Jeremiah THOMAS, Michael McKinney, Plaintiffs-Appellees, v. Randall BRYANT, in his official capacity, Walter A. McNeil, Secretary, Department of Corrections, Defendants-Appellants, 614 F.3d 1288

ANDERSON, Circuit Judge: This appeal presents important questions concerning the intersection of the Eighth Amendment and the incarceration of inmates with serious mental illness. Ten inmates incarcerated at Florida State Prison (“FSP”) brought this § 1983 action against various officers and employees of the Florida Department of Corrections (“DOC”), alleging that the use of chemical agents on inmates with mental illness and other vulnerabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment.

After the plaintiffs settled their damages claims against the individual correctional officers responsible for administering the chemical agents, the district court held a five-day bench trial on their remaining claims for declaratory judgment and injunctive relief against the two defendants allegedly responsible for the policy which authorized the use of chemical agents on inmates at FSP: Walter McNeil, Secretary of the DOC, and Randall Bryant, Warden of FSP.

The district court entered judgment in favor of two of the remaining six plaintiffs, concluding that the repeated sprayings inmates Jeremiah Thomas and Michael McKinney received pursuant to the DOC’s non-spontaneous use-of-force policy violated the Eighth Amendment. Specifically, the district court concluded that Thomas and McKinney demonstrated that at times in which they were sprayed with chemical agents they were unable to conform their behavior to prison standards due to their mental illnesses such that the DOC’s use of force for purposes of prison discipline amounted to cruel and unusual punishment.

To remedy the violation, the district court permanently enjoined the defendants, in their official capacities, from allowing the non-spontaneous use of chemical agents on Thomas or McKinney without first consulting with the DOC’s trained mental health staff to evaluate their mental health status. Defendants McNeil and Bryant now appeal, challenging both the district court’s finding of an Eighth Amendment violation and the propriety of its permanent injunction. Four days before oral argument, in an unfortunate twist of events, plaintiff Thomas died in DOC custody.

Pending before our court is a timely motion for substitution filed by Thomas’s father, Máxime Jerome Thomas, to substitute his son’s interest in this suit. See Fed. R.App. P. 43(a) (providing for substitution of a deceased party on appeal).

Both parties agree that Thomas’s death renders moot the declaratory and injunctive relief awarded him by the district court. “Where a case becomes moot after the district court enters judgment but before the appellate court has issued a decision, the appellate court must dismiss the appeal, vacate the district court’s judgment, and remand with instructions to dismiss as moot.” Bekier v. Bekier, 248 F.3d 1051, 1055-56 (11th Cir.2001) (citing United States v. Ghandtchi, 705 F.2d 1315, 1316 (11th Cir.1983)).

However, although Thomas’s death deprives us of jurisdiction to determine the merits of his Eighth Amendment claim and the district court’s award of his injunctive relief, “[w]hen plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purposes of attorney’s fees for the district court litigation.” Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009).

We thus hold that Thomas may still be a “prevailing party” entitled to attorneys’ fees for the costs of the district court litigation notwithstanding his untimely death and the subsequent mootness of his lawsuit pending appeal. Accordingly, we vacate the district court’s judgment and permanent injunction as to Thomas but grant the pending motion for substitution in order to allow the district court to resolve Thomas’s motion for attorney’s fees.

The district court, in its discretion, may award fees to Thomas’s estate if it determines that Thomas “succeeded on any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989) (internal citation and quotation omitted). Our review of the instant suit is thus limited to the remaining live controversy between the defendants and plaintiff McKinney.

Our task is to determine whether the district court erred in concluding that the DOC’s non-spontaneous use-of-force policy, as applied to McKinney, violates the Eighth Amendment and whether its permanent injunction was both necessary to remedy the violation of McKinney’s rights and also properly tailored to the identified harm. Finding no error in the district court’s thorough conclusions of law and narrowly tailored injunction, we affirm. I.

BACKGROUND In September 2008, after four years of litigation, the district court held a five-day bench trial on the plaintiffs’ claims for declaratory judgment and injunctive relief. At trial, the district court had the benefit of hearing live testimony from thirteen lay and expert witnesses, the majority of which were officers and medical and mental health experts currently or formerly employed by the DOC. The district court also had the opportunity to view numerous exhibits, including video recordings of specific incidents in which DOC officers sprayed McKinney and other plaintiffs with chemical agents.

After trial, the district court entered a 75-page order in which it made extensive findings of fact and conclusions of law based on this evidence, which is reported in Thomas v. McNeil, No. 3:04-cv-917-J-32JRK, 2009 WL 64616 (M.D.Fla. Jan. 9, 2009). The first fifty pages of that order are dedicated to factual findings. The defendants’ appellate briefs do not expressly challenge any of these findings as clearly erroneous on appeal, and the defendants conceded at oral argument that they only intend to appeal the district court’s legal conclusions.

Thus, we adopt the district court’s uncontested factual findings as our own. For a comprehensive

summary of the facts underlying this case, as well as a detailed chronology of Michael McKinney’s individual inmate record, we refer the parties and future litigants to the district court’s opinion. See id. at *1-20. For purposes of this opinion, we recite only those facts essential to our disposition of this appeal, supplementing with additional facts contained in the record where necessary. A.

Florida State Prison and the DOC’s Non-Spontaneous Use-of-Force Policy At issue in this appeal is the constitutionality of the DOC’s non-spontaneous use-of-force policy as applied to McKinney during his incarceration on a close-management wing of FSP. FSP is a maximum security prison in Starke, Florida, that houses a large population of inmates with serious mental illness. Id. at *2. Close management refers to the administrative segregation of those inmates who demonstrate particular difficulty complying with day-to-day prison regulations. Id.

Each close-management cell is a completely enclosed nine-by-seven foot single cell, fortified with a solid steel door and containing a small window and a “food flap” for passing food, medication, and other items to the inmate. Id. The DOC’s non-spontaneous use-of-force policy permits corrections officers to release chemical agents, typically pepper spray, through the food flap of these cells as a means of disciplining disruptive prisoners who refuse to comply with prison regulations. Id. at *2-3.

Pursuant to this policy, corrections officers may administer chemical agents in three one-second bursts into the cell of a recalcitrant inmate in order to force the inmate to comply with the officer’s orders and to quell the underlying disturbance. Id. at *2. Non-spontaneous force, as the name implies, is premeditated force, i.e., force that is only available as a disciplinary tool after corrections officers have complied with a series of preliminary procedures.

These procedures include the requirement that an officer first confer with a direct supervisor, DOC medical personnel (though not mental health staff), and the Warden of FSP for authorization to use chemical agents in the particular instance on the specific inmate at issue. Id. at *3. In contrast, spontaneous force is available to corrections officers as an immediate means of controlling emergency disturbances such as prison riots, acts of self-mutilation, or threats of violence, which pose imminent harm to an inmate or an officer. Id. at *2 n. 10. The use of spontaneous force at FSP is not at issue in this case.

Inmates in DOC custody receive a mental health classification, ranging from S-l to S-6, upon entry into the system. Id. at *2. An S-3 classification is the highest-needs mental health classification that the DOC confines in a regular prison setting and at FSP. Id. S-3 inmates are prescribed psychotropic medications to regulate some moderate impairment in adaptive functioning due to serious mental illnesses such as schizophrenia, bipolar disorder, major depression, or schizotypal or borderline personality disorders. Id.

The DOC’s non-spontaneous use-of-force policy applies equally to all inmates housed at FSP, regardless of their mental health classification. Accordingly, all inmates on FSP’s close-management wings, including S-3 inmates diagnosed with serious mental illness, are subject to the application of chemical agents if they cause a disturbance or violate prison rules. Id. Prison rules governing FSP and other close-management wings prohibit banging or yelling from inside a fully-secured cell because such a disturbance may incite or disturb other inmates or prevent security from hearing an inmate in need. Id.

Inmates with higher S-grades are confined to therapeutic prison settings or psychiatric hospital facilities where they are not subject to the DOC’s non-spontaneous use-of-force policy. Id. One such facility is Union Correctional Institution (“UCI”), a DOC prison focusing on inpatient psychiatric care that houses S-3, S-4, and S-5 inmates and is adjacent to FSP. Id. at *5. At UCI, officers first respond to disturbances such as banging and yelling from within a cell by contacting mental health staff for counseling and medication adjustments as necessary. Id.

The district court heard significant trial testimony about the relationship between FSP and UCI and what both parties referred to as the “frequent-flier” syndrome. Frequent-fliers are those inmates who are cyclically shuttled back and forth between FSP and UCI when their mental illnesses become more active and their symptoms more pronounced, a phenomenon referred to at trial as “decompensation.” Id. at *4-8. Transfers to UCI often result in the reclassification of these inmates’ S-grade, intensive crisis stabilization, and an increase in or modification of their psychotropic medications. Id. at *6; 15-17.

Once these inmates are stabilized at UCI, they are returned to FSP, often to begin the cycle of decompensation anew. Id. at *6.

The district court found that record testimony on the frequent-flier syndrome demonstrated that “an inmate’s mental health designation may transition from one level to another” and that “[t]his transition may be gradual or sudden.” Id. “When an S-3 inmate experiences this transition — decompensates—he may become confused, disorganized and disoriented, impacting his ability to follow orders because he has become preoccupied with internal thoughts and is rendered incapable of understanding or conforming to demands.” Id.

Thus, the district court found that “the record supports that there are (or at least have been) [close-management] inmates at FSP for whom the S-3 designation is no longer appropriate,” id. at *8, and that “some S-3 inmates manifest symptoms of mental illness which are indistinguishable to security staff (and sometimes even to mental health staff) from behaviors which appear to be willful recalcitrance,” id. at *24.

Various witnesses testified that based on their observations some of these decompensated inmates have been sprayed with chemical agents for behaviors consistent with their mental illnesses, such as banging and yelling. Id. at *5. The district court also made significant factual findings regarding the effects of chemical agents on inmates with mental illness. The district court found that the use of chemical agents on FSP inmates may cause both physical and psychological injury beyond the short-lived intense physical pain, burning and gagging sensations, and disorientation intended by then-proper use. Id. at *4.

The district court found that further physical injury may occur “when ventilation is limited, when proper decontamination procedures are not timely followed, or when the person sprayed has a particular sensitivity to the product,” and testimony established that these problems with the administration of chemical agents were present at FSP. Id. The district court also found that “[i]t is clear from [the] record that psychological injuries may also be suffered by exposure to chemical agents,” which may include, as described by the plaintiffs’ correctional mental health expert Dr.

Kathryn Burns, “feelings of intense helplessness, fear of dying, attempts at suicide and exacerbation of other symptoms of mental illness.” Id. These uncontested factual findings form the backdrop from which the district court viewed, and we now view, Michael McKinney’s individual record. B. Michael McKinney’s Inmate and Mental Health Records McKinney’s inmate record and mental health files indicate the following. McKinney has been incarcerated in various DOC facilities for almost his entire adult life. Id. at *14.

He began serving his current life sentence for attempted first degree murder in 1989, at the age of 20. Id. His DOC inmate file reports that at age 16 he was identified as having only marginal intellectual functioning and propensities for anger and anti-social behavior. Id. By 2007, McKinney had over 320 disciplinary reports and a record the DOC’s psychological assessment team referred to as “pathological.” Id.

Throughout the course of his incarceration, McKinney has been diagnosed with various serious mental illnesses, including an adjustment disorder with a depressed mood, antisocial personality disorder, and major depression with recurrent psychotic ideations. Id. McKinney has a history of self-injurious behavior, including head banging, self-inflicted lacerations, drug overdoses, setting fires in his cell, and suicide attempts.

Between the years 2001 and 2007, McKinney was sprayed with chemical agents 36 times pursuant to the DOC’s non-spontaneous use-of-force policy for banging, kicking, yelling, throwing feces, or refusing to remove his arm from the food flap in his cell. Id. at *15-17. During this same time period, he was transferred to UCI ten times for ongoing treatment and to the FSP infirmary seven times for various psychological emergencies or short-term psychiatric care, some of which resulted in his ultimate transfer to UCI. While housed at FSP, McKinney was consistently classified as an S-3 inmate.

While in treatment at UCI, he was reclassified at a higher S-grade on at least two occasions, once as an S-5 inmate in March 2003 and once as an S-4 inmate in July 2007. Since July 31, 2007, McKinney has been incarcerated at UCI. While McKinney’s record demonstrates substantial periods in which he appeared to adjust relatively well to prison life at FSP, it is also full of many periods in which he chronically violated prison rules, experienced serious psychological emergencies, and suffered from frequent chemical sprayings.

Significantly, many of these chemical sprayings followed close on the heels of incidents demonstrating that his mental health status was deteriorating. Additionally, many of these chemical sprayings immediately preceded McKinney’s transfer to UCI or FSP’s infirmary. The year 2002 demonstrates the seriousness of McKinney’s mental illness and his difficulty coping with life on the close-management wing. That year he was sprayed with chemical agents six times for yelling, kicking, and/or beating on his cell door. Id. at *15.

On August 21, a few weeks after the last of the six sprayings, McKinney attempted to hang himself in his cell. Id. The DOC responded by sending him to the FSP infirmary with a diagnosis of major depression, where he remained until September 16 when he was transferred to UCI for three months of stabilization and treatment. Id. After he was released from UCI on December 16, McKinney only spent two days on his FSP wing until he returned to the FSP infirmary where he was diagnosed as suicidal, homicidal, bipolar, and psychotic. Id.

He was released again to his wing only to return to the infirmary again for eight more days of treatment. Id. His third return to his wing also failed; after three days, he returned to the infirmary for the entire month of January 2003. Id. We see similar evidence of McKinney’s psychological distress in the period from March to August 2003, as well as a close temporal relationship between the use of chemical agents and his transfers out of FSP’s close-management wing. During this period, McKinney was sprayed with chemical agents five times.

On March 5, he was sprayed with chemical agents on two separate occasions for yelling obscenities and kicking and beating on his cell door. Id. The following day, McKinney was found in his cell engaging in the unusual behavior of standing on and jumping off of his cell sink. Id. FSP doctors ordered corrections officers to use force to restrain him from continuing this behavior, and McKinney was transferred to the FSP infirmary’s isolation cell where he remained for a week before being transferred to UCI on March 13. Id.

At UCI, McKinney was reclassified from S-3 status to S-5 status and received inpatient treatment to re-stabilize his mental illness. Id. On May 25, during his treatment at UCI, McKinney set fire to his cell. Id. Subsequently, on May 29, after spending several days at UCI’s infirmary, UCI correctional staff sprayed McKinney with chemical agents in response to a disturbance in which he was screaming and making threats of hurting himself. Id. McKinney returned to FSP on June 6. Id. Only ten days later, he was sprayed with chemical agents, again for yelling obscenities and kicking and banging inside his cell. Id.

One month later, on July 15, he was again sprayed for the same behavior, and he was transferred to the FSP infirmary the following day. Id. From the infirmary, McKinney was transferred back to UCI for psychiatric observation and treatment until August 7, 2003. Id. Treatment notes from this stay at UCI report that McKinney stated that he “is doing well coping while here but does not know how he will cope at FSP because he believes he has to be on guard against unwarranted gassings.” Id. McKinney’s most serious incidents of self-injurious behavior occurred in October of 2003.

This period illustrating McKinney’s psychological distress, the use of chemical agents, and his transfer out of FSP for inpatient treatment began on October 6 when he declared a mental health emergency and told a psychological specialist he was going to hurt himself. Id. The following day, McKinney threw feces at an officer, to which corrections officers responded with the use of chemical agents. Id. Later that same day, McKinney refused to submit to restraints so officers could search his cell, resulting in a cell extraction. Id.

That evening, McKinney was sprayed with chemical agents again for yelling and kicking in his cell. Id. Four days later, on October 11, McKinney again refused to stop yelling and kicking in his cell and was sprayed with chemical agents for the third time in five days. Id. On October 13, two days later, correctional officers found McKinney banging his head on his steel bunk and cell door, which resulted in injuries requiring treatment at the FSP emergency room and his subsequent transfer to UCI. Id.

Treatment notes from this period indicate that McKinney “was having problems with staff spitting in his food and gassing him and he believes this will always be the same” and that “they gas him ... even if he does nothing.” Following two weeks of treatment, McKinney returned to FSP, only to be admitted back to the emergency room two days later after jumping down a flight of eight stairs, head-first. Id. The laceration he sustained on his head from the incident required seven staples to close, and McKinney reported that he wanted to kill himself. Id. He remained in treatment until November 2003. Id.

After this period, fewer incidents of such extreme psychological trauma occurred, but McKinney’s mental health record continued to demonstrate that he was at risk for suicide and self-injury. For example, from early February to early March 2004, McKinney was sprayed with chemical agents four times, and outpatient therapy reports indicate that he was adjusting poorly to confinement and experiencing suicidal ideations. Id.

Treatment notes record that McKinney was being referred to psychiatry for assessment of his suicide and self-harm risk and include the following statement demonstrating McKinney’s fear of chemical sprayings: “I need to be alert they gas me so often.” Similarly, in June 2004, McKinney was sprayed with chemical agents and then transferred to the FSP infirmary the next day for a psychological assessment. Id. at *16. McKinney consented to inpatient treatment at this time, admitting, “I can’t help myself.” Id. McKinney remained in the infirmary for five days until the examining psychiatrist, Dr.

Philip Springer, determined he could be released back to his wing. Id. In his notes, Dr. Springer reported that despite McKinney’s “fatigued appearance,” “agitated behavior,” “angry mood and affect,” “skewed perception,” and “poor insight and judgment,” he retained positive and healthy thoughts. Id. Contrary to Dr.

Springer’s assessment, McKinney was sprayed with chemical agents only four hours after his release back to his wing on June 21 for kicking, banging, and yelling obscenities, sprayed again on June 22 for the same behaviors, and transferred to UCI for one week of treatment immediately thereafter due to a risk of suicide or injury to self or others. Id. Treatment notes from this period record McKinney as stating, “I feel depressed most of the time.

Pm getting gassed.” Again, in the first six months of 2005, McKinney was sprayed four times with chemical agents, declared multiple psychological emergencies, admitted to suicidal ideations, set his cell on fire, and was diagnosed at least once with “acute symptoms which cannot be managed safely on an outpatient basis.” On April 3, McKinney wrote to DOC Health Services requesting inpatient counseling for depression and “thoughts of hurting myself.” In the letter, he noted that he had been gassed between 30 and 40 times.

During this period, McKinney was transferred back and forth from FSP to UCI twice and in May consented to being prescribed psychotropic medication. Id. Then, in May 2007, after a period of relative adjustment to life on the close-management wing, McKinney was transferred back to UCI, where he consented to being prescribed another psychotropic medication. Id. McKinney remained at UCI for treatment for seven weeks, and a July 2, 2007, treatment note indicates he was classified as an S-4 inmate at this time. Id. Four days later, McKinney returned to FSP. Id.

On July 25, he was then sprayed twice in the same day for refusing to remove his arm from his food flap. After both incidents, McKinney refused to leave his cell for a decontaminating shower, as he had on many past occasions. Id. Treatment notes indicate that McKinney exhibited agitated, hostile, oppositional, and defiant behaviors at this time and was unwilling to cooperate with any of the DOC employees conducting post-use-of-force examinations. Id. at *17.

However, treatment notes from the following day indicate that McKinney did not appear to be in crisis, exhibited no evidence of psychosis, but his use-of-force history demonstrated that he struggled to function in the FSP environment and was therefore referred to a supervisor for further assessment. Id. Soon thereafter, the record indicates that Dr. Hall, one of defendants’ experts, reviewed McKinney’s file in preparation for trial and generated an “emergency referral” to have McKinney removed to UCI. Id.

On July 31, 2007, McKinney was transferred to UCI due to his history of use-of-force incidents (five in the last four months), refusal to participate in case management or group therapy, refusal of medication, history of self-injurious behavior, poor adjustment to incarceration, and hundreds of disciplinary reports. Id. The assessment further stated that although McKinney’s thought processes were clear and coherent, he nonetheless had evidence of a formal thought disorder, marked by suspicious thoughts and paranoid features. Id. Dr.

Hall testified that while none of McKinney’s mental health evaluations indicated any acute impairment warranting referral to an inpatient unit, his long-established pattern of repeated conflicts, disciplinary reports and refusals to participate in treatment indicated that he needed a more structured and intensive setting for his mental health needs. Id. McKinney remains incarcerated at UCI at this time. C.

Recent DOC Reforms The district court also heard testimony at trial about recent reforms instated by the DOC in an attempt to address the general increase in the number of inmates with mental illness incarcerated nationwide and as a result of an earlier lawsuit addressing the conditions of confinement and delivery of mental health services for inmates housed on close-management wings throughout the State of Florida. Id. at *9-11. See Osterback v. McDonough, 549 F.Supp.2d 1337 (M.D.Fla.2008).

The defendants put forth this evidence in an attempt to demonstrate that even if the district court concluded that they violated the plaintiffs’ Eighth Amendment rights in the past, the DOC’s policies with respect to mental health services at FSP have evolved such that the plaintiffs no longer face a real risk of being subjected to an Eighth Amendment violation in the future.

These reforms include “the Osterback training,” which provides additional training for security staff working on close-management wings in order to teach these officers to recognize the signs and symptoms of the onset of acute mental illness. Thomas, 2009 WL 64616, at *9. There is also a new policy that now requires a post-use-of-force mental health evaluation of inmates subjected to a use of force within one day of the incident, excluding holidays and weekends. Id. An additional policy change provides new transitional housing for inmates being transferred between FSP and UCI. Id. at *10.

Inmates awaiting transfer to UCI housed in the new temporary O-Dorm may not be non-spontaneously sprayed with chemical agents, and those newly transferred back to FSP from UCI now spend 90-days in a transitional N-Dorm where they may only be non-spontaneously sprayed with chemical agents if security staff trained in crisis intervention deem it appropriate. Id. D.

Final Judgment On this record, the district court concluded that McKinney demonstrated that the repeated chemical sprayings he received pursuant to the DOC’s non-spontaneous use-of-force policy constituted cruel and unusual punishment, id. at *26-27, and that recent DOC reforms did not eliminate the risk that he would be unconstitutionally subjected to the policy in the future, id. at *28-30.

To remedy this Eighth Amendment violation, the district court issued a final injunction that enjoined defendants from allowing the non-spontaneous use of chemical agents on McKinney without first consulting with the DOC’s trained mental health staff to determine whether he is capable of conforming his conduct to the directives given by corrections staff. Thomas v. McNeil, No. 3:04-cv-917-J-32JRK, 2009 WL 605306, at *2-3 (M.D.Fla. March 9, 2009). II.

STANDARD OF REVIEW The defendants raise two issues on appeal: whether McKinney established an Eighth Amendment violation and whether the district court’s injunction was proper. Although we review the district court’s entry of a permanent injunction for an abuse of discretion, the district court’s underlying legal conclusion — that there was an Eighth Amendment violation warranting equitable relief — is reviewed de novo. Common Cause/Georgia v. Billups, 554 F.3d 1340, 1349 (11th Cir.2009). Subsidiary issues of fact are reviewed for clear error. Id. III.

DISCUSSION The Eighth Amendment’s prohibition against cruel and unusual punishment, applicable to the State of Florida through the Due Process Clause of the Fourteenth Amendment, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), prohibits the “unnecessary and wanton infliction of pain,” Hudson v. McMillian, 503 U.S. 1, 5, 112 S.Ct. 995, 998, 117 L.Ed.2d 156 (1992). In the prison context, three distinct Eighth Amendment claims are available to plaintiff inmates alleging cruel and unusual punishment, each of which requires a different showing to establish a constitutional violation.

Danley v. Allen, 540 F.3d 1298, 1306 (11th Cir.2008), overruled in part on other grounds, Randall v. Scott, 610 F.3d 701 (11th Cir.2010). The Eighth Amendment can give rise to claims challenging specific conditions of confinement, the ex-eessive use of force, and the deliberate indifference to a prisoner’s serious medical needs. Id.

Each of these claims requires a two-prong showing: an objective showing of a deprivation or injury that is “sufficiently serious” to constitute a denial of the “minimal civilized measure of life’s necessities” and a subjective showing that the official had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (internal citations and quotations omitted). Both of these inquiries are contextual.

Because the Eighth Amendment “draws its meaning from the evolving standards of decency that mark the progress of a maturing society,” the objective harm inquiry is contextual in that it is responsive to contemporary standards. Hudson, 503 U.S. at 8, 112 S.Ct. at 1000 (internal citation and quotation omitted). Additionally, what is necessary to show sufficient harm and what is necessary to show a sufficiently culpable state of mind varies with the type of Eighth Amendment claim at issue. Id. at 8-9, 112 S.Ct. at 1000.

For example, to make out a claim for an unconstitutional condition of confinement, “extreme deprivations” are required, whereas in the excessive-force context, contemporary standards of decency may be violated even where no significant injury is evident. Id. at 9-10, 112 S.Ct. at 1000. With respect to the subjective inquiry, in both prison conditions and medical needs cases, the relevant state of mind for purposes of liability is deliberate indifference. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991).

Excessive-force claims, however, require a showing of a heightened mental state — that the defendants applied force “maliciously and sadistically for the very purpose of causing harm.” Id. at 302, 111 S.Ct. at 2326 (citing Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986)). The district court evaluated the plaintiffs’ claims as a challenge to a condition of their confinement. The defendants raise the threshold argument on appeal that in doing so the district court applied the wrong Eighth Amendment standard.

We address this argument first before turning to an analysis of the defendants’ challenges to the declaratory judgment and injunctive relief awarded to McKinney. A. Governing Eighth Amendment Standard According to the defendants, because this case challenges the constitutionality of a use-of-force policy, which is employed by corrections officers to respond to a prison disturbance and for purposes of maintaining prison discipline, this case can only be properly characterized as a challenge to an excessive use of force.

Because Eighth Amendment claims alleging excessive force require a showing that the defendant acted “maliciously and sadistically for the very purpose of causing harm” — a higher standard than that governing Eighth Amendment claims alleging an unconstitutional condition of confinement — the defendants argue that had the district court applied the proper standard, McKinney would never have prevailed on the merits of his claim. While the defendants expended significant efforts briefing this issue on appeal, they failed to adequately preserve these arguments before the district court.

The defendants assert that they raised the argument that an excessive-force standard should govern the plaintiffs’ claims “well before final judgment” and that this was sufficient to preserve the issue for purposes of appeal. We disagree. Although the defendants technically raised this argument before final judgment, they also waited until after the district court’s five-day bench trial and after the district court’s entry of its 75-page findings of fact and conclusions of law to challenge the application of a conditions-of-confinement standard to the plaintiffs’ claims.

It was not until the defendants filed a post-trial motion to amend the district court’s findings under Fed.R.Civ.P. 52(

b) that they first argued that an excessive-force standard should exclusively govern the plaintiffs’ case. This last-ditch attempt at preservation is simply inadequate. See MCA Television Ltd. v. Feltner, 89 F.3d 766, 770-71 (11th Cir.1996) (holding that a defendant’s failure to raise a legal issue before or during his case at trial waived his right to pursue the issue on appeal); United States v. Millet, 559 F.2d 253, 257 (5th Cir.1977) (“This Court is of the opinion that raising this issue by way of a post-trial motion was so untimely as to amount to a waiver.”). See also Highlands Ins. Co. v. Lewis Rail Serv.

Co., 10 F.3d 1247, 1251 (7th Cir.1993) (“Lewis waived this argument by failing to raise this argument until its motion to reconsider.”); Am. Meat Inst. v. Pridgeon, 724 F.2d 45, 47 (6th Cir.1984) (concluding that by raising their severability argument for the first time in their motion for reconsideration, the defendants effectively waived this argument and “have no basis to assign failure to sever as an error on this appeal”). Accordingly, we decline to consider the defendants’ belated arguments now.

The defendants’ delay in raising this argument is particularly inexcusable in light of the ample notice the plaintiffs and the district court gave the defendants as to their intent to treat this case as a conditions-of-confinement challenge, not an excessive-force case. Despite this notice, the defendants repeatedly endorsed the use of a deliberate-indifference standard to analyze the plaintiffs’ equitable claims in their

summary judgment submissions, pretrial brief, and post-trial proposed findings of fact. In light of the defendants’ failure to assert the contrary, it is unsurprising that the district court concluded not only that the deliberate-indifference standard was the proper standard for analyzing the plaintiffs’ claims but also that the defendants effectively acquiesced in this conclusion.

Thomas, 2009 WL 64616, at *21 n. 42 (reasoning that where the challenge is against top DOC officials and challenges a prison’s “considered policy” regarding the use of non-spontaneous force on fully secured inmates with mental illness the heightened standard applicable to decisions made “in haste, under pressure, and frequently without the luxury of a second chance” was not appropriate (citing Whitley, 475 U.S. at 320, 106 S.Ct. at 1084) and noting that “Defendants have not suggested” otherwise).

In sum, the defendants’ attempt to raise this issue in a post-trial motion, regardless of whether that motion was submitted technically before final judgment, was insufficient to preserve it for appeal. It would subvert the orderly judicial process to permit the defendants to wait until after the presentation of the evidence, after the pre-trial and post-trial briefing, and after the district court had painstakingly concluded that the use of chemical agents on McKinney amounted to an unconstitutional condition of his confinement to request an entirely new lens through which to evaluate his claims.

Thus, we hold that the defendants waived any challenge to the district court’s use of the deliberate-indifference standard. We assume without deciding that the district court was correct in treating the plaintiffs’ claims as a challenge to a condition of their confinement and evaluate McKinney’s claim under this standard. B. McKinney’s Subjection to Chemical Agents as an Unconstitutional Condition of Confinement “The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones .... ” Farmer, 511 U.S. at 832, 114 S.Ct. at 1976 (internal quotation and citation omitted).

Thus, in its prohibition of “cruel and unusual punishments,” the Eighth Amendment requires that prison officials provide humane conditions of confinement. Id. However, as noted above, only those conditions which objectively amount to an “extreme deprivation” violating contemporary standards of decency are subject to Eighth Amendment scrutiny. Hudson, 503 U.S. at 8-9, 112 S.Ct. at 1000. Furthermore, it is only a prison official’s subjective deliberate indifference to the substantial risk of serious harm caused by such conditions that gives rise to an Eighth Amendment violation.

Farmer, 511 U.S. at 828, 114 S.Ct. at 1974 (quotation and citation omitted); Wilson, 501 U.S. at 303, 111 S.Ct. at 2327. The defendants assert on appeal that McKinney failed to satisfy both the objective and subjective components of his conditions-of-confinement claim. We begin with an analysis of the objective inquiry. In doing so, we are mindful that we must refrain from imposing our own theories of penology on the nation’s prisons and strive to inform our analysis with objective factors to the maximum extent possible. See Rhodes v.

Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (“Eighth Amendment judgments should neither be nor appear to be merely the subjective views of judges.”) (internal quotation and citation omitted); Chandler v. Crosby, 379 F.3d 1278, 1290 (11th Cir. 2004) (“As judges, we lack carte blanche to impose our own theories of penology on the nation’s prisons.”) (internal quotation and citation omitted). i.

Extreme Deprivation The district court concluded that McKinney’s subjection to the DOC’s non-spontaneous use-of-force policy amounted to an extreme deprivation satisfying the Eighth Amendment’s objective injury requirement. Thomas, 2009 WL 64616, at *24, *27.

More specifically, the court concluded that it was an extreme deprivation of McKinney’s constitutional right to humane prison conditions for FSP officers to repeatedly spray him with chemical agents in order to enforce prison regulations with which McKinney had no capacity to comply due to his mental illness with the result that these sprayings caused him “lasting psychological injuries.” Id. at *22-24, *27. We review the district court’s factual findings for clear error and its legal conclusions de novo. Common Cause/Georgia, 554 F.3d at 1349. “Clear error is a highly deferential standard of review.” Holton v.

City of Thomasville Sch. Dist., 425 F.3d 1325, 1350 (11th Cir. 2005). “[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (internal quotation and citation omitted).

Whether the record demonstrates that McKinney was sprayed with chemical agents at times in which he had decompensated (i.e., at times when he was unable to understand and comply with officers’ orders because of his mental illness) and that he suffered psychological injuries from such sprayings are questions of fact. Whether these deprivations are objectively “sufficiently serious” to satisfy the objective prong, Farmer, 511 U.S. at 834, 114 S.Ct. at 1977, is a question of law we evaluate based on “evolving standards of decency,” Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399.

We balance these standards of decency against prison officials’ need to keep the prison safe. Hope v. Pelzer, 240 F.3d 975, 979 (11th Cir.2001), overruled in part on other grounds, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). “However, an infliction of pain ‘without penological justification’ is considered to be ‘unnecessary and wanton.’ ” Id. We agree with the district court that McKinney has satisfied this objective standard.

The defendants challenge both the district court’s factual findings with respect to McKinney and its legal conclusion that the use of chemical agents in McKinney’s case satisfied the Eighth Amendment’s objective injury requirement.

With respect to the court’s factual findings, the defendants argue that “there is no evidence that [McKinney] was ever acutely mentally ill when sprayed” or that he “could not understand officers’ commands or control his actions each time he was sprayed with chemical agents.” With respect to the district court’s legal conclusion, the defendants argue that because chemical agents have been deemed the least harmful alternative among the options available to prison officials to respond to a prison disturbance their use can never constitute “unnecessary or brutal treatment in violation of the Eighth Amendment.” The defendants even go so far as to argue that the use of chemical agents, where administered properly, even when administered against a decompensated inmate, “do not exceed the normal discomfort of the prison environment.” We reject both of these arguments in turn.

First, with respect to the court’s factual findings, our independent review of McKinney’s record demonstrates that the court did not clearly err in finding that McKinney had decompensated at times that he was sprayed with chemical agents and that he suffered psychological injury from these sprayings. McKinney’s record demonstrates that he was sprayed with chemical agents pursuant to the DOC’s non-spontaneous use-of-force policy on 36 separate occasions between 2001 and 2007, when he was last transferred to UCI for inpatient treatment.

On all but two of these occasions, he was sprayed for causing a disturbance on his wing by yelling and/or kicking and beating his cell door or steel bed, behaviors which were identified at trial as consistent with and indicative of “an exacerbation of the mental illnesses from which S-3 and S-4 inmates suffer.” Thomas, 2009 WL 64616, at *5. On many occasions, McKinney exhibited unambiguous symptoms of decompensation immediately prior to these chemical sprayings.

McKinney’s record also demonstrates that he frequently displayed acute symptoms of his mental illness following chemical sprayings, which often led to his transfer to UCI or the FSP infirmary for treatment. For example, on March 5, 2003, he was sprayed with chemical agents, only to be found the following day engaged in the bizarre behavior of jumping off his cell sink, which led to his immediate transfer to UCI where he was reclassified as an S-5 inmate. Id. at *15.

On July 15, 2003, he was sprayed with chemical agents and transferred the next day to the FSP infirmary and then to UCI for weeks of psychiatric observation and treatment. Id. On October 6, 2003, McKinney warned a psychological specialist he was going to hurt himself, and yet officers sprayed him with chemical agents the following day on two separate occasions, once for throwing his feces and once for yelling and kicking in his cell. That same day, officers also performed a cell extraction to search his cell. Id.

Four days later, officers again sprayed McKinney with chemical agents, and two days later he exhibited extreme psychological distress, banging his head on his steel bunk and cell door, which resulted in his transfer to the emergency room and then to UCI for two weeks of treatment. Id. Although McKinney was theoretically stabilized at UCI during this treatment and deemed capable of returning to his FSP wing, he jumped down a flight of stairs two days after his return, resulting in a laceration requiring seven stitches. After this incident, McKinney expressed ongoing suicidal ideations. Id.

Similarly, in June 2004, McKinney was sprayed with chemical agents and then sent to the FSP infirmary the following day for a psychological assessment. Id. at *16. Four hours after his release to his FSP wing, McKinney was again sprayed with chemical agents, and the same behavior subjected him to a second spraying the next day. Id. Immediately following this spraying, he was transferred to UCI as a suicide or self-injury risk. Id.

Moreover, viewing McKinney’s record as a whole it is apparent that during the periods in which he was repeatedly sprayed with chemical agents he experienced frequent psychological emergencies, which included suicide attempts (by hanging on August 21, 2002), suicidal threats and ideations (May 29, 2003, September 6, 2003, February 2004, and June 2004), self-injurious behavior (jumping off his cell sink on March 6, 2003, setting fire to his cell on May 25, 2003 and May 16, 2005, head banging on October 13, 2003, and diving off a flight of stairs on October 29, 2003), and psychotic episodes (bouts at the FSP infirmary with diagnoses of being “suicidal, homicidal, bipolar, and psychotic” in December 2002 and receiving a mental health emergency diagnosis on May 16, 2005 that he was experiencing “acute symptoms which cannot be managed safely on an outpatient basis”).

McKinney’s record also provides repeated documentation of his fear of chemical sprayings, which impacted his ability to cope on the close-management wing and was his stated reason for refusing to accept psychotropic medication that could have helped stabilize his mental illness.

See id. at *15-16 (UCI treatment notes from July 2003 indicate that McKinney was “doing well coping while [at UCI] but does not know how he will cope at FSP because he believes he has to be on guard against unwarranted gassings”; UCI treatment notes from October 2003 indicate that McKinney believed he was “having problems with staff ... gassing him ... even if he does nothing”; March 2004 treatment notes indicate that McKinney refused to take medication because he needed to be alert because “they gas [him] so often”; UCI treatment notes from June 2004 indicate that McKinney felt “depressed most of the time” in part due to frequent gassings; April 3, 2005 letter from McKinney to DOC Health Services complained of frequent sprayings).

Additionally, McKinney’s record demonstrates that he was reclassified from S-3 status on at least two occasions during his treatment at UCI, once as an S-5 inmate in March 2003 and once as an S-4 inmate in July 2007. He was also transferred between FSP, the FSP infirmary, and UCI seventeen times during the five-year period between 2002 and 2007. Dr. Burns, the plaintiffs’ Correctional and Mental Health Expert and former Chief Psychiatrist for the Ohio Department of Corrections, also interviewed McKinney and reviewed his file in 2006. Id. at *18.

She testified that, based on his record, he was “likely symptomatic” on occasions when he was sprayed with chemical agents but that DOC staff was unable to recognize his symptoms because of their similarity with typical disruptions on the prison wing, resulting in his assessment as having poor adjustment to the wing as opposed to suffering from any acute impairment. Id.

Although the record testimony with respect to McKinney does not contain any unambiguous express assertion that he had decompensated at the time of any of these sprayings — such as the incompetency findings for purposes of disciplinary proceedings related to various use-of-force incidents contained in Thomas’s record, see id. at *12 — his record as a whole supports the district court’s factual findings.

In sum, we conclude that the district court did not clearly err in finding that McKinney was sprayed with chemical agents at times when he had no capacity to comply with officers’ orders because of his mental illness. See id. at *27. Nor did the district court clearly err in finding that these sprayings caused him “lasting psychological injuries.” Id. In light of these factual findings, we also readily conclude that the DOC’s repeated non-spontaneous use of chemical agents on McKinney constituted an extreme deprivation sufficient to satisfy the objective prong.

Although it is well-established that the use of chemical agents on recalcitrant prisoners is not per se unconstitutional, Danley, 540 F.3d at 1307 (“Pepper spray is an accepted non-lethal means of controlling unruly inmates[,] ... [and a] short burst of pepper spray is not disproportionate to the need to control an inmate who has failed to obey a jailer’s orders.”); Soto v.

Dickey, 744 F.2d 1260, 1270 (7th Cir.1984) (“The Supreme Court has never held, nor have we or any other court of appeals, so far as we can determine, that the use of tear gas or a chemical agent is a per se violation of the Eighth Amendment .... ”); Spain v. Procunier, 600 F.2d 189, 196 (9th Cir.1979) (“use of nondangerous quantities of [tear gas] in order to prevent a perceived future danger does not violate ‘evolving standards of decency’ or constitute an ‘unnecessary and wanton infliction of pain’ ”), there are constitutional boundaries to its use. See Gates v.

Collier, 501 F.2d 1291, 1304 (5th Cir.1974) (“[T]here is a line where solitary confinement conditions become so severe that its use is converted from a viable prisoner disciplinary tool to cruel and unusual punishment.”). The district court did not categorically condemn the DOC’s non-spontaneous use-of-force policy. Rather, the court found that McKinney’s well-documented history of mental illness and psychotic episodes rendered him unable to comply at the times he was sprayed such that the policy was “unnecessary” and “without penological justification” in his specific case.

This conclusion is in keeping with prior decisions of this court and other circuit courts of appeals, which have concluded that where chemical agents are used unnecessarily, without penological justification, or for the very purpose of punishment or harm, that use satisfies the Eighth Amendment’s objective harm requirement. See Danley, 540 F.3d at 1311 (holding that prolonged exposure to pepper spray due to a failure to properly decontaminate an inmate may form the basis of an Eighth Amendment claim); Iko v.

Shreve, 535 F.3d 225, 239 (4th Cir.2008) (use of additional bursts of pepper spray after inmate attempted to comply with officer’s orders and which possibly contributed to inmate’s asphyxiation and death sufficiently alleged objective component of excessive force claim); Soto, 744 F.2d at 1270 (“[I]t is a violation of the Eighth Amendment for prison officials to use mace or other chemical agents in quantities greater than necessary or for the sole purpose of punishment or the infliction of pain.”).

McKinney was subjected to chemical sprayings pursuant to a DOC policy that does not require a corrections officer or his superiors to review an inmate’s mental health records prior to authorizing the decision to use chemical agents on an inmate causing a disturbance in his cell. Thus, it is DOC policy that if an inmate has been classified as an S-3 inmate and lives in an FSP close-management wing, regardless of his mental health history, chemical agents are available for non-emergency use.

However, at the same time the record establishes that mental illness is fluid and that an inmate’s mental health status may deteriorate at any time, gradually or suddenly, causing him to “become confused, disorganized and disoriented” and “incapable of understanding or conforming to demands.” Thomas, 2009 WL 64616, at *6. Furthermore, the record establishes that security staff struggle to differentiate between an inmate’s willful noncompliance with prison rules and behavior that is a sign of acute impairment for which the person cannot be held entirely accountable. Id. at *9.

In light of these realities, as well as the impossibility of constantly monitoring an inmate for the possible need to reclassify his mental status, relying solely on an inmate’s S-3 status to determine whether the use of chemical agents is appropriate fails to take into consideration the fact that McKinney was no longer capable of conforming his conduct to prison regulations. “[I]f the inmate cannot understand the command and cannot comply with it, the force simply produces pain .... ” Id. at *23.

We agree with the district court that “if the DOC fails to account for an inmate’s decompensation, with the result that he is gassed when he cannot control his actions due to his mental illness, then the force no longer has a necessary penological purpose and becomes brutality.” Id. The DOC itself recognizes that the indiscriminate non-spontaneous use of chemical agents on decompensated inmates fails to advance its penological goals.

Aside from emergency situations in which there is a threat of immediate harm to an inmate or others, the DOC does not permit the use of chemical agents on inmates with S-4, S-5, or S-6 status or those receiving treatment in inpatient settings like UCI (which houses some S-3 inmates). Additionally, we agree with the district court that the “lasting psychology cal injuries” suffered by McKinney as a result of his subjection to repeated chemical sprayings at FSP are sufficiently serious injuries to satisfy the objective harm requirement.

McKinney need not have suffered lasting physical injury from the sprayings to subject DOC conditions to Eighth Amendment scrutiny. The case law establishes that “mental health needs are no less serious than physical needs” for purposes of the Eighth Amendment. Gates v. Cook, 376 F.3d 323, 332 (5th Cir. 2004). See Hope v.

Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 2514-15, 153 L.Ed.2d 666 (2002) (highlighting “taunting” and “humiliation” as circumstances which contributed to finding that handcuffing petitioner to a hitching post after “[a]ny safety concerns had long since abated ... violated the basic concept underlying the Eighth Amendment, which is nothing less than the dignity of man”) (internal quotation and citation omitted); Smith v.

Aldingers, 999 F.2d 109, 109 (5th Cir.1993) (reversing dismissal of Eighth Amendment claim because district court failed to consider whether purely psychological injury could constitute an Eighth Amendment injury); LaMarca v. Turner, 995 F.2d 1526, 1544 (11th Cir.1993) (affirming injunction ordering psychological counseling of rape victims to address unnecessary and wanton infliction of pain of failing to provide prisoners with post-rape psychological counseling); Strickler v.

Waters, 989 F.2d 1375, 1381 (4th Cir.1993) (explaining that serious physical or emotional injury may give rise to an Eighth Amendment violation); Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir.1992) (holding that psychological injury may constitute pain under the Eighth Amendment excessive force standard).

Accordingly, we hold that the policy and practice of spraying inmates with chemical agents, as applied to McKinney under the circumstances found here — i.e., when he was fully secured in his seven-by-nine-foot steel cell, when he was not presenting a threat of immediate harm to himself or others, and when he was unable to understand and comply with officers’ orders due to his mental illness — are extreme deprivations violating the “broad and idealistic concepts of dignity, civilized standards, humanity and decency” embodied in the Eighth Amendment. Hope, 240 F.3d at 979 (citing Estelle v.

Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976)). McKinney has demonstrated that he is one such inmate and thus has satisfied the Eighth Amendment’s objective harm requirement. We now turn to the question of whether McKinney also satisfied the Eighth Amendment’s subjective wantonness requirement. ii. Deliberate Indifference In conditions-of-confinement cases, wantonness is established by proving that a defendant prison official was deliberately indifferent to a risk of serious harm to the plaintiff inmate.

Farmer, 511 U.S. at 828, 114 S.Ct. at 1974 (quotation and citation omitted); Wilson, 501 U.S. at 303, 111 S.Ct. at 2327; LaMarca, 995 F.2d at 1535. In our circuit, to find deliberate indifference on the part of a prison official, a plaintiff inmate must show: (1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence. Townsend v. Jefferson County, 601 F.3d 1152, 1158 (11th Cir.2010); see also Chandler, 379 F.3d at 1290, n. 21.

That is, the evidence must demonstrate that “with knowledge of the infirm conditions, [the official] knowingly or recklessly declined to take actions that would have improved the conditions.” LaMarca, 995 F.2d at 1537. A prison official’s deliberate indifference is a question 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 SM 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.

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 0-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 ... [cjontact 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).

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. 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. 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. 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. 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) (“[Wjhere 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.

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 “[prospective 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

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