United States District Court, N.D. California
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
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
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
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 true and does not credit as true
defendants' statements that there were no inmate complaints or symptoms.
VENUE AND JURISDICTION
Venue is proper in the Northern District of California under
28 U.S.C. § 1391 because the events or omissions giving rise to
Jones' claim occurred in Del Norte County, located in the
Northern District. See 28 U.S.C. §§ 84, 1391(b). This Court has
federal question jurisdiction over this action under
42 U.S.C. § 1983. See 28 U.S.C. § 1331.
LEGAL STANDARD FOR SUMMARY JUDGMENT
The court will grant summary judgment "against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial . . . since a
complete failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other facts
immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986) (a fact is material if it might affect the
outcome of the suit under governing law, and a dispute about a
material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.")
Generally, the moving party bears the initial burden of
identifying those portions of the record which demonstrate the
absence of a genuine issue of material fact. The burden then
shifts to the nonmoving party to "go beyond the pleadings, and by
his own affidavits, or by the `depositions, answers to
interrogatories, or admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'"
Celotex, 477 U.S. at 324 (citations omitted).
Where, as is the situation with defendants' qualified immunity
defense, the moving party bears the burden of proof at trial, he
must come forward with evidence which would entitle him to a
directed verdict if the evidence went uncontroverted at trial.
See Houghton v. Smith, 965 F.2d 1532, 1536 (9th Cir. 1992).
He must establish the absence of a genuine issue of fact on each
issue material to his affirmative defense. Id. at 1537; see
also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When
the defendant-movant has come forward with this evidence, the
burden shifts to the non-movant to set forth specific facts showing the
existence of a genuine issue of fact on the defense.
A verified complaint may be used as an opposing affidavit under
Rule 56, as long as it is based on personal knowledge and sets
forth specific facts admissible in evidence. See Schroeder v.
McDonald, 55 F.3d 454, 460 & nn. 10-11 (9th Cir. 1995) (treating
plaintiff's verified complaint as opposing affidavit where, even
though verification not in conformity with 28 U.S.C. § 1746,
plaintiff stated under penalty of perjury that contents were true
and correct, and allegations were not based purely on his belief
but on his personal knowledge). Therefore, although this Court
can consider Jones' verified complaint, it may not take into
account any of his unsworn statements. The evidence that is
considered in opposition to the motion for summary judgment is
limited to (1) Jones' verified complaint (but not his unverified
amended complaint) (2) Jones' declaration in support of his
amended complaint, (3) Silverman's declaration in support of
Jones' amended complaint, and (4) Kevin Allen's declaration in
support of Jones' amended complaint.
The court's function on a summary judgment motion is not to
make credibility determinations or weigh conflicting evidence
with respect to a disputed material fact. See T.W. Elec. Serv.
v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987). The evidence must be viewed in the light most favorable to
the nonmoving party, and the inferences to be drawn from the
facts must be viewed in a light most favorable to the nonmoving
party. See id. at 631.
A. Deliberate Indifference to Medical Needs Claim
The Eighth Amendment's prohibition against cruel and unusual
punishment requires that prisoners not be treated inhumanely. For
a prison official to violate the Eighth Amendment, he must
deprive a prisoner of an objectively serious necessity, and he
must possess a sufficiently culpable state of mind. See Farmer
v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter,
501 U.S. 294, 297-298 (1991)). Deliberate indifference to a
prisoner's serious medical needs violates the Eighth Amendment.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official
exhibits deliberate indifference when he knows of and disregards
a substantial risk of serious harm to inmate health. Farmer, 511 U.S. at 837. The official must
both know of "facts from which the inference could be drawn" that
an excessive risk of harm exists, and he must actually draw that
inference. Farmer, 511 U.S. at 837. Evaluating a claim of
deliberate indifference necessitates examining the seriousness of
the prisoner's need and the nature of the defendant's response.
See McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992). A
serious medical need exists if failure to provide treatment could
result in further significant injury or the "unnecessary and
wanton infliction of pain." Estelle, 429 U.S. at 104.
Prison officials may display deliberate indifference to medical
needs if they know of the harmful effects of pepper spray and the
inadequacy of ventilation methods, yet purposely refuse to
provide medical care. See Clement v. Gomez, 298 F.3d 898, 904
(9th Cir. 2002). For example, in Clement, prison officials used
pepper spray to break up a fight between two inmates and did not
turn off the ventilation system before or after doing so, thereby
exposing nearby inmates to pepper spray fumes. Id. at 902. The
officials in Clement violated inmates' Eighth Amendment rights
by declining to allow them to shower for four hours following the
exposure. Id. at 901-902.
Jones has not raised a triable issue of fact that defendants
consciously disregarded a serious medical need or a substantial
risk of serious harm to his health. Defendants followed the Use
of Force Policy and took precautionary measures to minimize
inmates' exposure to pepper spray fumes. Defendants'
precautionary measures and adherence to the Use of Force Policy
suggest that they lacked the requisite state of mind to establish
an Eighth Amendment violation. Defendants' precautionary steps
minimized potential exposure to pepper spray for inmates other
than Silverman. Defendants turned off the unit ventilation system
before extracting Silverman from his cell, when they believed
pepper spray would be needed, and afterwards re-engaged the
ventilation system on a high setting and turned on a fan in order
to clear the air of any lingering pepper spray vapors. Jones does
not dispute that defendants took these steps.
Defendants contend that the fact that they followed the
procedures for pepper spray use and decontamination protocol
contained in the Use of Force Policy precludes a finding of
deliberate indifference. Although prison officials cannot avoid
liability in every case by blindly following a prison's policy
because the policy itself may be infirm, following the policy
here suggests a reasonable choice to deal with pepper spray. See California
Attorneys for Criminal Justice v. Butts, 195 F.3d 1039,
1049-1050 (9th Cir. 2000). The policy addressed the problem at
hand, potential bystander exposure to pepper spray, and had been
adopted pursuant to a court order. The policy's terms had been
reviewed by the court or the court's special master in the
ongoing class action concerning conditions at Pelican Bay,
Madrid v. Gomez, No. C90-3094 TEH. The policy and the steps
defendants took pursuant to it was one way to address the problem
posed by pepper spray use in a confined area.
Although defendants used a small amount of pepper spray before
the ventilation system was shut down in preparation for the
expected use of pepper spray in the cell extraction, they
followed the Use of Force Policy when they shut off the
ventilation before using pepper spray during the extraction.
Defendants also complied with the Use of Force Policy when, after
the spraying had finished, they restarted the ventilation system,
turned it on high, and put a fan in the unit to increase air
circulation. This precaution not only reduced any dispersion of
pepper spray fumes generated during the extraction, but also
addressed the pepper spray that had been administered before the
ventilation system was shut down. This suggests a reasonable
course of action, rather than deliberate indifference.
Inmates located in cells near Silverman's cell were not
considered to have been directly exposed to the pepper spray and
thus did not require decontamination pursuant to the Use of Force
Policy. Jones was not only not in an adjacent cell, he wasn't
even on the same tier. Moreover, the actual target of the pepper
spray, Silverman, never found it noxious enough to comply with
correctional staff's orders. After defendants squirted him with
pepper spray, Silverman still refused to submit to handcuffing
and had to be forcibly extracted from his cell. Finally,
defendants squirted the pepper spray into a cell with a
plexiglass front, which would have meant reduced dissipation to
areas outside that cell.
Jones has presented no evidence indicating that defendants knew
of possible serious injury to him. Jones states that the pepper
spray caused him to cough, choke and gag, and that the defendants
ignored his pleas for help. Even assuming this to be true, as the
court must at the summary judgment stage, it does not establish
that defendants acted with deliberate indifference. A demonstration that defendants failed to respond to Jones'
requests does not alone show that they deliberately ignored those
requests. Likewise, the comments allegedly made by defendants,
such as "deal with it" or "not now," do not support an inference
of deliberate indifference because they do not evince knowledge
on behalf of defendants that Jones faced a serious risk of harm
from the pepper spray. See Declaration of Kevin D. Allen, p. 2,
Complaint, p. 5.
While physical harm is not always necessary to establish a
constitutional violation, Jones has presented no evidence that
defendants' behavior caused any actual injury, suggesting that it
would have been reasonable for defendants to believe that Jones
did not face any risk of serious injury. See McGuckin,
974 F.2d at 1060-1061. At the time of the incident, Jones was being
treated for high cholesterol and chest pain of unknown origin. He
was diagnosed with hypertension about three months after the
incident and has been on medications for his hypertension and
angina. A physician examined Jones two days after the incident.
Medical records for that visit and the visits during the next
several months do not indicate any complaint, condition or
problem identified by patient or doctors as related to the pepper
spray exposure. Jones had the same problems before and after the
incident, and there is simply no evidence that the chest pains
and shortness of breath of which he complains relate to the
pepper spray exposure. Jones has not presented evidence to
dispute defendants' contention that his discomfort was only a de
minimis injury, typical of the transitory respiratory discomfort
caused by pepper spray. Finally, Jones has not demonstrated any
connection between an existing heart condition and an increased
sensitivity to pepper spray that would have demanded that prison
staff take additional precautions when using pepper spray in his
In sum, Jones' evidence does not raise a triable issue of fact
that defendants knew that the pepper spray exposure posed a
serious risk to his health or medical needs and nevertheless
deliberately ignored it. Defendants are entitled to summary
judgment in their favor on his section 1983 claim for an Eighth
Amendment violation. See Farmer, 511 U.S. at 837.
B. Qualified Immunity
The defense of qualified immunity protects government officials
from civil liability for conduct that does not violate clearly established constitutional
rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To
determine whether a defendant's conduct violated constitutional
rights, the court should examine the facts in a light most
favorable to the party asserting the injury. Saucier v. Katz,
533 U.S. 194, 201 (2001).
The fact that a defendant relied on training materials
permitting unlawful conduct does not mean he reasonably believed
his conduct to be lawful. See California Attorneys for
Criminal Justice, 195 F.3d at 1049-1050 (denying qualified
immunity to defendants who interrogated suspects in violation of
Miranda notwithstanding training material permitting such
interrogations). However, reliance on a consent decree may shield
prison officials from liability for their actions, even if the
"legal landscape" at the time established the constitutional
right at issue. See Krug v. Lutz, 329 F.3d 692, 699 (9th Cir.
Because, looking at the facts in a light most favorable to
Jones, the record establishes no Eighth Amendment violation,
defendants prevail as a matter of law on their qualified immunity
defense. See Harlow, 457 U.S. at 818. Furthermore, even if a
constitutional violation occurred, defendants' reliance on a
court-approved Use of Force Policy shields them from liability.
See Krug, 329 F.3d at 699. It would not have been clear to a
reasonable officer that following the court-approved Use of Force
Policy to address bystander pepper spray concerns would have been
unlawful or would have violated Jones' rights.
Jones attached several miscellaneous requests to his response
to defendants' motion for summary judgment. First, he requested
an extension of time until July 8, 2005 to file an amended
complaint. The Request is DENIED because Jones provided
absolutely no information about why he wanted to further amend
his amended complaint. Granting the request also would have been
useless, because he filed the document seeking an extension until
July 8, 2005 on July 25, 2005, after the proposed extended
deadline had already passed. He did not file a proposed amended
complaint by even his requested extended deadline.
Second, Jones attached a second motion for appointment of
counsel to his response to the motion for summary judgment. The motion for appointment of
counsel is DENIED for the same reasons the court denied Jones'
first motion for appointment of counsel. See Order Of Service,
Defendants filed a motion to stay discovery. Because this court
has granted defendant's summary judgment motion, the motion to
stay discovery is DENIED as moot. (Docket #20.)
For the foregoing reasons, defendants' motion for summary
judgment is GRANTED. (Docket #18). Defendants are entitled to
judgment as a matter of law on the merits of the Eighth Amendment
claim and on their qualified immunity defense. Judgment will now
be entered in favor of defendants and against plaintiff. The
clerk shall close the file.
IT IS SO ORDERED.
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