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November 4, 2005.

GREGORY P. JONES, SR., Plaintiff,
JAMES GOMEZ; et al., Defendants.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge



Gregory P. Jones, Sr., an inmate at Pelican Bay State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Defendants have moved for summary judgment on the grounds that no triable issue of material fact exists on Jones' deliberate indifference to medical needs claim, that qualified immunity protects defendants from liability for the acts alleged in the complaint, and that defendants are entitled to judgment as a matter of law. For the reasons discussed below, the motion for summary judgment will be granted. BACKGROUND

  The following facts are undisputed unless otherwise noted.

  In this action, Jones contends that defendants violated his Eighth Amendment rights by failing to provide him medical treatment for exposure to oleoresin capsicum pepper spray ("pepper spray"), which they had used on another prisoner.

  The incident occurred on January 1, 2003, while Jones resided in E pod of the security housing unit at Pelican Bay. On that date, defendants, correctional sergeant T.F. Bosley, correctional officer ("C/O") L.F. Waycott and C/O D.M. Wolf, worked at Pelican Bay.

  Defendants had squirted pepper spray at inmate Silverman while he was in his cell. Inmate Silverman lived in a cell (#219-E) on the upper tier of the pod, and Jones lived in a cell (#117-E) on the lower tier of the same pod. Jones' cell was two doors down from and one floor lower than Silverman's cell. Both Silverman and Jones occupied cells that had Lexan fronts, and this plexiglass-like material covered all but the top and bottom inch of the cell front.

  On the evening of January 1, 2003, sergeant Bosley and C/O Wolf entered the pod and approached inmate Silverman's cell to move him to another cell. Silverman did not cooperate in the move and refused to submit to handcuffing. After about 15 minutes, Bosley contacted the control booth officer, requesting that he contact the facility lieutenant and advise him of a potential cell extraction. Upon hearing this, Silverman began to place a sheet across the front of his cell. This violated prison regulations prohibiting the alteration of linens and cell quarters. More importantly, it led Bosley and Wolf to believe that Silverman was attempting to conceal efforts to defend against the anticipated cell extraction, and they thought this presented an imminent serious threat to staff and institutional safety, necessitating an immediate response.*fn1 Bosley opened the handcuff port in Silverman's cell door and administered a one-second burst of pepper spray. Silverman backed away from the cell door and Bosley reached through the handcuff port to remove the sheet. Silverman continued to refuse to submit to handcuffing. Bosley then left the area. Jones presented evidence that Bosley left the area to obtain a gas mask because he was coughing and gagging; defendants presented evidence that Bosley left to meet with the incident commander to discuss the cell extraction and anticipated use of controlled force.

  Wolf remained to monitor Silverman. Silverman obtained another sheet and again attempted to cover his cell door. This prompted Wolf to open the handcuff port and administer a two-second burst of pepper spray from the same MK-9 dispenser. Silverman dropped the sheet and moved to the back of the cell.

  The evidence presented on the pepper spray usage before the cell extraction began conflicts, but not in a material way. Jones submitted declarations describing only one squirt of pepper spray but defendants Wolf and Bosley state that they each applied one squirt of pepper spray. Whether one squirt or two, the parties agree that defendants used pepper spray before the cell extraction began. Jones presented evidence that about 15-20 minutes after he first heard sounds indicating pepper spray use, Bosley left the area, and then returned about 20-25 minutes later wearing a gas mask. Jones also presented evidence that he tried to call out to Bosley for help as Bosley left the area and again upon his return 20-25 minutes later.*fn2

  Incident commander lieutenant M. Smelosky took steps to prepare for Silverman's extraction, including assembling a cell extraction team and ordering that the unit air exchange ventilation system be shut off. When Silverman continued to refuse to submit to handcuffs and peaceably exit his cell, Bosley administered four bursts of pepper spray. He also disbursed a T-16 expulsion grenade that emited pepper spray into Silverman's cell. Silverman's resistance continued, however, and the cell extraction team forcibly removed him from his cell. After Silverman's extraction, prison staff re-engaged the unit's ventilation system and turned it to high, and placed an exhaust fan in the unit for one hour.

  The Pelican Bay Use of Force Policy provides for the use of pepper spray during cell extractions when necessary. It mandates that inmates exposed to pepper spray receive the opportunity to decontaminate as soon as possible. It also states,
Inmates who are in an adjacent cell or in the general area where chemical agents are used are not considered as being exposed and do not require decontamination. Decontamination of those inmates not directly exposed to chemical agents will be at the Incident Commander's discretion based upon obvious, physical effects of the chemical agent.
Bosley Decl., Exh. A (Use of Force Policy), p. 14.
  The parties disagree as to the pepper spray's effects on inmates located nearby at the time of its use. Jones presented evidence that the pepper spray caused him to choke, cough and gag. He stated that he began "couching [sic], choking, and gagging so I called out and pleaded to be taken out of the pod." Complaint, pp. 4-5. Several inmates, including Jones, called out and requested to be removed from the pod, but no one let them out before or during the course of the cell extraction. Jones also presented evidence that other inmates attempted to inform Bosley and other staff members that they should take Jones out of his cell because he had a heart condition, but Bosely and Wolf replied by stating "deal with it" or "not now," and did not let Jones out of his cell.

  Defendants disagree with Jones' account and presented evidence that at no time during Silverman's extraction did Jones or any other inmate in E pod complain of pepper spray exposure. Additionally, they presented evidence that no inmate exhibited any obvious physical symptoms attributable to pepper spray contamination. For summary judgment purposes, the court accepts Jones' version of the facts as ...

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