Chapman v. Haney

Full title: BILLIE JOE CHAPMAN, Plaintiff(s) v. CHAD S. HANEY, DIANA SERVERSON, DIANE…

Court: United States District Court, D. Nebraska

Date published: Apr 30, 2004

4:01cv3187 (D. Neb. Apr. 30, 2004)

Opinion

4:01cv3187

April 30, 2004

MEMORANDUM OF DECISION

WARREN URBOM, Senior District Judge

This action, which is brought pursuant to 42 U.S.C. § 1983, arises out of a number of incidents that occurred during the plaintiff's incarceration in Nebraska prisons. A trial was held on February 17-18, 2004, and the case was submitted to me for decision. My decision and the reasons supporting it, including the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52, are set forth below. Though I have organized many of my findings of fact under the "background" heading, additional findings of fact may be stated under subsequent headings of this memorandum. Any finding of fact that ought more properly be considered a conclusion of law should be so construed. Similarly, any conclusion of law that ought be considered a finding of fact should be so construed.

I. BACKGROUND

The plaintiff, Billie Joe Chapman, was in the custody of the Nebraska Department of Correctional Services (DCS) from December 1, 1998, through March 30, 2003. (See Tr. at 211:20-24.) In early 2001, Mr. Chapman was moved to the Nebraska State Penitentiary (NSP) (See Tr. at 121:14-18.) There he remained until he was transferred to the Tecumseh State Correctional Institution (TSCI) in July 2002. (See Tr. at 212:19-21.) Mr. Chapman was housed at TSCI until his release from custody in March 2003. (See Tr. at 212:22-213:2; see also Order on Pretrial Conference, filing 258, at Part B, ¶¶ 1-3.) The events that gave rise to Mr. Chapman's claims took place during his incarceration at NSP and TSCI.

Defendant Harold W. Clarke is employed as the Director of DCS. (See Order on Pretrial Conference, filing 258, at Part B, ¶ 4.) Mr. Clarke testified that he has held this position since August 1990, and that with the exception of a single two- to three-year period, he has been employed with DCS since 1974. (See Tr. at 26:5, 27:18-28:1.) As Director of Correctional Services, Mr. Clarke is responsible for the overall administration of the agency. (See Tr. at 28:14-17.) He establishes system-wide policies for the correctional system, and these policies are then "procedurized" at the various institutions. (See Tr. at 123:13-21.) He is responsible for promulgating policies that ensure that inmates receive appropriate access to the courts, appropriate housing conditions, freedom from excessive force, freedom from unreasonable restraints, appropriate medical care, and due process. (See Tr. at 143:12-144:11.)

NSP and TSCI are two of the eleven correctional facilities that Mr. Clarke supervises. (See Tr. at 28:18-23.) Each facility has a warden: Defendant Michael Kenney is the warden at NSP and a Mr. Britten¹ is the warden at TSCI. (See Tr. at 29:19-21; Order on Pretrial Conference, filing 258, at Part B, ¶ 5.) Mr. Kenny has been employed by DCS for over twenty-seven years, (see Tr. at 468:21-25), and he has been the warden at NSP for the past four-and-one-half years, (see Tr. at 469:1-7). Mr. Kenney and Mr. Britten do not report to Mr. Clarke directly; instead, they report to a Mr. Hopkins, who is the Assistant Director of Correctional Services over institutions. (See Tr. at 29:5-18.) Mr. Hopkins, who is not a defendant in this case, reports to Mr. Clarke. (See id.)

1 Mr. Britten, along with individuals named Ward and LeDuc, were named as defendants in the most recent version of the complaint. (See filing 241; see also filing 251.) However, they have been dismissed from this case because they were not served with process and did not waive service of process. (See Tr. at 96:2-98:4.)

Associate wardens and deputy wardens report to the wardens at both NSP and TSCI. (See Tr. at 29:22-30:9.) Unit administrators report to the deputy wardens, and unit managers report to the unit administrators. (See Tr. at 30:18-24.) The correctional facilities are broken down into housing units, and the unit managers are responsible for supervising these housing units. (See Tr. at 30:14-17.) Defendant Randy Crosby has been employed by DCS for approximately 15 years, (see Tr. at 454:19-23), and he has been the unit manager of the "control unit" at NSP for approximately six years. (See Tr. at 454:24-455:8; Order on Pretrial Conference, filing 258, at Part B, ¶ 6.) The control unit is sometimes called the segregation (or "seg") unit, and it "specializes in intensive management and special management inmates." (See Tr. at 455:10-14.)

Many functions around the prison facilities-such as perimeter security and surveillance, travel orders, and classification assignments-are performed by correctional officers. (See Tr. at 31:1-8.) The minimum qualifications for correctional officers include majority age, high school education or its equivalent, a record clear of felony convictions, and completion of a training course provided by DCS. (See Tr. at 66:8-14.) Defendant Jennifer Irvin was employed by DCS as a correctional officer at NSP in July 2001, but sometime thereafter she left NSP. (See Order on Pretrial Conference, filing 258, at Part B, ¶ 10.) She is currently employed by DCS at its Staff Training Academy. (See id.) Defendant Scott Wayman has been employed at NSP for nearly ten years, (see Tr. at 352:3-8), and for the past seven and one-half years he has been a "corrections corporal," (see Tr. at 352:11-14; Order on Pretrial Conference, filing 258, at Part B, ¶ 11).

There is a hospital facility at NSP. Defendant Dr. Richard Elliot has been a doctor for approximately 34 years and is licensed with the State of Nebraska. (See Tr. at 373:8-9, 373:21-22.) He is employed by DCS as a physician at NSP, (see Tr. at 373:6-11; Order on Pretrial Conference, filing 258, at Part B, ¶ 7), and on July 2-3, 2001, he was the doctor in charge of treatment for patients at NSP. (See Tr. at 383:19-25.) Defendant Diana Severson is the associate director of nursing at NSP, and has held that position for the past nine years. (See Tr. at 421:9-13, 422:1-3.) She has been a nurse for twenty-five years. (See Tr. at 422:4-6.) Defendant Deb Wallick was employed by DCS as a nurse at NSP in July 2001, but is no longer employed by DCS. (See Order on Pretrial Conference, filing 258, at Part B, ¶ 9.)

Mr. Chapman's complaint is based upon several alleged violations of his constitutional rights. His claims against the defendants may be summarized as follows. First, Mr. Chapman alleged that Defendant Clarke delayed Mr. Chapman's outgoing legal mail on December 4, 2002, and in January 2003, in retaliation for Mr. Chapman's filing of lawsuits and writing of grievances² and complaints about the conditions of his incarceration. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 3-5; see also Mem. and Order on Defs.' Mot. to Dismiss, filing 251.) Second, he alleged that Defendants Clarke, Kenney, and Crosby were responsible for or acquiesced in the routine and arbitrary denial of adequate law library access for Mr. Chapman at NSP from January 7, 2001, to July 17, 2002, and at TSCI from July 18, 2002, to March 30, 2003, in retaliation for Mr. Chapman's filing of lawsuits and writing grievances or complaints about the conditions of his incarceration. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 6, 9; see also Mem. and Order on Defs.' Mot. to Dismiss, filing 251.) Third, Mr. Chapman alleged that Defendants Clarke, Kenney, and Crosby arbitrarily denied him access to the courts by refusing to allow him to communicate with his attorney by telephone, and that they barred legal calls in retaliation for his filing of lawsuits and writing grievances or complaints about the conditions of his incarceration. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 7-8.) Fourth, Mr. Chapman alleged that he was administered drugs against his will on July 2, 2001, by Defendants Elliot and Wallick, in violation of his due process rights. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 10-14.) Fifth, Mr. Chapman alleged that he was administered drugs against his will on July 3, 2001, by Defendants Severson, Irvin, and Wayman, in violation of his due process rights. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 15-20.) Sixth, Mr. Chapman alleged that Defendant Clarke was aware of and acquiesced in the forced medication incidents, and that his action or inaction violated Mr. Chapman's constitutional rights and amounted to retaliation against Mr. Chapman. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 21-22, 43.) Seventh, Mr. Chapman alleged that he was placed in cells that suffered from severe flooding problems during rainfalls, and that as a result, Defendants Clarke and Kenney were responsible for violating his right to be free from cruel and unusual punishment. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 23-27.) He also alleged that he was placed in the flooded cells in retaliation for filing lawsuits and writing grievances and complaints. (See Order on Pretrial Conference, filing 258, at Part C, ¶ 43.) Eighth, Mr. Chapman alleged that he was placed on a "spit-sock restriction"³ from October 9, 2002, until December 19, 2002, in violation of his constitutional rights, and that Defendants Clarke and Kenney were aware of and acquiesced in this restriction and allowed the restriction in retaliation for Mr. Chapman's lawsuits, grievances, and complaints. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 28-32, 43.) Ninth, Mr. Chapman alleged that excessive force was used against him on November 19, 2001, and that Defendants Clarke and Kenny acquiesced in the incident in violation of Mr. Chapman's constitutional rights and in retaliation against Mr. Chapman for his lawsuits, grievances, and complaints. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 33-36, 43.) Tenth, Mr. Chapman alleged that he was denied medical care for an injury to his shoulder that may have occurred as a result of the "excessive force" incident in November 2001, and that Defendants Clarke and Kenney acted with deliberate indifference to his medical needs. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 37-42.) He also alleged that he was denied medical attention for his shoulder in retaliation for his lawsuits, grievances, and complaints. (See Order on Pretrial Conference, filing 258, at Part C, ¶ 43.) To redress these injuries, Mr. Chapman seeks an award of damages against the defendants. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 44-45.) It is essential to note that as the plaintiff is no longer in the custody of DCS, he is not seeking injunctive relief.

2 DCS has implemented a procedure for the "administrative settlement of . . . legitimate grievance[s]." (Ex. 179 at 2.) This grievance process is set forth in the "offender rule book," which is provided to every inmate. (See Tr. at 134:7-14.) First, an inmate is encouraged to file an informal grievance with the individuals in their work unit. (See Tr. at 131:25-132:1.) If the inmate is not satisfied with the response to that grievance, he may file a Step One grievance, which is sent to the attention of the warden. (See Tr. at 132:1-3.) The warden is responsible for the investigation of the grievance and must respond to it. (See Tr. at 132:4-6.) If the inmate is not satisfied with the warden's response, he may file a Step Two grievance, which is sent to the central office. (See Tr. at 132:6-8.) According to the offender rule book, the Director is responsible for responding to Step Two grievances. (See Ex. 179 at 5.) However, Mr. Clarke testified that in practice, the assistant director of institutions bears this responsibility. (See Tr. 132:8-10.) Mr. Clarke does not personally respond to Step Two grievances. (See Tr. at 132:11-13.)
There are limitations on the number of grievances that an inmate may file. Specifically, inmates may file no more than two Step One grievances per week, but "valid emergency grievances" are excepted from this limit. (Ex. 179 at 5.) "If an inmate files large numbers of frivolous, nuisance or duplicative grievances at any level, a designee of the Chief Executive Officer of the facility will conduct a hearing to determine whether the inmate is abusing the grievance process. If an determination is made that the inmate is abusing the grievance process, a reasonable limitation may be placed on the number of grievances which may be filed by the inmate." (Ex. 179 at 5; see also Tr. at 135:5-14.) Mr. Clarke stated that an inmate should not be penalized with grievance limitations for filing successive grievances about a continuing problem. (See Tr. at 82:22-83:1, 85:17-23.) However, inmates should not repeatedly grieve a single incident. (See Tr. at 84:15-85:1, 85:23-86:1.)
During his incarceration, Mr. Chapman filed many grievances concerning perceived violations of rules and regulations at NSP and TSCI. (See Tr. at 214:10-21.) He claims that doing so caused certain defendants to retaliate against him.

3 A spit sock is a soft bag worn over the head with a plastic square before the mouth and mesh before the eyes. (See Ex. 72.) Elastic bands hold the bag in place. (See id.) They are used to prevent inmates from spitting on people.

At the close of the plaintiff's evidence, the defendants moved for judgment as a matter of law on all claims. After considering the motion, I dismissed all claims against Defendant Clarke. (See Tr. at 336:8-337:10.) I also dismissed all claims against Defendant Kenney except the retaliation claim and the claim that Mr. Chapman was placed in a wet cell in violation of his right to be free from cruel and unusual punishment. (See Tr. at 337:11-24.) The defendants' motion was denied with respect to Defendants Crosby, Elliot, Wallick, and Severson. (See Tr. at 338:5-22.) However, the motion was granted with respect to Defendants Irvin and Wayman. (See Tr. at 338:23-8.) Finally, the use of force issue was dismissed in its entirety. (See Tr. at 338:2-4.) Although it was my intention that the "denial of medical attention" claim against Mr. Clarke and Mr. Kenney was to be dismissed entirely as well, my discussion of the defendants' motion did not specifically address that claim. I will therefore do so below, albeit in a perfunctory fashion.

Before setting forth my analysis of the issues that remain in this case, I will summarize the evidence concerning each of the plaintiff's claims and discuss the implications of my ruling on the defendants' motion for judgment as a matter of law.

A. The Delay of the Plaintiff's Outgoing Legal Mail on December 4, 2002, and in January 2003

Mr. Chapman's first claim is based upon allegations that Defendant Clarke delayed Mr. Chapman's outgoing legal mail on December 4, 2002, and in January 2003, in retaliation for Mr. Chapman's filing of lawsuits and writing of grievances and complaints about the conditions of his incarceration. My dismissal of Mr. Clarke from this action removed this claim from the case. Therefore, there is no need to discuss the evidence concerning this claim, nor to make any additional findings of fact or conclusions of law with respect to it.

B. Access to the Prison Law Libraries

Mr. Chapman's second claim is based on allegations that Defendants Clarke, Kenney, and Crosby were responsible for or acquiesced in the routine and arbitrary denial of adequate law library access for Mr. Chapman at NSP from January 7, 2001, to July 17, 2002, and at TSCI from July 18, 2002, to March 30, 2003, and that they did so in retaliation for Mr. Chapman's filing of lawsuits and writing grievances or complaints about the conditions of his incarceration.⁴ As I noted above, Mr. Clarke has been dismissed from this action, but the claim remains insofar as Mr. Kenney and Mr. Crosby are concerned.

4 Although the final pretrial order appears to be worded more broadly (i.e., it suggests that there remains an unresolved issue as to whether the denial of library access amounted to a constitutional violation apart from retaliation), (See Order on Final Pretrial Conference, filing 258, at Part C ¶ 9), I have already ruled that the plaintiff's "law library access claim" remains only as evidence of retaliation, (see Mem. and Order on Defs.' Mot. to Dismiss, filing 251, at 3, 12). In any event, the plaintiff presented no evidence that the defendants' actions resulted in an "actual injury," see Lewis v. Casey, 518 U.S. 343, 348-55 (1996), and has therefore failed to support a viable constitutional claim that he was denied access to the courts.

Mr. Chapman testified that he represented himself in various lawsuits that he filed and that he did not receive adequate access to the law library at either NSP or TSCI. (See Tr. at 286:11-18.) The record includes evidence that Mr. Chapman requested additional law library time using inmate interview requests, and that he "grieved" his failure to receive adequate library time on numerous occasions. (See Exs. 59-60, 62-63, 124, 126-129, 133-135, 137.) However, the vast majority of these documents concern access to the law library at TSCI, and I find that there is no evidence that any remaining defendant had any involvement in Mr. Chapman's ability to access the law library at that institution.⁵ Therefore, I need only consider whether Mr. Kenney and Mr. Crosby may be held liable for denying the plaintiff access to the law library at NSP.

5 There is no evidence that Mr. Kenny, who is the warden at NSP, or Mr. Crosby, who is the control unit manager at NSP, had any involvement in the decisions to grant law library access for inmates at TSCI.

As the warden of NSP, Mr. Kenney "issues procedures" concerning inmates' access to the law library, and his staff ensures that these procedures are carried out. (See Tr. at 55:24-56:5.) These procedures have evolved over time. (See Tr. at 56:6-9.) It was Mr. Clarke's understanding that segregation inmates were allowed one hour per week in the law library. (See Tr. at 124:16-25; see also Ex. 63.) This was confirmed by Mr. Crosby, who testified that segregation inmates generally receive fifty minutes of library time per week. (See Tr. at 464:13-15.) There are special security concerns when an inmate housed in a segregation unit visits the law library. (See Tr. at 125:11-14; 463:18-464:3.) These include opportunities for inmates to obtain weapons or assault staff in the library. (See Tr. at 125:15-20.) As a result, segregation inmates' access to the library is strictly controlled. Segregation inmates are not allowed in the library at the same time as "general population" inmates, death row inmates, or certain other segregation unit inmates. (See Tr. at 125:21-126:3; 463:2-464:3.) Mr. Clarke believed that, at least in the past, inmates were taken from the "seg" unit to the law library in full restraints,⁶ and one hand was freed in the library to allow the inmate to write and manipulate books. (See Tr. at 57:10-21.) A legal aide was available to retrieve books for the inmate, (see Tr. at 57:22-58:7), and Mr. Clarke opined that it is possible for an inmate to conduct legal research while fully restrained, (see id. at 138:5-7). However, Mr. Troy A. Hess, who was incarcerated with Mr. Chapman at NSP, (see Tr. at 154:16-155:2),⁷ opined that it is "extraordinarily difficult" to prepare legal documents under the "seg" inmate library use policy. (See Tr. at 162:6-10.) He stated that one has to know what one is looking for when he goes into the library in order to make productive use of the allotted time. (See Tr. at 162:12-15.)

6 Mr. Chapman described "full restraints." He stated, "It means they have a chain around my waist, and my hands, they're on the sides of my waist. They have a cuff on each side that my hands go to. And then in the front of the chain there's a chain that goes down to the floor in front of you that hooks around a chain of the shackles. . . ." (See Tr. at 243:15-23.) The shackles, which I gather are around a "fully restrained" person's legs, are attached to a chain by a padlock. The other end of this chain is linked to the waist chain. (See id.) There is yet another chain, called a "come-along," that is connected to the restrained person's hands or handcuffs. (See Tr. at 243:25-244:4.)

7 Mr. Hess is an inmate who, at the time of trial, resided at TSCI in the segregation unit. (See Tr. at 154:13-45.) He has known Mr. Chapman since approximately May 2001, when they were incarcerated together at NSP. (See Tr. at 154:16-155:2.) They were also incarcerated together at TSCI from July 2002 until Mr. Chapman's release in March 2003. (See Tr. at 155:3-9.) While incarcerated at NSP, their cells were positioned such that they could speak to one another each day. (See Tr. at 155:14-19.) They were also able to communicate frequently while incarcerated at TSCI. (See Tr. at 155:20-22.)

Mr. Clarke and Mr. Crosby testified that if an inmate needs additional library time, he must present a court document indicating that a legal matter is "upcoming." (See Tr. at 108:13-109:1; 128:14-22; 464:16-20.) If the inmate's documentation is satisfactory, Mr. Crosby will then discuss the matter with the "major" or, in the major's absence, the deputy warden, to determine whether additional library time is warranted. (See Tr. at 464:20-25, 465:15-21.) Mr. Clarke acknowledged that it was possible that individuals named as defendants in an inmate's lawsuit might be responsible for determining whether that inmate should receive additional law library access. (See Tr. at 139:16-140:1.)

Mr. Chapman has referred me to one exhibit that relates to his complaint that he was denied adequate access to the law library at NSP. This exhibit is an informal grievance that bears several dates, but it is clear that the response to the grievance is dated May 13, 2002. (See Ex. 60.) In the "inmate request" portion of the grievance form, Mr. Chapman complains that he sent a copy of an order to "CM Haywood" in support of his request for extra library time, but his request was nevertheless denied. (Ex. 60.) The response states that Mr. Chapman's allegation "is simply not true," and that Mr. Chapman "refused to provide staff with the appropriate documentation." (Id.) It also states, "CM Haywood denies you sent him anything relative to this issue." (Id.)

Mr. Crosby testified that when Mr. Chapman did come forward with documentation showing that he needed additional library time, Mr. Chapman's requests were granted. (See Tr. at 465:1-5.) Mr. Crosby added, however, that Mr. Chapman occasionally failed to follow the correct procedure for requesting library time, and that when this occurred, Mr. Chapman was not scheduled for the library. (See Tr. at 465:7-14.) Mr. Clarke testified that he is not aware of any occasion when Mr. Chapman made the appropriate showing and was denied additional library time. (See Tr. at 128:23-25.)

Mr. Crosby stated that he never denied Mr. Chapman library time because Mr. Chapman filed "too many grievances or lawsuits." (See Tr. at 465:22-24.) Mr Crosby also denied that Mr. Chapman was prohibited from requesting additional law library time because he was on correspondence restrictions. (See Tr. at 467:22-25.) Mr. Clarke testified that he never directed any person to bar Mr. Chapman's access to the law library. (See Tr. at 128:7-13.)

C. Legal Telephone Calls

The plaintiff's third claim is based upon allegations that Defendants Clarke, Kenney, and Crosby arbitrarily denied Mr. Chapman access to the courts by denying him access to legal telephone calls, and that they did so in retaliation for Mr. Chapman's filing of lawsuits and writing grievances or complaints about the conditions of his incarceration. Thus, in truth there are two sub-claims based upon these allegations: First, the plaintiff claims that the denial of legal calls amounted to an unconstitutional denial of access to the courts. Second, he claims that he was denied legal calls in retaliation for filing lawsuits and writing grievances and complaints. Again, Mr. Clarke has been dismissed from both sub-claims. Also, I have determined that judgment must be granted as a matter of law in favor of Mr. Kenney on the sub-claim that the denial of calls amounted to an unconstitutional denial of access to the courts. (See Tr. at 337:11-24.) Thus, the legal calls issue remains as a retaliation claim against Mr. Kenney and Mr. Crosby, and as a "denial of access to the courts" claim against Mr. Crosby only.

DCS has a policy concerning inmate's access to legal phone calls, and staff have access to that policy. (See Tr. at 55:6-11.) The facility's warden is responsible for ensuring that the policy is followed and that inmates' access to legal calls is not delayed or frustrated. (See Tr. at 55:12-15.) Mr. Chapman testified that while he was incarcerated at TSCI, he was told that he would not be allowed to take legal calls from his attorney. (See Tr. at 289:4-21.) He also stated that staff at TSCI taunted him by refusing his requests to speak to his attorney. (See Tr. at 289:4-291:1.) However, Mr. Chapman's claims are against Defendants Crosby, who is the unit manager at NSP, and Mr. Kenney, who is the warden at NSP. There is no evidence that these defendants had any control over Mr. Chapman's access to legal calls at TSCI, and the plaintiff has referred me to no evidence that he was denied access to legal calls at NSP. Therefore, I see no basis for holding Defendants Kenney and Crosby liable for any claim relating to Mr. Chapman's legal calls, and judgment will be entered in favor of the defendants.

D. Forced Medication

Mr. Chapman's fourth, fifth, and sixth claims, as I have designated them, all concern his involuntary medication at the hands of certain defendants. His fourth claim is based upon allegations that he was administered drugs against his will and in violation of his due process rights on July 2, 2001, by Defendants Elliot and Wallick. His fifth claim is based upon allegations that he was administered drugs against his will and in violation of his due process rights on July 3, 2001, by Defendants Severson, Irvin, and Wayman. However, Defendants Irvin and Wayman have been dismissed from this action, as judgment has been granted in their favor as a matter of law. (See Tr. at 338:23-8.) Mr. Chapman's sixth claim is based upon allegations that Defendant Clarke was aware of and acquiesced in the forced medication incidents, and that his action or inaction violated Mr. Chapman's constitutional rights and amounted to retaliation against Mr. Chapman. Again, however, judgment has been granted in favor of Mr. Clarke as a matter of law. Therefore, the forced medication claim remains against Defendants Elliot and Wallick with respect to the incident of July 2, 2001, and against Defendant Severson with respect to the incident of July 3, 2001.

Preliminarily, I note that there is evidence that Mr. Chapman expressed his unwillingness to accept certain "psychotropic" medications sometime prior to July 2, 2001. Mr. Chapman testified that he has been diagnosed with anxiety and obsessive compulsive disorder, though there is no evidence as to the date of these diagnoses. (See Tr. at 211:6-14.) He stated that when he is in enclosed places, his thoughts race, he feels "suffocated," and he gets "really wound up." (See Tr. at 226:22-227:1.) Nevertheless, he claimed that he has refused to take any type of drug. (See Tr. at 211:25-212:5.) This reluctance may be based upon a previous experience that he described at trial. Specifically, Mr. Chapman stated that at one point he agreed to take psychotropic medications in order to obtain his release from the segregation unit. (See Tr. at 225:1-9; see also Ex. 15.) However, after he began to experience a number of unpleasant side effects, he stopped taking the medication and was returned to segregation. (See Tr. at 225:11-19.) He then told Mr. Crosby and health care staff that he was no longer willing to take medication. (See Tr. at 226:5-19.)

Concerning the events of July 2 and 3, 2001, Mr. Chapman testified as follows. He claimed that on June 30, 2001, a DCS employee named Mr. Edelman shut off the water in his cell, and it remained off for three days. (See Tr. at 228:18-229:8.) Just prior to one o'clock on July 2, 2001, the water in Mr. Chapman's cell was turned on. (See Tr. at 229:19-24.) According to Mr. Chapman, he asked for a plunger to clear his toilet, but his request was refused. (See Tr. at 229:9-10, 229:24-25, 230:13-14.) When Mr. Chapman flushed the toilet in his cell, it overflowed with water and feces. (See Tr. at 230:21-231:3.) He stated that he did not touch the waste or get any of it on his body as it ran across the floor of his cell to a drain outside. (See Tr. at 231:5-20, 232:1-3.) Mr. Chapman was then taken to an area of the control unit called the "bullpen"⁸ to prepare to participate, via telephone, in a hearing that had been scheduled in a civil suit filed by Mr. Chapman. (See Tr. at 228:6-8, 232:4-9.) According to Mr. Chapman, Defendant Crosby said that he was going to talk to the judge and prevent Mr. Chapman from participating in the hearing because Mr. Chapman had been "a nuisance," "a hazard to [himself] and others," and had spread fecal matter all over himself and the facility. (See Tr. at 232:11-17, 234:15-22.)

8 There are two bullpens in the control unit at NSP. A bullpen is a barred enclosure with bulletproof glass, approximately ten feet wide, that is used to secure inmates while protecting staff. (See Tr. at 456:23-457:12.) After an inmate is escorted into the bullpen, the bullpen is closed and the inmate is secured. (See id.) Restraints can then be applied or removed safely by staff using hatches at the front of the bullpen. (See id.)

I find that Mr. Chapman's explanation of the origin of the excrement in his cell on July 2, 2001, is not credible; nor do I credit his testimony that he did not touch the excrement or get any on his body. It is true that Mr. Chapman's testimony was, in a general sense, somewhat consistent with that of Mr. Hess, who testified that water was occasionally turned off in the cells in the segregation unit at NSP, (see Tr. at 181:4-6, 182:10-16), that feces occasionally remained in his toilet for a long period of time, (see Tr. at 184:8-23), and that there were times that Mr. Hess's toilet overflowed when the water was switched back on, (see Tr. at 183:22-184:2). I also note that Mr. Hess testified that sometime between June 2001 and July 2002, he heard Mr. Crosby tell Mr. Chapman that if Mr. Chapman behaved, his water would be turned on and he would get a legal call. (See Tr. at 186:14-16, 189:8-14.) Despite Mr. Hess's testimony, I cannot credit Mr. Chapman's claim that he did not intentionally spread feces about his cell on or about July 2, 2001. Although the videotape of the July 2, 2001, incident is incomplete and partly unclear, I can hear Mr. Chapman admit repeatedly that he smeared feces about his cell that day. (Ex. 71.) For example, he can be heard saying something along these lines: "If you guys treat me like shit, mess with my emotions, play with my life, how come I can't make you guys play with my shit?" I find that Mr. Chapman did, in fact, spread feces about his cell on or about July 2, 2001, in an attempt to manipulate prison staff, and that this conduct led directly to the events that follow.

Mr. Chapman was not allowed to participate in his hearing, and his case was dismissed. (See Tr. at 232:20-21, 234:23-24.)⁹ Mr. Chapman stated he was then left standing in the bullpen for some time, and he asked to be allowed to use the bathroom. (See Tr. at 234:25-235:4.) Mr. Chapman claimed that this request was refused, and therefore he urinated in the bullpen while fully restrained-though he also claimed that he avoided urinating on himself. (See Tr. at 235:2-21, 236:24-25.) Again, I find that Mr. Chapman's testimony on this point is not credible. On the videotape he can be heard laughing about urinating in the bullpen, and he stated, "I pissed on the floor. . . . I could have waited, but why?" (Ex. 71.)

9 Parenthetically, I note that Mr. Chapman stated that Defendant Crosby was a defendant in the lawsuit that was dismissed as a result of this incident. (See Tr. at 236:8-10.)

Mr. Chapman was taken from the bullpen and told that he would be placed in a shower. (See Tr. at 236:20-23.) Although Mr. Chapman indicated that he did not want the shower,¹⁰ he claims that Mr. Crosby directed others to dress in yellow suits and force Mr. Chapman into a shower. (See Tr. at 236:22-23, 237:10-20.) Mr. Chapman stated that Mr. Crosby held a video camera during the forced shower, but that the shower does not appear on the tape that was produced to him by the defendants. (See Tr. at 237:22-239:16.)¹¹ Mr. Chapman testified that he was not fighting or combative during the shower. (See Tr. at 242:3-6.) After the shower, Mr. Chapman was taken to the NSP hospital. (See Tr. at 242:8-25.) According to Mr. Chapman, Mr. Crosby told Mr. Chapman again that he was being taken to the hospital for being a nuisance. (See Tr. at 244:11-12.)

10 On the videotape, Mr. Chapman can be heard saying, "I do not want a shower. I stink and I want to stay that way." (Ex. 71.)

11 It is true that no shower appears on the tape that was admitted into evidence. (See Ex. 71.).

Upon his arrival at the hospital, Mr. Chapman was tied down in five-point restraints.¹² (See Tr. at 246:13-14, 247:18-21; Ex. 71.) A form used for "standing orders" for "therapeutic" restraints appears in the medical records, and it confirms that Mr. Chapman was placed in five-point restraints on July 2, 2001. (See Tr. at 378:7-12; see also Ex. 6 at "CHB00024.") Although Dr. Elliot's name is written on a line labeled, "Medical Order By . . .," and dated July 3, 2001, Dr. Elliot testified that this was not his signature and he has "no idea" how it got there. (See Tr. at 378:7-18; Ex. 6 at "CHB00024.") Mr. Chapman testified that he yelled to be let up, but he did not physically resist being placed in restraints. (See Tr. at 246:13-25 248:7-249:24, 250:5-11.) This is confirmed by the videotape recording of the incident. (See Ex. 71.) Mr. Chapman also testified that he did not physically struggle against the restraints in a manner that might cause him injury. (See Tr. at 250:12-15, 251:21-252:1.) The videotape's coverage of the events of July 2 and 3, 2001, ends with Mr. Chapman's placement in five-point restraints on July 2, 2001.¹³ The events that follow are not depicted on the tape.

12 Mr. Chapman described a five-point restraint as consisting of leg cuffs, cuffs that hold one's arms down by his sides, and a part that crosses one's chest to keep him from sitting up from the bed on which he is restrained. (See Tr. at 252:2-12.)

13 The tape itself displays a date stamp of July 3 during one segment. (Ex. 71.) However, the parties have stipulated that this indicator is not accurate, and that the tape depicts only certain events that occurred on July 2, 2001, and November 19, 2001 (which will be discussed below). (See Tr. at 238:25-240:9.)

Mr Chapman stated that as a result of his yelling, he was told by a Nancy Mize that he would be sedated or "shut up," which he says caused him to "curse her out." (See Tr. at 244:13-24, 246:13-25, 250:16-251:3.) Defendant Wallick then entered the room with a syringe, and Mr. Chapman said that he did not want it and that he "refuse[d] by the rules and policies." (See Tr. at 252:22-253:2.) Nurse Wallick then injected the contents of the syringe into Mr. Chapman's arm and left the room. (See Tr. at 253:16-20.) Mr. Chapman noted blood running down his arm and yelled for someone to clean it up, and Nurse Wallick returned to clean Mr. Chapman's arm and apply a band-aid. (See Tr. at 253:22-254:2.)

Mr. Chapman was not told what he was injected with. (See Tr. at 254:3-8.) He described it as "knock[ing] [him] out," giving him a "light-headed and like a drunk feeling," and affecting his face muscles, eyes, neck, and arms. (See Tr. at 254:9-22.) Evidence suggests that Mr. Chapman was injected with "Ativan." (See Ex. 6 at "CHB00023"; Tr. at 376:7-377:7.) Dr. Elliot testified that Ativan is a "minor tranquilizer" used for sedation rather than treating psychosis, (see Tr. at 377:8-12), but that it is considered a "psychotropic" drug, (see Tr. at 377:13-14). However, Dr. Elliot said that he is involved "only in a general way" in approving prescriptions of Ativan for inmates, (see Tr. at 382:20-25), and that a physician's assistant could prescribe Ativan without first consulting him, (see Tr. at 382:14-19). In this case, it appears that a Jonathan Bagely, who is a certified physician's assistant working for DCS, entered a standing order on July 2, 2001, that authorized a forced injection of Ativan on July 2 and permitted the nursing staff to determine whether Mr. Chapman needed subsequent injections. (See Tr. at 383:1-8, 384:17-385:6, 395:3-396:1; Ex. 6 at "CHB00026.") Dr. Elliot stated that he would not need to supervise Mr. Bagley's ordering of Ativan. (See Tr. at 384:13-16.) However, Dr. Elliot also testified that he did not provide Mr. Bagley with training concerning any constitutional protections inmates may have concerning forced medication. (See Tr. at 385:11-20.)

Mr. Chapman stated that after his injection on July 2, he was awakened for lunch the next day by Defendants Irvin and Wayman. (See Tr. at 255:5-13.) According to Mr. Chapman, the events of July 3 proceeded as follows. Irvin and Wayman freed Mr. Chapman's right hand and released the strap that prevented him from sitting up, and then placed a lunch tray on his lap. (See Tr. at 255:13-15.) However, although Mr. Chapman planned to eat, he claims he fell back to sleep. (See Tr. at 255:15-256:1.) He awoke when Mr. Wayman and Ms. Irvin returned to retrieve the lunch tray. (See Tr. at 256:1-5.) Mr. Chapman asked to speak to supervisors and wanted to write a grievance about the five-point restraint and the injection. (See Tr. at 256:5-17.) These requests were refused. (See Tr. at 256:18-257:1.) Mr. Chapman then apparently told Irvin and Wayman that he would not let them put him back into the full five-point restraints. (See Tr. at 257:1-4.) According to Mr. Chapman, Irvin and Wayman then decided to place him back in full restraints immediately. (See Tr. at 257:11-14.) Mr. Chapman claims that he began to yell, and Mr. Wayman used his hand to cover Mr. Chapman's mouth. (See Tr. at 257:14-22.) Mr. Chapman could not breathe, and managed to bite Mr. Wayman on the finger. (See Tr. at 258:5-8.) Ms. Irvin and Mr. Wayman then left the room and returned with others, who videotaped Mr. Chapman being returned to his full five-point restraints. (See Tr. at 258:10-17.)

Mr. Wayman's version of these events differs from Mr. Chapman's. Mr. Wayman confirmed that he was assigned to work at the facility hospital on the morning of July 3, 2001. (See Tr. at 352:25-353:7.) He testified that he brought Mr. Chapman breakfast and had no problems, although he could not recall whether Mr. Chapman actually ate any breakfast. (See Tr. at 353:22-24. 359:1-3.) Later, as Mr. Chapman described, Mr. Wayman and Sergeant Irvin brought Mr. Chapman lunch. (See Tr. at 354:3-4.) They removed the plaintiff's chest strap and freed one hand before leaving the plaintiff with his lunch for a half-hour. (See Tr. at 354:8-12.) When they returned, they found Mr. Chapman slapping the chest restraint against the bed with his left hand. (See Tr. at 354:15-18.) After removing the lunch tray, Mr. Wayman asked Mr. Chapman whether he would allow Mr. Wayman and Ms. Irvin to re-restrain him fully. (See Tr. at 354:18-22.) Although Mr. Chapman appeared cooperative initially, he "became agitated." (See Tr. at 354:22-25.) Mr. Wayman stated, "he pulled away from us, and in doing so, it was, I don't know if you want to say spontaneous, didn't know if he was just trying to jerk around or was actually going to try any kind of physical violence at all towards us or himself, we were going to try and restrain and that's when he tried to bite my finger off." (See Tr. at 354:25-355:5.) Mr. Wayman denies that he was covering Mr. Chapman's mouth at the time of the bite. (See Tr. at 355:6-8.) Instead, he says that he was attempting to grab Mr. Chapman's hand when Mr. Chapman sat up and "almost bit [his] finger off." (See Tr. at 355:16-21.)¹⁴ Ms. Irvin determined that she and Mr. Wayman would leave and call for additional staff to return Mr. Chapman to his restraints. (See Tr. at 355:23-356:1.)

14 On cross-examination, Mr. Wayman stated that the bite left teeth marks but did not break the skin or require medical attention. (See Tr. at 356:9-357:3.) His statement that Mr. Chapman almost bit his finger off is clearly an exaggeration.

Mr. Wayman suggested that the slapping of the chest restraint "possibly could have been" harmful to Mr. Chapman-although he admits he could not tell if Mr. Chapman was causing any harm-and that this "slapping" justified the non-videotaped emergency use of force by himself and Ms. Irvin. (See Tr. at 361:2-21.) Mr. Wayman's involvement in the July 3, 2001, incident terminated at this point. Although at one point he testified that subsequent events-including the July 3 injection-were videotaped, (see Tr. at 361:17-362:8), he later testified that he could not recall whether this was so, (see Tr. at 370:16-372:5). Parenthetically, I note that Mr. Clarke testified that although all "planned" uses of force are to be videotaped, forced administrations of medication under emergency circumstances would not be videotaped. (See Tr. at 71:1, 71:7-12.) Specifically, Mr. Clarke testified that any time a forcible restraint is performed, including occasions when staff members hold down a five-point restrained inmate during the administration of an injection, this qualifies as "use of force." (See Tr. at 71:13-18.) However, he testified that staff's involvement in the administration of a forced injection is not a use of force that is required to be videotaped pursuant to department policy-though he added that he would not fault officers for writing a use of force report in connection with such an incident. (See Tr. at 71:19-72:16.) In any event, the incident is not recorded on the videotape that has been received in evidence.

Mr. Chapman testified that after he was returned to full five-point restraints, Defendant Severson entered the room with a syringe saying, "This is to relax you." (See Tr. at 258:17-19.) According to Mr. Chapman, Nurse Severson told him that the syringe contained Haldol. (See Tr. at 258:19-23.) Again, Mr. Chapman stated that he did not want an injection, and he screamed and cursed. (See Tr. at 258:25-259:4, 260:2-7.) He says that "Severson tried to stab it in me, and I moved my leg a little bit . . . and she missed me." (See Tr. at 259:23-25.) The syringe fell onto the floor. (See Tr. at 260:1.) Mr. Chapman eventually received an injection, and he claims that within twenty minutes of the injection he was returned to his cell in the control unit. (See Tr. at 260:16-18.) However, records indicate that Mr. Chapman was forcibly injected on July 3 at 3:15 pm, and he was returned to the control unit at 5:20 pm that day. (See Tr. at 400:16-401:24, 402:16-21; Ex. 6.) Mr. Chapman said that in his cell he began to feel "like paraplegic for the night," and after he had supper he became sick and vomited. (See Tr. at 260:18-261:4.)¹⁵

15 Mr. Chapman testified that his cell had been cleaned before he was returned to it, but stated that an unpleasant smell lingered there. (See Tr. at 261:14-21.)

Ms. Severson provided a somewhat different account of the July 3, 2001, injection. She testified that on July 3, 2001, three members of her nursing staff came to her office and told her that Mr. Chapman was being "loud, abusive, spitting on staff, attempting to bite staff and that this behavior . . . just kept escalating." (See Tr. at 423:3-424:13.) Medical records reflect that Mr. Chapman was yelling for a doctor, for an officer, for a "kite,"¹⁶ and for someone from mental health at 10:30 am on July 3, 2001. (See Ex. 6 at "CHB00036.") Based on Mr. Chapman's escalating behavior, Ms. Severson made the decision to administer the July 3 injection pursuant to the July 2 order issued by Mr. Bagley. (See Tr. at 425:2-7.) On cross-examination, Ms. Severson stated that she started investigating Mr. Chapman's situation and the need for a forced injection at approximately 2 pm, and that it was 3:15 pm before the injection was given. (See Tr. at 433:7-19.)

16 I take it that a "kite" is a term for a letter sent by an inmate to prison staff, such as an inmate interview request form. (See Ex. 180, ¶ 7.)

Before administering the injection, Ms. Severson contacted Dr. Mize to "touch base with her," because Dr. Mize worked extensively with Mr. Chapman in the past and knew him well (See Tr. at 425:6-16.) Ms. Severson also stated that she attempted to calm Mr. Chapman prior to administering the shot, but was unsuccessful.¹⁷ (See Tr. at 425:17-20.) She stated that she had the following conversation with Mr. Chapman:

17 "Redirecting" is one calming strategy that Ms. Severson attempted. Ms. Severson testified that an attempt to redirect Mr. Champan would proceed as follows: "Billie, just try to relax. . . . If you can do this . . . and be this . . . then, you know, we can work toward this point of getting you out." (See Tr. at 425:25-426:2.)

I told him, I said, . . . "Your behaviors, you are just out of control. You're not rationalizing. You're not making good decisions for yourself. And I'm going to give you this injection of Ativan so it would hopefully calm you enough so you can at least make those decisions for yourself."

(Tr. at 426:12-16.) Ms. Severson testified that she considered the situation to be an "emergency," as she defines the term, because "it's a very sad situation . . . to sit there and watch a human being escalate to the point to where they have no logical capabilities." (Tr. at 430:25-431:3.) She believed that Mr. Chapman was irrational and that he was a danger to himself because of the way he "was working around with his restraints and working himself up, escalating." (See Tr. at 432:13-21.) She recorded in her incident report that, prior to the injection, "Chapman . . . [was] constantly screaming, yelling, [and] fighting 5 point restraints. . . ." (Ex. 101 at 8.) Thus, Ms. Severson concluded that due to Mr. Chapman's agitation level, it was in his best interest to be forcibly medicated. (See Tr. at 428:18-24; Ex. 101 at 8.)

Ms. Severson testified that when she attempted to administer the shot, Mr. Chapman "lunged his leg at [her] and almost sat up," which caused the syringe to fall from Ms. Severson's hand. (See Tr. at 429:12-24.)¹⁸ She obtained a new syringe and administered the shot with help from correctional officers. (See Tr. at 429:25-430:8; Ex. 101 at 8.)

18 Ms. Severson testified later, however, that Mr. Chapman did not "almost sit up" when she attempted to administer the shot. (See Tr. at 445:19-446:22.) Indeed, it is difficult to imagine that Mr. Chapman could have done so, since he had been returned to full five-point restraints.

Dr. Elliot also testified concerning his involvement in the forced medication incidents on July 2 and 3, 2001. He stated that he did not see Mr. Chapman on July 2, 2001. (See Tr. at 375:20-376:6.) Although he accepts responsibility for the decision to place Mr. Chapman in five-point restraints, Dr. Elliot did not know whether Mr. Chapman was combative when he first arrived at the hospital. (See Tr. at 391:8-18.) Dr. Elliot also could not specify the "emergency" of July 2 or 3, 2001, that would have justified the forced medication of Mr. Chapman. (See Tr. at 394:16-20; 396:2-9.) Dr. Elliot said that he trusted the people he worked with to use their judgment regarding the best interests of the patients. (See Tr. at 391:22-25.)

Dr. Elliot was asked whether the medical record showed that the reason for the injection on July 3, 2001, was the fact that Mr. Chapman was yelling for assistance. (See Tr. at 397:8-10.) He responded, "Well, yes, apparently he was very disruptive and Diane Severson worked with him," and "the decision was based on behavior displayed on day and evening shift as documented by the nursing staff." (Tr. at 397:14-17.) When asked whether he saw anything in the nursing notes to indicate that there was an emergency or that Mr. Chapman was being a danger to himself or others, Dr. Elliot responded, "I don't see it in the notes." (See Tr. at 397:23-398:3.) He agreed that he would not authorize a forced injection if a patient was yelling for a "kite," for a legal call, or to talk to "mental health," or if the patient was being uncooperative or mouthy while in five-point restraints. (See Tr. at 399:1-10.) However, Dr. Elliot stated that his past history with a patient is used to make determinations about "current" courses of action, and his past history with Mr. Chapman and knowledge of Mr. Chapman's medical history would come into play when making treatment decisions about Mr. Chapman. (See Tr. at 406:14-407:2.) Specifically, Dr. Elliot testified that Mr. Chapman had a history of injuring himself when he became agitated. (See Tr. at 410:11-21, 411:12-17, 413:7-23.) He also stated that although it was "less likely" that an individual in five-point restraints would suffer an injury to himself, certain injuries could still occur. (See Tr. at 414:25-415:13.) Specifically, he stated that there is a risk that a person could "agitate to the point where they rub themselves raw or they aspirate and get pneumonia." (See Tr. at 415:2-3.) However, Dr. Elliot admitted that he had no personal knowledge that Mr. Chapman was injuring himself when he received the forced injection, and he could not identify a medical record indicating that Mr. Chapman was rubbing on the restraints on July 2 or 3. (See Tr. at 396:14-21, 418:18-419:1.) Nor is there any evidence that Mr. Chapman was at risk of aspirating.¹⁹

19 Ms. Severson acknowledged on cross-examination that Mr. Chapman was permitted to refuse to have his vitals taken on the afternoon of July 2, 2001, and on the morning of July 3, 2001. (See Tr. at 437:8-23; Ex. 6 at "CHB00032.") "Vitals" consist of measurements of blood pressure, pulse, and respiration. (See Tr. at 452:23-24.)

Mr. Clarke testified that the decision to forcibly medicate an inmate is made by licensed medical practitioners and is based upon their belief that an emergency necessitates forced medication. (See Tr. at 42:16-19.)²⁰ DCS has no training policy for staff members regarding emergency forced injections of medications such as sedatives or psychotropic drugs. (See Tr. at 42:10-16.)

20 DCS procedures call for a hearing when medical practitioners believe that forced medication is necessary, but these procedures do not apply to emergency situations. (See Tr. at 43:16-23.)

Mr. Clarke also testified that he does not make determinations concerning the proper course of an inmate's medical care. (See Tr. at 129:10-21.) He stated that he was not aware that Mr. Chapman was taken to the prison hospital on July 2, 2001; that Mr. Chapman might have received medication while in the hospital; or that Mr. Chapman had any complaints about his care during that hospital stay. (See Tr. at 129:1-9.) However, he did opine that there are security concerns for the health, safety, or well-being of inmates in five-point restraints because some persons so restrained are "so agitated that they just engage in continuous motion, trying to move every limb of their body, their head and so forth. . . ." (Tr. at 48:15-24.) However, Mr. Clarke said he would expect to see documentation reflecting agitation of that sort if an inmate in five-point restraints were sedated involuntarily. (See Tr. at 48:25-49:20.) Mr. Clarke added that it would not be appropriate to forcibly medicate an inmate in five-point restraints who was merely yelling to ask to speak to someone. (See Tr. at 49:21-50:2.)

E. The Flooding Cell

In his seventh claim, Mr. Chapman alleged that he was placed in cells that suffered from severe flooding problems during rainfalls. Again, there are two sub-claims based upon these allegations: First, the plaintiff claims that his cell conditions amounted to cruel and unusual punishment. Second, he claims that he was placed in the flooding cell in retaliation for filing lawsuits and writing grievances and complaints. Mr. Chapman alleged that Defendants Clarke and Kenney were responsible for these violations; however, Mr. Clarke has been dismissed from all claims in this suit.

Mr. Chapman testified that snow melting on the roof would come into his cell through cracks in the ceiling. (See Tr. at 215:4-16.) He said that the problem began in May 2001, continued into July, (see Tr. at 221:11-19), and may never have been solved, (see id. at 222:22-25). He stated,

There was the outside door right in front of 18 [(my cell)], and it would blow cold air in, and then the water would come from the light right in front of my cell, outside the cell. It would drip down through the light circuit, and in the back of the cell there's a light up in the corner where that would fill up with water and it would run down the wall, back wall. And then I had to sleep on that metal bed thing, like the wall that's a bed. It's like a bed, but it has metal trimming around it, but it's solid concrete, but it has some metal stripping on it. And I had to sleep on that, and the water would come down, and if I did get a sheet, if they did give me a sheet or a blanket, it would get wet because it would come down the vents. It would come through the vents. It would come down — It would drip on the toilet. It would get the floor wet.

(See Tr. at 216:13-217:2.) He stated that these conditions were cold and "stressful," and he felt as if he were being treated like a dog. (See Tr. at 224:3-13.) Mr. Chapman stated that he grieved the conditions of his cell "every time it started dripping." (See Tr. at 217:12-13; Exs. 34, 35, 159, 160, 161.) He also claims that his complaints about the conditions made things worse. (See Tr. at 224:14-21.) For example, on May 2, 2001, Mr. Chapman filed a Step One grievance concerning the water in his cell. The grievance states that a sergeant "retaliated" against Mr. Chapman for complaining by denying the plaintiff a legal call and yard time and by calling the plaintiff a "bitch." (Ex. 161; see also Ex. 35.) Mr. Hess, who was aware that Mr. Chapman was placed in leaking cells in June or July 2002 at NSP, (see Tr. at 195:14-196:1), testified that in July 2002 he heard Mr. Crosby order Caseworker Edelman to put Mr. Chapman in the wet cell because Mr. Chapman had been yelling and hollering for a legal call. (See Tr. at 165:20-167:11.) In an inmate interview request dated June 14, 2001, the plaintiff complained that although he had been moved from cell 18 to cell 17, water continued to leak onto his body and bed. (See Ex. 34.) The reply to the complaint states that "[t]his issue has been repeatedly addressed to you and the answer remains the same," and "[y]ou are currently under review for limitation status due to your continued repetitive correspondence submittals [sic]." (Id. See also Ex. 35.)

Mr. Crosby testified that water can come into the control unit from a variety of sources. Specifically, inmates sometimes break sprinkler heads; sometimes showers malfunction or leak; sometimes the plumbing leaks; and there are occasional roof leaks. (See Tr. at 459:11-22.) Mr. Crosby stated that there might have been a roof leak on or around June 2001. (See Tr. at 459:25-3.) He also stated that he recalled Mr. Chapman complaining that his cell was leaking intolerably. (See Tr. at 460:4-7.) Mr. Crosby testified that he did nothing about Mr. Chapman's complaints "right away," because Mr. Chapman had lied to Mr. Crosby in the past. (See Tr. at 460:8-12.) Eventually, Mr. Crosby inspected Mr. Chapman's cell and concluded that no action was warranted, in part because there were other cells that were leaking "far worse," and in part because the conditions were nowhere close to "intolerable." (See Tr. at 460:13-22.) Mr. Crosby did not see water in the light fixture at the time of his inspection. (See Tr. at 460:23-25.) However, Mr. Crosby had his staff monitor the cell, and water did appear in the fixture at a later time. (See Tr. at 461:1-2.) When the conditions were such that Mr. Crosby believed there was a safety hazard, he had Mr. Chapman moved. (See Tr. at 461:2-5.) Mr. Crosby reported the leak to construction maintenance, but the roof was not repaired for some time. (See Tr. at 461:6-462:6.)

According to Mr. Clarke, if an inmate were to submit a grievance concerning his cell conditions and the department failed to fix the problem in a timely manner, the inmate would be allowed to file a complaint, write to the warden, or write to Clarke about the continuing problem. (See Tr. at 86:2-10.) Mr. Clarke had no recollection of Mr. Chapman's complaints about water in his cell. (See Tr. at 86:11-21, 90:7-14.) He also had no recollection of personally investigating Mr. Chapman's cell conditions, though he may have done so. (See Tr. at 91:5-10.) A letter from Mr. Hopkins, sent on behalf of Mr. Clarke on May 18, 2001, indicates that there was a problem with the roof of the plaintiff's cell and that the plaintiff was moved to another cell "as soon as staff verified a problem may exist." (Ex. 33; see also Tr. at 91:14-25; Ex. 159.) It appears that Mr. Hopkins recognized that the roof did leak as of June 7, 2001, and indicated that water was mopped up by staff and that "Construction Maintenance has been informed of the problem." (Ex. 159.) However, on September 3, 2001, the plaintiff filed a Step Two grievance stating that there is a problem each time it rained, and the response to the grievance, which is dated October 11, 2001, stated only that "[t]he roof is scheduled to be replaced." (Ex. 160.)

Mr. Clarke testified that if there is a leaking roof in a facility, correctional officers are not required to inform him. (See Tr. at 129:22-25.) He also stated that he was not informed that there was a leaking roof in the seg unit at NSP in May 2001, that he did not recall seeing a grievance from any inmate concerning such a leak, and that he never determined which cell Mr. Chapman should be housed in. (See Tr. at 130:1-12.)

Mr. Kenney testified that he never directed anyone to place Mr. Chapman in a specific cell in the NSP control unit, nor did he direct anyone to leave Mr. Chapman in a leaking cell. (See Tr. at 474:8-13.) He also testified that the control unit manager was not required to confer with him before ordering repairs to the roof, and he would expect his subordinates to "go ahead and make repairs that are necessary." (See Tr. at 474:14-20.)

F. The "Spit Sock"

In his eighth claim, Mr. Chapman alleged that while he was housed at TSCI, he was placed on a spit sock restriction in violation of his constitutional rights, and that Defendants Clarke and Kenney were aware of and acquiesced in this restriction and allowed the restriction in retaliation for Mr. Chapman's lawsuits, grievances, and complaints. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 28-32, 43.) Mr. Clarke has been dismissed from this litigation, and Mr. Kenney was the warden at NSP, not TSCI. There is no evidence that Mr. Kenney had any role in the imposition of a spit sock restriction on Mr. Chapman while he was housed at TSCI. Therefore, I see no basis for holding Defendant Kenney liable for Mr. Chapman's spit sock claims, and judgment will be entered in favor of the defendants on this claim.

G. Excessive Force and Denial of Medical Treatment

The plaintiff's final two claims are related to an incident that occurred at NSP on November 19, 2001. In his ninth claim, Mr. Chapman alleged that excessive force was used against him on November 19, 2001, and that Defendants Clarke and Kenny acquiesced in the incident in violation of Mr. Chapman's constitutional rights and in retaliation against Mr. Chapman for his lawsuits, grievances, and complaints. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 33-36, 43.) In his tenth claim, Mr. Chapman alleged that he was denied medical care for an injury to his shoulder that may have occurred as a result of the "excessive force" incident of November 19, and that Defendants Clarke and Kenney acted with deliberate indifference to his medical needs. Further, Mr. Chapman alleged that he was denied medical attention for his shoulder in retaliation for his lawsuits, grievances, and complaints. Thus, truly there are four separate sub-claims linked to the incident of November 19, 2001, and, given Mr. Clarke's dismissal from this suit, they are all directed solely toward Mr. Kenney: First, it is alleged that Mr. Kenney is responsible for the excessive use of force on November 19, which was performed in violation of the plaintiff's constitutional rights. Second, it is alleged that Mr. Kenney acquiesced in the use of force against the plaintiff on November 19 in retaliation for the plaintiff's lawsuits, grievances, and complaints. Third, it is alleged that Mr. Kenney was deliberately indifferent to the plaintiff's medical needs. Fourth, it is alleged that Mr. Kenney denied the plaintiff medical treatment in retaliation for the plaintiff's lawsuits, grievances, and complaints. At the close of the plaintiff's evidence, it was clear that the claim regarding the excessive use of force and the denial of medical treatment that arose from it must be removed from the lawsuit because there was no evidence linking Mr. Kenney to those claims. However, I did not clearly state that the denial of medical treatment claim was dismissed in its entirety, both for substantive and retaliatory purposes. Since the excessive force claim and denial of medical care claim are related (at least in time), I will summarize the evidence presented at trial and set forth explicitly my conclusion that these claims against Mr. Kenney must be dismissed.

The plaintiff's excessive force claim is based upon allegations that a Mr. LeDuc over-tightened a belly chain around Mr. Chapman's waist. (See Order on Pretrial Conference, filing 258, at Part C, ¶¶ 33-34.) Mr. Chapman testified that he had a past history with Mr. LeDuc involving grievances. (See Tr. at 263:16-265:21.) Indeed, on November 19, 2001, there was a pending grievance against Mr. LeDuc, filed by Mr. Chapman, concerning Mr. LeDuc's use of force on a prior occasion. (See Tr. at 275:2-24; see also Ex. 30, Ex. 70, Tr. at 298:6-300:2.) On November 19, 2001, Mr. Chapman was scheduled for institutional misconduct hearings. (See Tr. at 265:22-266:8.) On the way to the hearings, Mr Chapman claims that Mr. LeDuc was pulling one of the chains in such a way that it hurt his genitals. (See Tr. at 266:7-267:1.) He noted that Mr. Hess was present nearby,²¹ along with a DCS employee named Mr. Garcia, who stood on the other side of some bars near a video camera. (See Tr. at 267:9-19.) Mr. Chapman yelled for Mr. LeDuc to stop pulling up the chain, and he yelled to Mr. Garcia as well. (See Tr. at 267:3-8, 267:15-16.) According to Mr. Chapman, he turned "real quick" to Mr. LeDuc and said, "Stop it." (See Tr. at 268:5.) Mr. LeDuc then shoved Mr. Chapman "forward into the metal and plexiglass. . . ." (Tr. at 268:6-7.) Mr. Chapman described being in a "tug-of-war" between Garcia and LeDuc, with Mr. Garcia pulling Mr. Chapman's arms outside of a "hatch," and Mr. LeDuc "yanking" him back. (Tr. at 268:7-13.) When Mr. Garcia released the chain, Mr. LeDuc threw Mr. Chapman into the side wall. (See Tr. at 268:13-15.) Mr. Chapman was then taken to the floor, where he felt a "pop" in his shoulder as he was being twisted and pulled. (See Tr. at 268:16-25.) While on the floor, a spit sock was placed over Mr. Chapman's head, along with a towel. (See Tr. at 269:4-15, 270:2.) He was held on the floor for a long time. (See Tr. at 272:16-20; Ex. 71.)²²

21 Mr. Hess testified that he saw officers take Mr. Chapman to the ground once in the winter of 2001. (See Tr. at 173:4-175:14.) It is unclear whether the incident described by Mr. Hess is the incident of November 19, 2001.

22 It appears from the videotape that Mr. Chapman was held on the floor for approximately twenty minutes. (Ex. 71.) I note that the tape's coverage of the November 19 incident begins with Mr. Chapman already on the floor, so it is impossible to determine precisely how long he was restrained.

A "Use of Force Report" confirms that force was used against Mr. Chapman on November 19, 2001, at the NSP control unit bullpen, while Mr. Chapman was being "processed" to attend a disciplinary hearing. (Ex. 162 at 1-2.) According to the report, Mr. Chapman "pulled away from staff," (id. at 2), when Sergeant LeDuc tightened the "belly-chain around [Mr. Chapman's] waist," (id. at 4).²³ The report states that Sergeant LeDuc then "placed" Mr. Chapman "against the Plexiglass covered area in the bullpen in a standing position," while "Case Worker Garcia had the come-a-long that was secured on Inmate Chapman's wrist, through the hatch of the bullpen." (Id. at 1.) The report states that Mr. Chapman then head-butted Sergeant LeDuc in the face, injuring the sergeant's lip. (See id.)²⁴ The report indicates that Sergeant LeDuc and others then took Mr. Chapman to the floor of the bullpen, placing him face down on his stomach. (See id.) A Nurse Porter examined Mr. Chapman and, finding no injuries, proceeded to cut Mr. Chapman's fingernails. (See id.) Mr. Chapman was then carried from the bullpen to "CU-B-16, "²⁵ where his restraints were removed and he was "secured." (Id.)

23 Mr. Chapman gave a statement, which is appended to the use of force report, wherein he indicated that he became violent after Sergeant LeDuc pulled the chain between Mr. Chapman's legs and against his groin, and stated that Sgt. LeDuc was "touching" him too much. (See Ex. 162 at 16.)

24 According to one officer's account, the head-butt occurred when "Inmate Chapman threw his head back and hit Sgt. LeDuc in the mouth." (Ex. 162 at 9.)

25 It appears that "CU-B-16" is the designation for Mr. Chapman's cell. (See Ex. 162 at 3.)

Mr. Chapman did not remember head butting anyone during this incident. (See Tr. at 270:18-22.) He also denied attempting to injure anyone with his fingernails or having long fingernails. (See Tr. at 271:10-22.) No one asked Mr. Chapman if he wanted his nails clipped or asked him to clip his nails; however, when a nurse entered and began to cut his nails, he told her not to do it and asked if he could cut his own nails. (See Tr. at 272:21-24; see also Ex. 71.) Mr. Chapman testified that the nurse did not examine his shoulder, though he asked her to do so. (See Tr. at 273:23-274:1, 277:23-25.)

My review of the videotaped portion of this incident yielded little helpful information; however, based upon the tape, I discredit Mr. Chapman's claim that the nurse refused to examine the plaintiff's shoulder. It appears that she did so as soon as the plaintiff asked her to. (See Ex. 71.) However, I note that contrary to the use of force report, this examination occurred after the fingernail clipping-not before. (Compare Ex. 162 at 1 with Ex. 71.) Also, the tape confirms that Mr. Chapman asked to be allowed to cut his own fingernails. (See Ex. 71.)

Mr. Chapman grieved this incident "all the way to Harold Clarke's office," but received a response not from Mr. Clarke, but from Mr. Hopkins. (See Tr. at 276:14-22; see also Exs. 29, 31.) Mr. Hopkins' responses to these complaints indicated that Mr. Chapman's comments regarding staff had been noted, (see Ex. 29), and advised Mr. Chapman to cease his aggressive behavior toward staff; contact the medical department if he felt he needed additional treatment; and cease sending duplicate complaints to different staff, (see Ex. 31).

Mr. Clarke testified that correctional officers are trained concerning the safe and proper use of force at the staff training academy. (See Tr. at 65:16-18.) He added that at each facility, the deputy warden is responsible to monitor the use of force-although the warden and Mr. Clarke have the ultimate responsibility of oversight. (See Tr. at 65:19-66:7.) Mr. Clarke stated that it may be appropriate to use force to cut an inmate's fingernails, but only if the inmate refused to cut his nails upon request. (See Tr. at 72:17-74:3.) When presented with the use of force report concerning the incident of November 19, 2001, and questioned about the fact that the document does not indicate that Mr. Chapman's fingernails were long or that Mr. Chapman refused a request that he voluntarily cut his fingernails, Mr. Clarke testified that he had no concerns about the incident and that he was not in a position to "second-guess those who made the decision." (See Tr. at 148:19-149:18.)²⁶ He also testified that he does not regularly review use of force reports such as Exhibit 162. (See Tr. at 145:16-146:1.) According to policy, the associate warden of custody, the head of security, the major in a facility, and the warden review the report. (See id.) The report is then sent to the assistant director of institutions in the central office for a further review. (See id.) However, the use of force report concerning the incident of November 19, 2001, was evidently not reviewed by the warden or by anyone at the central office. (See Ex. 162 at 2 (bearing no signatures on the appropriate lines); see also Tr. at 146:2-7.)

26 Mr. Clarke did not have any recollection of performing any personal investigation of the incident of November 19, 2001, involving the plaintiff and Sergeant LeDuc. (See Tr. at 81:6-11, 82:6-10; 131:18-21 See also Ex. 31 (indicating that the response to Mr. Chapman's complaint was signed by F. X. Hopkins for Harold W. Clarke).) Mr. Clarke stated that he does not make decisions concerning the use of a belly chain, nor did he direct any employee of DCS to place a belly chain on Mr. Chapman. (See Tr. at 131:8-13.)

Mr. Chapman requested medical attention after the November 19, 2001, incident. (See Tr. at 278:1-21; Ex. 17.) An incident report authored by a Corporal Lechtenberger on December 3, 2001, states that Mr. Chapman requested a pen and an inmate interview request form in order to "kite medical to check out the plain in his right shoulder and groin area." (Ex. 17.) This request was denied on the ground that Mr. Chapman was "on limited property stat[us]." (Id.) Mr. Clarke testified that although officers typically deny pens if inmates have been "combative," the officer will make the call to medical to have someone come and see the inmate. (Tr. at 102:8-15.) Further, Mr. Clarke stated that medical staff "tour" the unit daily," (Tr. at 102:15-21), and implied that inmates would be seen by medical staff if they shouted out for a doctor, (id. at 103:14-104:10). However, Mr. Hopkins responded to a Step Two grievance from Mr. Chapman, stating, "Medical staff visits the segregation units every day. While there they see the inmates who have submitted an inmate interview request." (Ex. 18 (emphasis added).) I am left with an impression that if Corporal Lechtenberger did not verbally forward the plaintiff's request for medical attention, there is some chance that the denial of Mr. Chapman's request for a pen and interview request form might have denied the plaintiff an opportunity to receive medical attention. (See Tr. at 103:1-104:10.) Mr. Clarke was aware of no evidence that Corporal Lechtenberger completed Mr. Chapman's request for medical aid on this occasion. (See Tr. at 102:22-25.) If Corporal Lechtenberger did not complete the request, Mr. Clarke said "he should at least be counseled." (See Tr. at 105:8:22.) Mr. Chapman testified that after he was denied the pen and paper, medical personnel did not see him for approximately one week. (See Tr. at 279:20-280:6.)

Evidence shows that Mr. Chapman did not begin receiving treatment for his shoulder until April 2002. (See Tr. at 278:1-21; see also Ex. 16.) An MRI exam was performed on or about April 29, 2002, which showed "[p]rominent hypertrophic changes at the right acromioclavicular joint, without acute tendinous injury identified." (Ex. 16 at 5.)²⁷ On June 10, 2002, a surgical procedure was performed on the plaintiff's shoulder, which included "[o]perative arthroscopy [of the] right shoulder with near anterior decompression," and "opened AC joint resection [of the] right shoulder." (Ex. 16 at 10.) After Mr. Chapman was returned to the prison facility, he experienced pain. (See Tr. at 280:14-16, 280:19-20.) He testified that he was not given the pain medication that had been ordered for him. (See Tr. at 280:18.) On or about June 11, 2002, Mr. Chapman filed an informal grievance about the staff's refusal to help him with his pain. (See Ex. 20.) The response states only, "Once again you have exceeded the amount of grievances you are allowed pursuant to the grievance correspondence limitation you have been placed on to cease your continuous abuses of the processes," and, "No response is forthcoming." (Ex. 20.)

27 "Hypertrophic" changes indicate an increase in bulk. Stedman's Medical Dictionary 857 (27th ed. 2000). The term "acromioclavicular" refers to the "articulation and ligaments between the clavicle and the acromion of the scapula." Id. at 18.

Mr. Kenney testified that he did not recall ever being informed that Lechtenberger refused to give Mr. Chapman a pen and paper to contact the medical department. (See Tr. at 473:1-5.) Furthermore, he testified that he did not ever tell anyone to deny Mr. Chapman a pen and paper to contact the medical department. (See Tr. at 473:6-8.) While certain of the plaintiff's allegations are troubling, his complaint is against Mr. Kenney, and there is no evidence that Mr. Kenney had any knowledge of or direct role in the November 19, 2001, use of force incident, the subsequent delay in the plaintiff's shoulder treatment, or any denial of pain medication. "To hold a supervisor liable under § 1983, a plaintiff must. . . show that the supervisor personally participated in or had direct responsibility for the alleged violations. . . . Or a plaintiff could show that the supervisor actually knew of, and was deliberately indifferent to or tacitly authorized, the unconstitutional acts."McDowell v. Jones, 990 F.2d 433, 435 (8th Cir. 1993) (citations omitted). The plaintiff has not made the proper showing, as a deputy warden was directly responsible for monitoring uses of force at the institution, and as there is no evidence that Mr. Kenney new of or participated in any of the incidents giving rise to the plaintiff's claims. Thus, Mr. Kenney cannot be held liable for damages arising from the use of force incident or the denial of treatment; nor can it be shown that he retaliated against the plaintiff by somehow causing the use of force or denial of treatment. The plaintiff's use of force and denial of treatment claims must be dismissed.

II. QUALIFIED IMMUNITY AND SOVEREIGN IMMUNITY

All defendants have been sued in both their individual and official capacities. (See Order on Pretrial Conference, filing 258, at Part B, ¶ 14.) The defendants have argued that they are entitled to qualified immunity to the extent that they are sued individually, and to sovereign immunity to the extent that they are sued in their official capacities. (See Order on Pretrial Conference, filing 258, at Part C., ¶¶ 51-52.)

A. Sovereign Immunity

It seems to me that the defendants in this case cannot be sued in their official capacities.

"Official-capacity suits . . . `generally represent only another way of pleading an action against an entity of which an officer is an agent.'"Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 n. 55 (1978)). In this case, therefore, the plaintiff's claims against the defendants in their official capacities "is, in all respects other than name, to be treated as a suit against the [State of Nebraska]." Graham, 473 U.S. at 165 (citing Brandon v. Holt, 469 U.S. 464, 471-72 (1985)). The Supreme Court has held that "absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court," and has emphasized that "[t]his bar remains in effect when State officials are sued for damages in their official capacity."Id. at 169 (citing Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464 (1945); Cory v. White, 457 U.S. 85, 90 (1982); Edelman v. Jordan, 415 U.S. 651, 663 (1974)). Thus, unless the plaintiff can establish that the State of Nebraska has waived its sovereign immunity or that Congress has overridden this immunity, his suit is barred to the extent that it names the defendants in their official capacities. It is well-established that the State of Nebraska has not waived its immunity from § 1983 suits in federal court. See Poor Bear v. Nesbitt, 300 F. Supp.2d 904, 913-14 (D. Neb. 2004) (citing cases). It is also well-established that "§ 1983 was not intended to abrogate a State's Eleventh Amendment immunity." Graham, 473 U.S. at 169 n. 17 (citing Quern v. Jordan, 440 U.S. 332 (1979); Edelman v. Jordan, 415 U.S. 651 (1974)). As a result, I conclude that the plaintiff's suit against the defendants in their official capacities is barred by the State's sovereign immunity.²⁸

28 This immunity may be avoided if a plaintiff seeks only injunctive relief. See Kentucky v. Graham, 473 U.S. 159, 169 n. 18 (1985) (citing Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984); Ex parte Young, 209 U.S. 123 (1908)); Puerto Rico Aqueduct and Sewer Authority v. Metcalf Eddy, Inc., 506 U.S. 139, 146 (1993). However, the plaintiff is not seeking injunctive relief, but is instead seeking damages or a declaration that the defendants violated the plaintiff's constitutional rights in the past. (See Order on Pretrial Conference, filing 258, at Part C, ¶ 49.) Therefore, this exception to the sovereign immunity doctrine is not applicable here. See Puerto Rico. Aqueduct and Sewer Authority, 506 U.S. at 146.

B. Qualified Immunity

The issue of qualified immunity generally ought to be resolved "at the earliest possible stage of a litigation." Anderson v. Creighton, 483 U.S. 635, 646 n. 6 (1987) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In this case, although the defendants did plead the defense of qualified immunity in their answer, (see filing 253), they did not move for a ruling on this defense prior to trial. "Although procedurally unusual, the qualified immunity defense is not waived or lost if a case proceeds to trial." Lampkins v. Thompson, 337 F.3d 1009, 1014 (8th Cir. 2003); see also Hill v. McKinley, 311 F.3d 899, 902 (8th Cir. 2002). Since the trial has been concluded, my rulings on the issue of qualified immunity will be similar to (if not the same as) rulings on the merits of the plaintiff's claims. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 546 n. 2 (1985) (Brennan, J., concurring in part and dissenting in part); Winters v. Adams, 254 F.3d 758, 768 n. 12 (8th Cir. 2001) (Bye, J., concurring in the judgment).

"The central purpose of affording public officials qualified immunity from suit is to protect them `from undue interference with their duties and from potentially disabling threats of liability.'" Elder v. R.D. Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982)).

Qualified immunity protects a governmental official from suit when his "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "What this means in practice is that whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.'" Wilson v. Layne, 526 U.S. 603, 614, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (internal quotations omitted). To determine whether an official is entitled to qualified immunity, we apply a two-part inquiry: "whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, . . whether that right was clearly established at the time of the alleged violation." Id. at 609, 119 S.Ct. 1692 (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)); see also Sexton, 210 F.3d at 909.

Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001). A right will be deemed "clearly established" at the time of the defendants' alleged wrongful conduct if "[t]he contours of the right [were] sufficiently clear that a reasonable official would understand that what he [was] doing violate[d] that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). However, before determining whether any right alleged to have been violated was "clearly established," I must first determine whether the plaintiff has shown that a defendant violated a constitutional right at all. See Saucier v. Katz, 533 U.S. 194, 201 (2001). 1. Access to the Prison Law Libraries

The plaintiff's first remaining claim is based upon allegations that Defendants Kenney and Crosby retaliated against him for filing lawsuits and writing grievances and complaints by denying him adequate access to the prison law library. It must be noted that the plaintiff's claim is not based upon allegations that the segregation unit library allocation procedures are unconstitutional; nor is there any evidence that any denial of library access resulted in an "actual injury" to the plaintiff. See Lewis v. Casey, 518 U.S. 343, 348-55 (1996). However, if the plaintiff were denied access to the law library in retaliation for filing lawsuits, the plaintiff's retaliation claim could be viable even if the denials of access did not amount to constitutional violations. See Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001) (citing Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990). "The violation lies in the intent to impede access to the courts." Id. (quoting Madewell, 909 F.2d at 1207 (emphasis omitted)). The Eighth Circuit has also held that an inmate cannot be disciplined in retaliation for filing a grievance. See Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); see also Cowans v. Warren, 150 F.3d 910, 911 (8th Cir. 1998).

There is evidence that on one occasion while housed at NSP, Mr. Chapman made a request for law library access that was not granted. (See Ex. 60;see also supra Part I.B.) The plaintiff did not testify that he provided the appropriate documentation with his request, although the plaintiff's grievance form concerning the matter states that this is true. (See Ex. 60.)²⁹ Conversely, Mr. Crosby testified that he never denied Mr. Chapman library time in retaliation for Mr. Chapman's grievances or lawsuits. (See supra Part I.B.) Mr. Crosby also testified that Mr. Chapman's requests for law library time were granted when supported by documentation, but were denied when Mr. Chapman failed to follow the request procedure. (See id.) I credit Mr. Crosby's testimony on these points. Furthermore, I find that the special security needs associated with scheduling segregation unit inmates' library access justify Mr. Crosby's strict adherence to the request procedure, and that Mr. Crosby's strict adherence to procedure does not establish that he harbored a retaliatory motive for denying Mr. Chapman's library requests. In view of these findings, I conclude that the plaintiff has failed to show that Mr. Crosby denied the plaintiff's law library request at NSP in retaliation for the plaintiff's lawsuits, grievances, and complaints.Cf. Goff v. Burton, 91 F.3d 1188, 1191 (8th Cir. 1996) (holding that to prevail on a § 1983 retaliatory transfer claim, plaintiff must show that "a desire to retaliate was the actual motivating factor behind the transfer.")

29 The response to the grievance indicates that Mr. Chapman did not provide documentation to support his library request. (See Ex. 60.)

There is no evidence that Mr. Kenney had any direct involvement in decisions to grant or deny Mr. Chapman's library requests. He was merely a "supervisor" in his role as warden of NSP. As I noted above, "To hold a supervisor liable under § 1983, a plaintiff must. . . show that the supervisor personally participated in or had direct responsibility for the alleged violations. . . . Or a plaintiff could show that the supervisor actually knew of, and was deliberately indifferent to or tacitly authorized, the unconstitutional acts." McDowell v. Jones, 990 F.2d 433, 435 (8th Cir. 1993) (citations omitted). The plaintiff has failed to make these showings.

I find, based upon a preponderance of the evidence, that the plaintiff's request for law library time at NSP was not denied by Mr. Kenney or Mr. Crosby in retaliation for the plaintiff's filing of lawsuits or grievances. As a result, I conclude that there has been no violation, and judgment shall be entered in favor of Mr. Kenney and Mr. Crosby on the plaintiff's "law library access" retaliation claim. 2. Forced Medication

The plaintiff's next remaining claim is based upon allegations that Defendants Elliot and Wallick medicated him involuntarily in violation of his due process rights on July 2, 2001, and that Defendant Severson involuntarily medicated him in violation of his due process rights on July 3, 2001.

Mr. Clarke testified that there is a DCS policy "that calls for a hearing and so forth when. . . medical practitioners are of the opinion that forced medication is necessary." (See Tr. at 43:18-20.) The specific language of this policy does not appear to be included in the evidence before me, and in any event it is undisputed that the policy was not followed in this case. Instead, the defendants claim that "emergency situations" are exempted from the DCS policy, and that the involuntary medication of Mr. Chapman on July 2-3, 2001, occurred under emergency circumstances. According to Mr. Clarke, DCS has no policy concerning emergency involuntary medical treatment, and staff receive no training on this matter. He stated that "licensed medical practitioners" are allowed to determine whether an emergency situation exists and whether conditions warrant the involuntary administration of psychotropic drugs. (See Tr. at 42:10-44:7.)

The Supreme Court has stated that an inmate "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment."Washington v. Harper, 494 U.S. 210, 221-22 (1990) (citing Vitek v. Jones, 445 U.S. 480, 491-94 (1980); Youngberg v. Romeo, 457 U.S. 307, 316 (1982); Parham v. J. R., 442 U.S. 584, 600-01 (1979)).³⁰ However, the State has legitimate interests in prison safety and security, and regulations that infringe on an inmate's constitutional rights may nevertheless be valid if the regulation is reasonably related to those interests. See id. at 222-25. The Court held that, "given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest."Id. at 227. Thus, these are the "factual circumstances [that] must exist before the State may administer antispychotic drugs to [a] prisoner against his will": (1) the prisoner must have a serious mental illness; (2) the prisoner must be dangerous to himself or others; and (3) the administration of the drugs must be in the prisoner's medical interest.Id. at 220; see also id. at 227. After identifying these "factual circumstances," the Court proceeded to determine "whether the State's nonjudicial mechanisms used to determine the facts in a particular case are sufficient." Washington v. Harper, 494 U.S. 210, 220 (1990). After balancing the private interest at stake, the government's interest, and the value of procedural requirements, the Court concluded that in order to "ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous," the following procedural safeguards were necessary: (1) the decision to forcibly medicate must be made by an independent decision maker; (2) the inmate has the right to be present at an adversary hearing called to determine whether the medication should be given; (3) the inmate has the right to prior notice of the hearing and of the factual basis underlying the decision to medicate; and (4) the inmate has the right to present and cross-examine witnesses. See Harper, 494 U.S. at 215-16, 228-29, 233, 235.

30 In Washington, the Court considered "antipsychotic drugs" to be a synonym for "psychotropic drugs." Washington v. Harper, 494 U.S. 210, 214 (1990). I shall do so here as well.

The defendants submit that in an emergency, an inmate's interest in avoiding involuntary administrations of drugs is overridden, and the inmate is not entitled to any of the procedural due process protections set forth in Harper. (See Defs.' Trial Br. at 6-7.) It is true that Harper did not address the involuntary medication of an inmate in an emergency. Therefore, I must determine whether the defendants are correct that no due process protections need be afforded in an "emergency," and, if so, what circumstances justify overriding an inmate's right to procedural protections.

The defendants first refer me to Lombardo v. Stone, No. 99 CIV 4603, 2001 WL 940559 (S.D.N.Y. 2001), an unpublished opinion wherein a patient at a psychiatric facility was involuntarily medicated after violently attacking a staff member. The court concluded that the plaintiff's due process claim must be dismissed, stating, "In defendants' professional medical judgment, plaintiff was dangerously and unpredictably assaultive throughout the period of medication. . . . Such judgment is entitled to a presumption of correctness, . . especially where there is no evidence that defendants were not appropriately reacting to an emergency situation in giving plaintiff mild, non-psychotropic sedatives such as Benadryl and Ativan." Id. at *10. Initially, I note that the evidence before that court apparently differs from that presented here, as Dr. Elliot testified that Ativan is a psychotropic drug. I also note that the court's claim that there was "no evidence that defendants were not appropriately reacting to an emergency situation" is not precisely accurate. The plaintiff maintained that he was not dangerous and alleged that the defendants fabricated an assault in order to justify his involuntary medication. See id. The court simply disregarded this evidence as "conclusory" and instead afforded the defendants' testimony "a presumption of correctness." Id..³¹ More importantly for present purposes, the court concluded that administering medication involuntarily to a dangerous patient in an emergency is consistent with the patient's due process rights. In support of this proposition, the court stated that the plaintiff's right to refuse medication was founded in a New York Code of Rules and Regulations provision, and noted parenthetically that the right was protected under the Due Process Clause as well. See id. The regulation cited by the court included a definition of "emergency":

31 The court relied upon Youngberg v. Romeo, 457 U.S. 307, 324 (1982), for the proposition that the defendants' judgment that conditions warranted the emergency administration of "sedatives" is entitled to a presumption of correctness. See Lombardo at *10. In Youngberg, the Court concluded that a person civilly committed to a state institution "enjoys constitutionally protected interests in conditions of reasonable care and safety, reasonably nonrestrictive confinement conditions, and such training as may be required by these interests." Id. at 324. The Court stated, "In determining whether the State has met its obligations in these respects, decision made by the appropriate professional are entitled to a presumption of correctness." Id. I do not believe that this holding remains applicable when an inmate's "significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment" is at issue. Washington v. Harper, 494 U.S. 210, 221-22 (1990). See also Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 280 (1990) ("Youngberg . . . did not deal with decisions to administer . . . medical treatment.") On the contrary, at least in "non-emergency" situations involving antipsychotic drugs, Harper makes clear that the relevant interests balance differently than they did in the context of the Youngberg decision, and that procedural safeguards must be in place to ensure that "the prisoner's interests are taken into account." Harper, 494 U.S. at 233. It remains to be determined what process is due in an emergency.

Emergency treatment. Facilities may give treatment, except electroconvulsive therapy, to any inpatient, regardless of admission status or objection, where the patient is presently dangerous and the proposed treatment is the most appropriate reasonably available means of reducing that dangerousness. Such treatment may continue only as long as necessary to prevent dangerous behavior.

Lombardo at *10. However, the court did not present an analysis of the question of whether this regulation was consistent with a patient's constitutional due process right to resist involuntary medication. Instead, the court merely cited two earlier unpublished decisions involving emergency administrations of medication. See id. (citing Doe v. Dyett, No. 84 CIV 6251, 1993 WL 378867 (S.D.N.Y. 1993); Odom v. Bellevue Hospital Center, No. 93 CIV 2794, 1994 WL 323666 (S.D.N.Y. 1994)). I have studied these cases, and in my view, neither of them presents a particularly helpful analysis of the procedural due process issue raised by the defendants.

Next, the defendants refer me to Hogan v. Carter, 85 F.3d 1113 (4th Cir. 1996). In Hogan, the plaintiff was "in the throes of an uncontrollable seizure for some three hours and was at risk of seriously injuring himself" when the decision was made to inject him with "a single, low, emergency dose" of "the antipsychotic drug Thorazine." Id. at 1114. The plaintiff had been "talking loudly" and kicking and banging his cell door with his fists in a manner that could result in injury.Id. It was noted that the plaintiff had himself requested Thorazine on previous occasions and that the drug was administered without side effect in the past. See id. at 1115. In ruling that the defendant was entitled to qualified immunity, the court stated, "The sole question before us, as it was before the district court and panel, is whether [the defendant] violated clearly established law. . . ." Id. at 1115. Thus, the court did not have before it the "first step" of the qualified immunity analysis, and had no cause to determine whether there was a deprivation of a constitutional right "at all." See Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001).³² Nevertheless, the court concluded that Harper did not extend to "emergencies." See Hogan, 85 F.3d at 1117.

32 The Eighth Circuit advises that the first step in a qualified immunity analysis is to determine whether a constitutional violation has occurred. See, e.g., Tuggle v. Mangan, 348 F.3d 714, 720 (8th Cir. 2003); Coleman v. Parkman, 349 F.3d 534, 537-38 (8th Cir. 2003); Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001). Indeed, the Supreme Court has stated,

A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.

Saucier v. Katz, 533 U.S. 194, 201 (2001) (citation omitted). Thus, I am not permitted to "skip ahead" without analyzing the question of whether the "emergency" administration of Ativan to the plaintiff amounted to a violation of a constitutional right.

Although the cases cited by the defendants are not especially helpful to their position,³³ I agree that Harper does not specify the process that is due an inmate who is involuntarily medicated with psychotropic drugs in an emergency situation. However, Harper does set forth the principles that must guide my analysis of this issue. It seems to me that in order to determine whether the plaintiff's constitutional rights were violated, I must attempt to define the contours of an emergency involuntary medication procedure that does not offend the substantive and procedural due process criteria set forth in Harper. (See supra note 32.)

33 The defendants also cite Wilson v. Chang, 955 F. Supp. 18 (D.R.I. 1997), which relies upon Hogan, and Davis v. Hubbard, 506 F. Supp. 915, 937-39 (N.D. Ohio 1980), a thorough opinion recognizing that a State is not required to conduct a hearing prior to acting in an emergency. The court held, "Where the patient thus presents an immediate danger to himself or others, the State may immediately deal with the danger as long as notice and a hearing follow as soon as possible." Davis, 506 F. Supp. at 939. Neither of these cases provide strong support for the defendants' argument.

As I noted above, Harper instructs that an inmate has a substantive right to avoid forced administrations of antipsychotic drugs, but that this right may be overridden if each of the following is true: 1) the inmate has a serious mental illness; 2) the inmate is dangerous to himself or others; and 3) the treatment is in the inmate's medical interest. Washington v. Harper, 494 U.S. 210, 227 (1990). The defendants have not suggested that these three "factual circumstances," id. at 220, need not exist before the State may administer a psychotropic drug to an inmate against his will in an emergency, and it seems to me that the existence of an emergency situation does not alter the justificatory function that is served by these facts. Indeed, I am aware of no case wherein any one of the three "substantive" criteria set forth in Harper was "overridden" by an emergency. Of course, it may be that these three criteria are not essential to justify involuntary administrations of non-psychotropic drugs, but that question is not before me.³⁴ In any event, I conclude that even under emergency circumstances, an inmate cannot be involuntarily medicated with psychotropic drugs unless the three critical factual circumstances specified in Harper and listed above are true.

34 I appreciate that there is some disagreement in the case law concerning the "psychotropic" nature of Ativan. Compare Lombardo v. Stone, No. 99 CIV 4603, 2001 WL 940559 at *10 (S.D.N.Y. 2001) (indicating that Ativan is a "mild, non-psychotropic sedative") with Kulas v. Valdez, 159 F.3d 453, 455 (9th Cir. 1998) ("Haldol and Ativan are antipsychotic drugs that work synergistically."). The evidence before me in this case leads me to conclude that Ativan is "psychotropic," though at DCS it is used as a "minor tranquilizer" rather than as a treatment for psychosis. (See Tr. at 377:8-14.) I note too that there is uncontradicted evidence that Mr. Chapman suffered unpleasant side effects for a number of hours after being injected with Ativan. (See supra Part I.D.) See also Washington v. Harper, 494 U.S. 210, 229-30 (1990) (discussing side effects of antipsychotic drugs). For the purposes of this case, I consider Ativan to be "psychotropic" or "antipsychotic" as those terms are used in Harper.

Although I have found that an inmate's substantive interest in avoiding the involuntary administration of a psychotropic drug is not altered in an emergency-and therefore the State cannot administer the drug unless the inmate has a serious mental illness, the inmate is dangerous, and the treatment is in the inmate's medical interest-it does not follow that theprocedural protections set forth in Harper may not be overridden in an emergency. As the Court stated in Harper, the task of deciding what procedural protections are necessary to protect a substantive right is distinct from the task of identifying the contours of the substantive right. See Washington v. Harper, 494 U.S. 210, 220 (1990) ("[T]he substantive issue involves a definition of th[e] protected constitutional interest, as well as identification of the conditions under which competing state interests might outweigh it. The procedural issue concerns the minimum procedures required by the Constitution for determining that the individual's liberty interest actually is outweighed in a particular instance." (quoting Mills v. Rogers, 457 U.S. 291, 299 (1982))). As I noted above, the Court concluded that the following procedural protections are required under the Due Process Clause to "ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous": 1) the decision must be made by an independent decision maker; (2) the inmate is entitled to notice of the intent to convene an involuntary medication hearing; (3) the inmate is entitled to be present at an adversary hearing; and (4) the inmate is entitled to present and cross-examine witnesses. See id. at 228, 233, 235; see also Doby v. Hickerson, 120 F.3d 111, 113 (8th Cir. 1997). As I also noted above, however, the Court was not required to consider whether these same protections must be afforded to an inmate in an emergency.

For present purposes, it is important to examine the means by which the Court identified the procedural protections that it deemed necessary to protect an inmate's substantive right to be free from involuntary administrations of antipsychotic drugs. The Court began its analysis of this issue by observing that "[t]he procedural protections required by the Due Process Clause must be determined with reference to the rights and interests at stake in the particular case." Washington v. Harper, 494 U.S. 210, 229 (1990). Specifically, the Court noted that the private interest at stake, the government's interest, and the value of procedural requirements must all be considered to determine the required procedural protections. See id. (quoting Hewitt v. Helms, 459 U.S. 460, 473 (1983) (citing Matthews v. Eldridge, 424 U.S. 319, 335 (1976))); see also Morgan v. Rabun, 128 F.3d 694, 699 (8th Cir. 1997) ("In determining what procedures are required under the Due Process Clause, we balance the private interest at stake, the risk of erroneous deprivation of such interest, and the governmental interests involved."). The Court found that an inmate's interest in avoiding involuntary administrations of antipsychotic medication is substantial, see Harper, 494 U.S. at 229-30, and therefore, even if a State attempts "to set a high standard for determining when involuntary medication with antipsychotic drugs is permitted," its scheme "cannot withstand challenge if there are no procedural safeguards to ensure the prisoner's interests are taken into account," id. at 233. Thus, in order to ensure that "the decision to medicate an inmate against his will is neither arbitrary nor erroneous," the "essential procedural protections" specified above must be afforded to the inmate. See id. at 228, 236.

It seems to me that exigent circumstances can alter the balance between an inmate's substantial interest in avoiding involuntary administrations of antipsychotic drugs, the State's interest in protecting its prison staffs and the inmates in its custody, and the value of procedural requirements, such that something less than all four of the safeguards specified in Harper is sufficient to ensure that an arbitrary or erroneous decision will not be made and that the State's interests will be protected. The notion that emergencies can affect the procedural protections afforded to those seeking to enforce substantive rights is hardly a revolutionary concept. See, e.g., Bowles v. Willingham, 321 U.S. 503, 520-21 (1944) (holding that war emergency limited due process rights); Goss v. Lopez, 419 U.S. 565, 582-83 (1975) (holding that students presenting a continuing danger or ongoing disruption to a school may be immediately removed, as long as the necessary notice and hearing follow as soon as practicable). It also seems to me that the specific procedural safeguards that ought to be provided to an inmate may vary depending upon the nature of the exigency. In other words, some emergencies may call for swift and immediate action by a single medical professional, while the circumstances surrounding other emergencies might allow the medical professional to confer with colleagues or witnesses or to otherwise gather information before administering antipsychotic medication.³⁵ Thus, some procedural safeguards might be appropriate in an emergency even though notice and a full adversary hearing would not be consistent with the State's interests and obligations. This too is not a revolutionary concept. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972) ("It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. . . . To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.").

35 In the case before me, the involuntarily medicated inmate was conscious and vocalizing his refusal to accept psychotropic medication, and there is no argument that he was not competent to refuse the treatment. Thus, I am not concerned with emergencies involving inmates who are physically or psychologically incapacitated.

With these principles in mind, I am confident that an inmate's substantial interest in avoiding unwanted administrations of antipsychotic drugs entitles him to, at a minimum, the following procedural protection even in the most dire of emergencies: the decision to administer psychotropic medication in an emergency may be made only by a qualified medical professional who has concluded, based upon his or her professional medical judgment, that the inmate has a serious mental illness, that the inmate is dangerous to himself or others, and that the administration of the medication is in the inmate's medical interest.See Washington v. Harper, 494 U.S. 210, 231-35 (1990) (indicating that the ultimate decision to medicate may be made by medical professionals);id. at 227 (setting forth the facts that permit the state to override an inmate's interest in avoiding the medication); see also Riggins v. Nevada, 504 U.S. 127, 134-35 (1992) ("Under Harper, forcing antipsychotic drugs on a convicted prisoner is impermissible absent a finding of overriding justification and a determination of medical appropriateness."). Furthermore, the full procedural protections afforded in non-emergencies as set forth in Harper must follow as soon as circumstances permit. Cf. Goss v. Lopez, 419 U.S. 565, 582-83 (1975); see also Davis v. Hubbard, 506 F. Supp. 915, 939 (N.D. Ohio 1980).

If there is no "emergency," then there can be no circumvention of the procedural rights afforded to inmates in Harper. It is therefore essential to identify the characteristics of an "emergency" that is sufficient to alter the balance between the inmate's and State's interests and justify foregoing Harper's procedural protections. It is also essential to couch these characteristics in terms that are clearly within the competence of a qualified medical professional to judge, since such professionals are the ones who must make the determination that an "emergency"-in the particular sense that the term is used here-exists. Guidance on this matter is not to be found in the laws or regulations of the State of Nebraska;³⁶ indeed, even Mr. Clarke admits that DCS has not attempted to define the term "emergency" for the purposes of the involuntary medication of inmates, even though it has apparently authorized medical professionals to circumvent its hearing procedure by determining that an emergency exists. Guidance on this matter is also not to be found in the parties' trial briefs. Nevertheless, my own research has led me to helpful authorities on point. For example, a federal regulation applicable "to persons in the custody of the Attorney General" provides, "During a psychiatric emergency, psychotropic medication may be administered [prior to a hearing] when the medication constitutes an appropriate treatment for the mental illness and less restrictive alternatives (e.g., seclusion or physical restraint) are not available or indicated, or would not be effective." 28 C.F.R. § 549.43. The regulation defines a "psychiatric emergency" as "one in which a person is suffering from a mental illness which creates an immediate threat of bodily harm to self or others, serious destruction of property, or extreme deterioration of functioning secondary to psychiatric illness." Id. Similarly, a South Dakota statute provides,

36 The Office of the Attorney General of the State of Nebraska has issued an opinion concerning "Involuntary Antipsychotic Medication Hearings," but it does not address "emergencies." Neb. Op. Att'y. Gen. No. 97064 (1997).

If it is ordered by a physician, psychotropic medication may be administered to a person in an emergency to prevent serious physical harm to the person or to others. Psychotropic medication may also be administered if the attending physician and one other physician determine that administration of the medication is necessary to prevent significant deterioration of the person's severe mental illness and that the person's potential for improvement would be permanently impaired if the treatment is not provided. Medication treatment may be continued for up to ten days. The reason for the treatment shall be documented in the patient's medical record.

S.D. Codified Laws § 27A-12-3.23. As far as I am aware, no court has concluded that the emergency involuntary medication procedures discussed in § 549.43 or § 27A-12-3.23 violate inmates' procedural due process rights. It seems to me that these sections accurately specify the sort of exigencies that override an inmate's right to the full array of procedural protections discussed in Harper.³⁷

37 In contrast, the Lombardo case cited by the defendants defines an "emergency" as existing when a patient is "presently dangerous." Lombardo v. Stone, No. 99 CIV 4603, 2001 WL 940559 at *10 (S.D.N.Y. 2001). This standard fails to define an exigency that justifies overriding an inmate's right, for if it cannot be shown that an inmate is dangerous, the factual circumstances necessary to justify an involuntary administration of psychotropic drugs simply do not exist. See Washington v. Harper, 494 U.S. 210, 220, 227 (1990). In other words, the definition of "emergency" must not simply restate the contours of the inmate's substantive right to refuse involuntarily administered psychotropic drugs set forth in Harper.

It is critical, I feel, to emphasize that emergencies may come in a variety of forms, and that it would be a mistake to define the contours of an emergency so narrowly that only the most dire situations qualify as "emergencies." If "emergencies" are limited to those situations that require instantaneous action, medical professionals would be constrained in their ability to exercise professional judgment. During some circumstances that could rightly be considered emergencies-such that there is no reasonable opportunity for notice and a hearing prior to the administration of treatment, given the balance of the relevant interests-a medical professional may nevertheless have an opportunity to perform some form of investigation. Medical professionals should not be forced to practice under the hovering threat that by taking a moment to review a chart, speak to witnesses of the inmate's recent behavior, or otherwise gather information to inform their judgment, a court will summarily conclude that there is no "emergency" and the inmate should have received notice and a full adversarial hearing. Conversely, inmates should not be subjected to the risks certain to arise if medical professionals choose to delay treatment until circumstances are dire or avoid taking steps necessary to inform their judgment out of fear that it will appear in hindsight that no emergency truly existed.

Although I believe that the treating medical professional's judgment concerning the urgency of the need to administer psychotropic drugs is entitled to weight, the decision maker must not fail to consider the inmate's interest in avoiding the medication. See Washington v. Harper, 494 U.S. 210, 233 (1990). If it is not apparent that the emergency is sufficient to justify circumventing an inmate's procedural rights, then additional procedural protections must be afforded to the inmate. These procedural protections may vary depending upon the circumstances of the emergency; however, it is critical that all reasonable steps be taken "to ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous" in view of the inmate's substantial interest in avoiding the medication. Id. at 228.

In sum, I conclude that under no circumstances may an inmate be involuntarily medicated with psychotropic drugs unless the inmate has a serious mental illness; the inmate is dangerous to himself or others; and the treatment is in the inmate's medical interest. Certain procedures must ordinarily be followed to determine these facts in order to protect an inmate's interest in avoiding unwanted psychotropic medication. However, emergency circumstances may override an inmates right to these procedural protections. Such emergencies arise when an inmate's mental illness "creates an immediate threat of bodily harm to self or others, serious destruction of property, or extreme deterioration of functioning secondary to psychiatric illness." 28 C.F.R. § 549.43. In such an emergency, an inmate is nevertheless entitled to have the decision to force psychotropic medication upon him made by a qualified medical professional. This professional may only order the medication after concluding, based upon his or her professional medical judgment, that the inmate has a serious mental illness; the inmate is dangerous to himself or others; the treatment is in the inmate's medical interest; the inmate's mental illness has created an "emergency," as I have defined the term immediately above; and less restrictive alternatives to the forced administration of psychotropic drugs are unavailable or would be ineffective. Even though the emergency circumvents notice, a full adversarial hearing, and deference to an independent decision maker, it does not follow that the "emergency decision maker" is free to act rashly. If circumstances permit, he or she should perform any investigation that is reasonably necessary to ensure that the decision to administer the medication will not violate the inmate's substantive right to avoid it-that is, each of the required medical judgments (the inmate has a serious mental illness, the inmate is dangerous, the treatment is in the inmate's medical interest, the mental illness has led to an emergency (as defined here), and less restrictive alternatives are ruled out)³⁸ must be made with as much certainty as is practical under the circumstances. This investigation may include consultations with other medical professionals, interviews with witnesses of the inmate's behavior, a review of medical records, an examination of the inmate, or any other appropriate inquiry. The fact that an opportunity existed to perform such an investigation does not mean that there was no emergency. The decision maker's professional medical judgment is entitled to weight; however, it must be clear that the inmate's substantive right to avoid the medication has not been trampled or ignored and that an emergency, as defined above, did exist at the time of the forced administration of the drug. Finally, as soon circumstances permit, the inmate must be afforded all of the procedural protections set forth in Harper.

38 A qualified medical professional, as I have used the term, is one whose medical training has provided him or her with the skills necessary to make each of these judgments with a reasonable degree of medical certainty.

In this case I am not called upon to evaluate the constitutionality of DCS's emergency involuntary medication "policy"-a term I use loosely given the fact that no definite policy or procedure exited-but only to determine whether an emergency existed when Mr. Chapman was forcibly medicated on July 2 and 3, 2001, such that his forcible medication was constitutional despite the fact that he was not afforded the essential due process protections set forth in Harper. After applying the foregoing principles to the evidence in this case, I conclude that no emergency existed when Mr. Chapman was forcibly injected with Ativan on July 2, 2001. No witness testified that an emergency warranted the injection administered on that date. Although the evidence shows that Mr. Chapman was yelling and agitated, he was not assaultive or physically violent, and he went willingly into five-point restraints upon his arrival at the hospital. His mental illness³⁹ did not cause him to present an immediate threat of bodily harm to himself or to others, and there is no evidence that he presented an immediate threat of serious property destruction⁴⁰ or risk of extreme functional deterioration. In view of the absence of an emergency, the plaintiff was not afforded the procedural protections necessary to ensure that his right to refuse the medication was not overridden arbitrarily or erroneously. See Washington v. Harper, 494 U.S. 210, 228-36 (1990). Therefore, it is clear that the forced injection on July 2, 2001, was administered in violation of the plaintiff's due process rights.

39 There appears to be no dispute that Mr. Chapman suffers from a serious mental illness, though this issue was not explored in detail during the trial.

40 I do not mean to suggest that, as a matter of law, feces-smearing behavior cannot ever support a decision that an immediate presents a threat of serious property damage. In this case, however, Mr. Chapman's behavior was confined to his segregation unit cell, and there is no evidence of any property damage. I find that Mr. Chapman's actions were manipulative rather than destructive in nature. More importantly for the purposes of establishing the existence of an "emergency," there is no evidence that the medication was necessary to prevent an immediate threat of serious property damage.

The July 3, 2001, injection was also not administered during an emergency sufficient to justify the circumvention of the procedural protections set forth in Harper. The evidence shows that Mr. Chapman was loud, abusive, spitting, and bit Mr. Wayman. However, Mr. Wayman admitted that he was not sure whether this bite was a serious attempt to cause injury or whether the plaintiff "was just trying to jerk around." (See Tr. at 354:25-355:5.) The plaintiff was loud because he was calling for a doctor, a corrections officer, someone from mental health, or for someone to bring him a kite to write a complaint, (see Ex. 6 at "CHB00036"), and Mr. Clarke and Dr. Elliot agreed that yelling of this sort would not justify an involuntary administration of drugs. Although the plaintiff remained agitated, continued to "escalate," and fought against his restraints,⁴¹ the evidence does not show that as a result of a mental illness, Mr. Chapman posed an immediate threat to himself, to others, or to property. Nor does the evidence show that Mr. Chapman was faced with an extreme deterioration of functioning secondary to his mental illness.

41 It must be borne in mind that the plaintiff was five-point restrained during the administrations of the medication on both July 2 and 3, 2001. Although serious injuries can occur to inmates so restrained, there is no evidence that the plaintiff was threatening to incur such injuries at any time.

Ms. Severson believed an emergency situation existed because "it's a very sad situation . . . to sit there and watch a human being escalate to the point to where they have no logical capabilities." (Tr. at 430:25-431:3.) Her opinion is entitled to weight. It is clear that Mr. Chapman was angry-even furiously so-and that Ms. Severson's attempts to "redirect" or calm Mr. Chapman were unsuccessful. It is also clear that Ms. Severson's intentions were to treat the plaintiff so that he could be released from the five-point restraints, which are rightly regarded as a serious intrusion upon an inmate's person. However, to the extent that Ms. Severson's opinion suggests that the plaintiff's mental illness was causing an extreme deterioration in functioning sufficient to justify an injection against his will, I cannot accept it. None of the evidence before me supports such an interpretation. Indeed, I cannot ignore the fact that Ms. Severson's supervisor, Dr. Elliot, testified that after reviewing the medical records, he could discern no "emergency" circumstances on either July 2 or July 3.⁴² I do not find it illogical or irrational that an inmate who remained in five-point restraints overnight and who had already received an injection against his will would be agitated, shouting for various people, complaining, and offering physical resistance to his restraints, particularly as he is being confronted with a second involuntary injection. Therefore, I credit Ms. Severson's opinion only to the extent that it suggests that the plaintiff was growing angrier and angrier and refused to calm down; the evidence does not show that he had "no logical capabilities."

42 None of the witnesses testified to their views concerning the general characteristics of an emergency that would justify forcibly medicating an inmate without a hearing. Therefore, I can only guess as to the criteria for an "emergency" that Dr. Elliot may have had in mind at trial.

I emphasize that my determination that no emergency existed on July 3, 2001, is not based upon evidence that Ms. Severson took investigative steps prior to administering the drug. On the contrary, I find that her efforts were consistent with the exercise of sound medical judgment and the best interests of her patient. Her investigation represented precisely the sort of effort that should not be deterred by the requirement of an "emergency" to circumvent the procedural protections that are otherwise owed to an inmate who refuses psychotropic medications.

The foregoing analysis represents my attempt to "set forth principles which will become the basis for a holding that a right is clearly established" in future cases, which the Supreme Court requires. See Saucier v. Katz, 533 U.S. 194, 201 (2001). I note, however, that even if I simply compare the "emergencies" described in the cases cited by the defendants to the facts of the instant case, I would nevertheless arrive at the conclusion that no emergency existed here. In Lombardo v. Stone, No. 99 CIV 4603, 2001 WL 940559 (S.D.N.Y. 2001), the first of the cases cited by the defendants in support of their argument that the plaintiff was medicated under emergency conditions, the patient was involuntarily medicated after violently attacking a staff member. The staff member was choked from behind until she lost consciousness. See id. at *1. It appears that the plaintiff in that case did not dispute the fact that his "emergency" involuntary medication after this assault was appropriate. See id. at *1, *10 n. 10. Although the facts are somewhat unclear, it seems that that plaintiff disputed subsequent involuntary administrations of drugs that may have occurred after he assaulted a second staff member, causing injuries that prevented the staff member from working for five months. See id. at * 3. The "emergency" circumstances in the Lombardo case are not analogous to the circumstances surrounding Mr. Chapman's involuntary injections on July 2 and 3, 2001. Similarly, in Hogan v. Carter, 85 F.3d 1113, 1114 (4th Cir. 1996), the plaintiff was described as experiencing an uncontrollable seizure for three hours, and it was found that he was at risk of serious injury. Again, the circumstances in the instant case are not analogous.

Finally, Wilson v. Chang, 955 F. Supp. 18 (D.R.I. 1997), also cited by the defendants, involved circumstances that were far more exigent than those presented here. Wilson contains the following description:

From all the testimony, it is clear what occurred on October 21, 1994, in the prison hospital area of the ACI. Plaintiff flew into a rage when defendant denied him an extra blanket for his cell in segregation. Plaintiff was then restrained by correctional officers and placed in a cell in the back room of the prison hospital near the defendant's office, for observation. Plaintiff was observed for about 15 minutes by defendant, who repeatedly returned to the area, and also by correctional officers. Plaintiff ran about the cell striking his head and other parts of his body against the walls and other objects in the cell. After plaintiff did not respond to defendant's request to calm down, defendant, aware of plaintiff's prior history of mental instability, made the decision to sedate him. Defendant had plaintiff restrained in the cell by correctional officers and injected him in the buttocks with a sedative. A second injection was administered in the same general area to counteract any possible adverse effects of the first injection. Plaintiff, in due time, calmed down and, after a few hours, was returned to his cell in segregation. He suffered no adverse effects or consequences from the injections.

Wilson, 955 F. Supp. at 19. In sum, the cases cited by the defendants do not convince me that emergency circumstances justified the involuntary administration of Ativan to Mr. Chapman absent the procedural protections set forth in Washington v. Harper, 494 U.S. 210, 215-16, 228-29, 233, 235 (1990).

Due to the absence of an "emergency" sufficient to justify circumvention of the procedural protections otherwise owed to the plaintiff-the contours of which I have defined above-the defendants' failure to provide the plaintiff with those protections prior to forcibly injecting him with a psychotropic drug amounted to a constitutional violation. See generally Washington v. Harper, 494 U.S. 210 (1990). However, it does not follow that the defendants are liable to the plaintiff for an award of damages. This is so because it is apparent that the contours of the plaintiff's right to procedural protections during an emergency administration of a psychotropic drug were not clearly established at the time of the defendants' actions.

To be clearly established the "contours of the right [allegedly violated] must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." "The official is not required to guess the direction of future legal decisions, . . . but may rely on preexisting case law for guidance." Our circuit subscribes to a "broad view" of what constitutes clearly established law; "[i]n the absence of binding precedent, a court should look to all available decisional law, including decisions of state courts, other circuits and district courts."

Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir. 2001) (citations omitted). There is no binding precedent that attempts to define the contours of an "emergency" that justifies the circumvention of the procedural protections set forth in Harper and Eighth Circuit case law.See Washington v. Harper, 494 U.S. 210, 215-16, 228-29, 233, 235 (1990);Doby v. Hickerson, 120 F.3d 111, 113 (8th Cir. 1997). Therefore, the defendants would be required to glean guidance from preexisting case law from other state courts, circuits, and district courts. While it would not be correct to suggest that emergency involuntary administrations of psychotropic drugs are unusual or have not been the subject of case law in other jurisdictions, I note that few cases published prior to July 3, 2001, attempt to define the contours of an "emergency" that performs the justificatory function of permitting a state to circumvent Harper, and those that do fail to provide clear guidance. See, e.g., Hightower v. Olmstead, 959 F. Supp. 1549, (N.D. Ga. 1996) (analyzing definition of the term "unsafe" for unconstitutional vagueness only); Threlkeld v. White Castle Systems, Inc., 127 F. Supp.2d 986 (N.D. Ill. 2001) (citing, but not assessing, state's definition of "emergency"). Still fewer cases attempt to set forth the process that is due to an inmate in an emergency.

In Dancy v. Simms, 116 F. Supp.2d 652 (D. Md. 2000), the court attempted to address "the question of what due process was required in emergency circumstances," which was not resolved in Harper. Dancy, 116 F. Supp.2d at 655. However, instead of relying upon the due process and balancing principles set forth in Harper to guide its decision regarding emergency injections, the court relied upon a set of pre-Harper decisions and stated, "Quite simply, the decision to administer antipsychotic medication over an inmate's objection comports with due process if the decision was made in the exercise of professional medical judgment and arose in the context of an emergency situation where the inmate posed a danger to himself or others." Id. at 655. Although the court clearly stated the process that it believed was due inmates who resisted emergency administrations of antipsychotic drugs, the decision provides no guidance to medical professionals concerning the characteristics of an emergency that could justify circumventing the procedural protections set forth in Harper-indeed, its description of a "legitimate emergency" as existing "where the inmate posed a danger to himself or others" does not define an "emergency" at all, but merely restates the contours of the inmate's substantive right to refuse involuntarily administered psychotropic drugs set forth in Harper. (See supra note 37.) I agree that the decision to medicate must necessarily be left largely in the hands of medical professionals exercising their judgment; however, these professionals must have some guidance regarding the specific medical decisions that they must make in order for the circumvention of the inmate's procedural due process rights to be justified.

My review of the decisions in other jurisdictions revealed that some courts have, in decisions predating the defendants' actions, provided analyses similar to that set forth by me. See, e.g., Steele v. Hamilton Co. Community Mental Health Board, 736 N.E.2d 10, 17-18 (Ohio 2000). However, in view of other decisions (such as Dancy) and the absence of binding precedent, I find that the contours of the emergency exception toHarper were not sufficiently clear that a reasonable person in the defendants' position would know that he or she was violating the plaintiff's rights. See Tlamka v. Serrell, 244 F.3d 628, 634 (8th Cir. 2001). As a result, I must conclude that Defendants Elliot, Wallick, and Severson are entitled to qualified immunity, and the plaintiff can recover no damages from them based upon his involuntary medication on July 2 and 3, 2001. 3. The Flooding Cell

In his next viable claim, Mr. Chapman alleged that he was placed in cells that suffered from severe flooding problems during rainfalls, which amounted to cruel and unusual punishment. He also claims that he was placed in the flooding cell in retaliation for filing lawsuits and writing grievances and complaints. In view of Mr. Clarke's dismissal from this action, these claims are alleged against Mr. Kenney alone.

"[T]he conditions under which [a prisoner] is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993). Prison conditions need not be "comfortable" to comply with the Constitution, but they cannot be "inhumane." Id. The Eighth Amendment is violated when "a prison official's act or omission . . . result[s] in the denial of `the minimal civilized measure of life's necessities,'" and resulted from "`deliberate indifference' to inmate health or safety." Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v. Seiter, 501 U.S. 294, 302-03 (1991)).

I find that, although cold water did indeed leak into the plaintiff's cell, "the totality of the circumstances" do not support a finding that the plaintiff was denied "the minimal civilized measure of life's necessities." Smith v. Copeland, 87 F.3d 265, 268-69 (8th Cir. 1996). Although the conditions were uncomfortable and unpleasant, and perhaps minimally stressful, I find that the plaintiff was moved from the leaking cell when conditions became threatening to health or safety. The preponderance of the evidence shows that conditions were not "sufficiently serious" to amount to an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).

In addition, I conclude that Mr. Kenney was not deliberately indifferent to Mr. Chapman's health or safety. "[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). It is true that Mr. Kenney was aware that the control unit roof was leaking, and that the plaintiff was, at one time, housed in a cell with a leaking roof. (See Tr. at 473:25-474:7; Ex. 35.) However, the evidence shows that Mr. Kenney investigated the plaintiff's complaints and determined that they were exaggerated. Specifically, Mr. Kenney responded to an "inmate interview request" written by Mr. Chapman as follows:

Sgt. Holmes denies he spoke with you in an unprofessional manner. Your allegation is unsubstantiated. U.M. Crosby moved you to a different cell to alleviate your concern relative to the roof leak in the Control Unit. The unit is scheduled for roof maintenance in the near future. It is also noted that you have filed several pieces of correspondence relating to this same concern. I remind you that filing repetitive or frivolous correspondence may warrant limitations being placed on your access to this type of correspondence to prevent you from abusing this process. If you have further concerns relative to the Control Unit or Control Unit staff, refer those concerns to U.M. Crosby for response is [sic] warranted.

(Ex. 35.) It is clear that Mr. Kenney did not draw an inference that Mr. Chapman was facing an excessive health or safety risk, and then simply disregard it. Therefore, he was not "deliberately indifferent" for the purposes of the plaintiff's "conditions of confinement" claim.⁴³

43 Mr. Crosby's initial refusal to investigate the plaintiff's complaints might present a closer question on the issue of "deliberate indifference." However, I note that Mr. Chapman is not seeking to hold Mr. Crosby liable for damages associated with his cell conditions, and therefore I have no occasion to determine whether Mr. Crosby's conduct amounted to an Eighth Amendment violation.

Even though there was no Eighth Amendment violation, Mr. Chapman's retaliation claim against Mr. Kenney may be viable if the evidence showed that Mr. Kenney placed the plaintiff in a leaking cell in retaliation for filing lawsuits or grievances. See Cody v. Weber, 256 F.3d 764, 771 (8th Cir. 2001) (citing Madewell v. Roberts, 909 F.2d 1203, 1206 (8th Cir. 1990); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. 1989); see also Cowans v. Warren, 150 F.3d 910, 911 (8th Cir. 1998). Mr. Kenney was not personally responsible for placing Mr. Chapman in any particular cell, nor was he personally responsible for arranging repairs to the control unit's roof. (See Tr. at 474:8-20.) On the contrary, it appears that Mr. Crosby was directly responsible for the plaintiff's housing conditions. (See Tr. at 460:13-462:6.) Therefore, I find that Mr. Kenney can only be held liable to the extent that supervisors may be liable under § 1983. As I have stated previously, "To hold a supervisor liable under § 1983, a plaintiff must . . . show that the supervisor personally participated in or had direct responsibility for the alleged violations. . . . Or a plaintiff could show that the supervisor actually knew of, and was deliberately indifferent to or tacitly authorized, the unconstitutional acts." McDowell v. Jones, 990 F.2d 433, 435 (8th Cir. 1993) (citations omitted). Since Mr. Kenney did not personally participate in the placement of Mr. Chapman in the leaking cell or have direct responsibility for his cell placement, Mr. Kenney can only be liable if he "actually knew of, and was deliberately indifferent to or tacitly authorized," the placement of Mr. Chapman in a leaking cell in retaliation for his lawsuits, grievances, and complaints.

The plaintiff has put forward evidence that in July 2002, Mr. Crosby and Mr. Edelman placed him in a leaking cell because he had been yelling for a legal call. (See Tr. at 165:20-167:11.) There is also evidence that Mr. Chapman was "verbally abused" by a sergeant for complaining about his leaking cell. (See Ex. 35.) This evidence is troubling. However, there is no indication that Mr. Kenney knew of the former incident. As to the latter, which, strictly speaking, does not entail a retaliatory cell placement, I find that Mr. Kenney was not deliberately indifferent to either the verbal harassment or the plaintiff's cell conditions-nor is there any indication that Mr. Kenney tacitly authorized the harassment or the cell conditions. (See Ex. 35.)

In view of the foregoing, I conclude that Mr. Kenney cannot be held personally liable for placing the plaintiff in a leaking cell in violation of his rights under the Eighth Amendment or in retaliation for the plaintiff's complaints, grievances, or lawsuits.

The plaintiff has failed to prove by a preponderance of the evidence that any defendant violated his clearly established constitutional rights. As a result, the defendants are entitled to qualified immunity on each of the plaintiff's claims. IT IS THEREFORE ORDERED that judgment shall be entered in favor of the defendants.