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No Qualified Immunity for Pepper Spraying Alabama Prisoner; Case Settles After Remand

by David M. Reutter

The Eleventh Circuit Court of Appeals held that pepper spraying a prisoner, keeping him in a small cell for longer than necessary to gain his compliance, and not allowing him to decontaminate properly or receive medical care after being sprayed can constitute excessive force and deliberate indifference to serious medical needs. The appellate court also held that jail supervisors could be liable for failing to prevent this practice where they had notice through reports and complaints concerning the guards involved in the abusive pepper spraying.

When Kevin B. Danley was arrested on July 11, 2004 for driving under the influence, he was taken to Alabama’s Lauderdale County Detention Center and placed in a communal cell that had no toilet. Upon asking the guards to use the bathroom, Danley was taken to a small 5x7’ cell that had an “unsanitary” toilet with no toilet paper and no running water.

After he finished Danley asked jail guards Ruby Allyn, Jeff Wood and Steve Woods if he could have some toilet paper to wipe himself. Allyn told Danley to watch his profanity-laced mouth, to shut up, and to get back in the small cell. He pro-tested that he was done with the small cell, and Allyn threatened to spray him.

When Danley asked what “spray” him meant, Allyn told Wood to use pepper spray. After a “close range” spraying of 3-5 seconds with pepper spray designed for large-scale crowd control, Denley was pushed into the cell. He had trouble breathing, began to hyperventilate and screamed that he could not breathe. In response, the guards laughed and made “mock-choking” gestures by placing their hands at their necks. They also told Danley that “if he did not shut up he would not be let out.”

After ten minutes he quieted down, but the guards left him in “the small, poorly ventilated cell for approximately 20 minutes.” They then allowed him to take a two-minute shower, made him put the same clothes back on and returned him to the communal cell. Thirty minutes later, Danley’s cellmates’ eyes were still burning from the pepper spray residue on his clothes.

Danley continued to suffer asthma-like symptoms, and his eyes burned and swelled so badly he could hardly see. His requests and those of another detainee for medical help were ignored. After twelve or thirteen hours of suffering, he was released on bond and went to see his doctor, who prescribed “appropriate medication.”

Danley complained to the jail administrators but they merely ratified the guards’ actions. He then sued and the U.S. District Court denied the county defendants’ motion to dismiss on qualified immunity grounds. They appealed, and their first argument was that the Eleventh Circuit should separate the pepper spraying incident from Danley’s confinement in the small cell.

The appellate court declined to do so, stating that as the “plaintiff is the master of the complaint,” it had to consider both the spraying and the confinement as a single claim of excessive force. The Court of Appeals then held that the “use of 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 Eleventh Circuit also noted that if it was only the initial pepper spraying that resulted from Danley’s failure to comply with Allyn’s commands, there would be no Fourteenth Amendment violation. The court found a difference in this case. “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.”

“When jailers continue to use substantial force against a prisoner who has clearly stopped resisting – whether be-cause he has decided to become compliant, he has been subdued, or he is otherwise incapacitated – that use of force is excessive,” the appellate court held. After the pepper spray had its intended effect to disable Danley, the use of force through extended confinement was excessive. Thus, the defendants were not entitled to qualified immunity.

The Eleventh Circuit further found that the failure to provide Danley with medical treatment or allow him to properly decontaminate constituted deliberate indifference to his medical needs. Finally, the court held that jail administrator Jackie Rikard and Sheriff Ronnie Willis had received “force reports and similar documents, inmate complaints, jailer complaints, attorney complaints, judicial officer complaints, and personal observation” that guards at the jail “regularly used pepper spray excessively as a means of punishment and not for legitimate reasons.”

The Court of Appeals found Danley’s allegations were sufficient to overcome the defendants’ claims of qualified im-munity, and to impose supervisory liability on the jail administrators. The district court’s order was therefore affirmed. See: Danley v. Allyn, 540 F.3d 1298 (11th Cir. 2008).

Following remand, the case settled in March 2009. The monetary amount of the settlement was confidential, but a separate part of the settlement mandating policy changes was not. The policy changes at the Lauderdale County jail in-cluded no longer using chemical agents designed for crowd control on individual prisoners; updating jail policies and pro-viding additional training regarding the use of pepper spray; allowing prisoners subjected to pepper spray “to decontami-nate promptly”; and making grievance forms readily available to prisoners, who can use them to grieve use-of-force inci-dents.

“Mr. Danley insisted that the settlement of his case include changes at the jail to prevent others from suffering like he did,” said attorney Henry F. Sherrod III. “He firmly believed that no human being should be made to suffer like he suf-fered.” See: Danley v. Allyn, U.S.D.C. (ND Ala.), Case No. 3:06-cv-00680-IPJ.

Additional source: Press release from Law Office of Henry Sherrod

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Danley v. Allyn

Danley v. Allyn