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Glass v. Scribner

August 19, 2009

DONALD GLASS, PLAINTIFF,
v.
A. K. SCRIBNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER RE MOTION FOR RECONSIDERATION AND MOTION FOR EXTENSION OF TIME TO FILE REPLY (Docs. 141, 144.) FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED IN PART AND DENIED IN PART (Doc. 94.) OBJECTIONS DUE WITHIN THIRTY (30) DAYS

Findings and Recommendations on Defendants' Motion for Summary Judgment

I. Procedural History

Plaintiff Donald Glass ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint filed December 22, 2004, against defendants Bailey, Beebe, Botello, Bryant, Case, Dang, Diaz, Kraay, Lawton and Tracy. (Doc. 16.) On December 27, 2006, Defendants filed a motion for summary judgment. (Doc. 94.) After extensive discovery, an appeal filed by Plaintiff to the Ninth Circuit Court of Appeals, and two requests and grants to extend time, Plaintiff filed his opposition on October 10, 2008.*fn1, *fn2 (Doc. 133.) Defendants filed a reply on January 9, 2009.*fn3 (Doc. 145.) On April 2, 2009, pursuant to the Court's order of February 4, 2009, Defendants filed a supplement to their motion for summary judgment to include a videotape copy of the April 17, 2002 cell extraction. (Doc. 153.) The motion is deemed submitted pursuant to Local Rule 78-230(m).

II. Legal Standard

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, 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. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Rule 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

A verified complaint in a pro se civil rights action may constitute an opposing affidavit for purposes of the summary judgment rule, where the complaint is based on an inmate's personal knowledge of admissible evidence, and not merely on the inmate's belief. McElyea v. Babbitt, 833 F.2d 196, 197-98 (9th Cir. 1987) (per curium); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985); Fed. R. Civ. P. 56(e). Plaintiff's complaint is verified and will be considered by the Court in resolving Defendants' motion to the extent that it sets forth admissible facts. The parties bear the burden of supporting their motions and oppositions with the papers they wish the Court to consider and/or by specifically referencing any other portions of the record they wish the Court to consider. Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). The Court will not undertake to mine the record for triable issues of fact. Id.

III. Defendants' Motion for Summary Judgment*fn4

A. April 17, 2002 Incident

i. Summary of Plaintiff's Complaint

On April 17, 2002 at approximately 19:30, Plaintiff and defendant Sgt. Lawton engaged in a verbal dispute over Plaintiff's grievance and litigation activity. Defendant Lawton told Plaintiff to cease filing grievances or lawsuits, or he would confiscate Plaintiff's legal property and place Plaintiff on strip cell status. (Doc. 134-2, Ex. 1, Comp., ¶18.) During the exchange, defendant Lawton admitted to having intercepted Plaintiff's March 2002 grievance filed against him, defendant Sgt. Beebe and defendant Sgt. Tracy. (Id., ¶19.) Plaintiff informed defendant Lawton that he intended to file another grievance concerning defendant Lawton's obstruction of his litigation activities. (Id., ¶20.) In response, defendant Lawton informed Plaintiff that he would accuse Plaintiff of covering his cell and would prepare a team to have Plaintiff cell extracted, in order to prevent Plaintiff from filing the grievance against him. (Id., ¶21.) Defendant Lawton then conferred with defendants Beebe, Tracy and Lt. Diaz. (Id., ¶23.) Defendants Lawton, Beebe, Tracy and Diaz telephoned defendant Capt. Botello. (Id., ¶24.) Defendant Botello authorized the cell extraction, the confiscation of Plaintiff's legal property and Plaintiff's placement on strip cell status. (Id.)

At approximately 23:45 that evening, defendants Diaz, Beebe, Lawton and Botello approached Plaintiff's cell. The defendants demanded that Plaintiff cuff up and allow them to confiscate his legal property, or they would use pepper spray. (Id., ¶25.) Because he had done nothing wrong and in order to protect himself, Plaintiff placed a mattress in front of his body. (Id., ¶26.) Defendant Diaz ordered defendant Lawton to use "extremely large amounts" of pepper spray. (Id., ¶27.) Plaintiff immediately dropped the mattress and complied with defendant Diaz's orders by placing both hands/arms through the open cuff port. (Id., ¶28.) Defendants Diaz and Lawton refused to allow Plaintiff to cuff up. (Id.) Instead, defendant Lawton continued to use pepper spray while defendants Botello, Beebe and Diaz watched in amusement. (Id., ¶29.) Defendant Lawton then ordered Plaintiff to strip nude before he would allow Plaintiff to cuff up. (Id., ¶30.) Defendant Lawton used a fire extinguisher sized container of pepper spray to saturate Plaintiff's entire body and still refused to allow Plaintiff to cuff up. (Id., ¶30.) Defendant Lawton ordered Plaintiff to run around his cell while defendant used pepper spray, aiming at Plaintiff's groin area. (Id., ¶31.) Plaintiff states that defendants Botello, Diaz and Beebe allowed defendant Lawton to do so for another five minutes, and laughed. (Id., ¶¶32, 33.) Plaintiff suffered burns on his genitals, arms, legs and back. (Id., ¶34.)

ii. Defendants' Position

Defendants argue that they are entitled to judgment on Plaintiff's excessive force claim against them because defendants Botello, Diaz, Lawton, and Beebe did not use excessive force on Plaintiff, and because defendant Tracy was not involved in the April 17, 2002 incident.

Defendants state that on April 17, 2002, at approximately 8:45 p.m., defendant Sgt. Lawton went to speak with Plaintiff. Plaintiff had put his hand into the extended food port in his cell door when officers on the unit were handing out clothing. He refused to allow the officers to secure the inner food port because he wanted a different pair of socks. (Doc. 95-1, Lawton Decl. ¶ 3; Doc. 95-7, Defs.' Ex. A 014.) Inmates with a history of disruptive behavior are given extended food ports to limit their ability to assault staff or engage in other kinds of disruptive behavior. The extended food port extends approximately 18 to 20 inches from the cell door. (Doc. 95-1, Lawton Decl. ¶ 4.) Defendant Lawton ordered Plaintiff to remove his hand from the food port so defendant Sgt. Lawton could secure it. Plaintiff refused. (Doc. 95-1, Lawton Decl. ¶ 5; Doc. 95-7, Defs.' Ex. A 014.) Defendant Lawton reported to his supervisor that Plaintiff's inner food port remained unsecured. (Id.) At approximately 9:15 p.m., defendant Lawton received a call from Officer Orozco, the Control Booth Operator in Plaintiff's housing unit. Officer Orozco reported that Plaintiff had covered his cell windows and door and was refusing to remove the coverings. (Doc. 95-1, Lawton Decl. ¶ 6; Doc. 95-7, Defs.' Ex. A 014.) Defendant Lawton went to Plaintiff's cell and ordered him to remove the coverings. Plaintiff refused. He stated that he would continue to cover up his cell throughout the night, and that he would "gas" staff if they came near his cell. (Id.) Defendant Lawton contacted defendant Beebe and directed him to operate a video camera while MTA Muro conducted a clinical intervention. (Doc 95-1, Lawton Decl. ¶ 7; Doc. 95-7, Defs.' Ex. A 014.) After receiving medical clearance to use pepper spray, and at the instruction of defendant Diaz, at approximately 9:45 p.m., defendant Lawton assembled a calculated cell extraction team. (Doc 95-1, Lawton Decl. ¶ 8; Doc. 95-6, Diaz Decl. ¶¶ 7-8; Defs.' Ex. A 012, 014.) At approximately 9:55 p.m., MTA Muro completed his clinical intervention with Plaintiff. The clinical intervention was unsuccessful, and Plaintiff continued to refuse to comply with the orders given to him. (Doc 95-1, Lawton Decl. ¶ 9; Doc. 95-6, Diaz Decl. ¶ 9; Doc. 95-7, Defs.' Ex. A 012, 014-015.) In order to engage in calculated use of force, staff must contact the Administrative Officer of the Day (AOD). The AOD is versed in policy and specially trained in the various techniques correctional staff use to maintain order in the prison. When staff have a situation that appears to warrant a calculated use of force, it may be one to two hours before they even contact the AOD to seek approval to engage in a calculated use of force. This can create a long cooling off period that can, at times, make a calculated use of force unnecessary. (Doc. 95-1, Lawton Decl. ¶ 10; Doc. 95-7, Defs.' Ex. A 011-012, 014-015.) Defendant Capt. Botello was the AOD on April 17, 2002. A significant period of time elapsed before correctional staff contacted her, and even more time elapsed before she actually arrived at the institution. (Doc 95-1, Lawton Decl. ¶ 11; Doc. 95-6, Diaz Decl. ¶¶ 4, 12.) During the period of time staff was contacting defendant Botello and while they waited for her to arrive at the institution, Plaintiff was given every opportunity to turn around, cuff up, and leave his cell peacefully. (Doc. 95-1, Lawton Decl. ¶ 12; Doc. 95-6, Diaz Decl. ¶¶ 4-12.) Instead of cooperating and cuffing up, Plaintiff used items from his cell to minimize the impact of any chemicals staff might use. He wrapped his head and face, had one or two jump suits on, put his shoes on and laced them over his jumpsuit. This kind of material can create a barrier to the effects of pepper spray. (Doc. 95-1, Lawton Decl. ¶ 13; Doc. 95-7, Defs.' Ex. A 012.) At approximately 11:15 p.m., the cell extraction team introduced themselves on video. The extraction team consisted of: Officer Love, who would use the shield; Officer Hayward, who would be responsible for handcuffs; Officer Robbins, who would be responsible for leg restraints; Officer Gonzales, who would be responsible for the triangle lanyard, and defendant Beebe, who would operate the video camera. Defendant Lawton was the team leader. Defendant Botello, who was there to give administrative approval for the use of force, was also present and introduced herself on video, as did defendant Diaz. (Doc 95-1, Lawton Decl. ¶ 14; Doc. 95-6, Diaz Decl. ¶ 12; Doc. 95-7, Defs.' Ex. A 012, 015.) When Plaintiff saw staff members preparing for a tactical cell extraction, he removed some of the window coverings. However, he refused to cuff up and exit his cell. (Doc. 95-6, Diaz Decl. ¶ 11.) Defendant Lawton gave the inmates in the cells next to Plaintiff's cell an opportunity to leave their cells, but they declined. (Doc 95-1, Lawton Decl. ¶ 15; Doc. 95-7, Defs.' Ex. A 015.) Defendants Diaz and Lawton entered B Section and went to the door of Plaintiff's cell. Defendant Diaz read the Cell Area Extraction Admonishment to Plaintiff. The Admonishment describes to the inmate what will happen during the cell extraction process. It also gives the inmate another opportunity to comply with orders by cuffing up. (Doc 95-1, Lawton Decl. ¶ 16; Doc. 95-6, Diaz Decl.¶ 14; Doc. 95-7, Defs.' Ex. A 012, 015.) While defendant Diaz was reading the Admonishment, defendant Lawton saw several milk containers in the cell near the toilet with a yellow liquid in them. Plaintiff's toilet also appeared to contain urine and feces. (Doc 95-1, Lawton Decl. ¶ 17; D Doc. 95-7, Defs.' Ex. A 015.) Plaintiff refused to comply with the Admonishment. Instead, he used his mattress and other items to barricade the food ports. (Doc 95-1, Lawton Decl. ¶ 18; Doc. 95-6, Diaz Decl. ¶¶ 14-15; Doc. 95-7, Defs.' Ex. A 012, 015; Compl. 5:7-9.) Defendant Diaz used a barricade removal device to spray pepper spray into Plaintiff's cell. This is a device that is used to push through barriers that an inmate has put up so that pepper spray can actually be sprayed into the area where the inmate is located. (Doc 95-1, Lawton Decl. ¶ 19; Doc. 95-6, Diaz Decl. ¶ 16; Doc. 95-7, Defs.' Ex. A 012, 015.) Defendant Lawton opened the second food port and administered pepper spray from an MK-46 cannister in bursts of about ten to fifteen seconds into the cell. (Doc 95-1, Lawton Decl. ¶ 20; Doc. 95-6, Diaz Decl. ¶ 17; Doc. 95-7, Defs.' Ex. A 012, 015.) The pepper spray appeared to have little effect because of obstructions such as towels and linens Plaintiff had lodged in the food port, as well as the mattress Plaintiff had put up. (Doc 95-1, Lawton Decl. ¶ 21; Doc. 95-6, Diaz Decl. ¶¶ 17-18; Doc. 95-7, Defs.' Ex. A 012, 015.) Defendant Lawton continued to give orders to Plaintiff to comply by cuffing up. (Doc 95-1, Lawton Decl. ¶ 22.) Sgt. Lawton removed the towels and linens from the food port and administered a second MK-46 cannister of pepper spray into the cell in ten to fifteen second bursts. The pepper spray appeared to strike Plaintiff around his waist because of his proximity to the cell door. It did not seem to affect Plaintiff. He continued to refuse to comply with orders. (Doc. 95-1, Lawton Decl. ¶ 23; Doc. 95-6, Diaz Decl. ¶ 20; Doc. 95-7, Defs.' Ex. A 012, 015.) Defendant Lawton used another MK-46 cannister in ten to fifteen second bursts, trying to hit Plaintiff in his upper torso. (Doc 95-1, Lawton Decl. ¶ 24; Doc. 95-7, Defs.' Ex. A 012, 015.) The pepper spray began to appear to have an effect. Plaintiff began to comply with defendant Lawton's orders by removing his clothing to facilitate an unclothed body search. However, when defendant Lawton ordered Plaintiff to remove all the items he had placed near the base of his cell door, he refused, using expletives. (Doc 95-1, Lawton Decl. ¶ 25; Doc. 95-6, Diaz Decl. ¶¶ 19-21; Doc. 95-7, Defs.' Ex. A 013, 015.) Defendant Lawton administered a burst of pepper spray from an MK-9 cannister, which is smaller than the MK-46, to Plaintiff's facial area. He continued to order Plaintiff to move all items on the floor to the back of his cell. Plaintiff stood toward the back of his cell and did not comply with defendant Lawton's orders. Defendant Lawton administered a second burst of pepper spray to Plaintiff's facial area. It was important for Plaintiff to move the items to the back of his cell so it would be more difficult to assault staff when they opened the cell door, and so that the items did not present obstacles if the extraction team had to enter the cell to remove Plaintiff. (Doc. 95-1, Lawton Decl. ¶ 26; Doc. 95-6, Diaz Decl. ¶ 22; Doc. 95-7, Defs.' Ex. A 13, 15.) Defendant Diaz instructed Plaintiff to flush his toilet. Plaintiff complied. (Doc 95-1, Lawton Decl. ¶ 27; Doc. 95-6, Diaz Decl. ¶ 23; Doc. 95-7, Defs.' Ex. A 13, 15.) Defendant Lawton instructed Plaintiff several more times to pick up all the items near the cell door, which included the mattress, linens, lunch bags, and the milk cartons, and throw them to the back of the cell. Plaintiff refused to comply. (Doc 95-1, Lawton Decl. ¶ 28; Doc. 95-6, Diaz Decl. ¶ 24; Doc. 95-7, Defs.' Ex. A 13, 15.) Defendant Lawton used an MK-9 cannister to administer pepper spray to Plaintiff's facial area. Plaintiff complied with defendant Lawton's orders then. Defendant Lawton was able to conduct an unclothed body search to ensure he did not have any contraband on him, such as a weapon or other object he could use to assault staff, before he exited the cell. (Doc 95-1, Lawton Decl. ¶ 29; Doc. 95-6, Diaz Decl. ¶ 25; Doc. 95-7, Defs.' Ex. A 13, 15.) Plaintiff then surrendered. He was placed in handcuffs with the lanyard attached. After he knelt in compliance with Sgt. Lawton's order, the cell door was opened and staff placed leg restraints and a spit mask on him. (Doc 95-1, Lawton Decl. ¶ 30; Doc. 95-6, Diaz Decl. ¶¶ 25-26; Doc. 95-7, Defs.' Ex. A 13, 15.) Plaintiff was escorted to the grass area in front of the housing unit for decontamination with cool running water and a medical evaluation by MTA Chacon. The spit mask was removed to facilitate the decontamination. (Doc 95-1, Lawton Decl. ¶ 31; Doc. 95-6, Diaz Decl. ¶ 27; Doc. 95-7, Defs.' Ex. A 13, 15.) MTA Chacon medically cleared Plaintiff. (Doc 95-1, Lawton Decl. ¶ 32; Doc. 95-6, Diaz Decl. ¶ 29; Doc. 95-7, Defs.' Ex. A 013, 015.)

Defendants argue that the only defendants involved in the cell extraction were Botello, Diaz, Lawton and Beebe, and that they used only the amount of force necessary to bring a disruptive inmate under control. (Doc. 94-1, Defs' Motion for Summary Judgment, p.13.) Defendants argue that there is no evidence showing that they acted maliciously and sadistically for the purpose of causing pain to Plaintiff. Defendants argue that they have a duty to protect prison staff and inmates and maintain safety and security in the institution, and could not simply ignore Plaintiff's refusal to uncover his cell, or his refusal to cuff up and come out of his cell. (Id.) Defendants further submit evidence that defendant Tracy was not involved in the cell extraction, and argue that Plaintiff cannot produce evidence indicating otherwise. (Id.; Doc. 95-5, Tracy Decl. ¶2.)

iii. Plaintiff's Position*fn5

In opposition, Plaintiff argues that his cell was not covered up and that he never threatened to cover up or to gas staff. (Doc. 133, Pl's Opp., p.16.) Plaintiff further argues that the amount of pepper spray used on Plaintiff's naked body was excessive and amounts to sexual assault and torture.*fn6

Plaintiff submits his own declarations attesting that on April 17, 2002 at approximately 5:30 p.m., defendant Bailey delivered Plaintiff a pair of "holely" socks.*fn7 (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0017 at ¶3.) Plaintiff requested that the socks be exchanged for another pair or that his original pair be returned to him, but his request was denied. (Id., ¶4.) Plaintiff used the socks to prevent defendant Bailey from placing the extended food port back into its slot. (Id., ¶7.)

Defendant Bailey asked Plaintiff if he wanted his legal mail. Plaintiff said yes. (Id., ¶8.) Defendant Bailey informed Plaintiff that he was not going to issue it because Plaintiff was holding the food port hostage. (Id., ¶9.) At approximately 6:45 p.m. defendant Lawton approached him with the same legal mail in his hand that defendant Bailey earlier held. Defendant Lawton asked Plaintiff if he wanted his legal mail, and began reading the address of the Ninth Circuit Court of Appeal in San Francisco dated 4/15/2002. Plaintiff said yes. (Id., ¶10.) Defendant Lawton indicated that he would order morning staff not to feed Plaintiff until the food port was secure. (Id., ¶11.) Plaintiff agreed to allow defendants Bailey and Lawton to place the extended food port in its slot and place a pad lock on the outside of the food port. (Id., ¶12.) However, defendant Lawton indicated that Plaintiff would not be issued his legal mail from the Ninth Circuit Court of Appeals because Plaintiff had held his food port and made defendant Lawton come over. (Id., ¶13.) Plaintiff then informed defendant Lawton that he had already filed a grievance against him and defendant Tracy for unlawfully confiscating his legal materials and denying him access to the courts, and that Plaintiff would be able to prove a "pattern" against him. (Id., ¶18.) Defendant Lawton then looked into his cell and said that he was "covered up" and that he was going to take Plaintiff's legal materials to stop Plaintiff from litigating and accessing the courts, even if he had to lie to defendant Tracy, his superior. (Id., ¶19; Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0035 at ¶11.) Defendant Lawton said he would lie to defendant Tracy, saying that his cell was covered up and have Plaintiff cell extracted and placed on strip cell status. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0035 at ¶11.) Defendant Tracy came over to view Plaintiff's cell, determined that Plaintiff's cell was not covered up, and gave defendant Lawton a direct order not to assemble a cell extraction team. (Id., ¶¶12, 13.) At approximately 9:50, M.T.A. Muro approached Plaintiff's cell and talked to him face to face because Plaintiff's cell door and windows were not covered up. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0029 at ¶19.) At approximately 11:40, defendant Lawton entered 4A2R-B Section and asked inmates in cells 4A2R-25 and 4A2R-27 if they wanted to come out of their cells. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0029 at ¶24.) Plaintiff was never asked by defendants Diaz nor Lawton whether he wanted to come out of his cell. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0030 at ¶25.) At approximately 11:24 p.m. defendant Botello entered the rotunda area. Defendant Botello authorized defendants Diaz, Beebe and Lawton to cell extract Plaintiff. (Id., ¶26.) CDCR cell extraction policy mandates that a medical doctor authorizing the use of O.C. pepper spray on a prisoner must do so in writing, and not verbally. (Id., ¶29.) At approximately 12:00 a.m. defendants Diaz, Lawton, Beebe and Botello arrived at Plaintiff's cell. (Id., ¶30.) Defendant Diaz informed Plaintiff that he wanted his property and that he was placing Plaintiff on strip cell status because his cell was covered up. (Id., ¶31.) Plaintiff informed defendant Diaz that his cell was never covered up. (Id., ¶31.) Plaintiff grabbed his mattress to protect himself. (Id., ¶33.) Defendants Diaz and Lawton placed a fire extinguisher sized canister of pepper spray through the special food port and emptied its contents into his cell. (Id., ¶34.) Plaintiff immediately dropped his mattress and placed both arms through the regular food port to submit to cuffs and to voluntarily exit the cell. (Id., ¶35.) Defendants Lawton and Diaz pushed Plaintiff's arm back though the food port and slammed it shut. (Id., ¶37.) Defendants stated that before he was to exit his cell, Plaintiff was to remove all his clothes. (Id., ¶38.) As Plaintiff began to disrobe, defendant Lawton opened the food port and sprayed Plaintiff over his entire body without provocation. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0031 at ¶39.) After Plaintiff was totally nude he was forced to pick up papers and other articles off the floor. Each time he bent over or stood up, defendants Diaz and Lawton would use pepper spray on his buttocks and testicles. (Id., ¶44.) Defendants Diaz and Lawton had Plaintiff running around for sport, and soaked his entire body with pepper spray. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0020 at ¶46.) After approximately five minutes, Plaintiff was allowed to put on a pair of boxer shorts, submit to hand cuffs, and exit the cell. (Doc. 134-2, Pl's Ex. 2, Glass Decl., identified as p.0031 at ¶45.) Plaintiff argues that defendant Beebe was present, videotaped the incident, and failed to intervene. Plaintiff likewise argues that defendant Botello also failed to stop the use of force or intervene on Plaintiff's behalf.

iv. Discussion

"What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. "The Eighth Amendment's prohibition of cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).

"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. (internal quotation marks and citations omitted). "The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it." Id.

a. Whether the Force Used was Excessive

The parties agree on very little regarding the circumstances and events leading up to the calculated cell extraction on April 17, 2002. Defendants contend that Plaintiff covered his cell window and door; Plaintiff disagrees. However, it is undisputed that when Plaintiff was ordered to cuff up, he instead placed a mattress in front of his body "to protect himself from the malfeasance and egregious misconduct of [the] prison officials". (Doc. 134-2, Pl's Ex. 1, Comp., ¶¶ 25, 26.) It is also undisputed that prior to the administration of pepper spray, defendant Lt. Diaz read the Cell Area Extraction Admonishment to Plaintiff. The Admonishment describes what will happen during the cell extraction process. It also gives the inmate another opportunity to comply with orders by cuffing up.*fn8

Insubordination is a matter taken very seriously within the confines of an institutional setting. Defendants contend that the cell extraction was necessitated by Plaintiff's covering of his cell window and door, which Plaintiff denies doing. However, Plaintiff certainly created a need for the application of force and the consequent cell extraction when he refused to comply with staff orders, and instead used his mattress to form a barricade. (See Doc. 153, Videotape, at 10:15:59.) Defendants could reasonably have perceived Plaintiff's disobedience to be a threat requiring the use of force. The Court therefore finds that the initial application of pepper spray was used to enforce compliance with an order to cuff up and in response to Plaintiff's use of his mattress as a barricade, and not as punishment. The legitimate intended result was compliance, not the infliction of pain, and the initial use of pepper spray was reasonable under the circumstances. Viewing the evidence in the light most favorable to Plaintiff, defendants Lawton and Diaz's use of pepper spray in an effort to make Plaintiff compliant with orders to cuff up simply do not support a claim for relief under section 1983 for use of excessive physical force. With respect to the initial application of pepper spray, the Court finds that the force applied by defendants was "a good-faith effort to maintain or restore discipline," and was not applied "maliciously and sadistically to cause harm." Hudson, 503 U.S. at 7.

However, there are factual disputes between the parties that are material and preclude summary judgment on Plaintiff's excessive force claim against defendants Diaz, Lawton, Beebe and Botello. Plaintiff submits evidence that after the initial application of pepper spray, he immediately dropped his mattress and placed both arms through the regular food port to submit to cuffs and to voluntarily exit the cell. At some point during the cell extraction Plaintiff was ordered to remove his clothes and he eventually complied. Plaintiff contends that each time he bent over or stood up to pick up papers and other articles off the floor as ordered, defendant Lawton would use pepper spray on his buttocks and genitals. Plaintiff also argues that defendants Diaz and Lawton had Plaintiff run around for sport, and soaked his entire body with pepper spray. After approximately two or five minutes, Plaintiff was allowed to put on a pair of boxer shorts and submit to hand cuffs and to exit the cell. Plaintiff submits that defendants used an excessive amount of pepper spray, and used the spray inappropriately, aiming at his genitals.

In reply, Defendants argue that Plaintiff's assertions that he was forced to take off his clothes and run around the cell while pepper spray was used on him is absurd, because Plaintiff has given no indication of the "force" used by defendants, defendants were on the other side of a locked prison cell door, and Plaintiff could not be forced to do anything given his refusal to comply with other orders. Nonetheless, in light of Plaintiff's evidence that he was willing to comply with orders, that defendants Lawton and Diaz used the pepper spray aimed at his genitals, and that defendants Botello and Beebe observed but failed to intercede, there are factual issues in dispute as to whether there was a need for the application of force, the relationship between the need and amount of force used, the threat reasonably perceived by defendants, and efforts made to temper the response by defendants. Hudson, 503 U.S. at 7.

b. Whether Plaintiff Sustained an Objectively Serious Deprivation or Injury

Defendants further argue that they are entitled to summary judgment on the excessive force claim because Plaintiff cannot show that he sustained an objectively serious deprivation or injury. (Doc. 94-1, Defs' Motion for Summary Judgment, p.14). The use of excessive physical force against a prisoner may constitute cruel and unusual punishment even when the inmate does not suffer serious injury. Hudson, 503 U.S. at 4. "When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Id. at 9. (internal citations omitted).

Plaintiff has raised a material question of fact as to whether the continued use of pepper spray during the cell extraction was malicious and sadistic, or whether it was applied in a good faith effort to maintain or restore discipline. Defendants' assertion that Plaintiff suffered no serious injury does not entitle them to summary judgment.

c. Qualified Immunity

Next, defendants Botello, Diaz, Lawton and Beebe argue that they are entitled to qualified immunity. Government officials enjoy qualified immunity from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982). Thus, if a constitutional violation occurred, prison officials are entitled to qualified immunity if they acted reasonably under the circumstances. Millender v. County of Los Angeles, 564 F.3d 1143, 1148 (9th Cir. 2009). "Qualified immunity balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably," Pearson v. Callahan, 129 S.Ct. 808, 815 (2009), and protects "all but the plainly incompetent or those who knowingly violate the law," Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096 (1986).

In resolving a claim of qualified immunity, courts must determine whether, taken in the light most favorable to the Plaintiff, the defendant's conduct violated a constitutional right, and if so, whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156 (2001); McSherry v. City of Long Beach, 560 F.3d 1125, 1129-30 (9th Cir. 2009). While often beneficial to address in that order, courts have discretion to address the two-step inquiry in the order they deem most suitable under the circumstances. Pearson, 129 S.Ct. at 818 (overruling holding in Saucier that the two-step inquiry must be conducted in that order, and the second step is reached only if the court first finds a constitutional violation); McSherry, 560 F.3d at 1130.

As explained above, there is a material question for the trier of fact as to whether defendants Botello, Diaz, Lawton and Beebe violated Plaintiff's constitutional rights. Under the second prong of the inquiry, Defendants assert that reasonable officers in their positions could reasonably have believed that the conduct was lawful, and argue that many efforts were made to temper the use of pepper spray. Defendants further argue that it was reasonable to conclude that Plaintiff ...


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