THOMAS v. BRYANT

n of fact which we review for clear error. See Farmer, 511 U.S. at 842, 114 S.Ct. at 1981; Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007); Fed.R.Civ.P. 52(a). "Whether a prison official had the requisite knowledge of a substantial risk is . . . subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842, 114 S.Ct. at 1981 (internal citations omitted).

The district court found that the record demonstrated that "DOC officials acted with deliberate indifference to the severe risk of harm Michael McKinney faced when officers repeatedly sprayed him with chemical agents at FSP for behaviors caused by his mental illness." Thomas, 2009 WL 64616, at *27. We have already established for purposes of the Eighth Amendment's objective injury requirement that McKinney's individual record contains ample evidence to support the district court's finding that because of his mental illness McKinney was unable to understand and comply with officers' orders during some of the periods in which he was sprayed with chemical agents. Furthermore, our review of the district court's voluminous uncontested factual findings as they relate to the defendants' deliberate indifference does not leave us "with the definite and firm conviction that a mistake has been committed." Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (internal quotation and citation omitted). Accordingly, the defendants have failed to satisfy their burden of demonstrating the district court's clear error.

As to the defendants' subjective knowledge of a risk of harm to McKinney, the record establishes both that the "frequent-flier" syndrome was well-recognized by DOC officials and staff and that it would have been obvious to DOC officials that McKinney was one such frequent-flier. See Thomas, 2009 WL 64616, at *6 ("The security and mental health staff who testified or gave statements were generally all familiar with this phenomena. . . ."). McKinney's individual inmate record demonstrates that between 2001 and 2007, he was transferred to UCI ten times for ongoing treatment and to the FSP infirmary seven times for various psychological emergencies. Id. at *15-17. On at least two such occasions he was reclassified as an S-5 or S-4 inmate. McKinney's record also demonstrates that after stabilizing treatment at UCI, he struggled to readjust to life on his FSP wing, and often returned to UCI or the infirmary for further treatment soon thereafter.

Former FSP and UCI psychiatrist Dr. Infante, former Warden James Crosby, former FSP and UCI medical director Tuong Nguyen, and former FSP Senior Nursing Supervisor Tina Battles all testified to their knowledge of the issue of frequent-fliers at FSP. Thomas, 2009 WL 64616, at *6. FSP's current lead senior psychologist Peggy Watkins-Ferrell, also testified that "on any given working day" one or two inmates are referred out of FSP for inpatient treatment. Id. at *8. Richard Stalder, the defendants' correctional expert, "was also of the opinion that the `frequent flier' syndrome represented a possible breakdown in care that should be addressed at higher levels." Id. at *7.

The record also demonstrates that DOC officials had subjective knowledge that the use of chemical agents may cause psychological harm to inmates with mental illness, especially frequent-fliers like McKinney. Nurse Battles testified that for a period of time, the DOC generated a list of inmates awaiting transfer to UCI for whom the use of chemical agents was contraindicated, but due to a change of warden the policy was discontinued. Id. at *6. Dr. Nguyen testified that during her tenure she had instructed DOC medical staff to review the charts of S-3 inmates to determine whether there were any mental health contraindications against the use of chemical agents. Id. at *7. Former FSP psychiatrist Donald Gibbs testified that based on his experience of treating inmates at FSP in 2003 and 2004, the use of chemical agents on mentally ill inmates exacerbated their symptoms. Id. at *4. Additionally, as discussed above, DOC policy provides that the first response to disturbances such as banging and yelling at UCI is mental health intervention; the use of chemical agents to quell a non-emergency disturbance at UCI is not permitted because of these inmates' psychological vulnerabilities. Id. at *5.

DOC recent policy reforms further demonstrate the DOC's subjective knowledge of the psychological harm chemical agents can cause frequent-fliers. UCI's new O-Dorm houses 114 S-3 inmates (approximately 15% of FSP's S-3 population) awaiting transfer from FSP to an inpatient facility and the new N-Dorm provides transitional housing for recently stabilized inmates returning from UCI to FSP. Id. at *10. Chemical agents are not permitted as a response to non-emergency disturbances at O-Dorm and may only be used at N-Dorm if a specially-trained crisis-intervention team deems it appropriate. Id.

McKinney's record, which demonstrated his frequent need for inpatient treatment and psychological screening due to a pattern of self-injurious behavior and suicidal ideations, put the DOC on notice that he was in a category of inmates whose mental health was "particularly fragile" and that "notwithstanding his S-3 designation, he was especially susceptible to decompensating." Id. at *26. Moreover, the record establishes that the named defendants also had subjective knowledge of a risk of harm specific to McKinney. FSP's former duty warden, George Sapp, testified that FSP officials meet daily to review the previous day's use-of-force logs in order to know "what was transpiring on the wings at all time and that force was being used appropriately." Additionally, the DOC's non-spontaneous use-of-force policy mandates that FSP's warden or, in his absence, duty warden authorize every non-spontaneous use of chemical agents. See Fla. Admin. Code r. 33-602.210(17)(n)(2)(b) ("[T]he shift supervisor shall . . . [c]ontact the warden or, in his or her absence, the duty warden and request authorization to utilize chemical agents."). Therefore, the named defendant, the Warden of FSP, would have subjective knowledge of the inmates on which chemical agents are being used. Given the frequency with which McKinney was sprayed with chemical agents, his incredible disciplinary history (which included 320 disciplinary infractions by the time of trial), his regular transfers between UCI and FSP, and his repeated episodes of self-injurious behavior, his name would certainly have stood out to the warden. See Thomas, 2009 WL 64616, at *26 (concluding the same as to plaintiff Thomas).

The district court did not specifically link its deliberate indifference finding to the named defendants, the Warden of FSP or the Secretary of the DOC. Our case law requires that plaintiff inmates prove the subjective deliberate indifference of the named defendants to prevail in their § 1983 lawsuits. Cook ex. rel. Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115-16 (11th Cir. 2005) ("Thus, to succeed on her § 1983 claim, Cook must establish that the Sheriff himself, as representative of Monroe County, was deliberately indifferent to the possibility of Tessier's suicide, since neither respondeat superior nor vicarious liability exists under § 1983."). However, the defendants have not challenged, either in the district court or on appeal, the deliberate indifference finding on this ground. Therefore, any such objection is deemed waived. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (citing the "long-standing rule in this circuit, as well as in the federal rules themselves, that issues not raised by a defendant in his initial brief on appeal are deemed waived").

Although the defendants have waived any challenge to the district court's failure to find the named defendants' subjective knowledge of a serious risk of harm to McKinney, the FSP warden's direct authorization of all non-spontaneous uses of chemical agents on McKinney probably would be sufficient to demonstrate his subjective knowledge, and certainly would be sufficient to withstand any argument that the district court's finding was clearly erroneous.

Additionally, as discussed above, the record also contains evidence that the Florida Correctional Medical Authority ("CMA") issued 2003-2004 and 2005-2006 Annual Reports expressing significant concern that chemical agents were being inappropriately used on inmates in close management settings resulting in chemical burns and the exacerbation of mental health symptoms. The 2003-2004 Annual Report made the specific recommendation to the DOC that it adopt the confrontation avoidance techniques used by the Federal Bureau of Prisons, which include an evaluation by a "designated mental health professional" prior to the use of chemical agents. The CMA's 2003-2004 Report on the Health Care Delivery of DOC reiterated this recommendation. This evidence supports the inference that DOC top officials and policymakers, which would include the Secretary of the DOC (the DOC's highest official), had subjective knowledge of the risks associated with using chemical agents on S-3 inmates without regard to their mental health histories as well as a possible means of addressing such risks.

Although the defendants have also waived any challenge to the district court's failure to link its deliberate indifference finding to the Secretary of the DOC, this evidence would have been strong evidence to demonstrate his subjective knowledge of a serious risk of psychological harm to inmates like Michael McKinney. Although many of the use-of-force incidents in McKinney's records predated the CMA's reports and recommendations, there were ten non-spontaneous use-of-force incidents between the years 2005 and 2007 occurring after the 2003-2004 annual reports were released.

The record also supports the district court's finding that the Secretary of the DOC and the Warden of FSP recklessly disregarded the risk of psychological harm to inmates like McKinney. Despite repeated notice from the CMA Reports of a risk of harm to inmates with mental illness, the DOC chose not to adopt their recommendation to take into consideration an inmate's mental health history, through a pre-use-of-force mental health consultation or some other means, prior to administering chemical agents. See Hope, 240 F.3d at 978-79 (relying on evidence that the Alabama DOC ignored a Department of Justice report on the constitutional infirmity of the use of the hitching post as a means of inmate discipline to support an inference that the DOC was aware of a substantial risk of harm and disregarded such risk). In light of the apparent feasibility of adopting some type of pre-force mental health consultation, as evidenced by the Federal Bureau of Prisons' use of such a procedure, and the CMA's efforts to highlight the seriousness of the problem of the improper use of chemical agents on mentally ill inmates, the DOC's refusal to modify its non-spontaneous use-of-force policy provides support for the district court's finding of more than mere or even gross negligence on the part of the DOC. See LaMarca, 995 F.2d at 1537 ("Mere knowledge of the infirm conditions persisting at [a prison] does not establish deliberate indifference. The plaintiffs must also demonstrate that, with knowledge of the infirm conditions, [the prison's superintendent] knowingly or recklessly declined to take actions that would have improved the conditions.").

The FSP Warden's reckless disregard of these same risks is also apparent in his continued authorization of the use of chemical agents in periods in which McKinney was sprayed repeatedly in short periods of time when his mental illness was most active. For example, chemical agents were authorized twice on a day in October 2003, only one day after McKinney had declared that he intended to hurt himself, and on the same day in which officers performed a cell extraction to search his cell. Thomas, 2009 WL 64616, at *15. Despite the authorization of three uses of force in the same day, one of which aimed at stopping McKinney from throwing his own feces, the use of chemical agents were again authorized four days later. Id. This incident of force immediately preceded McKinney's two most harmful incidents of self-injurious behavior, head banging and diving head-first off a flight of stairs, both of which resulted in serious head injuries. Id.

We note that "[t]hat the individuals now holding those offices may not be the same as those in office when this suit was commenced is immaterial for purposes of this appeal since the defendants were sued in their official, not their individual capacities, and it is only in their official capacities that they are constrained by the district court[.]" Gates, 501 F.2d at 1321.

Jeremiah Thomas's inmate record provides additional circumstantial evidence of the FSP Warden's deliberate indifference to a serious risk of psychological harm to frequent-fliers like McKinney. The record demonstrates that the authorization of the use of chemical agents without any regard for their prior use or their potential to cause serious harm to an inmate's mental health status was likely commonplace at FSP during the period of time in which McKinney was subjected to repeated uses of force. Like McKinney, Thomas attempted suicide and declared a psychological emergency immediately prior to the authorization of repeated uses of chemical agents in a short period of time. Id. at *13. Thomas was subjected to chemical agents on six of seven days in one week despite mental health and medical staff notes that he had not taken his medication and may be decompensating. Id. It took UCI psychologists six months to stabilize him following this week of repeated use-of-force incidents. Id.

Although McKinney only suffered serious psychological injury from the use of chemical agents, Thomas's record also demonstrates that DOC officials were aware that the repeated use of chemical agents on inmates with mental illness risked serious physical injury as well. During the week in which Thomas was subjected to six chemical sprayings, he consistently refused to take a decontaminating shower after each spraying. When he was evaluated by a nurse after two consecutive days of sprayings, she "found his skin was blistering and broken from chemical burns, he smelled of urine and was acting delusional." Thomas, 2009 WL 64616, at *25. Despite her observations, Thomas was subjected to chemical agents the following two days and suffered first to third degree burns on his back, abdomen, arms, and buttocks. Id. His burn injuries were so severe that DOC staff considered sending him to a special burn treatment facility. Id. The record demonstrates that McKinney also frequently refused decontaminating showers, and therefore was at risk for serious physical injury as well.

In sum, we cannot conclude that the district court was clearly erroneous in finding that the record demonstrates that "DOC officials turned a blind eye" to McKinney's mental health needs and the obvious danger that the use of chemical agents presented to his psychological well-being. Id. at *27. Turning a blind eye to such obvious danger provides ample support for the finding of the requisite recklessness. Even though there are ambiguities present in McKinney's record — his mental illness was often characterized by anger, maladjustment, and violence as opposed to psychosis, and many treating professionals found that McKinney suffered no acute impairment — an examination of his entire record demonstrates that the district court did not commit clear error in finding the defendants' deliberate indifference. Concluding that McKinney satisfied both the objective and subjective prongs of his Eighth Amendment conditions-of-confinement claim at trial, we affirm the district court's declaratory judgment in his favor and turn to the defendants' challenges to the district court's permanent injunction.

Additionally, to prevail on an Eighth Amendment claim brought pursuant to § 1983, a plaintiff inmate must also show a causal connection between the constitutional violation and his injuries. Marsh v. Butler County, Ala., 268 F.3d 1014, 1028 (11th Cir. 2001) (en banc). As to plaintiff McKinney, the defendants raise no challenge with respect to the requirement that § 1983 plaintiffs demonstrate a causal connection between the alleged constitutional violation and their injury. Their only causation argument raised on appeal is that Thomas's burns were not caused by the DOC but instead by his refusal to agree to a decontaminating shower. Thus, the defendants have waived any such challenge, and we need not address the probability that the district court did make either express or implied findings of causation.
In any event, McKinney has satisfied his burden as to causation. A § 1983 plaintiff may demonstrate causation either by establishing that the named defendant was "personally involved in the acts that resulted in the constitutional deprivation," LaMarca, 995 F.2d at 1538 (internal quotation and citation omitted), or by showing that the defendant instituted a "custom or policy that result[ed] in deliberate indifference to constitutional rights," Goebert, 510 F.3d at 1331 (internal quotation and citation omitted). "[S]upervisory liability for deliberate indifference based on the implementation of a facially constitutional policy requires the plaintiff to show that the defendant had actual or constructive notice of a flagrant, persistent pattern of violations." Id. at 1332. Both the FSP Warden's direct authorization of all uses of force and the routine application of the DOC's non-spontaneous use-of-force policy without regard to an inmate's mental health status satisfy § 1983's causation requirement.

C. Injunctive Relief

After finding that the repeated use of chemical agents on Thomas and McKinney violated the Eighth Amendment, the district court concluded that they were entitled to injunctive relief. Thomas, 2009 WL 64616, at *28-30. Thereafter, the district court invited the defendants to confer with the plaintiffs to reach an agreement on the injunction's proposed terms and/or to submit their own proposal for an injunction. The defendants refused to do so, and the district court was forced to enter its final permanent injunction against the defendants without their input as to what would constitute the most narrowly drawn relief remedying the identified harm. The defendants now challenge the district court's injunction.

To obtain a permanent injunction, a party must show: (1) that he has prevailed in establishing the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the violation of this right; (3) irreparable harm will result if the court does not order injunctive relief; and (4) if issued, the injunction would not be adverse to the public interest. KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268 (11th Cir. 2006); Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1128 (11th Cir. 2005). In addition to ensuring that injunctive relief was necessary under this standard, we must also ensure that the scope of the awarded relief does not exceed the identified harm. Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979) ("[T]he scope of injunctive relief is dictated by the extent of the violation established. . . ."); LaMarca, 995 F.2d at 1543 ("While district courts have broad discretion to fashion equitable relief, such relief must target the existing wrong."). In the context of prison litigation, we must also consider the requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626 ("PLRA"), which "establishes standards for the entry and termination of prospective relief in civil actions challenging prison conditions," Miller v. French, 530 U.S. 327, 331, 120 S.Ct. 2246, 2250, 147 L.Ed.2d 326 (2000). The PLRA mandates that injunctive relief is only appropriate where it is "narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(1)(A).

The defendants make several arguments on appeal to the effect that an injunction is not necessary. In addition, the defendants make two arguments that the injunction is unworkable, a conclusory argument that the injunction goes beyond the identified violation, and a conclusory argument that the injunction is overly intrusive.

i. Necessity of Injunctive Relief

We first address the defendants' arguments challenging the district court's conclusion that injunctive relief was necessary to remedy the identified constitutional harm. Four challenges to the necessity of injunctive relief merit our discussion. The defendants argue that: (1) McKinney is currently incarcerated at UCI, where he is not subject to the DOC's non-spontaneous use-of-force policy, and, therefore, the injunction targets speculative as opposed to imminent irreparable injury; (2) McKinney is unable to establish a "current and ongoing" violation of his constitutional rights under the PLRA; (3) recent reforms have obviated any risk of future injury; and (4) McKinney has an adequate remedy at law to remedy any further constitutional violation.

First, the defendants argue that because McKinney has been incarcerated at UCI since 2007, the injunction only regulates his future exposure to chemical agents in the event he is returned to FSP, the likelihood of which is far too speculative and remote to constitute a serious risk of continuing irreparable injury. Although the irreparable-injury requirement cannot be met absent a real or immediate threat that the plaintiff will be wronged again, City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 1670, 75 L.Ed.2d 675 (1983), it is also well-established that injunctive relief is appropriate "to prevent a substantial risk of serious injury from ripening into actual harm," Farmer, 511 U.S. at 845, 114 S.Ct. at 1983. In such circumstances, the irreparable-injury requirement may be satisfied by demonstrating a history of past misconduct, which gives rise to an inference that future injury is imminent. Kapps v. Wing, 404 F.3d 105, 123 (2d Cir. 2005) ("[W]here a history of legal violations is before the district court, that court has significant discretion to conclude that future violations of the same kind are likely."); Thomas v. County of L.A., 978 F.2d 504, 508 (9th Cir. 1992) ("A state law enforcement agency may be enjoined from committing constitutional violations where there is proof that officers within the agency have engaged in a persistent pattern of misconduct."); Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980) (an inmate "does not need to wait until he is actually assaulted before obtaining relief"). Thus, the fact that the underlying injunction only applies in the event that McKinney is transferred back to FSP, in itself, does not eliminate his need for protection from irreparable future harm. See Farmer, 511 U.S. at 850-51, 114 S.Ct. at 1986 (concluding that the fact that the petitioner had been transferred from an administrative segregation unit to the general prison population of a medium-security prison did not conclusively establish that there was no present threat of future injury so as to moot injunctive relief).

Additionally, despite the asserted absence of any present intention on the part of the defendants to return McKinney to FSP, the defendants stipulated at trial and have conceded on appeal that McKinney's return is indeed possible. In fact, the record establishes that the very purpose of McKinney's inpatient treatment at UCI is his stabilization and ultimate return to a non-therapeutic prison setting. See Thomas, 2009 WL 64616, at *6 (making the uncontested factual finding that the purpose of UCI's inpatient treatment of decompensated inmates is to stabilize them to S-3 status in order to transfer them back to their prior facility); id. at *14 (noting that the DOC's Consent to Inpatient Mental Health Care form (which was signed by McKinney on various occasions advises inmates that if they are transferred to an inpatient treatment center, "the length of stay in inpatient care will depend upon how quickly [their] condition improves, but is usually no longer than four (4) weeks in a Crisis Stabilization Unit, three months in a Transitional Care Unit, or four (4) days in a permanent institution infirmary")). Furthermore, as the district court noted, "during this litigation, just days after DOC announced that it had no present intention of returning certain plaintiff inmates back to FSP, the DOC transferred one of them back to FSP." Id. at *11. Notably, but for this litigation and the defendants' expert Dr. Hall's review of McKinney's inmate file in preparation for trial, which led to his most recent transfer to UCI, it is likely that McKinney would remain incarcerated at FSP today.

There are plainly exceptions to this generalization, as evidenced by plaintiff Thomas's lengthy stay at UCI following a week in which he was sprayed with chemical agents every day of the week save one, resulting in second and third-degree burns. See Thomas, 2009 WL 64616, at *13. Dr. Infante, the UCI psychiatrist who treated Thomas following these incidents, testified that "it seemed like forever" before she was able to stabilize him, and Thomas spent over six months in a crisis stabilization unit and almost nine months at UCI before he was returned to FSP. Id. It was only two days after his return that Thomas was again sprayed with chemical agents for causing a disturbance on his wing, and only one week until he was transferred back to UCI for treatment. Id. However, DOC policy establishes that lengthy UCI stays are not the norm, and Thomas's experience illustrates that even following months of treatment and a difficult stabilization process, the goal is for all inmates' ultimate return to their prior institutions.

In light of the record, which chronicles the many years in which McKinney experienced frequent psychological emergencies, cycles of decompensation and stabilization, and simultaneous sprayings with chemical agents, and the DOC's undisputed policy to return stabilized inmates to their original institution, the likelihood that McKinney will be returned to FSP and again subjected to the DOC's non-spontaneous use-of-force policy is neither speculative nor unlikely. Additionally, the DOC's historical treatment of McKinney gives rise to an inference of future irreparable injury justifying the entry of injunctive relief.

Second, the defendants make the related argument that McKinney's incarceration at UCI prevents him from establishing a "current and ongoing" violation under the PLRA. See 18 U.S.C. § 3626(b)(3) (providing that "[p]rospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right"). Although the defendants recognize that this provision of the PLRA governs termination proceedings (whereas we are reviewing the district court's initial entry of injunctive relief), they argue that the "current and ongoing" violation requirement should inform our inquiry here.

The defendants' only authority for this proposition is a statement made in dicta by the Ninth Circuit that "the standard for termination does not differ materially from the standard to be applied in deciding whether prospective relief is proper." Hallett v. Morgan, 296 F.3d 732, 743 (9th Cir. 2002). We are not persuaded that the Ninth Circuit's comment is apposite to this case; that comment was made in the different context of the court's review of a grant of a motion to terminate injunctive relief. Our circuit has previously recognized that the "current and ongoing" requirement is distinct from the standard governing the initial entry of injunctive relief. See Cason v. Seckinger, 231 F.3d 777, 784 (11th Cir. 2000) ("[A] `current and ongoing violation' is a violation that exists at the time the district court conducts the § 3626(b)(3) inquiry, and not a potential future violation."). Additionally, there is no indication in the PLRA, its legislative history, or the case law to suggest that the "current and ongoing" requirement was intended by Congress to amend the well-established law that injunctive relief is available in the first instance "to prevent a substantial risk of serious injury from ripening into actual harm," i.e., to prevent future harm. Farmer, 511 U.S. at 845, 114 S.Ct. at 1983. The PLRA's need-narrowness-intrusiveness limitation governs the initial entry of an injunctive relief in prison litigation cases. 18 U.S.C. § 3626(a)(1)(A). Whether there is a "current and ongoing" constitutional violation sufficient to avoid termination of the current injunction is a matter to be considered upon motion by either party in a termination proceeding, at least two years after the district court's initial award of relief. 18 U.S.C. § 3626(b)(3).

Third, the defendants contend that the DOC's recent reforms have rendered the awarded injunctive relief unnecessary. The defendants point to the additional training in assessing the behavior of inmates that is now provided to corrections officers working in close-management wings, the increase in mental health staff, and the DOC's discontinuance of the most harmful chemical agent previously employed at FSP. We have recognized that "[s]ubsequent events, such as improvements in the allegedly infirm conditions of confinement, while potentially relevant, are not determinative" of whether injunctive relief is no longer warranted. LaMarca, 995 F.2d at 1541. This is especially true "[w]hen a defendant corrects the alleged infirmity after suit has been filed," id., "for practices may be reinstated as swiftly as they were suspended," Gates, 501 F.2d at 1321. The defendants filed this lawsuit in September of 2004, and many of the relied-upon reforms were enacted as recently as July 31, 2008. See Thomas, 2009 WL 64616, at *28 n. 51. Thus, to rely on intervening events occurring after suit has been filed the defendants must satisfy the heavy burden of establishing that these such events "have completely and irrevocably eradicated the effects of the alleged violations." LaMarca, 995 F.2d at 1542 (internal quotation and citation omitted).

The district court noted that the record establishes that multiple policy reforms had been instated and subsequently discontinued by the DOC in the past decade. See Thomas, 2009 WL 64616, at *29. The DOC instated a universal policy that all uses of force be videotaped, only to subsequently provide a large exception for FSP. Id. The DOC also completely discontinued its prior practice of providing medical staff with a list of inmates at risk of decompensation from exposure to chemical agents. Id.

Although some reforms, such as the Osterback training intended to teach corrections officers to identify signs of acute mental illness, may have been in effect prior to suit, the defendants have not proffered any evidence to that effect. See Thomas, 2009 WL 64616, at *9 n. 28.

Although the DOC's recent reforms may represent affirmative responses to recognized deficiencies in its ability to address the needs of its growing mentally ill inmate population, see Thomas, 2009 WL 64616, at *9-11, the defendants have not established that they have eradicated the effects of the constitutional violations found by the district court. Indeed, there has been no substantial change to the crucial aspect of the non-spontaneous use-of-force policy that led to the constitutional deficiency found by the district court. See Fla. Admin. Code Ann. r. 33-602.210(17)(n), ( o). The policy still applies to all S-3 inmates, regardless of their mental health history. Nor has the DOC adopted the recommendations of the Florida Correctional Medical Authority to instate a pre-use-of-force mental-health evaluation for S-3 inmates. See Thomas, 2009 WL 64616, at *8. Also, the record calls into question whether the Osterback training has had any success in training corrections officers to differentiate symptoms of mental illness from pure recalcitrance. See id. at *9 n. 53 (summarizing testimony of Sergeant Keith Musselman, a correction officer receiving the Osterback training, who admitted to being unable to distinguish between recalcitrance and acute signs of mental illness, even after receiving the training). And Dr. Burns testified specifically that security staff would be unlikely to view McKinney's behavior as a symptom of acute mental illness because of his reputation of being "bad and disruptive." Id. at *26. Additionally, as the district court pointed out, the addition of transitional dorms for "frequent-flier" inmates transferred between FSP and UCI still leaves to the discretion of security staff monitoring the N-Dorm, which houses newly returned inmates to FSP, whether to use chemical agents or call mental health for consultation. Id. at *29. Furthermore, no recent reform addresses the lack of access of any corrections staff, whether trained in crisis intervention or not, to an inmate's mental health records. Id.

In light of the DOC's history of constitutional violations and its failure to give "any express assurance" that McKinney will not be exposed to the use of chemical agents merely because he is exhibiting symptoms of his mental illness in the future, these reforms are insufficient to eliminate the need for injunctive relief. See Offner v. Shell's City, Inc., 376 F.2d 574, 576 (5th Cir. 1967) ("In view of such past history and the failure of Shell's to give any express assurance that Offner will not be deprived of the services and facilities of the restaurant in the future, we cannot say that the case is moot."). Thus, the district court did not abuse its discretion in determining that the defendants failed to demonstrate that the DOC "would not return to its former, unconstitutionally deficient state." See LaMarca, 995 F.2d at 1541 ("[A] court may nevertheless grant injunctive relief unless the defendant shows that absent an injunction, the institution would not return to its former, unconstitutionally deficient state.").

Nor are we persuaded by the defendants' final argument that the injunction is unnecessary because McKinney already has an adequate remedy at law to address the violation of his rights. See U.S. Army Corps of Eng'rs, 424 F.3d at 1128. The plaintiffs already settled their damages claims against the individual officers utilizing chemical agents prior to trial. The underlying injunctive relief is designed to remedy not individual wrongdoing on the part of an officer but McKinney's continued exposure to the DOC's non-spontaneous use-of-force policy as a condition of his confinement at FSP. No remedy at law will provide protection for McKinney from this unconstitutional condition of confinement in the future, nor will any monetary relief protect against future irreparable injury. The defendants' suggestion that the plaintiffs wait until a future violation arises would result in unnecessary and costly duplicative litigation. In sum, the district court did not abuse its discretion in concluding that injunctive relief was warranted and necessary to remedy the identified violation of McKinney's Eighth Amendment rights.

ii. Workability, Scope, and Intrusiveness

The district court's permanent injunction reads as follows:

In the event that plaintiffs Jeremiah Thomas or Michael McKinney are placed in the Florida State Prison (FSP) Close Management (CM) wing, defendants Walter McNeil, as Secretary of the Florida Department of Corrections, and Randall Bryant, as Warden of the Florida State Prison, in their official capacities, are enjoined from allowing the nonspontaneous application of chemical agents to plaintiffs Thomas or McKinney without first consulting with DOC's trained mental health staff so that a mental health professional can determine whether the application of the chemical agents is dangerous to the inmate's wellbeing, likely to exacerbate the current crisis or whether, on account of mental illness, the inmate is currently unable to conform his conduct to comply with the directives being given to him by correctional staff. Once contacted, the mental health professional will use his or her professional judgment to determine whether the non-spontaneous use of chemical agents is contraindicated for that inmate at that time (similar to the prior consultations which now occur with medical staff before non-spontaneous application of chemical agents is permitted). If, after consultation, the mental health professional deems the use of chemical agents to be contraindicated, chemical agents may not be employed at that time.

Thomas, 2009 WL 605306, at *2. The defendants make two specific arguments that this injunction is unworkable and then make two conclusory arguments with respect to the scope and intrusiveness of the injunction. We first address their two specific arguments: that the injunction deprives the DOC of any means to "stop an undisputed danger to the prison and its employees" and mandates a "cell front" consultation that will blur the line between mental health analysis and security measures to the detriment of McKinney. These challenges to the workability of the district court's injunction are based on significantly mistaken premises.

First, contrary to the defendants' bald assertion that the injunction leaves them with no constitutionally permissible way to stop a disturbance endangering an officer or inmate, the injunction does no such thing. If there is an immediate danger, the injunction has no effect at all. The injunction addresses only non-emergency situations and only the DOC's non-spontaneous use-of-force policy. Even in such non-emergency situations — by definition allowing for time for the mental health consultation — the injunction leaves the ultimate decision as to the non-spontaneous use of chemical agents to the discretion of DOC personnel. The injunction merely requires participation of a mental health professional in that decision.

Second, the defendants assume that the injunction mandates cell-front mental health evaluations. This claim is puzzling, in light of the district court's express statement in its order awarding injunctive relief that the decision whether or not to use a cell-front procedure is left to the discretion of the DOC. See id. at *2 n. 4 ("This required prior consultation with mental health staff may or may not lead to the mental health professional going cell front to speak to the inmate. This is left to the judgment of the mental health professional and security staff in the given situation.").

Also related to the workability of the injunction is the defendants' assertion throughout their briefs that the non-spontaneous use of chemical agents on inmates is the least harmful alternative available to the defendants to respond to a prison disturbance. We also reject this assertion. The defendants compare the use of chemical agents to the allegedly much more dangerous use of physical cell extractions, which have resulted in inmate death in the past. In doing so, however, the defendants fail to recognize that there are less harmful means of administering chemical agents. As previously noted, the CMA has repeatedly recommended the inclusion of a pre-use-of-force consultation with mental health professionals. See Thomas, 2009 WL 64616, at *8. The Federal Bureau of Prisons has already adopted such a policy. See id. UCI functions without the routine use of chemical agents as a means of enforcing prison discipline; instead, mental health staff intervenes, using a technique similar to the district court's injunction. Id. at *5. Moreover, the UCI experience indicates that the cooperation between mental health and security staff occurs without implicating the defendants' stated concern that inmates will confuse doctors with corrections staff, creating an environment of distrust. Id. at *10.

Having rejected the defendants' specific challenges to the workability of the injunction, we turn next to their conclusory arguments that the injunction extends further than necessary to correct the violation and is overly intrusive. The defendants do not articulate any particular aspect of the injunction that they claim extends beyond the violation found by the district court or is overly intrusive. It is of course true that the case law has long established that the scope of an injunction should not exceed the identified violation. See Califano, 442 U.S. at 702, 99 S.Ct. at 2558; LaMarca, 995 F.2d at 1543. It is also true that the PLRA only permits the entry of injunctive relief that "is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(1)(A). The district court was keenly aware of these requirements and seemingly has fashioned a narrow injunction targeting the violation of McKinney's constitutional rights in a most non-intrusive manner. See Thomas, 2009 WL 605306, at *1. In light of the defendants' failure to articulate any specific deficiency in this regard, and in light of our observations below, we cannot conclude that the district court abused its discretion in fashioning the injunctive relief in this case.

Especially in light of the defendants' failure to assist the district court in fashioning the equitable relief in this case, we hold that all arguments relating to the underlying injunction not raised specifically by the defendants on appeal are deemed abandoned. For example, the defendants do not specifically argue that the district court erred by not making the required particularized findings that the proposed injunction satisfies the PLRA's need-narrowness-intrusiveness requirement. See Johnson v. Breeden, 280 F.3d 1308, 1326 (11th Cir. 2002) (reading § 3626(a)(1)(A) of the PLRA as requiring a district court to "discuss [the need-narrowness-intrusiveness] factors and enter findings that are as specific to the case as the circumstances permit"); Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998) ("[B]efore granting prospective injunctive relief, the trial court must make the findings mandated by the PLRA."). But see Gates, 376 F.3d at 336 n. 8 (holding that § 3626(a)(1)(A), unlike § 3262(b)(3), does not require such written findings). Because this issue is abandoned, we need not decide whether the district court's order satisfied our circuit's interpretation of § 3626(a)(1)(A).
In any event, the district court was clearly sensitive to the necessity to make the need-narrowness-intrusiveness findings. The court cited § 3626(a)(1)(A) and quoted its relevant language. The court lamented the defendants' refusal to assist the court with proposals for the injunction, noting that DOC officials would be in the best position to suggest the least intrusive means of remedying the constitutional violation. Then the court acknowledged that it nevertheless had a duty to fashion appropriate injunctive relief, obviously with reference to the needs-narrowness-intrusiveness requirement just quoted. Moreover, as indicated in the text below, the district court's order demonstrates that it plainly strove to satisfy those requirements in fashioning the injunctive relief awarded McKinney. Had the defendants objected in the district court to a failure to expressly articulate the need-narrowness-intrusiveness findings or argued that such express findings were required, it is clear from the record that the district court would have made these findings.

We first reject the defendants' conclusory argument that the district court's injunction extends beyond the identified constitutional violation. To the contrary, we conclude that its scope is exceedingly narrow. The district court held that the DOC violated the constitutional rights of only two inmates, and the injunction now, due to Thomas's death, governs the DOC's treatment of only one inmate out of thousands housed at FSP. The injunction also only targets the narrow constitutional violation identified by the district court. The district court did not hold that it is categorically unconstitutional to administer chemical agents on FSP inmates with diagnoses of serious mental illness. Nor is it categorically unconstitutional to administer chemical agents on FSP inmates with a history of transfers between FSP and UCI. Rather, it is only the repeated spraying of inmates with such profuse and pathological records of psychological distress — at times in that they were exhibiting undeniable symptoms of their mental illnesses rendering them unable to understand and comply with officers' orders — that violated the Eighth Amendment. Accordingly, the district court's injunction does not prohibit all non-spontaneous use of chemical agents on McKinney but merely requires that the DOC's trained mental health staff evaluate his psychological state prior to authorizing such force.

Moreover, the district court refrained from entering any system-wide relief protecting a broader class of inmates despite the CMA's recommendation that the DOC adopt some form of mental health consultation prior to a use of non-spontaneous force on all S-3 inmates. Compare Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir. 2001) ("The district court properly limited its injunction to a combination of prospective and retrospective relief granted to just six inmates, denying class-wide injunctive relief.") with Lewis v. Casey, 518 U.S. 343, 358-59, 116 S.Ct. 2174, 2183-84, 135 L.Ed.2d 606 (1996) (holding that system-wide relief was inappropriately tailored to protect against violations of one inmate's rights). In this regard, the injunction appropriately balances respect for the DOC's administration of its own affairs with the need to ensure that McKinney is not further subjected to the DOC's non-spontaneous use-of-force policy without regard for his mental health history or current mental state. In sum, we conclude that in addition to being closely tethered to the identified harm, the district court plainly adhered to the PLRA's requirements that injunctive relief be "narrowly drawn" and extend "no further than necessary" to correct the violation of a constitutional right. 18 U.S.C. § 3626(a)(1)(A).

We also reject the defendants' conclusory argument that the injunction is overly intrusive. Our review of the injunction's terms demonstrates that its terms are most non-intrusive and thus satisfy the PLRA's final requirement. The injunction leaves to the complete discretion of the DOC both how to conduct the required pre-use-of-force mental health consultation and whether the non-spontaneous use of chemical agents is ultimately appropriate. To ensure that the injunction does not excessively impede upon the DOC's internal administration, the district court borrowed language from the DOC's current policy requiring a medical consultation prior to the use of non-spontaneous force and an existing DOC regulation entitled "Use of Force with Mentally Disordered Inmates." Fla. Admin. Code Ann. r. 33-404.107(1). This regulation provides that in non-emergency (that is, "non-spontaneous") situations, force may be used on "those inmates with a diagnosed mental illness only as a last resort" except where "the use of force is less likely to result in physical injury to the inmate and staff." Id. In emergency situations in which there is an "imminent threat of bodily harm to the inmate or others," force may be used on inmates with mental illness, although "when time and circumstances permit, medical and mental health care staff shall be consulted to assess if the force to be used is dangerous to that inmate's well-being, or likely to exacerbate the current crisis." Id. Additionally, the DOC already requires a post-use-of-force evaluation. See Fla. Admin. Code Ann. r.33-602.210(17)( o)(5) ("Mental health staff shall evaluate the inmate not later than the next working day, to determine whether a higher level of mental health care (isolation management, transitional or crisis stabilization) is indicated.").

As the district court noted, the parties did not put on any evidence as to how this policy is currently implemented. Thomas, 2009 WL 64616, at *2 n. 9.

Furthermore, multiple experts, including Drs. Infante and Burns, as well as the former warden of FSP, Ronald McAndrew, all testified to the feasibility of a pre-use-of-force mental health consultation. And according to McAndrew the number of uses of chemical agents actually dropped dramatically during his tenure as a result of this intervention. Chase Riveland, the plaintiffs' correctional systems expert, also testified that many state prison systems — in addition to the Federal Bureau of Prisons — already require mental health intervention before chemical agents are used.

Finally, as the district court pointed out in its order, the injunction will require little to no additional expenditures on the part of the DOC, as it already employs a large number of mental health professionals on the close-management wings of FSP who could be available to assist in evaluating McKinney. Nor does the injunction require onerous continuous supervision by the court or judicial interference in running FSP. Cf. Lewis, 518 U.S. at 362, 116 S.Ct. at 2185 (vacating district court's injunction that was "inordinately — indeed, wildly — intrusive" because it micro-managed the minutiae of prison operations); LaMarca, 995 F.2d at 1543 (vacating injunction that detailed the methods by which the defendants must effectuate their policies of disciplining guards because it unnecessarily intruded upon the prison's operations). This injunction merely requires that the DOC post a notice of the injunction on McKinney's cell door, notify the district court and opposing counsel when McKinney is returned to FSP and of any non-spontaneous use-of-force on McKinney, and videotape all such incidents, as is already required under DOC policy. See Fla. Admin. Code Ann. r. 33-602.210(5)(b) ("The administration of chemical agents on an inmate creating a disturbance in his or her cell when the officer is attempting to resolve the situation without extracting the inmate from the cell will also be video recorded."). Far from abusing its discretion, the district court apparently went to great efforts to accommodate and complement the DOC's current regulatory structure despite the DOC's unwillingness to assist the court in fashioning the most appropriate relief.

There is one exception to this policy: videotaping is not required if an inmate stops his disruptive behavior at the sight of the video camera but then resumes it once the videotaping officers leave, a process referred to as "gaming" the system. Fla. Admin. Code Ann. r. 33-602.210(5)(b)(2).

In sum, creating an additional requirement that corrections staff consult with mental health staff prior to spraying McKinney with chemical agents adds but one layer to a long list of existing prerequisites to the use of non-spontaneous force at FSP that will at most affect only a few isolated decisions over the course of McKinney's future incarceration. See Gomez, 255 F.3d at 1130 (upholding the scope of an injunction that would at most affect "a few isolated decisions over the course of the[] inmates' sentences"). Accordingly, while "[c]onstantly mindful that the federal courts should not undertake to run the prison," we conclude that the remedial measures ordered by the district court neither require "burdensome implementation" nor are they "beyond the remedial jurisdiction of the district court." Gates, 501 F.2d at 1310. To the contrary, the district court's injunction merely constructs the "minimal foundation" for ensuring McKinney's future confinement at FSP does not run afoul of the Eighth Amendment. See id. For the foregoing reasons, we reject the defendants' arguments that the district court abused its discretion in entering the underlying injunction and uphold the district court's award of injunctive relief to McKinney.

IV. CONCLUSION

We conclude that the district court did not err in granting a declaratory judgment in favor of McKinney on his Eighth Amendment conditions-of-confinement claim. We also conclude that the district court did not abuse its discretion in entering the instant injunction. Accordingly, with respect to McKinney, the judgment of the district court is affirmed.

Due to his death, the injunction with respect to Thomas is vacated, and the matter is remanded to the district court with instructions to dismiss his motion for an injunction as moot. However, we grant the motion for substitution filed by Thomas's father in order to allow the district court to resolve Thomas's pending motion for attorney's fees.

AFFIRMED.