorly ventilated cell as a single claim of excessive force if "the allegations in the complaint" can possibly be considered as such "in the light most favorable to [him]." Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (citations
10

omitted). Viewed in that light, the spraying and twenty minute confinement immediately thereafter can be seen as a single excessive force claim.
In Skrtich, we held that "the force administered by each defendant in [a] collective beating" should not "be analyzed separately to determine which of the defendants' blows, if any, used excessive force." Skrtich, 280 F.3d at 1302. The use of the pepper spray against Danley immediately followed by confinement in a small, poorly ventilated cell, which enhanced the effects of the spray, is analogous to two blows in a beating. The nearly simultaneous actions are interrelated parts of a single course of conduct, not separate events. Although we have parsed individual acts in a single sequence of events into separate claims in some cases, we have done so at the plaintiff's request. See, e.g., id. at 1301-02; Williams v. Cash, 836 F.2d 1318, 1319 (11th Cir. 1988). Danley has not asked us to do that, and it is his complaint that we are construing in the light most favorable to him.
Whether a jailer's use of force is excessive, and thus violates the inmate's Fourteenth Amendment right to be free from cruel and unusual punishment, depends on whether the jailer's act "shocks the conscience," Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007), and it necessarily will if the force '"was applied . . . maliciously and sadistically for the very purpose of causing harm.'" Id. (quoting Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 1085 (1986)).
11

To evaluate whether actions shock the conscience, we consider the following factors: (1) the need for force; (2) the relationship between that need and the amount of force used; and (3) the extent of the resulting injury. Whitley, 475 U.S. at 321, 106 S. Ct. at 1085. In addition to those three factors we consider as fourth and fifth factors, "the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible official on the basis of facts known to them, and any efforts made to temper the severity of a forceful response." Id. When we consider whether the jailers' use of force was excessive, we must "give a wide range of deference to prison officials acting to preserve discipline and security." Bennett v. Parker, 898 F.2d 1530, 1533 (11th Cir. 1990).
If there were nothing before us but the initial use of pepper spray following Danley's second failure to obey Allyn's order to return to the cell, we would readily conclude that there was no Fourteenth Amendment violation. "Prison guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding." Id. After Danley twice disobeyed her commands, Allyn ordered Wood to spray him with pepper spray. Wood sprayed Danley for "approximately 3-5 seconds," and Wood and Woods then pushed Danley back into the cell and closed the door. Pepper spray is an accepted non-lethal means of controlling unruly inmates. See Jones v. Shields,
12

207 F.3d 491,496 (8th Cir. 2000) (citing cases); cf. Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002).
And prison guards do not have the luxury or obligation to convince every inmate that their orders are reasonable and well-thought out. Certainly they are not required to do so where an inmate repeatedly fails to follow those orders. Under the first factor, "[t]he need for the use of force [was] established by the undisputed evidence that [the inmate] created a disturbance." Bennett, 898 F.2d at 1533.
The second Whitley factor, the relationship between the need for force and the amount of force, also weighs against finding a constitutional violation. A short burst of pepper ~pray is not disproportionate to the need to control an inmate who has failed to obey a jailer's orders. See Clement v. Gomez, 298 F.3d 898,904 (9th Cir. 2002) (holding that the use of two five-second bursts of pepper spray was not excessive when used to break up a fight among inmates after they had repeatedly ignored verbal commands to stop); Jones, 207 F.3d at 495-97 (holding that the use of a type of pepper spray called capstun against a prisoner was not a violation of the Eighth Amendment when he had disobeyed a supervisor's order and then questioned a guard's order); see also Baldwin v. Stalder, 137 F.3d 836, 838, 841 (5th Cir. 1998) (holding that jail guards did not use excessive force when they sprayed a two-second burst of chemical mace into a bus filled with prisoners who
13

had continued jumping on the seats, spitting at officers outside the bus, rocking the bus, and otherwise causing a disturbance after three times being told to stop); Williams v. Benjamin, 77 F.3d 756,762-63 (4th Cir. 1996) (holding that the use of chemical mace was not excessive when a prisoner disobeyed an order to stop throwing water at a guard and then questioned the guard's second order to remove his arm from his cell's food service window); cf. Vinyard, 311 F.3d at 1348 ("Courts have consistently concluded that using pepper spray is.reasonable ... where the plaintiff was ... refusing police requests.").
Nor does the third Whitley factor-the extent of Danley's injury from the initial use of pepper spray-favor finding a constitutional violation. Pepper spray "is designed to disable a suspect without causing permanent physical injury. Indeed, pepper spray is a very reasonable alternative to escalating a physical struggle ...." Vinyard, 311 F.3d at 1348 (internal quotation marks and citations omitted). Any injuries or discomfort Danley suffered as a necessary result of a dose of pepper spray were neither substantial nor long lasting.
The fourth Whitley factor, which requires an assessment of "the extent of the threat to the safety of s~aff and inmates, as reasonably perceived by the responsible official on the basis of facts known to them," Whitley, 475 U.S. at 321, 106 S. Ct. at 1085, does not support a finding of a constitutional violation when applied to the
14

initial use of the pepper spray. Because, as we discussed in light of the first and second Whitley factors, Danley created a disturbance by failing to obey orders, and the jailers' initial use of pepper spray was a reasonable response to that threat.
The only Whitley factor that would point toward the initial use of pepper spray being unconstitutional is that by confining Danley in a small cell and not permitting him to do anything to decontaminate himself after he had calmed down, the jailers did not do enough to "temper the severity of [their] forceful response." Whitley, 475 U.S. at 321, 106 S. Ct. at 1085. This factor brings up the remainder of the jailers' conduct, which amounted to a continuation and aggravation of the initial force applied to Danley after the need for force had ended.
Although the initial pepper spraying itself was not excessive force, this is not a case in which a jailer simply sprayed an inmate who had repeatedly failed to obey commands. Danley's complaint groups together the initial spraying and the subsequent twenty-minute confinement as a single instance of excessive force. Although less common than the direct application of force, subjecting a prisoner to special confinement that causes him to suffer increased effects of environmental conditions-here, the pepper spray lingering in the air and on him-can constitute excessive force. See Williams, 77 F.3d at 765 (holding that there was a constitutional violation under Whitley if guards "spray[ed] an inmate in the face
15

with mace and then confine[d) him in four-point restraints for an extended period of time without permitting him to wash or use the toilet, without fumigating the cell, and without allowing him the benefit of medical attention of any kind"); see also Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) (holding that confining the plaintiff, an arrestee, in a "police car with the windows rolled up in ninety degree heat for three hours constituted excessive force" in violation of the Fourth Amendment). This circumstance is to be distinguished from environmental conditions that generally affect the inmates in the jail, which are analyzed as conditions of confinement claims. See, e.~:., Hellin~: v. McKinney, 509 U.S. 25, 35, 113 S. Ct. 2475, 2481 (1993) (holding that a prisoner can state an Eighth Amendment cruel and unusual punishment claim if jailers are deliberately indifferent to the effects of environmental tobacco smoke).
When jailers continue to use substantial force against a prisoner who has clearly stopped resisting-whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated-that use of force is excessive. See Bozeman, 422 F.3d at 1272 (giving special weight to the fact that the jailers "continued [to] use ... force in a manner that was severe enough to render [the plaintiff], at the very least, unconscious after [he] had surrendered"); Skrtich, 280 F.3d at 1303 ("[G]overnment officials may not use gratuitous force
16

against a prisoner who has been already subdued or, as in this case, incapacitated."); see also Harris v. Chapman, 97 F.3d 499, 505-06 (11th Cir. 1996); Davis v. Locke, 936 F.2d 1208, 1212-13 (11th Cir. 1991); Williams v. Cash-C.O.I., 836 F.2d 1318, 1320 (11th Cir. 1988); Perry v. Thompson, 786 F.2d 1093, 1093-95 (11th Cir. 1986); cf. Vinyard, 311 F.3d at 1348. Once a prisoner has stopped resisting there is no longer a need for force, so the use of force thereafter is disproportionate to the need.
Pepper spray is "designed to disable a suspect," Vinyard, 311 F.3d at 1348 (internal quotation marks and citation omitted), by causing "intense pain, a burning sensation that causes mucus to come out of the nose, an involuntary closing of the eyes, a gagging reflex, and temporary paralysis of the larynx," Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1199-1200 (9th Cir. 2000), vacated on other grounds, 534 U.S. 801, 122 S. Ct. 24 (2001). It sometimes also causes "disorientation, anxiety, and panic" in the person sprayed. Id. at 1200 (internal quotation marks omitted). Those effects are inherent in most, if not all, uses of pepper spray. That is how it achieves its purpose. Reading the complaint in the light most favorable to Danley, the pepper spray had its intended effect; it disabled Danley before the jailers pushed him back into the small cell. Given that he was disabled, there was no need for the jailers to continue using force after spraying
17

him. The use of force in the form of extended confinement in the small, poorly ventilated, pepper spray filled cell, when there were other readily available alternatives, was excessive.
Our conclusion that, at least under the facts alleged in the complaint, Allyn, Wood, and Woods acted "maliciously and sadistically for the very purpose of causing harm," Whitley, 475 U.S. at 320-21, 106 S. Ct. at 1085, is supported by their actions after they made Danley's suffering worse by confining him in the small, pepper spray-filled cell. They mocked Danley while he suffered, parodying his choking, which is circumstantial evidence of their malicious intent. See Bozeman, 422 F.3d at 1272 n.11 (noting that threatening language "can be relevant to ... the determination of reasonable inferences about the Officers' subjective state of mind"). We also look to "efforts made to temper the severity of [the] forceful response" as circumstantial evidence of whether the force was used maliciously. Whitley, 475 U.S. at 321, 106 S. Ct. at 1085. Although Allyn, Wood, and Woods eventually did permit Danley to shower, they did not allow him the amount of time required by jail policy. This inadequate measure to ameliorate the effects of putting him in the small, unventilated cell weighs against concluding that the jailers put him in that cell and left him there for twenty minutes in "a good faith effort to maintain or restore discipline." ld. at 320, 106 S. Ct. at 1085.
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Having established a constitutional violation, the next step in the qualified immunity analysis usually is to determine whether the right was clearly established. See Saucier, 533 U.S. at 201, 121 S. Ct. at 2156. However, we have held that "there is no room for qualified immunity" in Eighth and Fourteenth Amendment excessive force cases because they require a subjective element that is "so extreme" that no reasonable person could believe that his actions were lawful. Johnson v. Breeden, 280 F.3d 1308, 1321-22 (11th Cir. 2002). As a result, we conclude that the district court did not err by denying the defendants' motions to dismiss Danley's excessive force claim on qualified immunity grounds.
III. Allyn, Wood, and Woods next contend that the district court erred by denying their motions to dismiss Danley's deliberate indifference claim based on qualified immunity. Danley's complaint alleges that the jailers acted with deliberate indifference to his serious medical need when they refused to allow him to adequately decontaminate himself and to see the jail nurse. Deliberate indifference to a prisoner's serious medical needs violates the Eighth Amendment. See Goebert, 510 F.3d at 1326. Under the Fourteenth Amendment, pretrial detainees are afforded the same protection. See id. To prove a deliberate indifference claim, a plaintiff must show: (1) a serious medical need;
19

(2) the defendants' deliberate indifference to that need; and (3) causation between that indifference and the plaintiffs injury. Id. The defendants contend that Danley has not properly alleged either a serious medical need or deliberate indifference to it.
There are at least two different tests for whether a medical need is serious. See Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187-88 (11th Cir. 1994), overruled in part on other grounds by Hope, 536 U.S. at 739 n.9, 122 S. Ct. at 2515 n.9. We need not decide when it is appropriate to use one and when the other because Danley's medical need was serious under either. One test is whether a delay in treating the need worsens it. ld. at 1188. In his complaint, Danley alleges that he would not have suffered any lingering effects from the pepper spray if he had been allowed to fully decontaminate himself. He also alleges that he almost blacked out more than twelve hours after he had been sprayed as a cumulative result of his breathing problems during all of that time. Finally, Danley alleges that the chemical conjunctivitis and bronchospasms he suffered were the result of the delay in treatment. We conclude that Danley has alleged a serious medical need under this test. See Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (holding that even a tooth cavity can become a serious medical need because it
20

"will degenerate with increasingly serious implications if neglected over sufficient time").
The other measure of whether a medical need is serious enough to satisfy the first element of a deliberate indifference claim is if the need "is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Hill, 40 F.3d at 1187 (internal quotation marks and citation omitted). The defendants rely on this definition in arguing that Danley did not have a serious · medical need, but we conclude that Danley has alleged a serious medical need under this test as well. As we have mentioned, Danley alleges that he had difficulty breathing, that his eyes burned and became so swollen he could hardly see, and that more than twelve hours after he had been sprayed he nearly blacked out as a result of all his breathing problems. Danley repeatedly asked to see the jail nurse, and when the jailers refused to allow him to do so, "another inmate intervened on his behalf with [the] jailers." That Danley needed medical attention was apparent enough for another inmate to recognize it and try to get help for Danley is a fact weighing in favor of finding deliberate indifference, although it may not be entitled to substantial weight.
21

In Adams v. Poag, 61 F.3d 1537 (11th Cir. 1995), we stated that a prisoner's chronic asthma, which resulted in frequent asthma attacks, constituted a serious medical need. Id. at 1539-40, 1543. Danley's allegations about his inability to breathe and his bronchospasms essentially describe an asthma attack. See 1 J.E. Schmidt, M.D., Attorneys' Dictionary of Medicine and Word Finder A-572 (Matthew Bender & Co., Inc. 2007) (defining "asthma" as "[a] condition characterized by recurring attacks of dypsnea (shortness of breath), a feeling of pressure on the chest, wheezing, cough, fear, etc."). While the plaintiff in Adams allegedly suffered only breathing difficulties, Danley alleges that he suffered both breathing problems and eye irritation and swelling from the prolonged exposure to pepper spray. If the plaintiff in Adams stated a serious medical need, as we held he did, then Danley does as well.
The defendants argue that pepper spray does not create a serious medical need because it causes "only temporary discomfort." That is usually true. The serious medical needs Danley alleges, however, are the effects of prolonged exposure to pepper spray with inadequate decontamination and poor ventilation, not the immediate effects of the pepper spray. In addition to pain, Danley has alleged that he suffered chemical conjunctivitis and bronchospasms because of the delay in treatment. Finally, we have recognized that, while not all pain will
22

constitute a serious medical need, see Hill, 40 F.3d at 1187-88, "prison officials may violate the Eighth Amendment's commands by failing to treat an inmate's pain," McElligott v. Foley, 182 F.3d 1248, 1257 (11th Cir. 1999). If failing to treat pain can violate the Eighth Amendment, then it can violate the Fourteenth as well. See Goebert, 510 F.3d at 1326.
The defendants also argue that Danley did not have a serious medical need because the appropriate treatment for pepper spray is merely a shower. That argument misses the point of Danley's allegations, which is that the jailers forced to Danley to wait for too long before allowing him to shower and the shower that finally was allowed was too short to treat the injury. The allegation is that, as a result, Danley suffered needless pain, breathing problems, and inflamed eyes. If an adequate shower is the only treatment that is required, then an adequate shower is required.
Defendants Allyn, Wood, and Woods next contend that their failure to let Danley see the jail nurse cannot be deliberate indifference. According to them, because the normal treatment for pepper spray is merely a shower, medical attention is not necessary. Therefore, they argue, they could not have been deliberately indifferent by not permitting Danley to see the jail nurse. This is less an intent argument than a re-working of their earlier argument that Danley did not
23

·have a serious medical need because the only treatment he needed was a good shower. To the extent this is an intent argument, it fails.
To establish the intent element of a deliberate indifference claim, a "[p]laintiff must prove three things: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than [gross] negligence." Bozeman, 422 F.3d at 1272 (second alteration in original) (internal quotation marks and citation omitted). Danley has alleged facts meeting all three elements.
Reading Danley's complaint in the light most favorable to him, Allyn, Wood, and Woods were aware of a risk of serious harm from the prolonged exposure to pepper spray that would result from failing to decontaminate Danley. Danley alleges that they knew about these effects, and he supports that contention with allegations about the basis of their knowledge. First, Danley alleges that "[j]ail policy and procedure ... provide for inmates upon whom pepper spray has been used to be provided with prompt and adequate ventilation and decontamination to ... prevent injury from prolonged exposure." It is reasonable to infer at this stage in the proceedings that, as jail employees, Allyn, Wood, and Woods were aware of those policies and procedures. Second, the three of them allegedly knew that Danley was actually suffering "injury from prolonged
24

exposure" because they "heard [his] pleas for help and requests for medical treatment." Finally, Danley has alleged that the jailers also heard the complaints from other inmates in the group cell that their eyes were burning just from being near Danley. It is reasonable to infer from this that the jailers must have known that Danley, who still had pepper spray clinging to him, would be suffering as much or more.
Allyn, Wood, and Woods allegedly disregarded Danley's serious medical need by failing to provide him a shower that was anywhere near long enough to fully decontaminate him and then by ignoring the pain, breathing problems, swelling, and eye irritation that they knew had resulted. The shower they let Danley take was less than two minutes in duration, while the jail's own policy allegedly specified that one allowed for this purpose must be fifteen minutes long in order to ameliorate the effects of the spray. Grossly inadequate measures to treat an inmate's serious medical need will not eliminate a jailer's liability for deliberate indifference. See McElli&ott, 182 F. 3d at 1256 ("[P]rison officials with knowledge of [a serious] need for care may not ... provid[e] grossly inadequate care, caus[ing] a prisoner to needlessly suffer the pain resulting from his or her illness."); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985) (stating that a jailer may be deliberately indifferent if the treatment provided is "so
25

cursory as to amount to no treatment at all"). The jailers allegedly did nothing when the inadequacy of the decontamination shower became apparent from Danley and the other inmates' continuing complaints.
Finally, Allyn, Wood, and Woods were more than grossly negligent. "When prison guards ignore without explanation a prisoner's serious medical condition that is known or obvious to them, the trier of fact may infer deliberate indifference." Bozeman, 422 F.3d at 1273 (internal quotation marks and citation omitted). Danley has alleged that the three jailers did exactly that.
Allyn, Wood, and Woods contend that, even if there were a constitutional violation, they are nonetheless entitled to qualified immunity because "there is no clearly established law that would put [them] on notice that their conduct was unlawful with regard to the ... medical care claim[]." We disagree. A government official can be put on notice that his actions will violate a constitutional or statutory right by one or more of three sources: (1) a specific constitutional or statutory provision; (2) a legal principle announced by a decision from a court with jurisdiction over the place where the violation of rights was committed; and (3) a case with similar facts that has already been decided by one of those courts. Goebert, 510 F.3d at 1330.
26

This is a case in which general legal principles announced by our decisions in this area of law are enough to make the right violated clearly established. As we have concluded, Danley alleged both a serious medical need and the jailers' deliberate indifference to it. The allegations in the complaint are that the jailers took only ineffective measures to remedy the need and then mocked Danley and ignored his pleas for help. Our earlier deliberate indifference decisions have stated that when jailers are aware of serious medical needs they may not ignore them or provide grossly inadequate care. Bozeman, 422 F.3d at 1273; McElligott, 182 F.3d at 1256. Although Danley's allegations may later tum out to be unfounded, reasonable jailers would have been aware that the conduct that Danley alleges violated his clearly established rights. The district court did not err in concluding that Allyn, Wood, and Woods are not entitled to qualified immunity on Danley's deliberate indifference claim.
IV. Jail Administrator Rikard and Sheriff Willis contend that the district court erred by concluding that they were not entitled to qualified immunity on Danley's supervisory liability claim. Danley's complaint does not allege that Rikard and Willis were personally involved in the pepper spraying or the denial of medical care. Instead, it alleges that the two were aware that Allyn, Wood, and Woods had
27

used excessive force and provided inadequate care for pepper spray injuries in the past. That knowledge, Danley argues, put Rikard and Willis on notice that their jailers were using pepper spray inappropriately. Yet neither of the two did anything to correct the problem.
As an initial matter, Danley asks us to reconsider our heightened pleading standard for § 1983 claims in light of the Supreme Court's decisions in Leatherman v. Tarrant County N.I.C.U., 507 U.S. 163, 113 S. Ct. 1160 (1993) (rejecting a heightened pleading requirement for§ 1983 claims alleging municipal liability), Crawford-El v. Britton, 523 U.S. 574, 118 S. Ct. 1584 (1998) (holding that a prisoner bringing a § 1983 action against government official need not present clear and convincing evidence of official's improper motive in order to defeat official's motion for summary judgment), and Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S. Ct. 992 (2002) (holding that a plaintiff's complaint in a Title VII case need not contain specific facts sufficient to establish a prima facie case under McDonnell Douglas). Danley argues that those two Supreme Court decisions eliminated any heightened pleading requirement for § 1983 cases even when the defense of qualified immunity is raised.
However, the Court did not address in Leatherman, Crawford-El, or Swierkiewicz the pleading standard for § 1983 cases against officials who are able
28

to assert qualified immunity as a defense. We have continued to apply the heightened pleading requirement in this type of case since those three Supreme Court opinions were issued, see. e.g., Dalrymple v. Reno, 334 F.3d 991, 996 (11th Cir. 2003); Cottone v. Jenne, 326 F.3d 1352, 1362 n.7 (11th Cir. 2003). We are bound to apply the heightened pleading requirement even if no one raised Danley's argument in our earlier cases. See Smith v. GTE Com., 236 F.3d 1292, 1302-03 (11th Cir. 2001) (rejecting an "overlooked reason" exception to the prior panel precedent rule). Under the heightened pleading requirement, the relevant facts must be alleged "with some specificity." Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (internal quotation marks and citation omitted). We will dismiss a complaint under the heightened pleading standard where the allegations are "vague and conclusory." ld. (internal quotation marks and citation omitted). These are not.
"Supervisory officials are not liable under section 1983 on the basis of respondeat superior or vicarious liability." Belcher v. City of Foley. Ala., 30 F.3d 1390, 1396 (11th Cir. 1994) (internal quotation marks and citation omitted). "The standard by which a supervisor is held liable in her individual capacity for the actions of a subordinate is extremely rigorous." Gonzalez, 325 F.3d at 1234 (internal quotation marks and citation omitted). "Supervisory liability occurs
29

either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
"The necessary causal connection can be established 'when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so."' Cottone, 326 F.3d at 1360 (citation omitted). "The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences." Brown, 906 F.2d at 671. A plaintiff can also establish the necessary causal connection by showing "facts which support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so," Gonzalez, 325 F.3d at 1235, or that a supervisor's "custom or policy ... resulted in deliberate indifference to constitutional rights," Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991).
In Cottone, the plaintiffs, the estate and the father of a deceased inmate who had been held at the Broward County Jail, alleged that jail supervisors were liable for the jail guards' failure to monitor a mentally disturbed individual who attacked
30

and killed the inmate. Cottone, 326 F.3d at 1361. The complaint further alleged that "the defendants were on notice of the widespread unconstitutional conduct" by guards at the jail but had failed to properly train and supervise them. Id. This Court held that the plaintiffs failed to state a claim of supervisory liability because the complaint did not allege "any specific facts at all" showing that the supervisors had knowledge of the guards' failure to monitor the inmates during this incident "or even one prior incident." Id.
Because the complaint in Cottone failed to allege that the supervisors were on notice of the guards' unconstitutional conduct, it did not adequately allege that they were aware of a need to correct it through further training or supervision. Id. at 1361-62. Furthermore, the plaintiffs in that case did not allege that a policy or custom implemented by the supervisors was involved with the inmate's death or that the supervisors instructed the guards to commit constitutional violations. Id. at 1362. Therefore, "the plaintiffs fail[ed] to establish the necessary causal connection between the supervisors and the unconstitutional conduct in issue for supervisory liability to be imposed." Id.
Unlike the plaintiffs in Cottone, Danley has alleged sufficiently specific facts to establish the necessary causal connection between supervisors Rikard and Willis and the unconstitutional conduct of the jailers. Danley's complaint alleges
31

that before this incident, Rikard and Willis had knowledge through "force reports and similar documents, inmate complaints, jailer complaints, attorney complaints, judicial officer complaints, and personal observation" that jailers at the Lauderdale Detention Center "regularly used pepper spray excessively as a means of punishment and not for legitimate reasons." The complaint also alleges that through the same sources, Rikard and Willis were aware that jailers at the detention center "regularly denied inmates prompt and adequate ventilation, decontamination, and medical care following pepper spray discharge as a means of punishment and not for legitimate reasons."
The allegations are that, in spite of "numerous known incidents," Rikard and Willis took no action. They "did not discipline known incidents, and did not conduct additional training despite knowledge that pepper spray was being improperly used on a regular basis by jailers and that inmates were being denied proper treatment after spraying incidents." In addition, Rikard and Willis were aware, before the incident involving Danley, "of numerous such incidents on the shift on which Allyn, Wood, and Woods worked. Nevertheless, the jailers engaging in this pattern of abuse were not disciplined for their actions or provided with additional training."
32

Taking the allegations as true, which we must do at this stage of the proceedings, the numerous complaints to Rikard and Willis about the excessive use of pepper spray and the denial of adequate medical treatment to inmates, especially during the shift on which Allyn, Wood, and Woods worked, were enough to put them on notice of misconduct that was sufficiently "obvious, flagrant, rampant and of continued duration" to require them to act. See Brown, 906 F.2d at 671. Because they allegedly failed to do so and the misconduct continued, Danley has established the necessary causal connection to hold Rikard and Willis liable in their supervisory capacities. See Cottone, 326 F.3d at 1360.
Rikard and Willis contend that they could not have been on notice of the jailers' misconduct because, according to Danley's cqmplaint, Allyn, Wood, and Woods falsified the incident report for his own case "in order to cover up their allegedly wrongful actions." Even if the three jailers falsified the report for Danley's case, however, that would not absolve Rikard and Willis from responsibility for failing to act in response to the "numerous" prior incidents of similar conduct of which they were specifically aware.
Rikard and Willis also argue that, even if Danley has stated a claim for supervisory liability, they are still entitled to qualified immunity because "Danley cannot point to any clearly established law which demonstrates that the alleged
33

actions of Willis and Rikard violated his constitutional rights." This Court has long recognized that supervisors are liable for the excessive force and the deliberate indifference of their employees where the supervisors received numerous reports of prior misconduct of that nature by those same employees and did nothing to remedy the situation. See, e.g., Gearson v. Kemp, 891 F.2d 829, 839-40 (11th Cir. 1990) (involving a claim of supervisory liability against prison warden for his employees' deliberate indifference to inmate's serious medical need); Fundiller v. City of Cooper City, 777 F.2d 1436, 1443 (11th Cir. 1985) (involving a claim of supervisory liability against city public safety director for his employees' use of excessive force). The district court properly denied Rikard and Willis' motions to dismiss on qualified immunity grounds Danley's supervisory liability claim.
AFFIRMED.
34

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Fcd.R.App.P. 39 and 11th Cir. R. 39-1 (sec reverse) govern costs which arc taxable in this court and the time for filing the Bill of Costs. A motion for leave to file out of time is required for a Bill of Costs not timely received.

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FOR COURT USE ONLY
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Issued on: - - - - - - - - - - - - - - MISC-12
(12/07)

Thomas K. Kahn Clerk

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

September 22, 2008

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050

Appeal Number: 07-12328-CC Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-IPJ

For rules and forms visit www.ca ll.uscourts.gov

The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
Also enclosed are the following:
Bill of Costs Original record on appeal or review, consisting of: one volume
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely, THOMAS K. KAHN, Clerk Reply To: James 0. Delaney (404) 335-6113

Encl.

MDT-1 (06/2006)

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050
September 22, 2008 Appeal Number: 07..12328-CC Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-IPJ TO: Sharon Harris CC: Daryl L. Masters CC: Charles Richard Hill, Jr. CC: Henry F. Sherrod, III CC: Administrative File

 
 FILED
2007 Apr-10 AM 11:08
, ., !I r:::U- .S. DISTRICT COURT
' ~- ~...... ,.. N.D. OF ALABAMA
United States Court of Appeals
For the Eleventh Circuit

KEVIN DANLEY, versus

No. 06-14466

FILED -

--D-ist-r-ic-tC_o_u_rt_D_o_c_k-et_N_o-.-t- U.S. COURT OF APPEALS

06-00680-CV-CV-IPJ

ELEVENTH CIRCUIT

Mar 8, 2007

Plaintiff-Appellee,

THOMAS K. KAHN

CLERK

JACKIE RIKARD, RONNIE WILLIS, RUBY ALLYN, Defendants-Appellants.

No. 06-14808
District Court Docket No. 06-00680-CV- 3-IP J
KEVIN DANLEY, Plaintiff-Appellee,
versus
STEVE WOODS, Defendant-Appellant.

No. 06-15580
District Court Docket No. 06-00680-CV-IPJ
KEVIN DANLEY, Plaintiff-Appellee,
versus
JEFF WOOD, Defendant-Appellant.
Appeals from the United States District Court for the Northern District of Alabama
JUDGMENT

APR 0 6 2007

Entered: March 8, 2007 For the Court: Thomas K. Kahn, Clerk
By: Jackson, Jarvis

. DANLEY ,.. ALLEN

1302

comt ''ith an opportunity to conduct

Ke,·in DANLEY, Plaintiff-Appellee,

meaningful appellate revie\V.

v.

Vacated and remanded.

Ruby ALLEN, et al., Defendants,

Jackie Rikard. Ronnie Willis, Ruby Allyn, Defendants-Appellants.
Kevin Danley, Plaintiff-Appellee,
Steve Woods, Defendant-Appellant.

1. Federal Civil Procedure e=>928
District court orders should contain sufficient explanations of the courts' rulings so as to provide the Court of Appeals \~ith an opportunity to engage in meaningful appellate review.

Kevin Danley, Plaintiff-Appellee,
v.
Jeff Wood, Defendant-Appellant.
Nos. 06-1H66, 06-U808 and 06-15580 Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
March 8, 2007. Background: Pretrial detainee broug-ht § 1983 action against detention officers, alleging that he ,.,·as subjected to excessive force and then denied medical teeatment when they sprayed him with pepper spra~·. Officers moved to dismiss on the basis of qualified immunity. The United States District Court for the Northern District of Alabama, Nos. OG-00680-CV-CV-IPJ, 0600680-CV-3-IPJ, and OG-OOG80-CV-IPJ, Inge P. Johnson, J., entered orders denying the motions to dismtss. Officers appealed.

2. Federal Courts e=>947
Distl"ict court's one-sentence summar~­ denials of defendant detention office1·s' motions to dismiss pretrial detainee's ~ 198!3 action on the basis of qualified immunity wholly failed to provide the Com-t of Appeals >vith an opportunity to conduct meaningful appellate review, thus requiring t•emand for the district court to enter reasoned m·ders, where the district court's orders were devoid of any facts and any legal analrsis and perfnnctol'ily stated that the district court had considered the motions and was "of the opinion defendants' motions are due to be de-
s nied." 42 U.S.C.A. 1983.
3. Federal Courts e=>947
On defendants' motion to dismiss § 1983 action on the basis of qualified immunity, it is the responsibility of the district court in the first instance, and not the Court of Appeals on appeal, to review the record and applicable case law and l'emler a reasoned decision on the qualified immunity issue. 42 U.S.C.A. 'l 1983.

Holding: The Court of Appeal;,; held that the district cmll't's one-sentence orders, which were devoid of any facts and any legal analysis, wholly failed to pmvide the

Appeals ft·om the United States District Court for the Northern District of Alabama.

Synop~b, Ht>adnntes and Key NumbPt' Cla~;;ifteu.ti<ln COPYRIUHT 2110'7 Th<Jmon»We't.

The Syr:!op:-:i:-;1 Heddnr\te:-; ami 1\t-y NmnhPr Cl::i~~itl­ catiu!l ennstit"Jte no pn1·t of the opinion nf t:w cow·t.

1303

DANLEY v. ALLEN

Before HULL, WILSON and PRYOR: Circuit Judges.
PER CURIAM:
In this 42 U.S.C. § 1983 case, the district court summarily denied defendant-appellants' motions to dismiss plaintiff-appellee KeYin Danley's second amended complaint. DanleY cont;nds that he was subjected to
exces~ive force and then denied medical
treatment when, as a pretrial detainee, detention officers sprayed him 'Nith pepper spray. The defendant-appellants contend that thev are entitled to qualified immunity
f1·om Da~lev's claims. The district court en-
tered one-;entence orders denying each of the various motions to dismiss. The district court's one-sentence orclers perfunctorily stated that the district court had considered the motions and was "of the opinion defendants' motions are due to be denied." The orde1·s are devoid of any facts am! any legal analysis.
[1] Many times, and in many contexts, this Court has admonished district courts that their orders should contain sufficient explanations of their rulings so as to provide this Court \\ith an opportunity to engage in meaningful appellate review. See Cloy v. Equ(fir.t·, Inc.. 762 F.2d 952, 957-58 (11th Cir.1985) (collecting cases in which the Supreme Comt and this Court's predecessor Court "urged the district court to state the reason for its decision and the underl:,ring

predicate"); .see ol.5o Serm Chev;·o/et, Inc. v. General Motors C0171., 446 F.3d 1137, 1151 (11th Cir.2006) (in imposing sanctions, district court must cleady state its reasons so that meaningful review may be had on appeal); In re Fonl A1otor Co.. 345 F.3d 1315, 1317 (11th Cir.2003) (granting petition fo1· writ of mandamus where district court "provided no substantive explanation" for its discovery ruling); Broadwater 1'. United States, 292 F.3d 1302, 1303 (11th Cir.2002) (in view of size of record and numbei' of allegations, summary denial of 28 U.S.C. § 2255 motion was inappropriate).
[2, 3] In this case, we conclude that the district court's one-sentence summary denials of defendant-appellants' motions to dismiss wholly fail to provide this Court with an opportunity to conduct meaningful appellate review. vVhile this Comt certainly could review the record and applicable case law and rendei' a reasoned decision on the qualified immunity issue, this is the responsibility of the district court in the first instance. Accordingly, we vacate the district court's orders den~ing the defendant-appellants' motions to dismiss and remand the case to the district court to consider the case in full and to enter reasoned orders which discuss the facts alleged in the second amended complaint and detail the legal analysis used by the district court to reach its conclusions regarding the motions to dismiss.
VACATED AND REMANDED.

!
T_•; ..s. . c·ourt of' Appeals, Ele\·enth Circuit-Thomson/West, Saint Paul, Minn.'·\JII

United States Court of Appeals

' .I

Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

Thomas K. Kahn

Clerk

April 06, 2007

'. ~' ""·. i

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050

Appeal Number: 06-14466-AA Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-CV-IPJ

The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
Also enclosed are the following: Original record on appeal or review, consisting of: one volume
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely, THOMAS K. KAHN, Clerk Reply To: James 0. Delaney (404) 335-6113

Encl.

MDT-I (06/2006)

Thomas K. Kahn Clerk

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

April 06, 2007

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050

Appeal Number: 06-14808-AA Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-3-IPJ

The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely, THOMAS K. KAHN, Clerk Reply To: James 0. Delaney (404) 335-6113

Encl.

MDT-1 {06/2006)

Thomas K. Kahn Clerk

United States Court of Appeals
Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

April 06, 2007

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050

Appeal Number: 06-15580-AA Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-IPJ

/1·-- ~-
2!lli7:1P'> ... . Fwowr wru.lceasllz.fuuscdo~u,v\si.. !i·~tr
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The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above, but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely, THOMAS K. KAHN, Clerk Reply To: James 0. Delaney (404) 335-6113

Encl.

MDT-1 (06/2006)

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050
April 06, 2007 Appeal Number: 06-14466-AA Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-CV-IPJ TO: Sharon Harris CC: Bart Harmon CC: Daryl L. Masters CC: Henry F. Sherrod, III CC: Administrative File

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050
April 06, 2007 Appeal Number: 06-14808-AA Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-3-IPJ TO: Sharon Harris CC: Bart Gregory Harmon CC: Daryl L. Masters CC: Henry F. Sherrod, III CC: Administrative File

Sharon Harris Clerk, U.S. District Court 1729 5TH AVE N STE 140 BIRMINGHAM AL 35203-2050
April 06, 2007 Appeal Number: 06-15580-AA Case Style: Kevin Danley v. Ruby Allen District Court Number: 06-00680 CV-IPJ TO: Sharon Harris CC: Bart Gregory Harmon CC: Daryl L. Masters CC: Henry F. Sherrod, III CC: Administrative File

 
 U.S. District Court Northern District of Alabama (Northwestern) CIVIL DOCKET FOR CASE #: 3:06−cv−00680−IPJ

CLOSED

Danley v. Allen et al Assigned to: Judge Inge P Johnson Case in other court: 11th Circuit Court of Appeals, 06−14466A
11th Circuit Court of Appeals, 06−14808−A
11th Circuit Court of Appeals, 06−15580−A
11th Circuit Court of Appeals, 07−12328C Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/06/2006 Date Terminated: 03/17/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kevin Danley

represented by Henry F Sherrod , III HENRY F SHERROD III PC PO Box 606 Florence , AL 35631−0606 256−764−4141 Fax: 877−684−0802 Email: hsherrod@hiwaay.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Ruby Allen TERMINATED: 06/29/2006
Defendant Jackie Rikard

represented by Daryl L Masters WEBB &ELEY PC 7475 Halcyon Pointe Drive PO Box 240909 Montgomery , AL 36124 334−262−1850 Fax: 334−262−1889 Email: rrobertson@webbeley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Kay Morgan WEBB &ELEY PC 7475 Halcyon Pointe Road PO Box 240909 Montgomery , AL 36124 334−262−1850 Fax: 334−262−1772 Email: amorgan@webbeley.com TERMINATED: 01/11/2007 ATTORNEY TO BE NOTICED
represented by C Richard Hill , Jr WEBB &ELEY PC 7475 Halcyon Pointe Drive PO Box 240909 Montgomery , AL 36124 334−262−1850 Fax: 334−262−1772 Email: rhill@webbeley.com

Defendant Ronnie Willis
Defendant Ruby Allyn
Defendant Jeff Wood

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daryl L Masters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Kay Morgan (See above for address) TERMINATED: 01/11/2007 ATTORNEY TO BE NOTICED
represented by C Richard Hill , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daryl L Masters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Kay Morgan (See above for address) TERMINATED: 01/11/2007 ATTORNEY TO BE NOTICED
represented by Amanda Kay Morgan (See above for address) TERMINATED: 01/11/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
C Richard Hill , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daryl L Masters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amanda Kay Morgan (See above for address) TERMINATED: 01/11/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED
C Richard Hill , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daryl L Masters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Steve Woods

represented by C Richard Hill , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daryl L Masters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/06/2006 04/06/2006 04/10/2006 04/13/2006 04/13/2006 04/25/2006 05/09/2006 05/09/2006 05/10/2006
05/10/2006 05/11/2006
05/19/2006 05/22/2006 05/23/2006
05/23/2006 05/23/2006 06/07/2006

# Docket Text
1 COMPLAINT against Ruby Allen, Jackie Rikard, Ronnie Willis (Filing fee $ 250, Receipt #500 55083.) , filed by Kevin Danley.(ASL, ) (Entered: 04/10/2006)
2 Request for service by certified mail filed by Kevin Danley. (ASL, ) (Entered: 04/10/2006)
Summons Issued as to Jackie Rikard, Ronnie Willis, Ruby Allyn, mailed certified mail. (ASL, ) (Entered: 08/01/2006)
3 SUMMONS Returned Executed as to dft Jackie Rikard served on 4/11/2006 (ASL, ) (Entered: 04/13/2006)
4 SUMMONS Returned Executed as to dft Ruby Allen served on 4/11/2006 (ASL, ) (Entered: 04/13/2006)
5 SUMMONS Returned Executed as to dft Ronnie Willis served on 4/20/2006 (ASL, ) (Entered: 04/25/2006)
6 MOTION to Dismiss by Ruby Allen, Jackie Rikard, Ronnie Willis. (Morgan, Amanda) (Entered: 05/09/2006)
7 Brief re 6 MOTION to Dismiss filed by Ruby Allen, Jackie Rikard, Ronnie Willis. (Morgan, Amanda) (Entered: 05/09/2006)
8 ORDER denying 6 dfts' Motion to Dismiss; dfts are allowed to refile said motion with proper party names. Signed by Judge Inge P Johnson on 5/10/06. (ASL, ) (Entered: 05/10/2006)
9 Amended MOTION to Dismiss by Ruby Allen, Jackie Rikard, Ronnie Willis. (Morgan, Amanda) (Entered: 05/10/2006)
10 ORDER re 9 Amended MOTION to Dismiss filed by Ruby Allen, Jackie Rikard, Ronnie Willis; pla is ordered to respond to said motion w/i 14 days . Signed by Judge Inge P Johnson on 5/11/06. (ASL, ) (Entered: 05/11/2006)
11 MOTION for Leave to File first amended complaint by Kevin Danley. (Attachments: # 1)(Sherrod, Henry) (Entered: 05/19/2006)
12 RESPONSE to Motion re 9 Amended MOTION to Dismiss filed by Kevin Danley. (Sherrod, Henry) (Entered: 05/22/2006)
13 ORDER granting 11 Motion for leave to file first amended complaint; pla is directed to file amended complaint . Signed by Judge Inge P Johnson on 5/23/06. (ASL, ) (Entered: 05/23/2006)
14 AMENDED COMPLAINT against all defendants, filed by Kevin Danley.(Sherrod, Henry) (Entered: 05/23/2006)
15 ORDER denying 9 dfts' amended Motion to Dismiss . Signed by Judge Inge P Johnson on 5/23/06. (ASL, ) (Entered: 05/23/2006)
16 MOTION to Dismiss Amended Complaint by Ruby Allen. (Masters, Daryl) (Entered: 06/07/2006)

06/07/2006 06/07/2006 06/07/2006 06/08/2006
06/16/2006 06/26/2006
06/28/2006
06/28/2006 06/29/2006 06/29/2006
06/29/2006 07/14/2006 07/14/2006 07/14/2006 07/14/2006 07/17/2006 07/17/2006 07/17/2006 07/17/2006
07/31/2006 08/01/2006

17 Brief re 16 MOTION to Dismiss Amended Complaint filed by Ruby Allen. (Masters, Daryl) (Entered: 06/07/2006)
18 MOTION to Dismiss Amended Complaint by Jackie Rikard, Ronnie Willis. (Masters, Daryl) (Entered: 06/07/2006)
19 Brief re 18 MOTION to Dismiss Amended Complaint filed by Jackie Rikard, Ronnie Willis. (Masters, Daryl) (Entered: 06/07/2006)
20 ORDER re 18 MOTION to Dismiss Amended Complaint filed by Jackie Rikard, Ronnie Willis, and 16 MOTION to Dismiss Amended Complaint filed by Ruby Allen, pla is ordered to respond to said motions w/i 21 days . Signed by Judge Inge P Johnson on 6/8/06. (ASL, ) (Entered: 06/08/2006)
21 REPORT of Rule 26(f) Planning Meeting. (Morgan, Amanda) (Entered: 06/16/2006)
22 SCHEDULING ORDER Discovery due by 4/15/2007. Dispositive Motions due by 5/1/2007. Pretrial Conference set for 8/13/2007 in Bham AL. Jury Trial set for 8/20/2007 09:00 AM before Judge Inge P Johnson in Florence, AL and other time limits as set out in this order.. Signed by Judge Inge P Johnson on 6/26/06. (Attachments: # 1 Exhibit A − Summary Judgment Scheduling ORDER)(ASL, ) (Entered: 06/26/2006)
23 RESPONSE to Motion re 18 MOTION to Dismiss Amended Complaint, 16 MOTION to Dismiss Amended Complaint filed by Kevin Danley. (Sherrod, Henry) (Entered: 06/28/2006)
24 MOTION for Leave to File second amended complaint by Kevin Danley. (Attachments: # 1)(Sherrod, Henry) (Entered: 06/28/2006)
25 ORDER denying 16 Motion to Dismiss, denying 18 Motion to Dismiss . Signed by Judge Inge P Johnson on 6/29/06. (ASL, ) (Entered: 06/29/2006)
26 ORDER granting 24 Motion for Leave to File second amended complaint; pla shall e−file amended complaint separately forthwith . Signed by Judge Inge P Johnson on 6/29/06. (ASL, ) (Entered: 06/29/2006)
27 AMENDED COMPLAINT against all defendants, filed by Kevin Danley.(Sherrod, Henry) (Entered: 06/29/2006)
28 MOTION to Dismiss Second Amended Complaint by Jackie Rikard, Ronnie Willis. (Masters, Daryl) (Entered: 07/14/2006)
29 Brief re 28 MOTION to Dismiss Second Amended Complaint filed by Jackie Rikard, Ronnie Willis. (Masters, Daryl) (Entered: 07/14/2006)
30 MOTION to Dismiss Second Amended Complaint by Ruby Allyn. (Masters, Daryl) (Entered: 07/14/2006)
31 Brief re 30 MOTION to Dismiss Second Amended Complaint filed by Ruby Allyn. (Masters, Daryl) (Entered: 07/14/2006)
32 RESPONSE to defendants' motions to dismiss second amended complaint filed by Kevin Danley. (Sherrod, Henry) (Entered: 07/17/2006)
33 MOTION to Compel by Kevin Danley. (Sherrod, Henry) (Entered: 07/17/2006)
34 ORDER denying 28 Motion to Dismiss, denying 30 Motion to Dismiss as set out. Signed by Judge Inge P Johnson on 7/17/2006. (KSS, ) (Entered: 07/17/2006)
35 ORDER granting 33 Motion to Compel, dfts Rikard and Willis are ordered to provide requested information within 7 days. Signed by Judge Inge P Johnson on 7/17/2006. (KSS, ) (Entered: 07/17/2006)
36 Defendants' ANSWER to Amended Complaint by Jackie Rikard, Ronnie Willis, Ruby Allyn.(Morgan, Amanda) (Entered: 07/31/2006)
37 Request for service by certified mail filed by Kevin Danley. (ASL, ) (Entered: 08/01/2006)

08/01/2006 08/10/2006
08/14/2006
08/15/2006 08/16/2006
08/17/2006 08/17/2006 08/17/2006 08/21/2006
08/23/2006 08/23/2006 08/23/2006 08/25/2006 08/25/2006 08/28/2006 08/29/2006 09/06/2006 09/11/2006 09/12/2006 10/10/2006 10/11/2006
10/11/2006

38 Summons Issued as to dfts Jeff Wood and Steve Woods, mailed certified mail. (ASL, ) (Entered: 08/01/2006)
39 SUMMONS Returned Executed as to dft Steve Woods served on 8/7/2006 ; SUMMONS Returned UNEXECUTED as to dft Jeff Wood (ASL, ) (Entered: 08/14/2006)
40 NOTICE OF INTERLOCUTORY APPEAL as to 34 Order on Motion to Dismiss, by Jackie Rikard, Ronnie Willis, Ruby Allyn. (Masters, Daryl) Modified on 8/15/2006 (ASL, ). (Entered: 08/14/2006)
41 NOTICE TO COUNSEL re 40 Notice of Interlocutory Appeal (ASL, ) (Entered: 08/15/2006)
USCA Appeal Fees received $ 455.00 receipt number 200 228781 re 40 Notice of Interlocutory Appeal filed by Jackie Rikard, Ronnie Willis, Ruby Allyn, (ASL, ) (Entered: 08/17/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 40 Notice of Interlocutory Appeal (ASL, ) (Entered: 08/17/2006)
42 DESIGNATION of Record on Appeal by Jackie Rikard, Ronnie Willis, Ruby Allyn re 40 Notice of Interlocutory Appeal (Masters, Daryl) (Entered: 08/17/2006)
43 MOTION to Dismiss Plainitff's Second Amended Complaint by Steve Woods. (Masters, Daryl) (Entered: 08/17/2006)
44 ORDER re 43 MOTION to Dismiss Plainitff's Second Amended Complaint filed by Steve Woods; pla is ordered to respond to said motion w/i 14 days. Signed by Judge Inge P Johnson on 8/21/06. (ASL, ) (Entered: 08/21/2006)
45 RESPONSE to Motion re 43 MOTION to Dismiss Plainitff's Second Amended Complaint filed by Kevin Danley. (Sherrod, Henry) (Entered: 08/23/2006)
46 ORDER denying 43 Motion to Dismiss pla's second amended complaint. Signed by Judge Inge P Johnson on 8/23/06. (ASL, ) (Entered: 08/23/2006)
47 USCA Case Number 06−14466A for 40 Notice of Interlocutory Appeal filed by Jackie Rikard, Ronnie Willis, Ruby Allyn. (ASL, ) (Entered: 08/24/2006)
48 NOTICE OF INTERLOCUTORY APPEAL as to 46 Order on Motion to Dismiss by Steve Woods. (Masters, Daryl) Modified on 8/25/2006 (ASL, ). (Entered: 08/25/2006)
49 NOTICE TO COUNSEL re 48 Notice of Interlocutory Appeal (ASL, ) (Entered: 08/25/2006)
USCA Appeal Fees received $ 455.00 receipt number 200 228970 re 48 Notice of Interlocutory Appeal filed by Steve Woods, (ASL, ) (Entered: 08/31/2006)
50 DESIGNATION of Record on Appeal by Steve Woods re 48 Notice of Interlocutory Appeal (Masters, Daryl) (Entered: 08/29/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 48 Notice of Interlocutory Appeal (ASL, ) (Entered: 09/06/2006)
51 Alias Summons issued as to Jeff Wood, del to pla for service (ASL, ) (Entered: 09/11/2006)
52 USCA Case Number 06−14808−A for 48 Notice of Interlocutory Appeal filed by Steve Woods,. (ASL, ) (Entered: 09/12/2006)
53 MOTION to Dismiss Second Amended Complaint by Jeff Wood. (Morgan, Amanda) (Entered: 10/10/2006)
54 ORDER re 53 MOTION to Dismiss Second Amended Complaint filed by Jeff Wood; pla is ordered to respond to said motion w/i 10 days. Signed by Judge Inge P Johnson on 10/11/06. (ASL, ) (Entered: 10/11/2006)
55 RESPONSE to Motion re 53 MOTION to Dismiss Second Amended Complaint filed by Kevin Danley. (Sherrod, Henry) (Entered: 10/11/2006)

10/12/2006 10/13/2006 10/13/2006 10/18/2006 10/18/2006 11/02/2006 01/10/2007 01/11/2007 02/08/2007
04/09/2007
04/24/2007 04/24/2007 05/15/2007 05/16/2007 05/17/2007 05/30/2007 07/24/2007 08/21/2007 08/13/2008 08/14/2008

56 ORDER denying 53 Motion to Dismiss . Signed by Judge Inge P Johnson on 10/12/06. (ASL, ) (Entered: 10/12/2006)
57 NOTICE OF INTERLOCUTORY APPEAL as to 56 Order on Motion to Dismiss by Jeff Wood. (Masters, Daryl) Modified on 10/17/2006 (ASL, ). (Entered: 10/13/2006)
58 DESIGNATION of Record on Appeal by Jeff Wood re 57 Notice of Interlocutory Appeal (Masters, Daryl) (Entered: 10/13/2006)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 57 Notice of Interlocutory Appeal (ASL, ) (Entered: 10/18/2006)
USCA Appeal Fees received $ 455 receipt number 200 230575 re 57 Notice of Interlocutory Appeal filed by Jeff Wood, (ASL, ) (Entered: 10/19/2006)
USCA Case Number 06−15580−A for 57 Notice of Interlocutory Appeal filed by Jeff Wood. (ASL, ) (Entered: 11/02/2006)
59 MOTION to Withdraw by Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods. (Morgan, Amanda) (Entered: 01/10/2007)
60 ORDER granting 59 Motion to withdraw attorney Amanda Kay Morgan. Signed by Judge Inge P Johnson on 1/11/07. (ASL, ) (Entered: 01/11/2007)
61 Certified and Transmitted Record on Appeal to US Court of Appeals re 40 Notice of Interlocutory Appeal, 57 Notice of Interlocutory Appeal, 48 Notice of Interlocutory Appeal (ASL, ) Additional attachment(s) added on 2/8/2007 (ASL, ). (Entered: 02/08/2007)
62 USCA JUDGMENT as to 40 Notice of Interlocutory Appeal filed by Jackie Rikard, Ronnie Willis, Ruby Allyn, 57 Notice of Interlocutory Appeal filed by Jeff Wood, 48 Notice of Interlocutory Appeal filed by Steve Woods, vacating and remanding, issued as mandate 4/6/07 with published opinion attached (ASL, ) (Entered: 04/10/2007)
63 MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 4/24/07. (ASL, ) (Entered: 04/24/2007)
64 ORDER in accordance with memorandum opinion, all motions to dismiss filed by five dfts are DENIED. Signed by Judge Inge P Johnson on 4/24/07. (ASL, ) (Entered: 04/24/2007)
65 NOTICE OF INTERLOCUTORY APPEAL as to 64 Order by Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods. (Harmon, Bart) Modified on 5/15/2007 (ASL, ). (Entered: 05/15/2007)
USCA Appeal Fees received $ 455 receipt number 200 236532 re 65 Notice of Interlocutory Appeal filed by Steve Woods, Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, (ASL, ) (Entered: 05/17/2007)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 65 Notice of Interlocutory Appeal (ASL, ) (Entered: 05/17/2007)
USCA Case Number 07−12328C for 65 Notice of Interlocutory Appeal filed by Steve Woods, Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood. (ASL, ) (Entered: 05/30/2007)
66 ORDER that the pretrial conference scheduled for August 13, 2007, and the trial scheduled for August 20, 2007 are CANCELED, due to pending interlocutory appeal. Signed by Judge Inge P Johnson on 7/24/07. (ASL, ) (Entered: 07/24/2007)
67 Certified and Transmitted Record on Appeal to US Court of Appeals re 65 Notice of Interlocutory Appeal (ASL, ) (Entered: 08/21/2007)
68 MOTION to Withdraw as Attorney by Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods. (Harmon, Bart) (Entered: 08/13/2008)
69 ORDER granting 68 Motion to Withdraw Bart Harmon as Attorney for dfts.. Signed by Judge Inge P Johnson on 8/14/08. (ASL, ) (Entered: 08/14/2008)

09/23/2008
09/24/2008 09/25/2008 09/25/2008
10/30/2008 12/16/2008 12/17/2008
02/12/2009 02/17/2009 02/18/2009 02/18/2009 02/19/2009 03/17/2009

70 USCA JUDGMENT as to 65 Notice of Interlocutory Appeal filed by Jeff Wood, Steve Woods, Ruby Allyn, Jackie Rikard, Ronnie Willis; affirming decision of the district court, issued as mandate 9/22/08, w/published opinion attached (ASL, ) (Entered: 09/23/2008)
71 ORDER SETTING TRIAL Pretrial Conference set for 12/8/2008 in Florence, AL; Jury Trial set for 12/15/2008 09:00 AM before Judge Inge P Johnson in Florence, AL. Signed by Judge Inge P Johnson on 9/24/08. (ASL, ) (Entered: 09/24/2008)
72 Joint MOTION to Continue by Kevin Danley, Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods. (Masters, Daryl) (Entered: 09/25/2008)
73 ORDER SETTING TRIAL granting 72 Joint MOTION for continuance. Pretrial Conference reset for 2/9/2009 in Florence, AL; Jury Trial reset for 2/16/2009 09:00 AM before Judge Inge P Johnson in Florence, AL. Signed by Judge Inge P Johnson on 9/25/08. (ASL, ) (Entered: 09/25/2008)
74 ORDER of USCA granting appellee's unopposed motion to transfer issue of atty's fees to district court, to be addressed at conclusion of proceedings(ASL, ) (Entered: 10/30/2008)
75 Joint MOTION to Continue Trial Date by Kevin Danley, Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods. (Masters, Daryl) (Entered: 12/16/2008)
76 ORDER granting 75 Joint MOTION to Continue; Discovery due by 4/24/2009. Dispositive Motions due by 5/18/2009. Pretrial Conference RESET for 7/13/2009. Trial RESET for 7/20/2009 in Florence, AL. Signed by Judge Inge P Johnson on 12/17/08. (ASL, ) (Entered: 12/17/2008)
77 MOTION to Compel defendants to answer interrogatories by Kevin Danley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Sherrod, Henry) (Entered: 02/12/2009)
78 ORDER re 77 MOTION to Compel defendants to answer interrogatories filed by Kevin Danley; dfts are allowed up to and through 2/18/09 to respond to said motion. Signed by Judge Inge P Johnson on 2/17/09. (ASL, ) (Entered: 02/17/2009)
79 NOTICE of Appearance by C Richard Hill, Jr on behalf of Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods (Hill, C) (Entered: 02/18/2009)
80 RESPONSE to Motion re 77 MOTION to Compel defendants to answer interrogatories filed by Jackie Rikard, Ronnie Willis, Ruby Allyn, Jeff Wood, Steve Woods. (Hill, C) (Entered: 02/18/2009)
81 ORDER granting 77 Motion to Compel; dfts shall answer remaining interrogatories previously propounded by pla w/i 10 days. Signed by Judge Inge P Johnson on 2/19/09. (ASL, ) (Entered: 02/19/2009)
82 ORDER DISMISSING CASE without prejudice, court retains jurisdiction for purpose of enforcing parties' settlement agreement, parties shall submit formal stipulation of dismissal. Signed by Judge Inge P Johnson on 3/17/09. (ASL ) (Entered: 03/17/2009)

 
 Settlement in Pepper Spray Case to End Pattern of Abuse and Prevent Torture of Future Lauderdale County Jail Inmates, Says Plaintiff’s Attorney
FOR IMMEDIATE RELEASE CONTACT: Henry F. (“Hank”) Sherrod III, 256-764-4141, @hiwaay.net
FLORENCE, ALA. - Today the attorney for Kevin B. Danley announced that Lauderdale County, Alabama jail officials had agreed, as part of a settlement of Danley’s federal lawsuit against them, to make major changes in how pepper spray is used at the jail, changes that will end a pattern of inmate abuse that goes back at least to 2000 and that will prevent future inmates at the Lauderdale County Detention Center from being tortured with pepper spray.
According to the lawsuit, jailers sprayed Danley in the face from a foot away using a pepper spray device designed for spraying large amounts of pepper spray on a crowd from a distance of 12-30 feet. Jailers then confined Danley in a small cell for approximately 20 minutes while he screamed that he could not breathe and begged for help.
“Incident reports going back to 2000 showing pepper spray use at the jail provided to us during the lawsuit showed a pattern of inmate abuse that was disturbing.” said Danley’s attorney, Henry F. (“Hank”) Sherrod III, of Florence. “Jailers at the Lauderdale County Detention Center frequently sprayed inmates for little or no reason and with many times more pepper spray than would ever be necessary. Worst of all, after spraying inmates with an excessive amount of pepper spray, jailers allowed the inmates to suffer in their cells rather than let them decontaminate.”
“This was torture, pure and simple; there is no way around it.” said Sherrod. “We read about Guantanamo and waterboarding, but this was right here in Florence, Alabama.”
“Mr. Danley insisted that the settlement of his case include changes at the jail to prevent others from suffering like he did,” said Sherrod. “He firmly believed that no human being should be made to suffer like he suffered.”
Pepper spray is considered to be an effective and generally safe law enforcement tool when used properly. It is effective even in small quantities in part because it is a severe respiratory irritant than can cause burning in the throat, wheezing, a dry cough, shortness of breath, gagging, gasping, and an inability to breath or speak. Pepper spray is commonly used by law enforcement personnel to gain control of violent arrestees and inmates. Once control is gained, however, the person should be allowed access to fresh air and to wash the spray off.
The pepper spray being used at the jail was specifically labeled as a “crowd control” spray, was 5 times as strong as the spray sold by the same manufacturer for use on bears (10% pepper as compared to 2%), and delivered many times more spray each time it was used than did sprays designed by the manufacturer for use on individuals rather than crowds.
Lauderdale County, Alabama Sheriff Ronnie Willis and Lauderdale County Detention Center Administrator Jackie Rikard Keenum agreed to cease using the crowd control pepper spray on individual inmates and to provide sprayed inmates with prompt decontamination, including fresh air and water, and medical care if necessary. Willis and Keenum also agreed to make policy and procedure changes and to retrain jailers on the use of pepper spray and proper decontamination.

Willis and Keenum have 90 days to implement the policy and procedure changes required by the settlement and to have jail staff retrained regarding pepper spray use. Other settlement terms are confidential.
[Defendants can be reached through their counsel, Daryl L. Masters, 334-262-1850.]

 
 ATTACHMENT "A"
to
CONFIDENTIAL SETTLEMENT AGREEMENT AND
RELEASE OF ALL CLAIMS

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

KEVIN DANLEY, Plaintiff,
v.
RUBY ALLYN, et aI., Defendants.

) ) ) )
) Civil Action No. 3:06-cv-00680-IPJ
) ) ) )

AGREEMENT In agreeing to resolve the above-referenced lawsuit, and the differences existing between them, the Plaintiff, Kevin B. Danley, and the Defendants, Lauderdale County, Alabama Sheriff Ronnie Willis; Lauderdale County, Alabama Jail Administrator Jackie Rikard Keenum; and Lauderdale County, Alabama Corrections Officers Ruby Allyn, Jeff Wood, and Steve Woods, agree to the following terms: 1. That the product "CounterAssault OCIO-12" will no longer be used in the Lauderdale County, Alabama Detention Center in situations involving individual inmates and that no other similar product designed for crowd control will be used on individual inmates. 2. That the Lauderdale County, Alabama Sheriffs Office will update policies and procedures for the Lauderdale County, Alabama Detention Center
1

with regard to the use of OC or chemical sprays, and that, unless a separate policy is implemented regarding the use of the product "CounterAssault OCIO-12" or similar products in situations dealing with multiple inmates, the remainder of that product on hand at the Lauderdale County Detention Center will be destroyed.
3. The Defendants agree to conduct additional training for all officers at the Lauderdale County Detention Center in the use of chemical sprays and agents and regarding the updated policies and procedures discussed below, with such training to be conducted by Corporal David Winston of the South Alabama Law Enforcement Academy, or some other similarly qualified training officer.
4. The Defendants agree that, in updating their policies and procedures with regard to chemical or OC sprays, to identify therein the types of approved sprays and uses, alternatives to the use of chemical sprays, and specific circumstances under which chemical sprays may be used.
5. It is further agreed that Defendants will include in updated policies and procedures the following in addition to the matters identified in paragraph 4;
A. The Defendants will maintain their policy of refraining from using chemical sprays to punish persons incarcerated in the Lauderdale County Detention Center;
2

B. Each use of chemical or OC spray at the Lauderdale County Detention Center will be documented and reported to the facility's Administrator and Sheriff through the use of an Incident Report Form by each officer involved;
c. Each use of chemical or OC spray will be thoroughly
investigated by the facility's Administrator, or her designee; D. Any video evidence of such an event will be preserved; E. A separate file will be maintained for incident reports reflecting
the use of OC spray; F. Inmates against whom OC or chemical sprays are used will be
allowed to decontaminate promptly after control over the inmate has been gained, with decontamination to include fresh air, an adequate shower, and medical treatment to the extent necessary as determined by on-site medical personnel;
G. Inmates may utilize the facility's grievance procedure to report uses of force to the facility's Administrator;
H. To the extent not already clear in the current gnevance procedure, the grievance procedure shall provide for grievance forms to be readily available to inmates, and for secure and confidential delivery of grievance forms to the Administrator; and
I. Dissemination of the updated policies and procedures to all corrections officers and supervisors.
3

6. The parties agree that the items set out above, if not already in place prior to the making of this agreement, be accomplished within ninety (90) days of the date of the final signature attached below.
7. Counsel for Defendants shall submit proposed policy changes to counsel for Plaintiff for review and approval before they are finalized. Counsel for Plaintiff may not unreasonably withhold approval.
8. Counsel for Defendants shall certify in writing to counsel for Plaintiff that Defendants have complied with this agreement and provide dates and supporting documentation related to the training provided and the dissemination of the updated policies and procedures.
9. The parties also agree to have the United States District Court for the Northern District of Alabama maintain jurisdiction over this matter for a period of ninety (90) days after the date of the last signature set out below in order to enforce the terms of this agreement. This agreement to allow the Court to maintain jurisdiction is not an agreement by the parties that they have entered into a consent order or decree, or an admission that either party has acknowledged any type of liability or wrongdoing of any kind.
10. The parties, either through their signatures, or through the signature of their undersigned representative, agree to be bound by the terms of this agreement,
4

and to make every effort within their power to implement it as set out above, and to give it full force and effect.

c/o Henry F. Sherrod III Post Office Box 606 Florence, Alabama 35631-0606

------------------- Defendants'
Representative Lauderdale County Sheriffs Office Post Office Box 1710 Florence, Alabama 35631

5