Michael Rivera v. LT. REDFERN, SCI Benner Township

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1554
___________
MICHAEL RIVERA,
Appellant
v.
LT. REDFERN, SCI Benner Township; C.O. SHRECK, SCI
Benner Township; C.O. MONSELL, SCI Benner Township;
NURSE PHIL ROGERS, SCI Benner Township
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-21-cv-01118)
Magistrate Judge: Honorable Susan E. Schwab
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Argued on February 7, 2024
Before: HARDIMAN, SCIRICA, and SMITH, Circuit
Judges.
(Filed: April 11, 2024)

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Megha Ram [Argued]
Devi Rao
Roderick & Solange MacArthur Justice Center
501 H Street NE, Suite 275
Washington, D.C. 20002
Counsel for Appellant
Michelle Henry
Michael J. Scarinci [Argued]
J. Bart DeLone
Office of Attorney General of Pennsylvania
Strawberry Square, 15th Floor
Harrisburg, PA 17120
Counsel for Appellees
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Michael Rivera appeals the District Court’s summary
judgment in favor of four prison officials on his Eighth

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Amendment deliberate indifference claim. Because the
officials are entitled to qualified immunity, we will affirm.
I1
On June 20, 2020, Rivera was a Pennsylvania state
prisoner confined in the restricted housing unit. At
approximately 5:45 p.m., Rivera was inside an open-air
telephone cage when he overheard prison officials preparing to
forcibly extract inmate Ryan Miller from a nearby cell. Miller
was “covering and uncovering his door,” which was “slowing
down” prison operations. App. 107. His behavior also
presented “a safety issue,” as prisoners who cover their cell
doors sometimes hurt themselves or even commit suicide. Id.
Anticipating that prison officials would use pepper spray,
Rivera informed them that exposing him to secondhand pepper
spray, while he was unprotected in an open-air cage, would
cause him to suffer an asthma attack. For nearly 90 minutes,
Rivera implored prison officials to escort him back to his cell
located 25 to 30 feet away on the same floor, stating that he
would not be adversely affected by the pepper spray there. The
officials refused, claiming there was no one available to take
Rivera to his cell because of the ongoing preparations to extract
Miller. Shortly past 7:00 p.m., after Miller had repeatedly
refused to exit his cell, prison officials donned gas masks and
1 At summary judgment, we view the evidence in the light most
favorable to Rivera and draw all reasonable inferences in his
favor. Peroza-Benitez v. Smith, 994 F.3d 157, 164 (3d Cir.
2021). Where there are multiple “interpretation[s]” of video
footage, “we are [similarly] bound to choose the interpretation
most favorable to [Rivera].” Rush v. City of Philadelphia, 78
F.4th 610, 618 (3d Cir. 2023).

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released pepper spray into Miller’s cell. After Miller was
removed, prison officials escorted him to the psychiatric ward.
Rivera began coughing, sneezing, and experiencing a
drowning-like sensation within three minutes of the pepper
spray being deployed in Miller’s cell. Even after a prison
official brought Rivera his asthma inhaler and took him back
to his cell, his severe symptoms continued. Hearing Rivera
coughing and vomiting, a prisoner in the neighboring cell
requested medical attention on Rivera’s behalf. Rivera then
received a nebulizer breathing treatment, which abated his
symptoms.
After exhausting his administrative remedies under the
Prison Litigation Reform Act, Rivera sued for damages against
prison officials in their individual capacities under 42 U.S.C.
§ 1983.2 Rivera argued that the officials had acted with
deliberate indifference to the substantial risk of a serious harm
to him, in violation of the Eighth Amendment to the United
States Constitution, when they refused to return him to his cell
before deploying pepper spray against Miller.
Without deciding whether there was a constitutional
violation, the District Court granted summary judgment to the
2 The District Court dismissed Rivera’s claims for damages
against the prison officials in their official capacities as barred
by state sovereign immunity. Rivera v. Redfern, 2023 WL
2139827, *10–11 (M.D. Pa. Feb. 21, 2023). Because Rivera
had been transferred to a different prison, the District Court
also dismissed his claims for declaratory and injunctive relief
as moot. Id. at *11–12. Rivera does not challenge these
holdings on appeal.

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prison officials, concluding that “the law was not clearly
established such as to put the defendants on notice that
spraying a targeted burst of [pepper] spray into another
prisoner’s cell 50–60 feet away from an inmate with asthma
violates the Eighth Amendment.” Rivera v. Redfern, 2023 WL
2139827, *7 (M.D. Pa. Feb. 21, 2023) (footnote omitted).
Rivera timely appealed.3
II
“We exercise plenary review of the District
Court’s . . . summary judgment and the legal issues
underpinning a claim of qualified immunity,” Halsey v.
Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014), and we may affirm
for any reason supported by the record, see Baloga v. Pittston
Area Sch. Dist., 927 F.3d 742, 751 (3d Cir. 2019). Summary
judgment is warranted only if, when the evidence is viewed in
the light most favorable to the non-moving party, “there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Williams v. Bitner,
455 F.3d 186, 190 (3d Cir. 2006) (cleaned up).
The Supreme Court has instructed us to “‘think hard,
and then think hard again,’ before addressing both qualified
immunity and the merits of an underlying constitutional
claim.” District of Columbia v. Wesby, 583 U.S. 48, 62 n.7
(2018) (quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)).
This is because “[t]here are cases in which it is plain that a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right.” Pearson v.
Callahan, 555 U.S. 223, 237 (2009). Consistent with this
3 The District Court had jurisdiction under 28 U.S.C. §§ 1331
and 1343. We have jurisdiction under 28 U.S.C. § 1291.

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directive, we conclude the prison officials are shielded from
liability under qualified immunity because “their actions did
not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Hope v.
Pelzer, 536 U.S. 730, 739 (2002) (cleaned up).
A
“To determine whether a right was ‘clearly established,’
we conduct a two-part inquiry.” Peroza-Benitez v. Smith, 994
F.3d 157, 165 (3d Cir. 2021). We begin by “defin[ing] the right
allegedly violated at the appropriate level of specificity.” Sharp
v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012). “This inquiry
must be undertaken in light of the specific context of the case,
not as a broad general proposition.” Davenport v. Borough of
Homestead, 870 F.3d 273, 281 (3d Cir. 2017) (quoting
Mullenix v. Luna, 577 U.S. 7, 12 (2015)).
In this case, we define the alleged constitutional
violation largely as Rivera does: prison officials may not
“ignore[] . . . repeated pleas to move [a prisoner] prior to
exposing him to pepper spray despite ‘know[ing]’ that
deploying pepper spray without moving him would cause him
to suffer an asthma attack,” where exposure could be
substantially reduced without materially hindering
institutional interests. Rivera Br. 13 (third alteration in
original) (quoting App. 12).
B
Having defined the specific right at issue, we assess
whether it was “sufficiently clear that a reasonable official
would understand that what he [was] doing violate[d] that
right.” Saucier v. Katz, 533 U.S. 194, 202 (2001). See also

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Mullenix, 577 U.S. at 12 (“[Q]ualified immunity protects all
but the plainly incompetent or those who knowingly violate the
law.”) (cleaned up). We agree with the District Court that
Rivera fails to demonstrate that this specific right has been
clearly established by: (1) binding precedent from the Supreme
Court or the Third Circuit, see Fields v. City of Philadelphia,
862 F.3d 353, 361 (3d Cir. 2017); or (2) “a robust consensus of
cases of persuasive authority” in our sister circuits, Clark v.
Coupe, 55 F.4th 167, 181 (3d Cir. 2022) (citation omitted).
Rivera relies primarily on our decision in Atkinson v.
Taylor, which held that prison officials were not entitled to
qualified immunity when they allegedly “exposed [a prisoner],
with deliberate indifference, to constant smoking in his cell for
over seven months.” 316 F.3d 257, 268 (3d Cir. 2003). While
we do not require “precise factual correspondence between the
case at issue and a previous case,” Peroza-Benitez, 994 F.3d at
166 (cleaned up), Atkinson does not place the constitutional
question here “beyond debate,” Ashcroft v. al-Kidd, 563 U.S.
731, 741 (2011). Unlike in Atkinson, where prison officials
gave no reason for declining to move the prisoner, 316 F.3d at
259–61, prison officials here were confronted with competing
institutional concerns. As Rivera admitted: (1) prison protocol
puts all normal restricted housing unit procedures on pause
while prison officials are preparing to forcibly extract a
prisoner, see App. 93; and (2) all prisoners ordinarily have to
be escorted everywhere in the restricted housing unit by at least
two officers per prisoner, see App. 88. Rivera emphasizes that
“there is no prison policy or procedure that precluded any of
the [prison officials] from returning him to his cell prior to their
us[e] of [pepper] spray.” App. 123. Even if true, Atkinson sheds
no light on how prison officials should prioritize conflicting
penological interests. So Atkinson did not clearly establish that

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reasonable prison officials in this case would have known that
their decision to focus exclusively on Miller’s extraction
violated Rivera’s Eighth Amendment rights.
None of the other cases Rivera cites fares any better in
showing that the Eighth Amendment violation alleged here
was clearly established. For example, in Clement v. Gomez, the
Ninth Circuit reasoned that a “fail[ure] to institute adequate
prison policies for minimizing the effects of pepper spray on
bystander inmates” “may lead to liability”—if “‘in light of the
duties assigned to specific officers or employees, the need for
more or different training is obvious, and the inadequacy so
likely to result in violations of constitutional rights, that the
policy-makers . . . can reasonably be said to have been
deliberately indifferent to the need.’” 298 F.3d 898, 905 (9th
Cir. 2002) (emphasis added) (quoting City of Canton v. Harris,
489 U.S. 378, 390 (1989)). Even if Clement alone sufficed to
constitute “a robust consensus of cases of persuasive authority”
in our sister circuits, Clark, 55 F.4th at 181, the alleged Eighth
Amendment violation here does not implicate the training of
prison officials. Clement is thus inapposite. And out-of-circuit
cases showing that the use of pepper spray satisfies the
objective component of the Eighth Amendment deliberate
indifference framework fail for the same reason as Atkinson:
they do not address whether prison officials violate
constitutional rights when they prioritize the health and safety
of one prisoner over another. See Rivera Br. 35 (citing, for
example, Thomas v. Bryant, 614 F.3d 1288 (11th Cir. 2010),
for the proposition that “where chemical agents are used
unnecessarily, without penological justification, . . . that use

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satisfies the Eighth Amendment’s objective harm
requirement”).
Finally, while we may “take into account district court
cases, from within the Third Circuit or elsewhere,” Peroza-
Benitez, 994 F.3d at 165–66, the district court cases Rivera
cites do not help him. For example, in Roberts v. Luther, the
district court concluded that the plaintiff “had a clearly
established right, protected by the Eighth Amendment, to be
free from the use of ‘massively excessive’ amounts of [pepper]
spray designed to inflict unnecessary pain.” 2021 WL
5233318, *7 (M.D. Pa. Nov. 10, 2021) (emphasis added).
Rivera does not make that claim here, nor could he on the facts
of the case. We thus agree with the District Court that the
caselaw “is not such that ‘every reasonable official would
interpret it to establish the particular rule [Rivera] seeks to
apply.’” Rivera, 2023 WL 2139827, at *10 (quoting Wesby,
583 U.S. at 63).
C
Rivera makes two arguments in an effort to overcome
this dearth of on-point caselaw. First, Rivera cites our decision
in Beers-Capitol v. Whetzel for its proposition that “a
defendant cannot have qualified immunity if she was
deliberately indifferent.” 256 F.3d 120, 142 n.15 (3d Cir.
2001). “Although a panel of this court is bound by, and lacks
authority to overrule, a published decision of a prior panel, . . .
a panel may reevaluate a precedent in light of intervening
authority.” Reich v. D.M. Sabia Co., 90 F.3d 854, 858 (3d Cir.
1996). Our reasoning in Beers-Capitol that the constitutional
merits and qualified immunity inquiries collapse into one
requires such reevaluation in light of subsequent Supreme
Court precedent. In Taylor v. Riojas, the Court evaluated

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whether a “reasonable correctional officer could have
concluded that . . . it was constitutionally permissible to house
Taylor in . . . deplorably unsanitary conditions” after already
determining that “at least some officers involved in Taylor’s
ordeal were deliberately indifferent to the conditions of his
cells.” 592 U.S. 7, 8–9 (2020). This decision makes clear that
courts must evaluate the constitutional merits of a claim
separate and apart from the question of whether the state actors
are entitled to qualified immunity because the law was not
clearly established.
Second, Rivera suggests that the constitutional violation
here was obvious. We disagree because the facts of this case
are far afield from cases in which we or the Supreme Court
have applied the obviousness exception. See, e.g., Taylor, 592
U.S. at 7–8 (confining an inmate in cells covered in feces);
Hope, 536 U.S. at 733–35 (handcuffing an inmate to a hitching
post for several hours without regular water or bathroom
breaks); Mack v. Yost, 63 F.4th 211, 233–34 (3d Cir. 2023)
(intentionally suppressing religious worship); Dennis v. City of
Philadelphia, 19 F.4th 279, 290 (3d Cir. 2021) (framing
criminal defendants with fabricated evidence).
* * *
The prison officials in this case faced conflicting
obligations. By choosing to forcibly extract Miller from his cell
without first returning Rivera to his cell, they knowingly
caused Rivera to suffer an asthma attack. But because that
decision was not made in derogation of clearly established law,
the officials are entitled to qualified immunity. We will affirm
the District Court’s judgment to that effect.

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