Opinion
6:21-cv-0740-YY
08-22-2022
PEDRO SEGURA, SR., Plaintiff, v. SGT. CHERNO, DEPUTY SANNE, DEPUTY HART, DEPUTY LILLY, DEPUTY AUSTIN, and MARION COUNTY SHERIFF'S OFFICE, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Pro se plaintiff Pedro Segura, Sr., brings this suit pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments stemming from his incarceration as a pretrial detainee in Marion County Jail. Am. Compl., ECF 8.
Defendants have filed a motion for summary judgment (ECF 42) against all of plaintiff's claims, which should be GRANTED for the reasons discussed below.
I. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must “go beyond the pleadings” and “designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324 (citing FED. RULE. CIV. P. 56(e)).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated, only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A “scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material factual issue are resolved against the moving parties and inferences are drawn in the light most favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).
II. Background Facts
The parties have submitted evidence in the form of declarations and exhibits. Additionally, plaintiff has filed a verified complaint, which “may be used as an opposing affidavit under Rule 56.” Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995). The following facts are undisputed unless otherwise noted.
Plaintiff has been housed as a pretrial detainee in Marion County Jail since February 2018 awaiting trial on serious violent felonies including murder. Hart Decl. ¶ 8, ECF 44. On April 10, 2021, at approximately 10:30 a.m. plaintiff got into a fight with another adult in custody, Benjamin Smith (“AIC Smith”), in the dayroom area of the Delta Unit, a housing division within the jail. Am. Compl. 3, ECF 8. Deputy Hart and Deputy Sanne were on duty at the Delta Unit desk when the fight broke out. Hart Decl. ¶ 6, ECF 44. Deputy Hart observed plaintiff and AIC Smith fighting and “throwing closed fist strikes” at each other, id., and Deputy Sanne saw plaintiff and AIC Smith hitting each other with “hammer strike punches” and “closed fist punches.” Sanne Decl. ¶ 7, ECF 45. Plaintiff and AIC Smith both characterize the fight as “mutual combat.” Segura Decl. 2, ECF 53; Smith Decl. 2, ECF 12.
Deputy Hart called for backup on the radio, Hart Decl. ¶ 6, ECF 44, got up from the desk, and claims he “gave a loud and clear directive to stop fighting.” Id. ¶ 7. Plaintiff and AIC Smith continued to fight, and Deputy Hart “gave another loud and clear directive to stop fighting.” Id. Deputy Hart attests that he “told the combatants several times to stop fighting as I approached them, but they continued to strike each other with closed fist strikes.” Id.
When Deputy Hart was approximately six to eight feet away from plaintiff and AIC Smith, he deployed a single, three-second blast of oleoresin capsicum (“OC”) spray at them. Id. ¶ 10. Deputy Sanne simultaneously deployed his taser in the direction of AIC Smith's lower back. Sanne Decl. ¶ 10, ECF 45. Immediately after the OC spray and taser were deployed, plaintiff and AIC Smith stopped fighting and complied with orders to get on the ground and not move. See Hart Decl., Ex. A, ECF 44.
The entirety of the fight and the deputies' response transpired in under 45 seconds and is captured on jail video footage that has been submitted as an exhibit. See Hart Decl., Ex. A, ECF 44. The video clearly shows plaintiff throwing the “first punch” at AIC Smith. See id.
The parties dispute whether any warning was issued before the use of force. Plaintiff alleges that Deputy Hart commanded him and AIC Smith to stop fighting only after the deputies used force against them, Am. Compl. 3, ECF 8, and Deputy Hart and Deputy Sanne attest that Deputy Hart gave multiple warnings before using force. Hart Decl. ¶ 7, ECF 44; Sanne Decl. ¶ 6, ECF 45. The video of the incident does not include any audio that would inform this dispute. See Hart Decl., Ex. A, ECF 44.
After spending less than a minute on the ground, plaintiff was assisted to his feet by a deputy, placed in handcuffs, and escorted out of the area. Id. He was taken to the Intake Unit and placed in a holding cell. Hart Decl. ¶¶ 12, 13, ECF 44. Plaintiff claims that, in removing his handcuffs, Deputy Hart “jerked” his hands through the food slot in the door in a manner that was excessive and caused cuts and bruises to his hands and wrists. Am. Compl. 4-5, ECF 8. Deputy Hart claims plaintiff “placed just his fingertips through out of the cell and made it impossible to get a key to the keyhole,” so he “held onto the center of the handcuffs and guided [plaintiff's] hands through the cuff port so they could be removed” and plaintiff could begin to decontaminate. Hart Decl. ¶ 13, ECF 44. From his cell, plaintiff described to Sgt. Cherno what had happened and asked Sgt. Cherno to take pictures of his injuries. Am. Compl. 5, ECF 8. The following day, Sgt. Cherno took photographs of plaintiff's hands and wrists. Cherno Decl. ¶ 5, ECF 47; id., Ex. J, ECF 47.
Plaintiff also asked to be seen by medical staff, Am. Compl. 5, ECF 8, and Nurse France arrived at approximately 10:48 a.m. France Decl., Ex. B, ECF 43. Plaintiff complained of left wrist pain, and claims Nurse France “identified the injuries to his hands and wrists as being cut and swollen.” Am. Compl. 5, ECF 8. Nurse France's chart notes indicate plaintiff complained his left wrist was sore, but he had full range of motion and she observed no bruising or swelling. France Decl., Ex. B at 1, ECF 43. Plaintiff also claims that due to the OC spray, he could not open his eyes and could not breathe. Am. Compl. 5, ECF 8. Nurse France noted that plaintiff's face was red but not swollen, and she recommended that plaintiff flush his eyes with water. France Decl. ¶ 6, ECF 43. Plaintiff reported no other areas of discomfort. Id.
Around 11:00 a.m., deputies asked plaintiff if he wanted a decontamination shower; plaintiff said “yes” and was escorted to the shower room. Segura Decl. 7, ECF 53. When Nurse France returned to see plaintiff at around noon, he had showered, his eyes were open, and he told her he was able to see more clearly. France Decl. 7, ECF 43. Nurse France evaluated plaintiff's left wrist and once again wrote down that it had full range of motion and presented no swelling or bruising. Id. She determined that no hospital visit was necessary. Id.
At around the same time, Deputy Hart decontaminated himself and his equipment, and AIC Smith took a decontamination shower. Hart Decl. ¶¶ 14, 15, ECF 44. Another AIC, Alexander King, who was using the phone in the dayroom when the fight broke out, states that Deputy Sanne saw AIC King's “swollen red eyes and puffy red face,” and said, “Fuck, we did get you good. I'm sorry, man, do you want to see medical?” King Decl. 3, ECF 56, at 9. AIC King was told to shower and “let them know” if the swelling did not go down after a few hours. Id. Although his “face and lips were on fire and puffy the rest of the day,” he did not follow up with medical and instead “just toughed it out as to not make my life harder by complaining to them.” Id.
After plaintiff received medical care, he was removed from the holding cell and placed in administrative segregation pending the outcome of a disciplinary hearing. Hart Decl. ¶ 17, ECF 44. This required deputies to move items out of plaintiff's previous cell. Id. As part of that process, deputies inventoried plaintiff's property, removed several “altered” items (including postcards and pens), placed some items in plaintiff's property bin, and gave plaintiff other items that were allowed in segregation. Id.; Davis Decl., Ex. G, ECF 48 (“Property Inventory” of items placed in plaintiff's property bin on April 10, 2021). When plaintiff was brought to segregation, he asked for his “legal papers and books” from his previous cell; plaintiff also filed multiple kytes and grievances regarding his “missing legal papers” and requesting their return. Am. Compl. 6, ECF 8.
On April 15, 2021, a hearings officer conducted a disciplinary hearing and found plaintiff guilty of assaulting another inmate without a weapon. Davis Decl., Ex. E, ECF 48; Pl. Ex. A-105, ECF 56, at 110.
On April 21, 2021, eleven days after plaintiff's fight with AIC Smith, medical staff examined plaintiff's wrist in response to his request. Pl. Ex. A-50, ECF 56, at 53. During that visit, plaintiff complained of pain in his wrist and stated, “someone pulled it.” Id. Medical staff found: “Lf. wrist has no bruising, swelling or deformities[,]” and “[patient] states current Ibup/Tylanol has been helpful.” Id. Medical staff also noted that plaintiff requested a “wrap for support.” Id. Later that day, a wrist sleeve was ordered for plaintiff. Pl., Ex. A-47, ECF 56, at 50.
Based on these events, plaintiff filed this action pursuant to 42 U.S.C. § 1983 against Deputy Lilly, Deputy Austin, Sgt. Cherno, Deputy Sanne, and Deputy Hart, asserting claims of excessive force, deliberate indifference to his medical needs, and unspecified claims related to his legal papers. Plaintiff also broadly alleges violations of his rights under the Fourth, Fifth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments. Am. Compl., ECF 8. Defendants contend that they are entitled to summary judgment because (1) plaintiff has not alleged that either Deputy Lilly or Deputy Austin engaged in any wrongful conduct; (2) no reasonable jury could find that any defendant used excessive force against plaintiff; (3) no reasonable jury could find that any defendant was deliberately indifferent to plaintiff's medical needs; (4) plaintiff has failed to allege that he suffered any harm from defendants' alleged failure to return his legal documents; and (5) plaintiff has failed to allege any facts that would support a claim under the Fourth, Fifth, Eighth, or Thirteenth Amendments.
III. Claims Against Deputy Lilly and Deputy Austin
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must prove: (1) the conduct complained of deprived the plaintiff of an existing federal constitutional or statutory right; and (2) the conduct was committed by a state actor or a person acting under color of state law. Westv. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Benavidez v. Cty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021). A defendant is liable under § 1983 “only upon a showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); Barren v.Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). A § 1983 claim also requires proof of causation, and allegations regarding causation “must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Menefee v. Washington Cty. Cir. Ct., No. 3:20-CV-01647-AC, 2020 WL 7212564, at *1 (D. Or. Dec. 4, 2020) (citing Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)). Thus, a plaintiff “‘must plead that each government-official defendant, through the official's own individual actions, has violated the constitution.'” Smith v. Meyer, No. 6:21-CV-00997-IM, 2021 WL 3172921, at *3 (D. Or. July 26, 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Although plaintiff names Deputy Lilly and Deputy Austin in the caption of his Amended Complaint, he does not allege or show that either one “participated in or directed” any alleged civil rights violations against him or “knew of the violations” and failed to prevent them. Taylor, 880 F.2d at 1045. Because § 1983 requires plaintiff to allege that each individual defendant was personally involved in conduct that harmed him, and plaintiff has failed to do so with respect to Deputy Lilly and Deputy Austin, they are entitled to summary judgment. SeeBarren, 152 F.3d at 1194 (“[liability under § 1983 must be based on a defendant's personal participation in the alleged deprivation of the plaintiff's constitutional rights”).
In his response to defendants' motion for summary judgment, plaintiff alleges for the first time that “Defendant Lilly and Austin never intervened when they got to the unit or Sgt. Cherno never intervene[d] when knowing about it.” Resp. 3, ECF 52. However, the Amended Complaint contains none of these claims nor any allegations that might have given Deputy Lilly, Deputy Austin, or Sgt. Cherno fair notice of a failure to intervene claim. Plaintiff cannot raise new claims for relief in a response to a motion for summary judgment, and the court will not consider such claims. See Updike v. Multnomah Cty, 870 F.3d 939, 954-55 (9th Cir. 2017) (the allegations in the complaint itself must give the defendant fair notice of what the plaintiff's claim is); Pickern v. Pier 1 Imports, Inc., 457 F.3d 963, 968-69 (9th Cir. 2006) (a party may not raise new claims in response to a summary judgment motion where plaintiff's complaint failed to “give the defendant fair notice of what the plaintiff's claim [was] and the grounds upon which [it] rest[ed]” as required by Federal Rule of Civil Procedure Rule 8(a)(2)).
IV. Excessive Force Claims
The Due Process Clause of the Fourteenth Amendment protects pretrial detainees from excessive force. Kingsley v. Hendrickson, 576 U.S. 389 (2015). To prevail on an excessive force claim, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Id. at 396-97. “[O]bjective unreasonableness turns on the facts and circumstances of each particular case” and should be determined from the “perspective of a reasonable officer on the scene[.]” Id. at 397 (internal quotation marks and citation omitted). A non-exhaustive list of considerations that may bear on the reasonableness of the force used include: (1) “the severity of the security problem at issue”; (2) “the threat reasonably perceived by the officer”; (3) “the relationship between the need for the use of force and the amount of force used”; (4) “any effort made by the officer to temper or to limit the amount of force”; (5) “whether the plaintiff was actively resisting”; and (6) “the extent of the plaintiff's injury.” Id. (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
Under the objective standard, “[a] court must account for the ‘legitimate interests that stem from the government's need to manage the facility in which the individual is detained[.]'” Id. A court must also “defer[] to ‘policies and practices that in the judgment' of jail officials ‘are needed to preserve internal order and discipline and to maintain institutional security.'” Id. at 397 (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979)). Moreover, a claim of excessive force does not consider a defendant's state of mind or whether a jail official acted with a subjective “intent (or motive) to punish”; rather, “a pretrial detainee can prevail by providing only objective evidence that the challenged governmental action is not rationally related to a legitimate governmental objective or that it is excessive in relation to that purpose.” Id. at 398.
A. Sgt. Cherno
The Amended Complaint alleges that Sgt. Cherno failed to take a photo of plaintiff's alleged injuries on April 10, 2021; however, it is undisputed that Sgt. Cherno took the requested photos the following day. See Cherno Decl. 2. Moreover, plaintiff fails to otherwise show how Sgt. Cherno's actions caused him any legally cognizable harm or injury. Because there is no factual or legal foundation for plaintiff's claim of excessive force against Sgt. Cherno, that claim does not survive summary judgment and must be dismissed. SeeBoyd v. Cnty. of Riverside, No. EDCV1301282JVSDTB, 2016 WL 11755423, at *15 (C.D. Cal. Sept. 7, 2016), report and recommendation adopted sub nom.Boyd v. Riverside, 2016 WL 11755592 (C.D. Cal. Oct. 27, 2016) (granting summary judgment to a jail deputy where the operative complaint “raises no specific claim that [he] participated in the . . . cell extraction” that allegedly involved excessive force).
B. Deputy Sanne
Deputy Sanne is entitled to summary judgment for similar reasons. Plaintiff alleges in the Amended Complaint that Deputy Sanne used OC spray against him. In his response to defendants' motion for summary judgment, plaintiff asserts for the first time that he was “OC spray[ed] and taser[ed] at the same time.” Resp. 3, ECF 52. However, the video evidence directly contradicts those allegations. See Hart Decl., Ex. A, ECF 44. The video footage, which captures the entirety of the deputies' response to the fight, including the point at which plaintiff was handcuffed and escorted away from the area, leaves no question that OC spray was used by Deputy Hart alone and clearly shows that Deputy Sanne was not holding or using OC spray at any point. See id. The video also makes it completely clear that Deputy Sanne deployed his taser against AIC Smith alone and does not show that he or anyone else used a taser to subdue plaintiff. See id. Because plaintiff has produced no evidence that Deputy Sanne used OC spray, a taser, or any other force against him, Deputy Sanne is entitled to summary judgment on plaintiff's claim of excessive force. SeeBlankenhorn v. City of Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (a plaintiff bringing claims of excessive force against multiple officers must show each one had “some fundamental involvement in the conduct that allegedly caused the [constitutional] violation”); see alsoKingsley, 576 U.S. at 396-97 (a plaintiff asserting a claim of excessive force must show that a defendant intentionally used objectively unreasonable force that caused the plaintiff injury).
C. Deputy Hart
Summary judgment is also warranted for Deputy Hart. Again, under Kingsley, a “reasonable officer” standard applies to excessive force claims, and “a court must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer.” 576 U.S. at 399 (emphasis added). Here, when considering the first Kingsley factors- “the severity of the security problem at issue” and “the threat reasonably perceived by the officer”-from the perspective of Deputy Hart, there is little question that plaintiff's fight with AIC Smith was a serious incident that threated jail security and the safety of inmates and jail officials.
Plaintiff describes the fight as “mutual combat,” Segura Decl. 2, ECF 53, and does not dispute Deputy Hart's account that he and AIC Smith “had a grip on each other and were throwing closed fist strikes” that landed on each other's heads and faces. Hart Decl. ¶ 6, ECF 44. It is also uncontested that at least five deputies arrived in the dayroom to respond to the fight while other AICs quickly moved away from plaintiff and AIC Smith to avoid injury. See Hart Decl., Ex. A, ECF 44. Deputy Hart and Deputy Sanne were concerned about safety based on plaintiff's “extensive history of fighting” in the jail, his “violent criminal record,” and the fact he was “awaiting trial for murder and other charges.” Hart Decl. ¶ 8, ECF 44; Sanne Decl. ¶¶ 7, 9, ECF 45 (stating his awareness that both plaintiff and AIC Smith “had recently been in fights with other AICs in the facility”).
Prior to his fight with AIC Smith, plaintiff had been charged with at least 19 “Major Rule violations” while being held in custody in Marion County jail since February 2018, and had been found guilty of at least 16 of them, including six incidents of plaintiff assaulting or fighting with other AICs. See Davis Decl. 2, ECF 48; see also id. Ex. H 1-31 (plaintiff's disciplinary records from Marion County jail). Major rule violations “are those that seriously threaten the security of Marion County jail or seriously disrupt the operation of the jail.” Davis Decl. 2, ECF 48.
Violent and disruptive situations within a jail or correctional setting-such as plaintiff's fight with AIC Smith-present obvious threats to jail security. SeeWilliams v. Alcala, No. 117CV00916DADSABPC, 2019 WL 3975516, at *7 (E.D. Cal. Aug. 22, 2019) (inmates who “were actively striking each other with closed fists . . . created a substantial risk that someone may be seriously injured” and posed an “obvious threat to the safety and security of the institution”); Robison v. Testa, No. 1:20-CV-00263-RAL, 2021 WL 5770211, at *4 (W.D. Pa. Dec. 6, 2021) (an “ongoing fight [between inmates] placed both men at risk of serious injury. If allowed to continue, the altercation also could have spread to the other inmates and detainees who were present in the day room”); Quinones v. Rollison, No. 18-CV-1170 (AJN), 2020 WL 6420181, at *8 (S.D.N.Y. Nov. 1, 2020) (a “violent fight” between two inmates inmate “posed a risk to other inmates, himself, [to the responding officer] . . ., and to other prison staff'). Deferring to Deputy Hart's assessment of the situation in light of his particular knowledge, training, and experience, as Kingsley requires, Deputy Hart reasonably believed that plaintiff and AIC “would seriously injure each other if allowed to continue fighting if they had not already.” Hart Decl. ¶ 9, ECF 44; seeTamrat v. Marlowe, No. 20-CV-07623-PJH, 2022 WL 207698, at *5 (N.D. Cal. Jan. 24, 2022) (“plaintiff presented a security issue by being uncooperative . . . forcibly resisting and . . . [acting] in a clearly threatening manner” and officer defendants “were reasonable in perceiving a threat by plaintiff's actions”). Given “[t]he potential for violence to spread to others . . . inherent in these circumstances[,]” it was reasonable for Deputy Hart to believe that some use of force was necessary. SeeTesta, 2021 WL 5770211, at *4 (where two inmates' “ongoing fight placed both men at risk of serious injury” the situation “reasonably required [the officer's] use of some level of force”); see alsoKingsley, 576 U.S. at 399 (“safety and order . . . requires the expertise of correctional officials who must have substantial discretion to devise reasonable solutions to the problems they face'”) (quoting Florence v. Bd. Of ChosenFreeholders of Cty. Of Burlington, 132 S.Ct. 1510, 1515 (2012)).
Regarding the next Kingsley factors, i.e., “the relationship between the need for the use of force and the amount of force used”, “any effort made by the officer to temper or to limit the amount of force”, and “whether the plaintiff was resisting”, 576 U.S. at 397, Deputy Hart claims it was necessary to deploy a single, three-second burst of OC spray against plaintiff and AIC Smith because “they continued to strike each other with closed fist strikes” after he “told [them] several times to stop fighting[.]” Hart Decl. ¶ 7, ECF 44.
Deputy Sanne concurs that Deputy Hart told plaintiff and AIC Smith “multiple times” to “‘stop fighting' in a loud and clear voice.” Sanne Decl. ¶ 6, ECF 45.
The exact amount of OC spray used against a detainee or inmate can be a key issue in a claim of excessive force, especially where a significant discrepancy exists between the parties' accounts and where a plaintiff plausibly alleges serious injuries that would be consistent with prolonged exposure to OC spray. See Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (finding triable issues of fact where officers described “two quick blasts” of spray but the plaintiff alleged that officers used “repeated bursts of pepper spray for about a minute” and “emptied their entire canisters of pepper spray on him”). Here, the court acknowledges plaintiff's argument that the OC spray was so excessive that it impacted Deputy Hart (who decontaminated after the incident) and AIC King (who submitted a declaration alleging that he suffered swelling, puffiness, and pain as a result of the OC spray directed at plaintiff). However, there is no actual dispute over the amount of spray Deputy Hart deployed because the video of the incident, see Hart Decl., Ex. A, ECF 44, clearly shows that he deployed OC spray in the direction of plaintiff for no more than four seconds, which directly contradicts plaintiff's assertion that Deputy Hart deployed “a continuous steam of OC spray” for “8 to 12 seconds”-regardless of what other individuals may have been affected by the spray. See Am. Compl. 3, ECF 8.
Plaintiff does not dispute that he and AIC Smith were “giv[en] commands to stop fighting”, but insists the commands were issued only “upon” the deputies' use of OC spray and a taser and not in advance of force being deployed. Am. Compl. 3, ECF 8. Plaintiff supports his claim with declarations from AIC Smith and AIC King-both of whom attest that no advance warning was given. See Smith Decl. 2, ECF 56, at 12; King Decl. 2, ECF 56, at 8.
In the Amended Complaint, plaintiff specifically alleges the following: “Deputy Hart and Deputy Sanne never gave us verbal warning or commands to stop before use of force was deployed excessively by using both taser and OC spray at the same time. Upon the excessive use of both taser and OC spray the deputies were telling us to stop refusing their commands to stop which we were not refusing.” Am. Compl. 3, ECF 8. In plaintiff's declaration in opposition to defendants' motion for summary judgment, plaintiff repeats his allegation that Deputy Hart and Deputy Sanne “never gave verbal warnings or commands to stop before use of force was deployed” and his allegation that, “upon the excessive use of both OC spray and taser the defendants T. Hart and J. Sanne was giving commands to stop fighting[.]” Segura Decl. 3, ECF 53.
However, even assuming Deputy Hart only issued commands to stop fighting as he was deploying OC spray and not beforehand, such a course of action is arguably consistent with Marion County Sheriff's Office “Policy 1210 - Use of Force” that states: “Deputies will provide verbal warnings and commands, when practical, prior to and during the application of physical force.” Davis Decl., Ex. I, ECF 48 (emphasis added). The policy further provides: “Deputies may only use physical force to . . . prevent or terminate the commission or attempted commission of a criminal offense, protect the lives of deputies and others . . . and/or to maintain or restore discipline within a custodial setting.” Id. Kingsley requires deference to these policies, see 576 U.S. at 397, and a jury considering the reasonableness of Deputy Hart's actions would also need to keep in mind that “[o]fficers facing disturbances ‘are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly revolving.'” Id. (citing Graham, 490 U.S. at 397). Further, a jury would see the video of the incident, which shows that the entire fight and the deputies' response took place over a period of 30-45 seconds and that Deputy Hart deployed spray for no more than four seconds and ceased using the spray the moment plaintiff and AIC Smith stopped fighting. See Hart Decl., Ex. A, ECF 44.
Moreover, courts have held that a limited amount of pepper spray used by officers to break up a fight is both justified and proportional, considering the need for force and jail “policies and practices needed to maintain order and institutional security.” Kingsley, 576 U.S. at 399 of pepper spray was not objectively unreasonable” because the officer “only used proportionate force to ‘ensure compliance of an uncooperative . . . inmate'”) (citation omitted); Wheeler v. Fritz, No. CIV.A. RBD-14-2727, 2015 WL 4485436, at *1 (D. Md. July 20, 2015) (recognizing the “reasonable” use of pepper spray by jail officials “to break up an inmate fight” or “attempting to maintain order and discipline in the institution”).
In unpublished opinions, the Ninth Circuit has also upheld district court decisions granting summary judgment to correctional officers who used pepper spray against detainees or inmates in situations that were much more contained and lower risk than the violent altercation between plaintiff and AIC Smith here. See e.g., Howard v. Nunley, 465 Fed.Appx. 669, 670 (9th Cir. 2012) (affirming summary judgment for the defendant officers where they used pepper spray after the plaintiff was warned to stop pounding on his cell door); Rodriguez v. Elmore, 407 Fed.Appx. 124, 125 (9th Cir. 2010) (affirming the district court's grant of summary judgment to defendant officers who deployed pepper spray against the plaintiff and his cellmate after they refused to comply with orders to exit their cell to permit a search); Randle v. Miranda, 315 Fed.Appx. 645, 645 (9th Cir. 2009) (affirming the district court's grant of summary judgment to the defendant officers who used pepper spray in a good faith effort to restore discipline and order); Allen v.Bosley, 253 Fed.Appx. 658, 659 (9th Cir. 2007) (finding no genuine issue of fact on excessive force claim where the defendant officers deployed pepper spray to induce another inmate to comply with orders to submit to handcuffing).
Thus, even if a jury agreed with plaintiff's version of the events, i.e., that no advance warning was given, the evidence would still show that Deputy Hart responded quickly to an active fight between detainees with known histories of violence, deployed a limited amount of OC spray, and stopped using force the moment the fighting stopped (which took no more than four seconds). See Hart Decl., Ex. A, ECF 44. Given these circumstances, no reasonable jury would find that Deputy Hart used more force than necessary or failed to temper his use of force, even if he failed to issue advance warnings. See Hernandez v. Woods, 731 Fed.Appx. 643, 645-46 (9th Cir. 2018) (“[e]ven assuming [the plaintiff] did not receive warnings, as he claims, there is no genuine dispute that the force used . . . was ‘applied in a good faith effort to maintain or restore discipline' and was proportional to the potentially deadly fight”) (citing Hudson v.McMillian, 503 U.S. 1, 6-7 (1992); Spain v. Procunier, 600 F.2d 189, 195-96 (9th Cir. 1979)); Brown v. Renteria, No. CV02-4625-SVW PJW, 2006 WL 4389588, at *5 (C.D. Cal. Nov. 17, 2006) (“even if Plaintiff had established that the guards had not shouted warnings to him before shooting him [with wooden batons], the Court would still conclude that Defendants were entitled to summary judgment” because “the only reason the guards exerted force on Plaintiff was because he was beating up another prisoner” and force was clearly used “to restore order, not to punish him”) (citing Jeffers v. Gomez, 267 F.3d 895, 912 (9th Cir. 2001) (holding corrections officers guards may use deadly force to maintain or restore order)).
A reasonable jury would also find that the final Kingsley factor, “the extent of the plaintiff's injury,” favors Deputy Hart because there is no evidence that plaintiff suffered more than minimal injuries from the OC spray. The record shows that Nurse France attended to plaintiff shortly after the incident and that plaintiff complained of “burning eyes and stated he was unable to open his eyes”; Nurse France observed that plaintiff's face was red but there was “no swelling present.” France Decl. ¶ 6, ECF 43. Further, when Nurse France returned about an hour later after plaintiff had taken a shower, she found plaintiff with his “eyes open” and “he reported being able to see more clearly.” Id. ¶ 7.
Plaintiff attests that he could not see or breathe due to the “excessive OC spray.” Seguro Decl. 4, 6, ECF 53. Even accepting plaintiff's testimony as true, the temporary discomfort he suffered from the use of OC spray cannot be characterized as anything more than a minor injury. SeeTesta, 2021 WL 5770211, at *5 (describing the plaintiff's burning eyes caused by OC spray as a “minimal” injury and holding, “[w]hile unquestionably unpleasant, the temporary discomfort associated with the use of OC spray does not support a constitutional violation” for excessive force) (citations omitted); see also Foote v. Houi, No. 03 C 50001, 2004 WL 2901039, at *2 (N.D. Ill.Dec. 14, 2004) (“[w]hile [plaintiff] experienced some obvious discomfort from coming in contact with pepper spray, he has not identified any serious medical condition that was either caused, or aggravated, by the spray”).
The same is true for the minimal injuries that plaintiff contends he suffered when Deputy Hart “jerked” his hands through the food slot to remove his handcuffs. Plaintiff claims he experienced wrist pain and that Nurse France “identified the injuries to my hands and wrists as being cut and swollen.” Am. Compl. 4, ECF 8. However, Nurse France attests she found “no swelling or bruising of the wrist” when she examined plaintiff twice on April 10, 2021, and plaintiff “did not report any other discomfort.” France Decl. ¶ 6, ECF 43. Nurse France also observed that plaintiff's left wrist “had full range of motion” during both of her visits. Id. ¶¶ 6, 7. While plaintiff complained about “slight” wrist pain 11 days later, medical staff again noted there was no “bruising, swelling, or deformities,” and plaintiff admitted that simply taking ibuprofen and Tylenol was helpful. Pl. Ex. A-50, ECF 56, at 53. Plaintiff requested a wrap for support and was given a wrist sleeve. Id. But there is no evidence that plaintiff was diagnosed with any injury, even a minor sprain or strain, or that he received any further treatment after that. Id.
Deputy Hart acknowledges that plaintiff objected to the manner in which his handcuffs were removed and that plaintiff made a statement of protest (“Damn you don't have to do me like that.”). Hart Decl. ¶ 13, ECF 44. Plaintiff “felt like [Deputy Hart] was adding further punishment . . . because he sprayed himself with OC spray[.]” Am. Compl. 5, ECF 8. But whether Deputy Hart subjectively intended to ‘punish' plaintiff is irrelevant to this analysis because a defendant's subjective state of mind is not part of the test for excessive force under the Fourteenth Amendment. See Kingsley, 576 U.S. at 396-97. The only question is whether plaintiff can show that Deputy Hart's actions were “objectively unreasonable.” Id.
Plaintiff also relies on photographs that Sgt. Cherno took of his wrists and hands the day after the incident, pursuant to plaintiff's request. See Cherno Decl., Ex. A., ECF 47. However, the photos reveal no clear or obvious signs of bruises, cuts, or other injury to plaintiff's hands or wrists. Thus, even when all reasonable inferences are drawn in plaintiff's favor, there is no evidence that Deputy Hart's use of force in removing plaintiff's handcuffs caused anything more than a minor injury. See Tamrat, 2022 WL 207698, at *5 (a plaintiff who “suffered a cut above his eyebrow that bled over his face and onto the floor” after deputies pushed and pinned him to a glass door “only suffered minor injuries”); Boyd, 2016 WL 11755423, at *2 (“Just as de minimus uses of force are excluded from the Eight Amendment's proscriptions, so too are they excluded from the Fourteenth Amendment's protections”) (citing Graham, 490 U.S. at 397); O Neal v.Smith, No. EDCV11803DDPMAN, 2015 WL 10938258, at *7 (C.D. Cal. July 28, 2015), report and recommendation adopted, 2016 WL 3034105 (C.D. Cal. May 27, 2016), aff'd sub nom. O Neal v. San Bernardino Cnty. Sheriff's Dep't, 714 Fed.Appx. 754 (9th Cir. 2018) (the plaintiff's claim that the defendant officer “squeezed and pulled” his genital area during a routine search that “caus[ed] plaintiff to wince and cry out in pain” did not rise to the level of a constitutional violation where there was no evidence of actual injury to the plaintiff's genitals).
In sum, when considering “the perspective of a reasonable officer on the scene,” Kingsley, 576 U.S. at 397, no reasonable jury would find it was “objectively unreasonable” for Deputy Hart to use a three or four-second blast of OC spray to stop the fight between plaintiff and AIC Smith-especially given Deputy Hart was aware of their violent histories and ceased deploying force the moment the fighting stopped. There is also no question that plaintiff has not and cannot show he suffered any legally cognizable injury from either the OC spray or when his handcuffs were removed by Deputy Hart. See Tamrat, 2022 WL 207698, at *5 (defendant officers who had a “split second” to assess the security situation presented by a uncooperative and resistant inmate did not use objectively unreasonable force by deploying a limited amount of pepper spray to gain compliance even where the inmate was handcuffed). Therefore, Deputy Hart is entitled to summary judgment on plaintiff's claim of excessive force.
V. Deliberate Indifference Claim
Plaintiff alleges a claim for deliberate indifference to his medical needs on grounds that he was placed in a “holding cell with no linen or any reasonable means of decontamination” after he had been sprayed with OC. Am. Compl. 4, ECF 8. Defendants argue they are entitled to summary judgment because the evidence shows “[p]laintiff requested and received medical attention promptly.” Mot. 15, ECF 42.
“Claims alleging a due process violation for failure to provide adequate medical care . . . are evaluated under an objective deliberate indifference standard.” Silva v. Walker, No. C19-1294-RAJ-MLP, 2020 WL 1906895, at *1 (W.D. Wash. Feb. 25, 2020), report and recommendation adopted, 2020 WL 1904067 (W.D. Wash. Apr. 17, 2020)) (citing Castro v.Cnty of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en banc); Gordon v. Cnty of Orange, 888 F.3d 1118 (9th Cir. 2018)). Under that standard, a pretrial detainee alleging that jail officials were deliberately indifferent to his medical needs must show: “(1) The defendant made an intentional decision with respect to the conditions under which the plaintiff was confined [including a decision with respect to medical treatment]; (2) Those conditions put the plaintiff at substantial risk of suffering serious harm; (3) The defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (4) By not taking such measures, the defendant caused the plaintiff's injuries.” Sandoval v. Cnty. of San Diego, 985 F.3d 657, 669 (9th Cir. 2021) (citing Gordon, 888 F.3d at 1125) (alteration in original).
“[T]he failure to provide an inmate with prompt decontamination procedures after the use of pepper spray can establish a claim for deliberate indifference.” Garcia v. Pope, No. 2:18-CV-01573-MC, 2020 WL 1068239, at *2 (D. Or. Mar. 5, 2020), aff'd, 841 Fed.Appx. 28 (9th Cir. 2021) (citing Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002)). In Clement, the plaintiffs asserted claims of deliberate indifference based on their exposure to OC spray that was used by prison officers to break up a fight between other inmates. 298 F.3d at 901-902. The plaintiffs alleged that officers denied their “repeated requests for attention” despite the fact they were “complaining of breathing problems, pain, and asthma attacks” as well as “coughing, gagging, or choking.” Id. at 905. In reviewing the record, the Ninth Circuit noted that the “plaintiffs' submissions document the painful effects of pepper spray,” and observed that “[f]our hours after the incident, officials finally escorted the bystander inmates out of their cells for showers.” Id. at 902. On those facts, the court reversed summary judgment for the defendants, recognizing that “the prisoners may be able to show that the defendants were subjectively aware of the risk of serious injury when they denied showers and medical attention for the inmates for the 4 hour period.” Id. at 905.
In Walsh v. Gower, the court denied summary judgment on a claim of deliberate indifference asserted by a plaintiff who had been denied a decontamination shower for two days following an exposure to OC spray. No. 2:18-CV-00098-HZ, 2020 WL 1149912, at *4 (D. Or. Mar. 9, 2020). The court found genuine issues of material fact existed as to whether the defendant officer ignored the plaintiff's requests for help where the plaintiff alleged that he had banged on his cell window stating, “I am burning, I can't breathe and I need a shower to decontaminate.” Id. at *2. The court also found “an issue of fact as to whether Plaintiff had a serious medical need” where he submitted evidence that he experienced “pain and breathing problems along with choking, gagging, burning, and itching throughout the night.” Id. at *5.
Here, unlike the plaintiffs in Clement and Walsh, plaintiff cannot show that he was denied reasonable medical care following his exposure to OC spray. There is no question that plaintiff was able to perform some self-decontamination in the holding cell shortly after his exposure to OC spray and that he was offered and took a decontamination shower within about 30 minutes of his exposure. Although plaintiff alleges that his holding cell contained “no linen or any reasonable means of decontamination,” he admits that he “attempted to perform as much decontamination as I could in the sink with a towel,” and plaintiff's evidence shows this happened within about twenty minutes following his arrival in the holding cell. Am. Compl. 4, 56, ECF 8. This is bolstered by evidence submitted by defendants that shows deputies provided plaintiff with decontamination supplies (wet wipes and a wet towel) that were apparently brought to the holding cell shortly after plaintiff's arrival, a fact that plaintiff does not directly contest. Hart Decl. 3, ECF 44. There is also no dispute that deputies offered plaintiff medical care- Nurse France saw plaintiff twice within 90 minutes of his exposure to OC spray, once at 10:48 a.m. and again at noon. France Decl., Ex. B, ECF 43. The evidence further shows, and plaintiff does not dispute, that he complained only of “burning eyes” to Nurse France and said he could not open his eyes, but “did not report any other discomfort” related to OC spray. France Decl. ¶ 6, ECF 43. When Nurse France returned for a second visit, plaintiff had taken a shower, had his eyes open, and “reported being able to see more clearly.” Id. ¶ 7.
“Other courts in this circuit have previously found that similarly brief delays in receiving care after being pepper sprayed are insufficient to state a claim for medical deliberate indifference.” Candler v. Prather, No. 217CV0023JAMEFBP, 2020 WL 2193264, at *4 (E.D. Cal. May 6, 2020), report and recommendation adopted, 2020 WL 4349823 (E.D. Cal. July 29, 2020), aff'd, No. 20-16560, 2021 WL 6066994 (9th Cir. Dec. 20, 2021) (a plaintiff who alleged deliberate indifference based on a lapse of 20 minutes between the deployment of pepper spray and his decontamination shower could not prevail on his claim of deliberate indifference especially where he alleged no harm “other than the obvious discomfort which attends all deployment of pepper spray”); see Allen, 253 Fed.Appx. at 660 (assuming the truth of the plaintiff's allegations that “the spray caused him to cough, choke, and gag, and caused burning in his eyes” and granting summary judgment for the defendants because there was “no evidence . . . [of] actual injury, other than the transitory effects of the pepper spray, or that any delay in responding to his requests caused further injury”); Silva, 2020 WL 1906895, at *5 (noting that “pepper spray ordinarily does not create a serious medical need because it causes only temporary discomfort” while acknowledging that “the Ninth Circuit has recognized that the failure of prison officials to properly decontaminate a prisoner exposed to pepper spray can support a deliberate indifference claim because of the effects of prolonged exposure to the chemical”); cf. Cisneros v.Vangilder, No. 16-CV-00735-HSG, 2019 WL 285800, at *3 (N.D. Cal. Jan. 22, 2019) (“[e]ven though the transitory effects of pepper spray might be insufficient to establish a serious medical need, Plaintiffs have produced evidence that they suffered from the effects of the chemical exposure for several hours or even days”).
Plaintiff alleges for the first time in his response to the motion for summary judgment that he suffered from the water temperature of his decontamination shower. Segura Decl. 7, ECF 53. Specifically, plaintiff alleges that the intake shower had no cold water and that the hot water made the “burning 10x” worse and made his body feel like it was “on fier [sic].” Id. However, “no controlling or even persuasive authority has held that warm-water decontamination showers constitute deliberate indifference.” Garcia, 2020 WL 1068239, at *2. Further, “most courts addressing this issue have rejected claims of deliberate indifference arising from a warm or hot decontamination shower.” Id. (citing cases).
On this record, it is clear that plaintiff was provided with medical care shortly after his exposure to OC spray, that he was able to take a decontamination shower within about 30 minutes of his exposure to OC spray, and that he suffered no serious harm that could support a claim of deliberate indifference. Because no reasonable jury could find that defendants “put the plaintiff at substantial risk of suffering serious harm” or failed to take “reasonable available measures to abate that risk,” Gordon, 888 F.3d at 1125, defendants are entitled to summary judgment on plaintiff's claim for deliberate indifference to his medical needs. Logan v. Ross, No. ED CV 08-00637 DSF, 2011 WL 1752107, at *6 (C.D. Cal. Mar. 15, 2011), report and recommendation adopted, 2011 WL 1750682 (C.D. Cal. May 9, 2011) (noting, “pepper-spraying ordinarily . . . does not create a serious medical need because it causes only temporary discomfort” and granting defendants summary judgment where no “significant injury” could result from a 20 minute wait for a decontamination shower); cf. Silva v. Walker, No. C19-1294-RAJ-MLP, 2021 WL 799253, at *7 (W.D. Wash. Jan. 4, 2021), report and recommendation adopted, 2021 WL 1923141 (W.D. Wash. May 13, 2021) (granting summary judgment to defendant officer on a claim for deliberate indifference due to “an absence of evidence establishing that the failure to decontaminate Plaintiff put him at substantial risk of suffering serious harm or, indeed, that it caused Plaintiff any appreciable injury aside from the typical discomfort associated with the application of pepper spray”).
VI. Missing Legal Papers Claim
Plaintiff alleges that deputies violated his rights when they returned “some” but “not all” of the “legal papers and books” that were missing when he was transferred to segregation. Am. Compl. 6, ECF 8. Plaintiff alleges Deputy Hart informed him that legal books were not allowed in segregation and told him that some of his items were placed in a “property bin” and others were “thrown away.” Id. Plaintiff has never listed or described exactly what materials were allegedly missing, and fails to allege a specific constitutional violation or explain how this situation harmed him. It is possible that plaintiff is attempting to assert an access to courts claim; courts have recognized that “pretrial detainees have a constitutionally protected right of access to the courts, grounded in the constitutional guarantees of equal protection and due process.” Buenov. Chang, No. CV1603450PHXDGCJZB, 2019 WL 5698675, at *17 (D. Ariz. Nov. 4, 2019) (citing Murray v. Giarratano, 492 U.S. 1, 11 n.6 (1989) (“The prisoner's right of access has been described as a consequence of the right to due process of law, and as an aspect of equal protection.”). However, “the right of meaningful access to the courts is not unrestricted and does not mean that an inmate must be afforded unlimited litigation resources.” Bueno, 2019 WL 5698675, at *17. Further, “[t]o prevail on an access-to-courts claim, a plaintiff must show that he suffered an ‘actual injury' with respect to contemplated litigation.” Id. An “actual injury” is “‘actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim.'” Id. (citation omitted).
Plaintiff has not alleged that he suffered any actual injury as a result of his missing legal papers, and he does not claim that he suffered any prejudice in relation to any litigation he was involved in as either a criminal defendant or civil litigant. Because there is no evidence that plaintiff suffered an actual injury or a constitutional violation from his missing papers, defendants are entitled to summary judgment on this claim.
VII. Claims Under the Fifth, Sixth, and Thirteenth Amendments
In the Amended Complaint, plaintiff lists “Amendments 4, 5, 6, 8, 14, and 13” as the constitutional rights at issue, but the body of the complaint only alleges facts that could imply a cause of action under the Fourth, Eighth, and Fourteenth Amendments. Plaintiff does not explain what rights were allegedly violated under the other amendments and none are apparent. Defendants are therefore entitled to summary judgment on these claims.
VIII. Qualified Immunity
Finally, defendants argue they are entitled to qualified immunity. Mot. 17, ECF 42. The court engages in a two-part analysis in determining whether a defendant is entitled to qualified immunity. First, the court asks, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 235236 (2009). Second, the court asks “whether the right was clearly established.” Id. A right is clearly established if “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202. The court has discretion to decide “which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236; see also Mueller v. Auker, 576 F.3d 979, 993-94 (9th Cir. 2009).
Here, as discussed above, plaintiff has failed to establish the violation of any statutory or constitutional right, i.e., the first prong of the qualified immunity test. Therefore, it is unnecessary to reach the question of whether defendants are entitled to qualified immunity.
RECOMMENDATIONS
Defendants' Motion for Summary Judgment (ECF 42) should be GRANTED and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Wednesday, June 15, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.