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Fuller v. Rippetoe

United States District Court, N.D. California

August 8, 2016

BRUCE L. FULLER, Plaintiff,
v.
C. RIPPETOE, et al., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' SUMMARY JUDGMENT MOTION; REFERRING CASE TO SETTLEMENT PROCEEDINGS; STAYING AND ADMINISTRATIVELY CLOSING CASE; INSTRUCTIONS TO CLERK RE: DKT. NO. 52

          HAYWOOD S. GILLIAM, JR. United States District Judge

         INTRODUCTION

         Plaintiff, an inmate at Kern Valley State Prison (“KVSP”), filed the instant pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging that when he was previously housed at Pelican Bay State Prison (“PBSP”), Officers Rippetoe, Rexford, Evans, McMahan, and Schaad (“Defendants”) used excessive force on him in violation of the Eighth Amendment. Now before the Court is Defendants’ motion for summary judgment. Docket No. 52. Plaintiff has not filed a response despite being granted a ten-month extension of time via five separate extensions of time (Docket Nos. 67, 70, 73, 77, 79).[1] Defendants have filed a reply. Docket No. 74. For the reasons discussed below, Defendants’ motion for summary judgment is GRANTED IN PART AND DENIED IN PART.

         FACTUAL BACKGROUND[2]

         A. June 4, 2013 Incident

         On June 4, 2013, at approximately 10:05 a.m., on the A Facility exercise yard, two inmates violently attacked inmate Johnson. Docket No. 1 (“Compl.”) at 3; Rexford Decl. ¶ 2; Rippetoe Decl. ¶ 3; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; Schaad Decl. ¶ 2; and Loftin Decl. ¶ 2. Prison guards shouted orders for the inmates to get down, which were ignored. Rexford Decl. ¶ 2; Rippetoe Decl. ¶ 3; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; Schaad Decl. ¶ 2; and Loftin Decl. ¶ 2. A number of prison officers, including Defendants, began moving towards the incident. As Defendants approached the fight, they observed Plaintiff and two other inmates run towards the incident and join in the fight. Rexford Decl. ¶ 2; Rippetoe Decl. ¶ 3; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; and Schaad Decl. ¶ 2. To stop the incident, Officer Schaad and Officer Rippetoe each deployed a pepper-spray grenade, [3] both of which landed near the fighting inmates. Rexford Decl. ¶ 3; Rippetoe Decl. ¶ 4; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; and Schaad Decl. ¶ 2. In response to the deployment of the two grenades, the six inmates involved in the fight separated and began to assume prone positions on the ground. Rexford Decl. ¶ 3; Rippetoe Decl. ¶ 4; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; and Schaad Decl. ¶ 2. The parties disagree as to what happened next.

         Plaintiff’s Allegations.

Plaintiff alleges that, while he was lying prone on the floor and not engaged in any aggressive behavior, Defendants deployed a pepper-spray grenade next to his face which caused him to jump up and run from the pepper spray. Compl. at 3 and Docket No. 1-1 at 16. The pepper spray left Plaintiff with blurred vision; and he currently experiences a burning sensation, puffiness, and redness in both eyes caused by the pepper spray. Compl. at 3 and Docket Nos. 1-1 at 16, 1-3 at 47. The injury to Plaintiff’s eyes is ongoing and often interrupts his daily activities. Id.

         After the inmates were cuffed and led to the holding-cell area, Plaintiff informed Lt. Amis that the use of the third pepper-spray grenade constituted unconstitutional excessive force. Docket No. 1-1 at 8 and 16. Lt. Amis did not return to make a video of Plaintiff’s excessive force claim, which Plaintiff alleges is mandatory, and Plaintiff was taken directly to administrative segregation. Docket No. 1-1 at 8. Later, prison officials edited video footage and mishandled photographic evidence in order to cover up their use of excessive force. Docket No. 1-3 at 28 and 33. Plaintiff was found guilty of participating in a riot, despite his assertion that he was never positively identified as a participant in the fight. Docket No. 1-3 at 17-34.

         Defendants’ Allegations.

Defendants allege that the additional grenades were deployed because Plaintiff jumped to his feet and ran away from the incident area and toward the pedestrian gate. Rexford Decl. ¶ 3; Rippetoe Decl. ¶ 4; and Schaad Decl. ¶ 3. When Plaintiff jumped up, Officer Schaad shouted at Plaintiff to get down and attempted to strike Plaintiff with an expandable baton. Schaad Dec. ¶ 3. After Plaintiff jumped up, Inmate Jackson also got up from his prone position and ran towards the pedestrian gate. Evans Decl. ¶ 5. Officer Rexford deployed a chloroacetpohene (CN) Han-Ball grenade, which landed approximately five feet from Plaintiff. Rexford Decl. ¶ 3; Rippetoe Decl. ¶ 4; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; and Schaad Decl. ¶ 2. Officer Evans deployed a pepper-spray grenade shortly thereafter. Evans Decl. ¶ 5. Following the deployment of the additional grenades, Plaintiff and Fuller resumed prone positions. Rexford Decl. ¶ 3; Rippetoe Decl. ¶ 4; Evans Decl. ¶ 3; McMahan Decl. ¶ 2; and Schaad Decl. ¶ 2. No further chemical agents were deployed.

         The responding officers handcuffed the prisoners who participated in the fight. Officers took identifying photographs and video of the inmates to document the incident as required by the California Code of Regulations. These photographs and videos were submitted and memorialized as part of the Crime/Incident Report for the incident, institutional log number PBSP-FAYD-13-16-0239. The inmates involved in the incident were Plaintiff, Burns, Gaddy, Jackson, Jones, and Hayes;[4] and inmate Johnson was the victim. Docket No. 1-2 at 48.

         Correctional Officer Loftin placed Plaintiff into handcuffs, retrieved Plaintiff’s state identification from his left sock, and escorted Plaintiff to the A Facility hobby shop. Schaad Decl. ¶ 4; Loftin Decl. ¶ 3. Both Officers Schaad and Loftin observed that Plaintiff was not in any particular distress, and did not appear to be suffering any negative effects from the chemical agents. Schaad Decl. ¶ 4; Loftin Decl. ¶ 3. Plaintiff was twice offered the opportunity to decontaminate from the effects of the chemical agents, and he declined both times. Schaad Decl. ¶ 4; Loftin Decl. ¶ 3. Once in the holding cell, Plaintiff received a medical examination from psychiatric technician K. Bragger. Security squad officer J. Hernandez took two evidentiary photographs of Plaintiff at this time. Hernandez Decl. ¶ 3; Schaad Decl. ¶ 4. Officer Hernandez also observed that Plaintiff did not appear to be in any physical distress or to be suffering physical symptoms normally associated with exposure to pepper spray, such as tearing eyes that are difficult to keep open, nasal discharge, difficulty breathing, or coughing. Hernandez Decl. ¶ 4.

         A. Medical Treatment

         On June 4, 2013, Plaintiff was examined just after the incident. The medical notes report that the pepper spray hit Plaintiff on the upper right side of his head. Docket No. 1-3 at 46. The medical notes indicate that Plaintiff had no injuries. While in the holding-cell area, Plaintiff was twice asked if he wanted to decontaminate after being exposed to the pepper spray, and he declined. Loftin Decl. ¶ 3; Schaad Decl. ¶ 4.

         On June 5, 2013, Plaintiff submitted a request for health care services, stating that, due to his pepper spray exposure, his eyes were burning and his left eye kept running. Docket No. 1-3 at 47. On June 15, 2013, Plaintiff submitted another request for health care services, stating that his eyes were still burning and that he now suffered from blurry vision. Docket No. 1-3 at 49. On July 18, 2013, Plaintiff submitted another request for health care services, stating that his eyes were still burning and asking to see an eye doctor. Docket No. 1-3 at 52. In response, Plaintiff was examined by a nurse who prescribed eye drops and attributed blurry vision to a need for reading classes. Docket No. 61-7 at 7. On July 27, 2013, Plaintiff submitted another request for health care services, stating the eyedrops had been ineffective, and that he continued to suffer from blurry vision and a burning sensation in both eyes. Docket No. 1-3 at 54. In response, Plaintiff was again examined by a nurse on July 29, 2013. Docket No. 61-7 at 13. The nurse concluded that there were no abnormalities in Plaintiff’s eyes, including no tearing or discharge. Docket No. 61-7 at 13.

         On August 5, 2013, Plaintiff submitted another request for health care services, stating that he continued to suffer from blurry vision and a burning sensation in both eyes. Docket No. 1-3 at 55. Plaintiff was examined by a nurse on August 6, 2013, who again noted no abnormalities in Plaintiff’s eyes, including no tearing or discharge. Docket No. 61-7 at 17.

         On August 13, 2013, Plaintiff submitted another request for health care services, stating that he continued to suffer from blurry vision and a burning sensation in both eyes and again demanding to see an eye doctor. Docket No. 1-3 at 56. Plaintiff was examined by a doctor on August 15, 2013. Docket No. 61-7 at 23. The doctor noted that despite Plaintiff’s complaint of blurred vision and burning in both eyes, Plaintiff’s eyes had no tearing and Plaintiff squinted his eyes very narrowly when the doctor attempted to examine his eyes. Docket No. 61-7 at 23. The doctor also noted that when Plaintiff was engaged in casual conversation with the correctional officer, he did not blink frequently or stare, but rather looked around the room with eyes wide open. Docket No. 61-7 at 23. The doctor recommended artificial tears and cool compresses for the eye irritation. Docket No. 61-7 at 23. The doctor concluded that there were no objective findings to support eye irritation. Docket No. 61-7 at 28.

         On September 5, 2013, Plaintiff submitted another request for health care services, stating that he had run out of eye drops, that continued to suffer from blurry vision and a burning sensation in both eyes, and that he could no longer see far distances. Docket No. 1-3 at 57. On September 16, 2013, Plaintiff submitted another request for health care services, stating that his request for a refill of his eye drops had not been filled. Docket No.1-3 at 58. He stated that he continued to suffer from blurry vision and a burning sensation in both eyes, and that the eye drops addressed the burning sensation, but not the blurriness. Docket No. 1-3 at 58. On September 17, 2013, Plaintiff was examined by a nurse who did not observe any redness or discharge in Plaintiff’s eyes. Artificial tears were again prescribed. Docket No. 61-7 at 27. The next day, Plaintiff was examined by a prison doctor who also noted that Plaintiff’s eyes did not have any apparent tearing or redness. Docket No. 61-7 at 29.

         On October 6, 2013, Plaintiff submitted another request for health care services, complaining that he continued to suffer from blurry vision, and requesting to see an eye doctor. Docket No. 1-3 at 59. Plaintiff was examined twice in October by medical professionals and prescribed eye drops.

         On October 22, 2013, Plaintiff again submitted a request for health care services. Docket No. 61-7 at 45. He complained that he had been suffering burning sensations in his eyes and blurry vision for over five months without effective medical treatment. Docket No. 61-7 at 45. A November 6, 2013 medical examination indicated that Plaintiff’s eyes were not ...


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