Segrain v. Duffy

118 F.4th 45

• Court: Court of Appeals for the First Circuit
• Decided: September 23, 2024
• Docket: 23-1854
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1854

JOSEPH SEGRAIN,

Plaintiff, Appellant,

v.

WALTER DUFFY, alias, individually and in his official capacity as a Correctional Officer at the Rhode Island Department of Corrections; JAMES GLENDINNING, alias, individually and in his official capacity as a Correctional Officer at the Rhode Island Department of Corrections; RHODE ISLAND DEPARTMENT OF CORRECTIONS; WAYNE T. SALISBURY, JR., alias, in his official capacity as Acting Director at the Rhode Island Department of Corrections; RONALD MELEO, alias, individually and in his official capacity as a Correctional Officer at the Rhode Island Department of Corrections,

Defendants, Appellees,

PATRICIA ANNE COYNE-FAGUE, alias, individually; JOHN DOES 1-5, alias, individually and in their official capacity as Correctional Officers at the Rhode Island Department of Corrections,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. William E. Smith, U.S. District Judge]

Before

Montecalvo, Lipez, and Rikelman, Circuit Judges. Jared A. Goldstein, with whom Prisoners' Civil Rights Litigation Clinic, Roger Williams University School of Law was on brief, for appellant. James J. Arguin, Special Assistant Attorney General, for appellees.

September 23, 2024 MONTECALVO, Circuit Judge. This appeal concerns Joseph

Segrain's civil lawsuit against the Rhode Island Department of

Corrections and several correctional officers for alleged

violations of his rights under the Eighth Amendment and various

Rhode Island state laws. During all times relevant to this case,

Segrain was detained at Rhode Island's Adult Correctional

Institutions' (ACI's) maximum-security facility in Cranston. He

alleges that officers used excessive force against him on June 28,

2018, when they executed a leg-sweep maneuver that knocked him to

the ground, sprayed him in the face with pepper spray, and

unnecessarily prolonged his pain from the pepper spray by holding

him in a cell while handcuffed for a significant time before

allowing him a decontamination shower. The district court granted

summary judgment in favor of the officers on all federal and state

claims, and Segrain appealed. For the reasons explained below, we

reverse the district court's judgment as to the 42 U.S.C. § 1983

claim that appellee Officer Walter Duffy's use of pepper spray

violated Segrain's Eighth Amendment rights, vacate the district

court's judgment as to the Rhode Island Constitution Article I,

Section 8 claim regarding Duffy's use of pepper spray, and remand

for further proceedings consistent with this opinion. We affirm

the district court's judgment on all other claims.

- 3 - I. Background

A. Factual Background

"We recount the facts in the light most favorable to

[Segrain], who was the non-moving party at summary judgment." Ing

v. Tufts Univ., 81 F.4th 77, 79 (1st Cir. 2023) (quoting

Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 172

(1st Cir. 2015)), cert. denied, No. 23-1115, 2024 WL 2116351 (U.S.

May 13, 2024).

1. The Leadup to the Alleged Constitutional Violations

Segrain was housed in the Disciplinary Confinement Unit

of the ACI, operated by the Rhode Island Department of Corrections

(RIDOC), when, on the morning of June 28, 2018, he was escorted

from his cell to an area known as the "flats" for shower and

recreation time. A corrections officer issued Segrain shower

supplies, including a brush, a mirror, and a razor.

About five minutes after Segrain arrived in the flats,

appellee Officer Ronald Meleo informed Segrain that he would have

only fifteen minutes of out-of-cell time. Segrain debated with

Meleo over whether he was entitled to more out-of-cell time and

whether he could report a grievance prior to being returned to his

cell. In response to the disagreement, other officers were

notified about a potential issue with an inmate refusing to leave

the flats. Appellee Officers Walter Duffy and James Glendinning

then came to the officers' area, a room separated from the flats

- 4 - by a barred gate. After several minutes of discussion, Duffy,

Glendinning, and Meleo, as well as three other corrections

officers, walked from the officers' area through the barred door

into the flats. Duffy brought pepper spray with him and told

Segrain that force might be used against him if he did not comply.

Duffy directed Glendinning to handcuff Segrain, and Segrain

complied and was handcuffed without incident.

When Glendinning handcuffed Segrain, Segrain was still

holding some of the shower supplies (at least the mirror and the

razor) that had been issued to him a few minutes before. Normally

at the facility, the corrections officer who issued the shower

supplies is responsible for collecting them from an inmate before

the inmate is handcuffed and escorted to his cell. No officer

asked Segrain to return his shower supplies or gave him an

opportunity to do so. The video appears to show that, consistent

with Segrain's account, Segrain made no attempt to hide the shower

supplies from the officers -- the supplies were clearly visible in

his hands when the officers entered the flats and handcuffed him.1

After Segrain was handcuffed, Glendinning escorted

Segrain from the flats through the doorway into the officers' area.

1 Though the appellees contend that Segrain was concealing the razor underneath the mirror and in his clenched fist, a reasonable jury could disagree. We therefore assume, for the purposes of summary judgment, that Segrain was not concealing or attempting to conceal the razor.

- 5 - Segrain walked in the direction in which he was escorted without

physical protest. Six officers total -- including Glendinning,

Duffy, and Meleo -- were present in the flats while Segrain was

handcuffed and escorted out, and one additional officer was present

in the officers' area for at least a portion of that time period.

2. The Leg-Sweep Maneuver

The exact timing of the events that followed is central

to the substantive disputes in this case, and thus we discuss their

timing in relation to the time stamps on the submitted video

recordings of the officers' area and the holding cell. The video

recordings do not include sound and thus do not clarify who said

what, and when, during these events. While escorting Segrain out

of the flats and into the officers' area, Glendinning noticed a

mirror in Segrain's left hand at approximately 4:45 on the

officers' area video. Glendinning testified that he swatted the

mirror out of Segrain's hand and then noticed the razor in

Segrain's right hand -- Glendinning appears to notice the razor at

4:49 on the officers' area video.

Segrain testified that Glendinning stated at that point,

"He has a razor. Drop the razor."2 Glendinning then applied a leg

2 The district court concluded that Duffy also verbally ordered Segrain to drop the razor after finding that Segrain failed to point to evidence genuinely disputing this issue. See Segrain v. Coyne-Fague, No. 19-00372, 2023 WL 6142234, at *2 n.8 (D.R.I. Sept. 20, 2023). We disagree. Duffy and Glendinning submitted affidavits that only mention an order to drop the razor by

- 6 - sweep to knock Segrain to the ground at 4:51 on the video. Only

about one or two seconds appear to have elapsed between the time

that Glendinning noticed the razor and when he applied the leg

sweep. Segrain argues that one or two seconds is not enough time

for Glendinning to have both ordered Segrain to drop the razor and

given him time to comply with that order.

The officers' area video does not show the precise moment

that Segrain dropped the razor (the angle of the video is such

that Segrain's hands are blocked by his body at the relevant time),

but Segrain landed on the floor at 4:53 and the razor can be seen

on the floor behind Segrain's back in the video at 4:54. Segrain

testified that he dropped the razor while falling or just after he

hit the ground, which is consistent with the video.3

Glendinning but not by Duffy. And Glendinning testified in his deposition that he ordered Segrain to drop the razor but he was not sure whether there were further commands. Viewing this evidence in the light most favorable to Segrain, we accept at this juncture that Duffy did not issue an order to Segrain to drop the razor. 3 The district court concluded that "the video evidence demonstrates the razor fell to the ground after Defendant Glendinning pinned [Segrain] to the ground." Segrain, 2023 WL 6142234, at *2 n.10. However, given Segrain's testimony and the fact that the video does not show the precise moment Segrain dropped the razor, viewing the facts in the light most favorable to Segrain, it is possible that he dropped the razor just prior to hitting the ground.

- 7 - 3. Use of Pepper Spray

Around the time Segrain landed on the floor, or shortly

thereafter, at 4:54 in the video, Duffy sprayed Segrain with pepper

spray. At 4:56, the video shows Glendinning picking the razor up

off the floor and later tossing it aside, out of Segrain's reach.

Duffy was standing above the scene at that time and appeared to

have a clear view of Glendinning when Glendinning grabbed the razor

and tossed it aside. Yet after Glendinning picked up the razor,

Duffy sprayed a second burst of pepper spray into Segrain's face

at approximately 4:57 on the video.4 Segrain testified that from

"what [he] recall[s]," he was not "holding the . . . razor by the

time the [pepper spray] sprayed," but it is not clear whether that

statement referenced the first spray, the second spray, or both.

Segrain experienced intense pain from the pepper spray -- he was

4 The district court concluded that "[b]ased on the video evidence, . . . Duffy applied a second microburst" of pepper spray "almost simultaneous with [Segrain] dropping the razor." Segrain, 2023 WL 6142234, at *2. The officers' area video makes clear that Segrain dropped the razor at least two seconds before Duffy sprayed Segrain for a second time. The significance of this delay and whether Duffy could see, and did in fact see, the dropped razor at the time are issues on which a reasonable juror could find in favor of Segrain. Thus, at the summary judgment stage, we assume the same. Additionally, viewing the facts in the light most favorable to Segrain, the pepper spray was discharged directly into Segrain's face based on the video of the holding cell, which shows Segrain's face appearing visibly wet soon after Duffy sprayed the pepper spray.

- 8 - temporarily blinded, felt unable to breathe, and felt like he was

going to die.

4. Delayed Decontamination

The officers then escorted Segrain into a holding cell

that was accessible from the officers' area. They left him in the

holding cell with his hands still handcuffed behind his back and

his face wet with pepper spray for approximately thirteen minutes.

The video of the inside of the holding cell shows Segrain wandering

around blindly in the cell while handcuffed. He appears visibly

in pain and appears to be trying to say something to the officers.

Consistent with the video, Segrain testified that he called out in

pain, stating that he could not breathe and asking the officers to

take the handcuffs off so that he could wash his face. Though

several officers remained just outside the cell during the time

Segrain was held there, the officers do not appear to pay much

attention to Segrain, and Segrain testified that "[t]hey're not

saying nothing. Nobody [wa]s doing anything." Some of the

officers appear to be chatting with each other periodically.

Officer Meleo also cleaned up the puddle of pepper spray on the

ground while Segrain was in the holding cell.

The video shows Segrain, with his eyes shut, feeling

around the cell with his back and handcuffed hands, but he did not

find the sink for several minutes. When he did eventually

encounter the sink in the corner of the cell, he managed to turn

- 9 - it on with his hands still cuffed. He then repeatedly stuck his

face into the stream of water flowing from the sink but did not

have the use of his hands to rub the water into his eyes or face.

The water eventually began to overflow the sink, and Segrain

repeatedly stuck his face into the full sink basin and the water

stream overflowing out of the sink. The water flowed out of the

cell into the officers' area, and an officer brought a mop to the

area but left it leaning against the wall without using it to mop

up the water. The mop remained leaning against the wall, unused,

until sometime after Segrain was escorted out of the cell and

through the flooded area.

After holding Segrain in the cell for about thirteen

minutes, the officers eventually opened the cell door and led him

away. The video evidence does not show the exact length of time

between when Segrain was released from the cell and when his

decontamination shower took place. He testified that it was "25

minutes or longer . . . after [he] got sprayed" before he received

a shower and that he saw a nurse for a medical evaluation "like an

hour later, if that." The medical evaluation notes state that the

nurse "found no bruises or injuries, inmate is fine." Segrain

testified that the incident caused him to have long-term, nearly

constant anxiety and mental anguish.

The appellees have asserted inconsistent reasons for the

delay in Segrain's decontamination after the incident. Duffy

- 10 - initially asserted in an affidavit that the delay was due to

"Segrain's act of flooding the cell" when he eventually turned on

the sink himself because "the area had to be cleaned for safe

transport." Duffy then testified in his deposition that the delay

was initially due to the need to find enough staff to move Segrain

to the decontamination area.

5. Use-of-Force Policy

Segrain alleges that the officers' conduct during these

events violated RIDOC's use-of-force policy. That policy states

that "[t]he use of force against an offender is authorized when an

Officer reasonably believes such force is necessary to

accomplish," in relevant part, "[p]rotection of self or

others, . . . [c]omplaince with rules and regulations when other

methods of control are ineffective or insufficient, . . . [or]

[p]rotection of the offender from self-inflicted harm." However,

"RIDOC Officers may only use force when necessary," and "[i]f force

is in fact required, Officers may only use the reasonable force

necessary to accomplish the required task." Excessive force is

prohibited under all circumstances, and "[o]nce the threat or

resistance displayed by a subject stops or diminishes, force

utilized by Officers in response must cease or diminish."

Additionally, "[b]efore using force on an offender, Officers, when

time and circumstances permit, shall issue a verbal warning to the

- 11 - offender[] to stop and desist and obey the order of Officers,

clearly stating that force will be used if not stopped."

B. Procedural Background

On July 10, 2019, Segrain filed the present lawsuit in

the United States District Court for the District of Rhode Island

asserting claims under the federal Constitution and 42 U.S.C.

§ 1983, as well as under Rhode Island law. Early in the

litigation, the parties stipulated to dismiss counts one through

three in the complaint and all individual (but not official)

capacity claims against the director of the Department of

Corrections.5 After that stipulation, the following claims

remained: a § 1983 claim alleging excessive use of force in

violation of the Eighth Amendment against Duffy, Glendinning, and

Meleo (count six); a state law claim of negligent infliction of

emotional distress against the Rhode Island Department of

Corrections, Wayne T. Salisbury, Jr. (in his official capacity as

Director at the Rhode Island Department of Corrections), Duffy,

Glendinning, and Meleo (count four); state law claims of battery,

intentional infliction of emotional distress, and excessive force

against Duffy and Glendinning (counts five, eight, and nine); and

5 The director originally named in the complaint and who held that position at the time of the stipulation was Patricia Coyne-Fague. Pursuant to Federal Rule of Appellate Procedure 43(c)(2), the current director, Wayne T. Salisbury, Jr., is automatically substituted as a party for the remaining official capacity claims against the director.

- 12 - a claim of violation of the state constitutional prohibition on

cruel and unusual punishment against all defendants (count seven).

Duffy, Glendinning, and Meleo are sued in both their individual

and official capacities.

The defendants filed a motion for summary judgment on

all remaining claims. The district court granted that motion in

its entirety on September 20, 2023. Specifically, relevant to

this appeal, the district court found that no reasonable jury could

find that any of the officers' conduct constituted an Eighth

Amendment violation under the U.S. Constitution and granted

summary judgment on that basis, without mentioning or discussing

the officers' asserted qualified immunity defense (an issue that

both parties briefed before the district court). See Segrain v.

Coyne-Fague, No. 19-00372, 2023 WL 6142234, at *6-11 (D.R.I. Sept.

20, 2023). Then, after deciding to exercise supplemental

jurisdiction over the remaining state law claims despite its

dismissal of all federal claims, the district court individually

considered and granted summary judgment in defendants' favor on

each of Segrain's five remaining state law claims as to all

defendants. Id. at *11-12. Segrain subsequently filed this timely

appeal of the district court's grant of summary judgment on the

Eighth Amendment and state law claims.

- 13 - II. Standard of Review

We review the district court's grant of summary judgment

de novo, viewing the evidence in the light most favorable to the

nonmoving party and "giving that party the benefit of any and all

reasonable inferences." Ing, 81 F.4th at 82 (quoting Noviello v.

City of Boston, 398 F.3d 76, 84 (1st Cir. 2005)). Summary judgment

is appropriate "when the record reflects no genuine issue as to

any material fact and indicates that the moving party is entitled

to judgment as a matter of law." Penate v. Sullivan, 73 F.4th 10,

17 (1st Cir. 2023) (quoting Morelli v. Webster, 552 F.3d 12, 18

(1st Cir. 2009)).

III. Discussion

Segrain appeals the district court's decision on his

Eighth Amendment claim asserting multiple violations by different

officers, as well as its decision on five state law claims. We

discuss the Eighth Amendment claim first, assessing each of the

alleged violations by different officers separately, and then

proceed to the state law claims.

A. Eighth Amendment Excessive Force Claim

Section 1983 provides a cause of action for monetary

damages against state actors sued in their individual capacities

"who acted under color of state law to deprive plaintiff of a right

guaranteed by the Constitution or by federal law." Kelley v.

LaForce, 288 F.3d 1, 6 (1st Cir. 2002); see also 42 U.S.C. § 1983;

- 14 - Hafer v. Melo, 502 U.S. 21, 23 (1991). The Eighth Amendment

prohibits infliction of "cruel and unusual punishments." U.S.

Const. amend. VIII. "A claim of cruel and unusual punishment in

violation of the Eighth Amendment has two components." Staples v.

Gerry, 923 F.3d 7, 13 (1st Cir. 2019) (quoting Wright v. Goord,

554 F.3d 255, 268 (2d Cir. 2009)). One component is "objective,

focusing on the conduct's effect," and the other is "subjective,

focusing on the defendant's motive for his conduct." Id.

The objective prong of this analysis requires an injured

party to show that "the alleged wrongdoing is objectively 'harmful

enough' to establish a constitutional violation." Hudson v.

McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson v. Seiter, 501

U.S. 294, 303 (1991)). "[D]e minimis uses of physical force" are

typically "exclude[d] from constitutional recognition," as long as

"the use of force is not of a sort repugnant to the conscience of

mankind." Wilkins v. Gaddy, 559 U.S. 34, 38 (2010) (quoting

Hudson, 503 U.S. at 9-10). The Supreme Court has made clear that

it is the force used, and not the injury incurred, that is the

focus of the objective prong analysis. See id. To this end, it

has explained that "[i]njury and force . . . are only imperfectly

correlated, and it is the latter that ultimately counts. An inmate

who is gratuitously beaten by guards does not lose his ability to

pursue an excessive force claim merely because he has the good

fortune to escape without serious injury." Id.; see also id. at

- 15 - 37 (explaining that there is no "significant injury" threshold

requirement to state an excessive force claim, but that the absence

of injury is still one of many relevant considerations under the

subjective prong analysis).

The subjective prong of the Eighth Amendment excessive

force analysis "turns on 'whether force was applied in a good faith

effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.'" Whitley v.

Albers, 475 U.S. 312, 320–21 (1986) (quoting Johnson v. Glick, 481

F.2d 1028, 1033 (2d Cir. 1973)). The factors relevant to this

determination, known as the "Whitley factors," include:

[(1)] the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials, [(2)] the need for the application of force, [(3)] the relationship between the need and the amount of force that was used, [(4)] the extent of the injury inflicted, and [(5)] any efforts made to temper the severity of a forceful response.

Staples, 923 F.3d at 13 (cleaned up) (quoting Whitley, 475 U.S. at

321).

Even if a plaintiff produces sufficient evidence from

which a reasonable jury could find an Eighth Amendment violation,

a defendant official may still be entitled to summary judgment on

that constitutional claim based on qualified immunity. Officers

sued in their individual capacity "are entitled to qualified

immunity under § 1983 unless (1) they violated a federal statutory

- 16 - or constitutional right, and (2) the unlawfulness of their conduct

was 'clearly established at the time.'" District of Columbia v.

Wesby, 583 U.S. 48, 62–63 (2018) (quoting Reichle v. Howards, 566

U.S. 658, 664 (2012)). To decide whether a defendant is entitled

to summary judgment based on qualified immunity, "[w]e often follow

'a two-step approach.'" Perry v. Spencer, 94 F.4th 136, 146 (1st

Cir. 2024) (en banc). We first consider "whether there is a

genuine issue of disputed fact that would allow a reasonable finder

of fact to determine that the defendant violated the plaintiff's

federal constitutional rights." Id. Second, we evaluate "whether

the right that the plaintiff can supportably show was violated was

clearly established at the time of the defendant's alleged

violation." Id. Importantly, the court need not take these two

steps in order; it may choose to begin with the second step and,

if the unlawfulness of the conduct was not clearly established, it

need not reach the first step at all. See id.; Alfano v. Lynch,

847 F.3d 71, 75 (1st Cir. 2017).

"'Clearly established' means that, at the time of the

officer's conduct, the law was 'sufficiently clear' that every

'reasonable official would understand that what [they are] doing'

is unlawful." Wesby, 583 U.S. at 63 (quoting Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011)). "A rule is clearly established either

when it is 'dictated by controlling authority or a robust consensus

of cases of persuasive authority.'" Irish v. Fowler, 979 F.3d 65,

- 17 - 76 (1st Cir. 2020) (quoting Wesby, 583 U.S. at 63). "A 'robust

consensus' does not require the express agreement of every circuit.

Rather, sister circuit law is sufficient to clearly establish a

proposition of law when it would provide notice to every reasonable

officer that [their] conduct was unlawful." Id.; see also Perry,

94 F.4th at 164.

The Supreme Court has also explained that "'general

statements of the law are not inherently incapable of giving fair

and clear warning' to officers," White v. Pauly, 580 U.S. 73, 79-80

(2017) (per curiam) (quoting United States v. Lanier, 520 U.S.

259, 271 (1997)), and "[a] plaintiff need not find an identical

case concluding that a constitutional violation occurred," Penate,

73 F.4th at 18. However, "in the light of pre-existing law the

unlawfulness must be apparent." White, 580 U.S. at 79–80 (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

Segrain alleges that multiple separate actions by the

officers on June 28, 2018 constitute Eighth Amendment violations,

but the district court granted summary judgment in the officers'

favor on all grounds. We consider each in turn.

1. Leg Sweep by Officer Glendinning

First, Segrain argues that Officer Glendinning used

excessive force against him in violation of the Eighth Amendment

when he executed a leg sweep to knock Segrain to the ground. The

district court ruled that the leg sweep did not meet the standard

- 18 - for either the objective or the subjective prongs of the analysis

and thus was not an Eighth Amendment violation. See Segrain, 2023

WL 6142234, at *7-8.6 But we "may affirm the judgment on any

ground made manifest by the record." Minturn v. Monrad, 64 F.4th

9, 14 (1st Cir. 2023). We affirm the dismissal of the leg sweep

claim against Glendinning based on the second prong of the

qualified immunity analysis: we hold that Glendinning is entitled

to qualified immunity on this claim because Segrain has not

established that the leg sweep constituted a violation of a clearly

established right as of June 28, 2018. And given this conclusion,

we need not reach the question of "whether under the facts alleged

[Glendinning's leg sweep] conduct violated a constitutional

6 The district court held that a reasonable jury could not find that the leg sweep "was objectively harmful enough to establish a constitutional violation." Id. at *8 (quoting Staples, 923 F.3d at 13). In doing so, the district court focused on the lack of significant injury to Segrain and asserted that "[i]n response to Defendants' motion [for summary judgment], [Segrain] has not pointed to any evidence to suggest that the leg sweep caused anything other than an injury that is de minimis." Id. We agree with Segrain that the district court's objective prong analysis of the leg sweep reflects a mistaken view of the legal standard for the objective prong of the excessive force analysis. The Supreme Court has emphasized that, although "[t]he extent of injury may . . . provide some indication of the amount of force applied," it is the force used, rather than the injury incurred, that "ultimately counts" in determining whether the objective prong is satisfied. Wilkins, 559 U.S. at 37-38. And it has overturned lower court decisions for improperly denying excessive force claims based on the supposedly de minimis nature of the injuries incurred rather than the severity of the force used. See id. at 39-40; Hudson, 503 U.S. at 4, 9-10.

- 19 - right." Johnson v. City of Biddeford, 92 F.4th 367, 375 n.6 (1st

Cir. 2024); see also Perry, 94 F.4th at 146 ("We have discretion

to bypass the first step [of the qualified immunity analysis] if

we conclude that the right was not clearly established at the time

of its alleged violation.").

Segrain does not point us to either a First Circuit case

or a sufficient consensus of persuasive authority clearly

establishing that Glendinning's use of a leg sweep under the

circumstances was an Eighth Amendment violation. Rather, Segrain

references only two out-of-circuit decisions, both published prior

to June 28, 2018, in support of his argument that the leg sweep

could constitute such a violation.7 The primary case he cites is

Griffin v. Hardrick, a Sixth Circuit case in which the plaintiff,

a person detained pre-trial, alleged that two officers each grabbed

one of her arms and led her down a hallway after she "act[ed] in

a non-compliant manner with regard to . . . instructions she

received from [a] nurse." 604 F.3d 949, 951 (6th Cir. 2010). When

the plaintiff resisted, one of the officers "stuck out his leg to

trip" her (an action that the officer referred to as a "leg-sweep

7 Segrain also references a district court decision concluding that the plaintiff had stated a claim for excessive force based on an incident where he was body slammed onto a concrete floor twice and broke several bones. See Taylor v. Emps. at Sumner Co. Jail, No. 19-00401, 2019 WL 4860628, at *7 (M.D. Tenn. Oct. 2, 2019). That decision was published too late to demonstrate that Glendinning's use of a leg sweep on June 28, 2018, was a clearly established constitutional violation.

- 20 - maneuver"). Id. at 952. The leg sweep caused her to fall to the

floor, but as she did so, the second officer accidentally fell on

top of her and fractured her tibia. Id. at 951-52. Analyzing the

claim under the Eighth Amendment excessive force standard, the

Sixth Circuit held that, because the officer who executed the leg

sweep "d[id] not dispute that [the plaintiff] suffered serious

pain, . . . the objective element [was] satisfied." Id. at 954.

Under the subjective element, however, the court found that the

plaintiff's actions "gave [the officer] a reasonable basis to

believe that force would be necessary to control [her]," and that

"no reasonable jury could find that [the officer] 'evinced such

wantonness . . . as is tantamount to a knowing willingness' that

[the plaintiff's] injury occur." Id. at 955-56 (quoting Whitley,

475 U.S. at 321). Thus, the court affirmed the grant of summary

judgment in the officer's favor. Id. at 956.

Griffin does not provide clear notice to every

reasonable officer that conduct such as the leg sweep Glendinning

executed against Segrain under those circumstances was unlawful in

2018. The Griffin court determined that the objective element was

satisfied based on a lack of dispute that the detained person

"suffered serious pain." Id. at 954. But as we explained above,

the relevant question is whether the force applied, not the injury

incurred, was greater than de minimis.

- 21 - Segrain also cites Treats v. Morgan, a case in which the

plaintiff, an incarcerated person, alleged that he was "[pepper]

sprayed without warning, thrown down to the floor, and handcuffed"

by correctional officers. 308 F.3d 868, 872 (8th Cir. 2002).

Those uses of force occurred after he declined one officer's demand

that he take a copy of a form he had signed acknowledging the

confiscation of a radio from his cell and sought to speak with a

lieutenant about whether taking the copy was mandatory. Id. at

870. The plaintiff testified that he "did not intentionally

disobey [the officer], use profanity or abusive language, or

threaten any correctional officer." Id. at 872. The Eighth

Circuit found that a reasonable jury could conclude that the

correctional officers' conduct of pepper spraying the plaintiff

and throwing him to the ground violated his clearly established

constitutional rights. Id. at 875.

To demonstrate clearly established law, cases cited need

not be "directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate." al-Kidd,

563 U.S. at 741. Treats is analogous in many ways to Segrain's

case under his version of the facts. However, Treats alone is far

from the type of "robust consensus of cases of persuasive

authority" necessary to meet the "clearly established" standard.

Wesby, 583 U.S. at 63. Accordingly, Glendinning is entitled to

qualified immunity on the leg sweep Eighth Amendment claim.

- 22 - 2. Two Pepper Sprays by Officer Duffy

Segrain next argues that the district court erred in

concluding that no reasonable jury could find that Duffy's use of

pepper spray constituted an Eighth Amendment violation. We begin

by assessing this claim first under the objective and then the

subjective prongs of the Eighth Amendment excessive force

standard. We find that a reasonable jury could hold that, in sum,

the use of pepper spray amounted to unconstitutional excessive

force. We then proceed to assess Duffy's qualified immunity

defense and conclude that he is not entitled to qualified immunity

at this stage of litigation. Accordingly, we vacate the district

court's judgment as to this claim and remand for further

proceedings in line with this opinion.

a. Objective Prong

Under the objective prong, the district court concluded

that "the evidence demonstrates that Defendant Duffy used the

minimal amount of force necessary to maintain order." Segrain,

2023 WL 6142234, at *9. However, the district court based this

conclusion on its view of the timing of Duffy's two uses of pepper

spray in relation to the time at which Segrain dropped the razor.

See id. The district court explained the sequence of events as

follows:

As Defendant Glendinning applied the leg sweep, [Segrain] continued to grasp the razor, posing a serious threat to himself and others.

- 23 - By the time [Segrain] hit the floor the razor was still in his hands. It was not until the second use of pepper spray that [Segrain] dropped the razor and Defendant Duffy heard Defendant Glendinning inform the other officers that [Segrain] dropped the razor. Once Defendant Glendinning informed Defendant Duffy that he released the razor, Defendant Duffy ceased the use of the pepper spray.

Id. As we explained in the background section above, this

rendition of the sequence of events is based on an erroneous view

of the video evidence and application of the summary judgment

standard. A reasonable jury could conclude that Segrain dropped

the razor either as he was falling to the ground from Glendinning's

leg sweep or just after he hit the ground.8 Either way, the video

evidence leaves no doubt that Segrain dropped the razor and

Glendinning grabbed the razor off the floor before Duffy pepper

sprayed Segrain for the second time. Furthermore, viewing the

facts in the light most favorable to Segrain and drawing all

rational inferences in his favor, a reasonable jury could conclude

that Duffy had a clear view of Glendinning grabbing the razor off

the floor to toss it out of Segrain's reach before Duffy applied

the second spray to Segrain's face.

Under this view of the sequence of events, a reasonable

jury may conclude that Duffy's use of pepper spray was a greater

8Duffy sprayed Segrain with pepper spray for the first time after Glendinning initiated the leg sweep -- around the time Segrain landed on the floor, or shortly thereafter.

- 24 - than de minimis use of force. A substantial body of caselaw

suggests that the application of pepper spray to a person's face

after the person has already been fully subdued can be considered

greater than de minimis force. In the First Circuit, we have

stated generally that the "excessive use of tear gas by prison

officials can amount to an Eighth Amendment violation."

Torres-Viera v. Laboy-Alvarado, 311 F.3d 105, 108 (1st Cir. 2002).

Multiple other circuits have found that the use of pepper spray

can be more than de minimis force when used against a person who

does not pose a substantial threat and/or when the spray is used

in quantities greater than necessary. See, e.g., Treats, 308 F.3d

at 873 ("A basis for an Eighth Amendment claim exists when, as

alleged here, an officer uses pepper spray without warning on an

inmate who may have questioned his actions but who otherwise poses

no threat."); Dean v. Jones, 984 F.3d 295, 303 (4th Cir. 2021)

("[W]e have no difficulty concluding -- as we have before -- that

a reasonable jury could find that a sustained blast of pepper spray

directly to the face constitutes something more than de minimis

force."); Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)

("It is generally recognized that 'it is a violation of the Eighth

Amendment for prison officials to use mace, tear gas or other

chemical agents in quantities greater than necessary or for the

sole purpose of infliction of pain.'" (quoting Soto v. Dickey, 744

F.2d 1260, 1270 (7th Cir. 1984))); Furnace v. Sullivan, 705 F.3d

- 25 - 1021, 1028 (9th Cir. 2013) (agreeing with and citing the Fourth

Circuit's statement in Williams that use of "chemical agents in

quantities greater than necessary or for the sole purpose of

infliction of pain" can constitute an Eighth Amendment violation);

cf. Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008) ("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."), overruled in

part on other grounds as recognized in Randall v. Scott, 610 F.3d

701, 709 (11th Cir. 2010); Thompson v. Commonwealth of Virginia,

878 F.3d 89, 103 (4th Cir. 2017) ("[T]here is a clear consensus

among the circuits . . . that infliction of pain and suffering

without penological justification violates the Eighth Amendment in

an array of contexts.").

And in certain cases, the type of physical reaction an

incarcerated person has to the pepper spray could establish that

the force used was greater than de minimis. See Tedder v. Johnson,

527 F. App'x 269, 274 (4th Cir. 2013) (finding a genuine issue of

material fact on the objective component of an Eighth Amendment

excessive force claim and denying qualified immunity based on an

"adverse physical reaction" to pepper spray, including "gagging,

breathing difficulty, and vomiting," which "establish[ed] that the

nature of the force [the officer] used . . . was nontrivial").

- 26 - Here, Segrain alleges that he experienced intense pain from the

pepper spray, was temporarily blinded, felt unable to breathe, and

felt like he was going to die. The video of Segrain in the holding

cell appears to support Segrain's allegations of pain and temporary

blindness. Based on the evidence of Segrain's physical reactions

to the spray in addition to the other evidence related to the

sequence of events described above, a reasonable jury could

consider Duffy's use of pepper spray against Segrain to be a

greater than de minimis use of force.

b. Subjective Prong

We hold that the district court also erred in its

analysis of Duffy's use of pepper spray under the subjective prong.

There, the district court concluded that Duffy's use of pepper

spray "was in good faith" because Segrain "created a threat to the

corrections officers and himself when he failed to drop the razor

in his hands despite orders to do so and attempts to remove it

from his hands." Segrain, 2023 WL 6142234, at *9. It further

concluded that "[t]he threat did not cease when Defendant

Glendinning applied the leg sweep" because "[i]t was not until

Defendant Duffy released the second microburst [of pepper spray]

that Defendant Glendinning announced he had the razor"; and "[o]nce

[Segrain] dropped the razor, the threat extinguished and the

officers used no further force." Id. Once again, this rendition

of the facts reflects a flawed application of the summary judgment

- 27 - standard. A reasonable jury could conclude that Segrain dropped

the razor before Duffy applied the second burst of pepper spray.

They could further conclude that Duffy could see Glendinning grab

and toss the razor out of Segrain's reach before Duffy pepper

sprayed Segrain a second time.

Although the subjective prong of the Eighth Amendment

analysis turns on "whether force was applied in a good faith effort

to maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm," Whitley, 475 U.S. at 320-21

(1986) (quoting Johnson, 481 F.2d at 1033), the applicable legal

standard acknowledges that "direct evidence of motive or intent

may be hard to come by," Dean, 984 F.3d at 302. Accordingly, the

trier of fact may "infer the existence of th[e] subjective state

of mind required for an Eighth Amendment violation" from the

Whitley factors. Id. (alteration in original) (quoting Brooks v.

Johnson, 924 F.3d 104, 116 (4th Cir. 2019)). "Summary judgment is

not appropriate" if "a reasonable jury could find, based on

inferences drawn under the Whitley factors or other evidence, that

correctional officers used force maliciously to punish or

retaliate against an inmate." Id. at 302-03 (citing Brooks, 924

F.3d at 116).

As a reminder, the Whitley factors include:

[(1)] the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials, [(2)] the need

- 28 - for the application of force, [(3)] the relationship between the need and the amount of force that was used, [(4)] the extent of the injury inflicted, and [(5)] any efforts made to temper the severity of a forceful response.

Staples, 923 F.3d at 13 (cleaned up) (quoting Whitley, 475 U.S. at

321). Applying these factors to the facts viewed in the light

most favorable to Segrain, a reasonable jury could view the extent

of the threat to the safety of staff and inmates as low where

Segrain was handcuffed and surrounded by six officers, where the

alleged potential weapon was a prison-issued shaving razor,9 and

where the jury could find that Segrain did not intentionally retain

the razor after leaving the shower area or intend to use it for

any nefarious purpose. Instead, the jury could find that Segrain

only held the razor because the officers failed to follow their

usual protocol of collecting the razor back from Segrain prior to

escorting him out of the shower area and he did not have any other

opportunity to return the razor. A reasonable jury could further

conclude that Duffy could and should have perceived that the threat

9 Segrain points to evidence in the record establishing that prison officials viewed the safety razor issued to incarcerated individuals, which was designed for use in a prison context, to be sufficiently safe that incarcerated individuals were permitted to handle these razors in the presence of others including, under certain circumstances, guards. Thus, while the record also contains countervailing testimony explaining how such a razor could be a threat, a reasonable jury could agree with Segrain that the safety razor he was holding did not inherently make him an immediate threat to the safety of those around him.

- 29 - was low or non-existent certainly before his second spray,

particularly given he had already sprayed Segrain once. The jury

could conclude that Duffy should have perceived this before he

applied pepper spray for the second time because by that time,

Segrain had dropped the razor and Glendinning had grabbed the razor

to toss it out of Segrain's reach -- in clear view of Duffy. See

Furnace, 705 F.3d at 1029 ("[T]he district court properly found

that it remained a disputed fact whether [the incarcerated person]

posed a threat to the officers, such that they were justified in

discharging pepper spray on [them].").

Under the second factor and this view of the facts, the

jury could find that there was no need for the application of force

in the form of pepper spray, particularly after the first spray,

because Segrain no longer (or never) presented any threat to the

officers, himself, or other inmates at that time.10 See Furnace,

705 F.3d at 1029 ("[W]e are not persuaded, after resolving all

factual disputes in the light most favorable to [the incarcerated

person], that the use of violent force . . . was necessary to gain

[their] compliance."). And accordingly, under the third factor,

10Moreover, the jury could conclude, based on the video evidence and testimony, that Segrain was not given sufficient time to comprehend and respond to Glendinning's order to drop the razor before Glendinning executed the leg sweep and Duffy first pepper sprayed Segrain. Thus, they could conclude that Segrain did not refuse to comply with the order to drop the razor and pose a threat for that reason.

- 30 - the jury could find that the amount of force used was

disproportionately high in relation to the minimal or nonexistent

need for force. See Danley, 540 F.3d at 1309 ("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.").

Under the fourth factor, the extent of the injuries

suffered, a reasonable jury could find that the application of

pepper spray to Segrain's face caused him temporary blindness,

difficulty breathing, and physical pain in the immediate aftermath

of the spray. Segrain does not allege that he experienced any

longer-term physical injuries. Nor is it necessary that Segrain

allege a lasting injury to prevail on his Eighth Amendment claim.

See Treats, 308 F.3d at 874. Nonetheless, the jury could find

that the pepper spray caused Segrain to experience an increase in

anxiety and depression.

Finally, under the fifth factor, a reasonable jury could

find that the "efforts made to temper the severity of a forceful

response" -- the use of pepper spray -- were lacking, Staples, 923

F.3d at 13 (quoting Whitley, 475 U.S. at 321), or that the

circumstances following the forceful response weighed against

Duffy, see Iko v. Shreve, 535 F.3d 225, 240 (4th Cir. 2008).

Although the officers eventually took Segrain to receive a

decontamination shower, as they were required to under RIDOC

policy, the jury could conclude that the officers unnecessarily

- 31 - and substantially prolonged the pain Segrain experienced from the

pepper spray.11 The video and testimonial evidence shows that

Segrain was left handcuffed while in the holding cell so that he

could not use his hands to wash the pepper spray off his face, and

that no officer helped him locate the sink in the corner of the

room while he was calling out in pain and wandering blindly around

the cell.

Indeed, over the course of the thirteen minutes during

which Segrain was in the cell, the video shows the officers milling

about outside the holding cell, not appearing to be occupied for

much of the time or in a rush to move Segrain to another location.

The rationale the officers have given for the delay in treating

Segrain has also been inconsistent: Duffy initially asserted in an

affidavit that the delay was due to "Segrain's act of flooding the

cell" because "the area had to be cleaned for safe transport."

But the officers' area video appears to refute that explanation.

Specifically, that video shows Segrain being taken out of the

holding cell before anyone mopped up the water. Duffy then

testified, and the district court appeared to conclude, that the

delay was due to the need to find enough staff to move Segrain to

the decontamination area. See Segrain, 2023 WL 6142234, at *10

11We will discuss in greater detail below Segrain's separate Eighth Amendment claim against the officers based on their delay in treating the effects of the pepper spray. See infra Section III.A.3.

- 32 - (noting that Duffy "delayed decontamination to seek out staff to

transport Plaintiff to decontamination"). A jury could also choose

to disbelieve this alternative rationale after viewing the

officers' area video, which shows numerous officers lingering in

or around the officers' area who did not appear to be occupied

during the time Segrain was in the cell. Moreover, the jury could

wholly discredit Duffy's reasons for the delay based on the

inconsistency between Duffy's affidavit and his deposition

testimony. See Holmes v. Slay, 895 F.3d 993, 1002 (8th Cir. 2018)

(explaining that "the jury [is] entitled to discredit" testimony

that is inconsistent "and draw inferences about their motives for

testifying in the way that they did").

Viewing this evidence in the light most favorable to

Segrain, a reasonable jury could conclude that the officers could

and should have moved more quickly to temper the severity of the

effects of the pepper spray by promptly decontaminating Segrain,

and that there was no sufficient justification for the delay.12

12A reasonable jury may also reject the argument that Duffy tempered the severity of his application of force by discharging only a small quantity of pepper spray. The officers' area video shows that the quantity sprayed was large enough to leave a puddle on the floor underneath Segrain, and Duffy's testimony that "hardly anything came out" of the first spray of pepper spray suggests that a larger quantity of spray was administered in the second spray. Additionally, the jury may conclude that the use of a relatively small quantity of pepper spray "is of no significant value to [Duffy]" because no pepper spray "was required at all to force compliance from an [incarcerated person] who was already

- 33 - Given that a reasonable jury could find that a majority

of these factors weigh against Duffy for the reasons described

above, the jury could reasonably infer that Duffy's use of pepper

spray was "maliciously and sadistically for the very purpose of

causing harm." Whitley, 475 U.S. at 320–21 (citation omitted);

see Tedder, 527 F. App'x at 273 (concluding that "[a]pplication of

the Whitley factors would permit a trier of fact to" find malice,

in part because "there [was] evidence suggesting that there was no

need for the application of force at the time that [the officer]

applied it" and "the record contain[ed] sufficient facts from which

a trier of fact could conclude that [the incarcerated person] posed

no threat at all"). Accordingly, the jury could find that both

the objective and subjective prongs of the excessive force analysis

were satisfied, and thus that Duffy's use of pepper spray against

Segrain constituted an Eighth Amendment violation.13

complying and unable to resist." Tedder v. Johnson, 527 F. App'x 269, 273 (4th Cir. 2013). 13 Our precedent in Staples v. Gerry, 923 F.3d 7 (1st Cir. 2019), does not compel a different result. There, the plaintiff, an incarcerated person, repeatedly refused orders by a correctional officer to "cuff up," meaning to "place[] his hands through the cell's tray slot so the officer can handcuff him before opening the cell door." Id. at 12. The officer gave the plaintiff an explicit warning that he would be sprayed with pepper spray if he did not obey the order, and the officer gave the plaintiff time to respond. Id. After the plaintiff responded verbally, continuing to decline to follow the order, the officer sprayed him with pepper spray. Id. We began our analysis by emphasizing the need to examine the "totality of the circumstances, including the provocation, the amount of spray used, and the purposes for which the spray is used to determine the validity of the use of spray in

- 34 - c. Qualified Immunity

Appellees argue that, even if Duffy's use of pepper spray

constituted an Eighth Amendment violation, qualified immunity

shields him from liability. We proceed to decide this legal

question even though the district court did not reach it. See

Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 69-73, 74-75 (1st

Cir. 2016) (reaching both steps of the qualified immunity analysis

and denying qualified immunity at summary judgment on claims that

the district court decided on only the first step -- finding no

constitutional violation -- without reaching the second step);

Asociación de Periodistas de P.R. v. Mueller, 529 F.3d 52, 58-62

(1st Cir. 2008) (same, under older version of the qualified

immunity standard); see also Stamps v. Town of Framingham, 813

F.3d 27, 39 (1st Cir. 2016) ("Whether the law was clearly

the prison environment." Id. at 17 (cleaned up) (quoting Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)). We affirmed the grant of summary judgment to the officer on the Eighth Amendment claim, emphasizing that, under the particular circumstances of the case, no reasonable jury could "conclude that [the officer] acted for a reason other than the one that he gave": that he "used pepper spray for a valid purpose -- to extract [the plaintiff] from his cell -- in response to a valid provocation -- [the plaintiff] refusing multiple orders over several days to leave his cell." Id. (cleaned up). Here, in contrast, a reasonable jury could find that Segrain was not given sufficient time to comply with any order to drop the razor before force was used against him. It could also find that Duffy did not have a valid reason for using pepper spray at the time that he did and under the circumstances, particularly at the time of the second pepper spray. The jury could then infer malice based on the Whitley factors, as explained above.

- 35 - established is itself a question of law for the court." (citing

Elder v. Holloway, 510 U.S. 510, 516 (1994))).

Because there is "sufficient evidence to make out an

excessive force claim, [Duffy] is not entitled to qualified

immunity on the first" step of the qualified immunity analysis.

Toledo-Dávila, 813 F.3d at 72. At this summary judgment stage, we

find that Duffy is also not entitled to qualified immunity on the

second step because, for the reasons set out below, clearly

established law as of June 28, 2018 prohibited Duffy from

unnecessarily spraying Segrain with pepper spray at a time when he

was restrained and did not pose any reasonable threat.

As noted above, this circuit has acknowledged that,

under some circumstances, "excessive use of tear gas by prison

Torres-Viera, 311 F.3d at 108. Out-of-circuit cases published

before June 28, 2018 have more specifically defined and applied

that principle. The Eleventh Circuit has stated that "[w]hen

jailers continue to use substantial force against a prisoner who

has clearly stopped resisting -- whether because he has decided to

incapacitated -- that use of force is excessive." Danley, 540

F.3d at 1309. And with respect to cases in which the incarcerated

person poses a minimal threat, the Eighth Circuit has held that

"[a] basis for an Eighth Amendment claim exists when . . . an

- 36 - officer uses pepper spray without warning on an inmate who may

have questioned his actions but who otherwise poses no threat."

Treats, 308 F.3d at 873.

The Fourth Circuit cited Seventh Circuit precedent

dating back to 1984 to explain that "[i]t is generally recognized

that 'it is a violation of the Eighth Amendment for prison

officials to use mace, tear gas or other chemical agents in

infliction of pain.'" Williams, 77 F.3d at 763 (quoting Soto, 744

F.2d at 1270). The Fourth Circuit has since reiterated and applied

this principle on several occasions to deny qualified immunity at

the summary judgment stage where officers gratuitously used pepper

spray on incarcerated individuals. See Iko, 535 F.3d at 231-32,

240 (holding that officer's use of pepper spray against an

incarcerated person when they failed to comply with orders to "cuff

up" or come to the door of his cell for "cell extraction"

constituted an Eighth Amendment violation, and that the "right to

be free from excessive use of pepper spray was clearly established,

preventing an award of qualified immunity"); Tedder, 527 F. App'x

at 270-71 (holding that an Eighth Amendment claim survived summary

judgment where a corrections officer allegedly sprayed mace on an

incarcerated person who attempted to pass through a gate to get

their medication with permission from a second officer stationed

at a different location); Boone v. Stallings, 583 F. App'x 174,

- 37 - 176 (4th Cir. 2014) (stating that Fourth Circuit precedent

"establishes that the use of pepper spray on a docile prisoner

could qualify as excessive force" and concluding that "if a jury

were to believe [the plaintiff's] allegation that [they were] on

the ground, already restrained in handcuffs when [the officer]

deployed the pepper spray, the jury could conclude that [the

plaintiff] was subjected to unconstitutionally excessive force");

Greene v. Feaster, 733 F. App'x 80, 81-82 (4th Cir. 2018) (holding

use of pepper spray "for two to three seconds," where spray

allegedly occurred "absent any provocation" because the plaintiff

stopped resisting and complied with the officers' orders two

minutes earlier, constituted a violation of clearly established

Eighth Amendment law).

The Ninth Circuit has "agree[d] with [its] sister

circuits that 'it is generally recognized that it is a violation

of the Eighth Amendment for prison officials to use mace, tear gas

or other chemical agents in quantities greater than necessary or

for the sole purpose of infliction of pain.'" Furnace, 705 F.3d

at 1028 (cleaned up) (quoting Williams, 77 F.3d at 763). In

Furnace, an incarcerated person alleged that two correctional

officers pepper sprayed him without warning after he put his hand

into the food port of his cell during a dispute with the officers

over whether he and his cellmate were entitled to vegetarian meals.

Id. at 1024-25. The Ninth Circuit found that, viewing the facts

- 38 - in the light most favorable to the incarcerated person, "a

significant amount of force was employed without significant

provocation from [the incarcerated person] or warning from the

officers." Id. at 1030. It therefore reversed the district

court's grant of qualified immunity to the officers on summary

judgment. Id.

Finally, a district court in this circuit has ruled that

an officer's "use of [pepper spray] on a defenseless and

non-resistant inmate" can be considered "non-de minimis force

'applied maliciously and sadistically for the very purpose of

causing harm.'" Perry v. Dickhaut, 125 F. Supp. 3d 285, 297 (D.

Mass. 2015) (quoting Skinner v. Cunningham, 430 F.3d 483, 488 (1st

Cir. 2005)). The court there denied qualified immunity at summary

judgment to an officer who had sprayed an incarcerated person six

times when the person refused to comply with an order to return to

a cell, including at least two sprays after he had stopped

resisting. Id. at 297-98. The court concluded:

Given the circumstances surrounding [the officer's] use of [pepper spray] -- especially the timing of the fifth and sixth sprays -- a reasonable juror could conclude that [the officer] was fed up with Plaintiff for being disruptive, and purposefully retaliated by spraying Plaintiff in the face after [they] had stopped resisting. Any reasonable prison official would have understood that such a malicious infliction of unnecessary pain -- even if did not result in enduring injury -- would violate a prisoner's constitutional rights. Therefore, [the officer] is not

- 39 - entitled to qualified immunity on the excessive force claim.

Id. at 298.

In light of this body of caselaw, we conclude that "a

robust consensus of persuasive authority," Irish, 979 F.3d at 77,

has established that the use of pepper spray by prison officials

against a detained person when that person is no longer resisting

and no longer presents any reasonable safety threat is an Eighth

Amendment violation, see id. at 76 ("A 'robust consensus' does not

require the express agreement of every circuit. Rather, sister

circuit law is sufficient to clearly establish a proposition of

law when it would provide notice to every reasonable officer that

his conduct was unlawful."). Although "each of the[] cases

[described above] presented unique sets of facts that in some

respects differ from the facts presented in the case at hand,"

Stamps, 813 F.3d at 42, "[the Supreme] Court's case law does not

require a case directly on point for a right to be clearly

established" if "existing precedent [has] placed the statutory or

constitutional question beyond debate," Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 5 (2021) (quoting White, 580 U.S. at 79).

That is the case here: existing precedent as of June 28, 2018 made

clear to every reasonable officer that the unnecessary use of

pepper spray on an incarcerated person who was restrained and did

- 40 - not pose any reasonable threat constitutes an Eighth Amendment

violation.

Prison regulations governing correctional officers'

conduct can also be relevant to determining whether a right was

clearly established. See Hope v. Pelzer, 536 U.S. 730, 741-44

(2002) (looking to Alabama Department of Corrections regulations

to support the conclusion that prison guards were on notice of

constitutional limitations on the use of force and violated clearly

established constitutional rights); Irish, 979 F.3d at 77 ("A lack

of compliance with state law or procedure does not, in and of

itself, establish a constitutional violation, but when an officer

disregards police procedure, it bolsters the plaintiff's

argument . . . that 'a reasonable officer in [the officer's]

circumstances would have believed that [their] conduct violated

the Constitution.'" (second alteration in original)); Furnace, 705

F.3d at 1027-28 ("Here, [a prison regulation] bears directly on

the situation that the officers confronted, and is therefore

relevant to determining whether the officers could have thought

their conduct was reasonable and lawful."); Treats, 308 F.3d at

875 ("Prison regulations governing the conduct of correctional

officers are also relevant in determining whether an inmate's right

was clearly established.").

RIDOC policy states that "RIDOC Officers may only use

force when necessary," they "may only use the reasonable force

- 41 - necessary to accomplish the required task," and "[o]nce the threat

or resistance displayed by a subject stops or diminishes, force

utilized by Officers in response must cease or diminish." A

reasonable jury could find that Duffy used pepper spray

unnecessarily against Segrain after any "threat or resistance" by

Segrain had "stop[ped] or diminishe[d]." Such an action would

violate RIDOC policy, which bolsters Segrain's position that a

reasonable officer in Duffy's circumstances would have known that

his conduct was unlawful. See, e.g., Hope, 536 U.S. at 741-44;

Irish, 979 F.3d at 77.

Considering the RIDOC regulation on top of the

substantial body of caselaw discussed above, we conclude that the

law governing Duffy's use of unconstitutional excessive force was

clearly established at the time of the alleged violation.

Accordingly, Duffy is not entitled to qualified immunity for his

use of pepper spray against Segrain at this stage of the

litigation. "[O]ur denial of immunity on [Segrain's] version of

the events leaves th[is] claim[] for trial, where [Duffy] may try

to persuade the jury that he did not do what he is accused of

doing." Stamps, 813 F.3d at 42 (cleaned up) (quoting Mlodzinski

v. Lewis, 648 F.3d 24, 40 (1st Cir. 2011)).

3. Delayed Decontamination by All Three Officers

Segrain argues next that the district court erred in

holding that the officers' delay in providing him the opportunity

- 42 - to decontaminate from the pepper spray could not constitute an

Eighth Amendment violation. On this point, the district court

concluded that "[t]hough the reason for the delay is in dispute,"

Segrain failed to put forth sufficient evidence that the delay was

malicious and "the fact of the delay is not a constitutional

affront." Segrain, 2023 WL 6142234, at *10.

To refute the district court's conclusion on his

decontamination claim, Segrain cites several out-of-circuit cases

in support of his argument that a reasonable jury could find that

the decontamination delay constituted an Eighth Amendment

excessive force violation. But we need not reach the

constitutional issue because we find that it was not clearly

established as of the date of the incident that a delay in

decontamination from pepper spray for the length of time Segrain

alleges constituted an Eighth Amendment violation.

One of the cases Segrain cites, Jacoby v. Mack, 755 F.

App'x 888 (11th Cir. 2018), was published in November 2018 -- too

late to be relevant to the analysis of established law as of June

28, 2018. Segrain relies heavily on Danley v. Allen, a case in

which the Eleventh Circuit found that holding a man sprayed with

pepper spray in a cell with pepper spray in the air and on his

clothes for twenty minutes before permitting him to decontaminate

could amount to an unconstitutional use of excessive force. 540

- 43 - F.3d at 1304, 1307-09.14 He also cites Nasseri v. City of Athens,

another Eleventh Circuit case that relied on Danley to conclude

that an officer's confinement of a person detained pre-trial in an

unventilated patrol car for an hour without decontamination after

they were sprayed by an officer in the face with pepper spray

amounted to unconstitutional excessive force. See 373 F. App'x

15, 18-19 (11th Cir. 2010) (per curiam). Next, Segrain cites a

Tenth Circuit decision denying summary judgment to officers on an

Eighth Amendment excessive force claim after noting that whether

the objective prong was satisfied "turn[ed] in part on" material

disputes of fact as to "how long plaintiff was sprayed [with pepper

spray] and whether he was adequately irrigated afterwards or left

to suffer unnecessarily." Norton v. City of Marietta, 432 F.3d

1145, 1154 (10th Cir. 2005).

Finally, Segrain cites an Eastern District of California

decision that did not directly address whether a delay in

decontamination supported an Eighth Amendment claim there because

"it [was] undisputed that plaintiff was allowed to wash the pepper

spray off following the incident, and [they] received medical care

thereafter." Williams v. Young, No. 2:12-CV-0318, 2015 WL 4617985,

14 The excessive force claim in Danley was under the Fourteenth

Amendment as opposed to the Eighth Amendment because Danley was detained pre-trial at the time, not post-conviction. See 540 F.3d at 1306. However, the court there applied the same standard as that applicable at the time for Eighth Amendment excessive force claims. See id.

- 44 - at *15-16 (E.D. Cal. July 31, 2015), report and recommendation

adopted, No. 2:12-CV-0318, 2015 WL 6163436 (E.D. Cal. Oct. 15,

2015). Nonetheless, that court noted that "courts have concluded

that the Eighth Amendment can be violated when, after a prisoner

is pepper sprayed (even for a legitimate reason), officers then

withhold appropriate medical attention." Id. at *11. In support

of that point, the court cited Norton (described above) as well as

cases in which an opportunity to properly decontaminate was

allegedly not provided at all on the day of the use of pepper

spray. See id. (first citing Walker v. Bowersox, 526 F.3d 1186,

1189 (8th Cir. 2008); then citing Norton, 432 F.3d at 1153–54;

then citing Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001); and

then citing Iko, 535 F.3d at 239-40).

In response, the appellees cite two cases they assert

weigh in the opposite direction -- against finding the delayed

decontamination to be an Eighth Amendment violation. The first

found no Eighth Amendment violation for a pepper spray excessive

force claim generally (as opposed to a delayed decontamination

claim specifically) where "the effects of the [pepper spray]

cleared within 45 minutes" after the person "was twice taken to

the infirmary and treated with water during that period." Jones

v. Shields, 207 F.3d 491, 495 (8th Cir. 2000). The second case

considered the claim that officers failed to decontaminate an

incarcerated person for eight hours after the use of pepper spray

- 45 - to be a deliberate indifference (as opposed to excessive force)

claim and found no Eighth Amendment violation given the lack of

evidence that such a delay caused injury or caused the plaintiff

to otherwise suffer any harm. See Jacoby v. Baldwin Cnty., 596 F.

App'x 757, 766-67 (11th Cir. 2014). Though these cases involve

distinguishable factual circumstances and/or legal standards, they

are relevant to some extent and suggest some degree of uncertainty

in the legality of the alleged delay in Segrain's decontamination.

Considering this body of caselaw as a whole, we hold

that Segrain has not shown that "a robust consensus of cases of

persuasive authority" put the "constitutionality of the officer[s'

alleged] conduct 'beyond debate.'" Wesby, 583 U.S. at 63 (quoting

al-Kidd, 563 U.S. at 741-42). Many of the cases cited in Williams

are distinguishable because they involved significantly longer

delays in decontamination than the delay Segrain alleges. Although

the other out-of-circuit cases Segrain cites provide more direct

support for his claim, see Danley, 540 F.3d at 1307-09; Nasseri,

373 F. App'x at 18-19; see also Norton, 432 F.3d at 1154, they too

are distinguishable and alone do not amount to the "robust

consensus" needed to demonstrate clearly established law. This is

especially so in the face of the cases appellees cite showing

courts finding no constitutional violation for similar conduct or

longer decontamination delays than the one alleged here. See

Jones, 207 F.3d at 495; Jacoby, 596 F. App'x at 766-67.

- 46 - Thus, the law in this area was not "sufficiently clear

that every reasonable official would understand that" a delay in

decontamination for the length of time Segrain alleges was

unlawful. Wesby, 583 U.S. at 63 (cleaned up). Accordingly, the

officers are entitled to qualified immunity on Segrain's claim

that the delay in decontamination violated his Eighth Amendment

rights.

4. "Integral Participant" Theory of Liability Against Meleo

Segrain's final Eighth Amendment argument is that Meleo

is liable for an Eighth Amendment violation because he was "an

integral participant in the[] uses of force" by the other

officers.15 The government asserts that Segrain forfeited this

argument because he failed to sufficiently present it to the

district court, and that even if not forfeited, the integral

participant theory "has no application here."

In his opposition to the motion for summary judgment,

Segrain outlined the basic law on the integral participant theory

of liability with citations to relevant caselaw and asserted that

Meleo "was an integral participant in the use of force" and "in

Defendants' decision to delay decontamination and place Mr.

Segrain in a holding cell." We agree with Segrain that this

15Segrain's counsel stated at oral argument that Segrain is no longer pursuing the argument that Meleo is liable for an Eighth Amendment violation based on his alleged "failure to intervene." We therefore do not discuss that issue.

- 47 - briefing before the district court was sufficient to avoid

forfeiture of the general issue below. However, we disagree that

Meleo is liable for any Eighth Amendment violation under this

theory.

We have already found that Segrain has not shown that

the leg sweep against him violated clearly established law as of

June 2018. See supra section III.A.1. Accordingly, we need not

reach the issue of whether Meleo's conduct in relation to the leg

sweep violated the constitution because Meleo, like Glendinning,

is entitled to qualified immunity on Segrain's claim that the leg

sweep was an unconstitutional use of excessive force. Likewise,

Meleo is entitled to qualified immunity on Segrain's delayed

decontamination excessive force claim because the alleged

"unlawfulness of" that delay was not "clearly established at the

time," as we concluded above. Wesby, 583 U.S. at 63 (quoting

Reichle, 566 U.S. at 664); see supra section III.A.3. That leaves

only the excessive force claim based on Duffy's use of pepper

spray. However, Segrain has not made any argument -- either before

the district court or in his opening brief to us -- explaining how

Meleo was an "integral participant" in Duffy's allegedly

unconstitutional use of pepper spray, specifically. Thus, Segrain

has waived that claim. See United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990). We affirm the district court's grant of

- 48 - summary judgment to Meleo on Segrain's Eighth Amendment claim under

42 U.S.C. § 1983.

B. State Law Claims

Finally, Segrain appeals the district court's grant of

summary judgment on his remaining five state law claims: state

tort claims for negligent infliction of emotional distress,

battery, intentional infliction of emotional distress, and

excessive force (counts four, five, eight, and nine); and a state

constitutional claim for violation of the right to be free from

cruel and unusual punishment under Article I, Section 8 of the

Rhode Island Constitution (count seven). The district court

decision assessed and dismissed each of these state law claims

individually. Segrain's opening brief on appeal asserts broadly

that "[t]he district court's decision to grant summary judgment on

[Segrain's] state law claims . . . suffers from the same errors

that led it to grant summary judgment on the Eighth [A]mendment

claim." Consequently, Segrain's brief argues, the grant of summary

judgment on the state law claims should be reversed for "the same

reasons" that he alleged summary judgment should be reversed on

the Eighth Amendment claim.

That brief argument is sufficient to avoid waiver of

Segrain's challenge to the district court's ruling on Segrain's

cruel and unusual punishment claim under Article I, Section 8 of

the Rhode Island Constitution. As the district court correctly

- 49 - noted, the Rhode Island Supreme Court has held that this provision

of the Rhode Island state constitution is "identical" to its

federal counterpart. See State v. Monteiro, 924 A.2d 784, 795

(R.I. 2007); Segrain, 2023 WL 6142234, at *12. Additionally, Rhode

Island "recogni[zes] . . . a qualified immunity defense under

state law analogous to the federal doctrine established by the

United States Supreme Court." Hatch v. Town of Middletown, 311

F.3d 83, 90 (1st Cir. 2002); see Bogosian v. R.I. Airport Corp.,

No. 17-1550, 2018 WL 11438429, at *1-5 (1st Cir. Nov. 21, 2018)

(dismissing Rhode Island state law claims on qualified immunity

grounds); J.R. v. Gloria, 599 F. Supp. 2d 182, 205 (D.R.I. 2009)

(same), aff'd, 593 F.3d 73 (1st Cir. 2010); Carter v. Lindgren,

502 F.3d 26, 33 (1st Cir. 2007) (same). Thus, the officers are

entitled to qualified immunity for the state constitutional claims

relating to the leg sweep and delayed decontamination conduct for

the same reasons we determined that they are entitled to qualified

immunity for the corresponding federal Eighth Amendment claims.

See Carter, 502 F.3d at 33.

Our analysis of Duffy's use of pepper spray under the

Eighth Amendment and federal qualified immunity doctrine also

applies equally to Segrain's claim that this conduct constituted

cruel and unusual punishment in violation of the state

constitution. However, the district court noted that "[t]he Rhode

Island Supreme Court has not directly answered the question of

- 50 - whether [Article I, Section 8] is self-executing and creates an

implied cause of action." Segrain, 2023 WL 6142234, at *12. The

briefing before us does not address this significant question of

state law that the district court noted (and did not decide), see

id., but which would need to be resolved before granting or denying

summary judgment on this claim. Accordingly, we vacate the

district court's judgment as to the state constitutional claim

against Duffy and remand to the district court to determine in the

first instance whether Article I, Section 8 is self-executing and

creates an implied cause of action. See United States v. Almeida,

710 F.3d 437, 442 (1st Cir. 2013) ("Because the parties have not

briefed the question of which guideline applies under the proper

standard, we believe the most prudent course is to remand to the

district court to consider that question in the first instance.");

AccuSoft Corp. v. Palo, 237 F.3d 31, 46 (1st Cir. 2001) (vacating

and remanding to district court to decide a question involving an

issue that "was not briefed on appeal").

Moving on to Segrain's other state law claims, we agree

with the appellees that Segrain's undeveloped, nonspecific

challenge to these claims in his briefing before us is insufficient

to avoid waiver of these challenges. Contrary to Segrain's

assertion that the district court concluded that the legal

standards for all of the remaining state law claims "are

essentially the same as [the standards for] the Eighth Amendment

- 51 - excessive force claim," the district court noted multiple aspects

of the state law claims that are distinct from or irrelevant to

the Eighth Amendment legal standard. For example, the district

court's grant of summary judgment on both the negligent and

intentional infliction of emotional distress claims related to

requirements for those claims under Rhode Island law that are not

requirements under the Eighth Amendment legal standard. See

Segrain, 2023 WL 6142234, at *11. But Segrain's opening brief

provides no explanation of why those rulings on issues distinct

from any Eighth Amendment requirement were erroneous.

We have long held that "[i]t is not enough merely to

mention a possible argument in the most skeletal way, leaving the

court to do counsel's work, create the ossature for the argument,

and put flesh on its bones." Zannino, 895 F.2d at 17. Thus,

"issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived." Id.; see

also, e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010)

(finding claim waived where petitioners "h[ad] not formulated any

developed argumentation in support of that claim"). Accordingly,

we hold that Segrain's challenges to his state law claims for

negligent infliction of emotional distress, battery, intentional

infliction of emotional distress, and excessive force are waived

for lack of developed argumentation, and we affirm the grant of

summary judgment on those claims as to all appellees.

- 52 - IV. Conclusion

For the reasons stated above, we reverse the district

court's judgment as to the Eighth Amendment claim regarding Duffy's

use of pepper spray, vacate the district court's judgment as to

the Rhode Island Constitution Article I, Section 8 claim regarding

Duffy's use of pepper spray, and remand for proceedings consistent

with this opinion.16 We affirm the district court's judgment on

all other grounds. No costs are awarded.

16 As Segrain conceded in his briefing to the district court, he is no longer pursuing the injunctive relief he originally sought in his complaint. Additionally, though Segrain's complaint seeks a declaratory judgment for the alleged "violations of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 2 and 8 of the Rhode Island Constitution," he does not seek declaratory relief for any alleged Eighth Amendment violation. Section 1983 only provides a cause of action for monetary damages against state actors sued in their individual capacities. See 42 U.S.C. § 1983; Kelley, 288 F.3d at 6; Hafer, 502 U.S. at 23. There is no right of action under § 1983 against the state itself or state officials sued in their official capacities, because such officers are not considered "persons" subject to suit under the statute. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003) ("No cause of action for damages is stated under 42 U.S.C. § 1983 against a state, its agency, or its officials acting in an official capacity."). Furthermore, qualified immunity protects government officials sued in their individual capacities against claims for monetary damages for violations of clearly established statutory or constitutional rights. See Lawless v. Town of Freetown, 63 F.4th 61, 67 (1st Cir. 2023). Therefore, following the parties' previous agreement to dismiss counts one through three in the complaint and all individual capacity claims against the director of the Department of Corrections, as well as our dismissal of Segrain's Eighth Amendment claims against Glendinning and Meleo on qualified immunity grounds, the only remaining Eighth Amendment claim is the claim seeking monetary damages against Duffy, sued in his individual capacity, for his use of pepper spray against Segrain.

- 53 -