(PC) Brown v. Williams et al, No. 1:2009cv00792 - Document 34 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending Denying Unenumerated 12(b) Motion and Granting in Part the 12(b)(6) Motion to Dismiss 16 signed by Magistrate Judge Gerald B. Cohn on 02/02/2011. Referred to Judge O'Neill; Objections to F&R due by 3/10/2011. (Flores, E)
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(PC) Brown v. Williams et al Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THORNELL BROWN, 10 11 12 CASE NO. 1:09-cv-00792-LJO-GBC (PC) Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING UNENUMERATED 12(b) MOTION AND GRANTING IN PART THE 12(b)(6) MOTION TO DISMISS v. R. J. WILLIAMS, et al., 13 Defendants. (Doc. 16) 14 OBJECTIONS DUE WITHIN THIRTY DAYS / 15 16 Findings and Recommendations - Defendant’s 12(b)(6) Motion 17 I. 18 Plaintiff Thornell Brown (“Plaintiff”) is a state prisoner proceeding in forma pauperis (“IFP”) 19 in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s 20 complaint, filed May 4, 2009, against Defendants Williams and Gonzales (“Defendants”) for use of 21 excessive force and subjecting Plaintiff to unconstitutional conditions of confinement following the 22 use of force on May 23, 2005, in violation of the Eighth Amendment. (Doc. 1, Comp.; Doc. 8, Cog 23 Claim Ord.). Procedural History 24 On May 6, 2010, Defendants filed a request for judicial notice, an unenumerated 12(b) 25 motion to dismiss pursuant to 28 U.S.C. §1915(g) and a 12(b)(6) motion to dismiss on grounds of 26 qualified immunity. (Docs. 16, 17). On December 20, 2010, Plaintiff filed an opposition to 27 Defendants’ motions. (Doc. 32). Defendants have not submitted a reply within the time allotted 28 under local rules. The matter is submitted pursuant to Local Rule 230(1). 1 Dockets.Justia.com 1 II. 2 ‘The focus of any Rule 12(b)(6) dismissal . . . is the complaint.’ Corrie v. Caterpillar, Inc., 3 503 F.3d 974, 979-80 (9th Cir. 2007) (quoting Schneider v. Cal. Dep’t. of Corr., 151 F.3d 1194, 4 1197 n.1 (9th Cir. 1998). A complaint must contain “a short and plain statement of the claim 5 showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). “To survive a motion to 6 dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim that 7 is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. 8 v. Twombly, 550 U.S. 544, 555); Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The 9 mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 10 1949-50. Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of 11 a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 12 1949. Additionally, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 13 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Motion to Dismiss Standard 14 III. 15 Section 1915 of Title 28 of the United States Code governs proceedings in forma 16 17 18 19 20 Three Strikes Pursuant to 28 U.S.C. §1915(g) pauperis. Section 1915(g) provides that: [i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g).1 21 Defendants request the Court take judicial notice of dispositions of civil cases filed by 22 Plaintiff. (Doc. 17). “A court shall take judicial notice if requested by a party and supplied with the 23 necessary information.” Fed. R. Evid. 201(d). The Court takes judicial notice of Plaintiff’s court 24 records in previous cases. Fed. R. Evid. 201(d); see United States v. Howard, 381 F.3d 873, 876 n.1 25 26 27 28 1 “This subdivision is commonly known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were] frivolous, malicious, or fail[ ] to state a claim’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed [in forma pauperis].” Andrews v. King, 398 F.3d 1113, 1116 n.1(9th Cir. 2005). 2 1 (2004). Defendants argue that the following cases constitute as strikes: Brown v. Galaza, et al., 2 1:98-cv-05156-AWI-HGB (E.D. Cal. dismissed July 31, 2000); Brown v. Valenzuela, 3 2:07-cv-02842-ODW-PJW (C.D. Cal. dismissed June 15, 2007); Brown v. Renteria, 4 2:02-cv-04625-SVW-PJW, 2006 WL 4389588 (C.D. Cal., dismissed November 17, 2006); Brown 5 v. Gandola, 2:03-cv-05867-SVW-PJW (C.D. Cal., dismissed July 19, 2007); Brown v. Macias, 6 2:04-cv-05384-SVW-PJW (C.D. Cal., dismissed August 10, 2007); Brown v. Macias, No. 05-55782 7 (9th Cir., dismissed August 9, 2005). 8 A review of the record of actions filed by Plaintiff in the United States District Court reveals 9 that Plaintiff filed two actions that clearly count as “strikes” pursuant to § 1915(g). See Brown v. 10 Galaza, et al., 1:98-cv-05156-AWI-HGB (E.D. Cal.) (dismissed July 31, 2000, for failure to state 11 a claim, Doc. 25); Brown v. Valenzuela, 2:07-cv-02842-ODW-PJW (C.D. Cal.) (dismissed June 15, 12 2007 for failure to state a claim, Docs. 5, 8). However, “[n]ot all unsuccessful cases qualify as a 13 strike under § 1915(g).” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005); see O'Neal v. Price, 14 531 F.3d 1146, 1152-53 (9th Cir. 2008). Only “after careful evaluation of the order dismissing an 15 action, and other relevant information, [does the Court] determine[] that the action was dismissed 16 because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 17 (9th Cir. 2005). 18 In Renteria, Plaintiff had stated a claim, however, the court granted the motion for summary 19 judgment upon finding that the amount of force was not excessive given the circumstances. Brown 20 v. Renteria, 2:02-cv-04625-SVW-PJW (Doc. 128). Therefore, the Court finds that Renteria does 21 not count as a strike. Further, the Court finds that Brown v. Macias does not count as a strike. See 22 Brown v. Macias, 2:04-cv-05384-SVW-PJW, (C.D. Cal., dismissed August 10, 2007). In Brown v. 23 Macias: 1) two claims were dismissed for failure to state a claim; 2) one due process claim was not 24 cognizable under section 1983 since it necessarily challenged the length of Plaintiff's sentence; 3) 25 one claim was dismissed upon a finding that there was due process (Defendants do not explain why 26 this claim should be deemed as frivolous, malicious or failing to state a claim); 4) Plaintiff’s 27 retaliation claim was dismissed because Plaintiff failed to establish that his First Amendment Rights 28 were chilled (Defendants do not explain why this claim should be deemed frivolous, malicious or 3 1 failing to state a claim); 5) one Eighth Amendment claim was transferred to another case; and 6) 2 another Eighth Amendment claim was denied because there was no evidence that Plaintiff was 3 placed in the Secured Housing Unit (“SHU”) where the defendants worked. Brown v. Macias, 4 2:04-cv-05384-SVW-PJW (Doc. 82). 5 recommendations, there is a heading titled “Plaintiff’s State Law Claim is Subject To Dismissal 6 Because His Federal Claims Are Not Cognizable,” such title is not sufficient to establish that the 7 action was dismissed for being frivolous, malicious of failing to state a claim. See Andrews v. King, 8 398 F.3d 1113, 1121 (9th Cir. 2005). Although on page fourteen of the findings and 9 In Brown v. Gandola: 1) the official capacity claims were dismissed based on absolute 10 immunity, thus failed to state a claim; 2) “Claim V” was dismissed for failure to exhaust 11 administrative remedies; 3) Plaintiff’s Due Process “Claims I-III” were denied based on a failure to 12 establish protected liberty interests and additionally, Plaintiff received due process (Defendants do 13 not explain why these claims should be deemed as frivolous, malicious or failing to state a claim); 14 and 4) Plaintiff’s claim of deliberate indifference to due process violations that occurred at the 15 disciplinary hearings could be deemed as dismissed for failing to state a claim. 16 For the trial actions in Macias and Gandola described above, Defendants have not cited any 17 authority to support the contention that dismissing a “mixed action,” where some of the claims are 18 frivolous, malicious, or failed to state a claim while other claims are not, should count as a strike. 19 In fact, the law suggests the opposite. See 28 U.S.C. § 1915(g) (stating that a strike is an “action” 20 (rather than a claim) that has been dismissed as frivolous, malicious or for failing to state a claim); 21 Lira v. Herrera, 427 F.3d 1164, 1171-72 (9th Cir. 2005) (interpreting “action” in the PLRA and its 22 application in “mixed actions” of exhausted and unexhausted claims, noting that “actions” are treated 23 in their entirety as juxtaposed to individual claims ). Therefore, the Court finds that the trial actions 24 of Macias and Gandola do not count as strikes since they contained at least one claim that is not 25 frivolous, malicious or failed to state a claim. 26 The Ninth Circuit has left open the possibility that a dismissal for lack of jurisdiction or other 27 procedural defects may constitute as a strike. O'Neal v. Price, 531 F.3d 1146, 1155 n.9 (9th Cir. 28 2008). However, Defendants have failed to demonstrate how the appellate dismissal in Brown v. 4 1 Macias constitutes a strike. In Brown v. Macias, Plaintiff appealed the denial of his motion for 2 reconsideration of the court’s denial of default judgment in Plaintiff’s favor. Brown v. Macias, 3 2:04-cv-05384-SVW-PJW, (Docs. 34, 35, 36, 37, 44, 45); Brown v. Macias, No. 05-55782 (9th Cir., 4 dismissed August 9, 2005). Defendants fail to cite any authority as to why an appellate dismissal 5 for lack of jurisdiction in this circumstance should be deemed as frivolous, malicious of as failing 6 to state a claim. 7 8 9 Since Plaintiff does not have three strikes, the Court recommends that Defendant’s unenumerated 12(b) motion to dismiss pursuant to § 1915(g) be denied. IV. Qualified Immunity 10 Government officials enjoy qualified immunity from civil damages unless their conduct 11 violates “clearly established statutory or constitutional rights of which a reasonable person would 12 have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity is ‘an 13 entitlement not to stand trial or face the other burdens of litigation.’” Saucier v.Katz, 533 U.S. 194, 14 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), overruled on other grounds by 15 Pearson v. Callahan, 129 S.Ct. 808, 818 (2009)). In applying the two-part qualified immunity 16 analysis, it must be determined whether, “taken in the light most favorable to [Plaintiff], Defendants’ 17 conduct amounted to a constitutional violation, and . . . whether or not the right was clearly 18 established at the time of the violation.” McSherry v.City of Long Beach, 560 F.3d 1125, 1129-30 19 (9th Cir. 2009). These prongs need not be addressed by the Court in any particular order. Pearson, 20 129 S.Ct. at 818. “A negative answer [of either prong] ends the analysis, with qualified immunity 21 protecting the defendants from liability.” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). 22 23 A. Excessive Force 1. Facts 24 For the purposes of resolving this motion to dismiss, the Court accepts Plaintiff’s version of 25 events set forth in his complaint as true. See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). On 26 April 25, 2005, facility 4B at Tehachapi State Prison was placed on lock down due to the attempted 27 murder of a prison employee by several Mexican and Asian inmates. (Doc. 1, Compl. at 10-11). 28 Between April 25, 2005 to August 22, 2005, Black and Mexican inmates were not allowed outside 5 1 their assigned cells without being in handcuffs or escorted by at least two correctional officers. Id. 2 at 11. During the course of this lock down period, all inmates were required to undergo an unclothed 3 body search before exiting their cells and all of the cells and common areas were searched for 4 dangerous contraband. Id. at 11-12. Plaintiff’s cell was searched at least two times by a prison staff 5 search team. Id. at 12. 6 On May 23, 2005, after returning to his cell from the prison’s law library, Defendants 7 Williams and Gonzales told Plaintiff that they needed to cuff Plaintiff and his cell-mate in order to 8 carry out a cell search. Id. at 12-13. Plaintiff and his cell-mate took turns approaching the cell door 9 stating that they would comply with the orders after they got a chance to speak to Sergeant S. 10 Sanchez. Id. at 13. Defendant Williams responded by aggressively demanding that Plaintiff and his 11 cell-mate undergo a full unclothed body search or else they would get pepper sprayed. Id. at 13. 12 Plaintiff and his cell-mate complied with the unclothed body search order. Id. at 14. After the 13 unclothed body search, Plaintiff and his cell-mate again requested to speak with Sergeant Sanchez. 14 After Defendant Williams ignored their renewed request, Plaintiff and his cell-mate walked away 15 from the cell door. Plaintiff returned to doing legal work and his cell-mate laid on his bed. Id. at 16 14. Defendants Williams and Gonzales “misconstrued Plaintiff[’s] and [the cell mate’s] no[n] 17 immediate threat protest, as a[n] act of disobeying a direct order.” Id. at 14-15. After Plaintiff’s cell- 18 mate stated again that he would comply with the random cell search after he spoke to Sergeant 19 Sanchez, Defendant Gonzales persuaded Defendant Williams to open the door slot and deploy a T- 20 16 expulsion pepper spray grenade device in Plaintiff’s cell. Id. at 15. The pepper spray device 21 rolled to the middle of the cell and emitted “thick noxious pepper spray fumes that saturated the 22 entire cell.” Id. at 15-16. 23 2. Analysis 24 In addressing whether there is a clearly established right “[t]he relevant, dispositive inquiry 25 . . . is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation 26 he confronted.” Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010) (quoting, Saucier, 533 U.S. 27 at 201-02). “This is not to say that an official action is protected by qualified immunity unless the 28 6 1 very action in question has previously been held unlawful, but it is to say that in the light of 2 pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 3 (1987) (citation omitted). “If the only reasonable conclusion from binding authority were that the 4 disputed right existed, even if no case had specifically so declared, prison officials would be on 5 notice of the right and would not be qualifiedly immune if they acted to offend it.” Blueford v. 6 Prunty, 108 F.3d 251, 255 (9th Cir.1997). 7 The issue here is whether there is a clearly established right for prisoners to be free from 8 pepper spray in cases of admitted disobedience of lawful orders where prisoners were forewarned 9 that pepper spray would be used to gain compliance. Specifically, would it be clear to a reasonable 10 officer that after first giving warning that failure to comply with an order will result in the use of 11 pepper spray, followed by administering a pepper spray grenade would be unlawful where two 12 prisoners were engaged in a “no[n] immediate threat protest” of an officer’s lawful order to 13 cooperate with a cell search. There is little Supreme Court and Ninth Circuit published precedent 14 that addresses the use of chemical agents to maintain prison discipline, let alone the use of chemical 15 agents to establish compliance with a lawful order. See Spain v. Procunier, 600 F.2d 189, 195 (9th 16 Cir.1979) (finding that use of small amounts of tear gas may be a necessary if a prisoner refuses to 17 comply with a lawful order and after adequate warning to the prisoner); Clement v. Gomez, 298 F.3d 18 898, 903 (9th Cir. 2002) (finding that there was not excessive force to use pepper spray to break up 19 a fight between prisoners). The Ninth Circuit’s unpublished cases tend to support the lawfulness of 20 using chemical agents to gain compliance with a lawful order once a prisoner has been forewarned 21 that chemical agents will be used if a prisoner continues to disobey the order. See Eccleston v. 22 Oregon ex rel. Oregon Dept. of Corrections, 168 Fed.Appx. 760 (9th Cir. 2006) (finding that use 23 of a chemical agent to extract prisoner from cell did not constituted cruel and unusual punishment 24 where evidence demonstrated that prisoner repeatedly did not follow orders to leave his cell); 25 Stewart v. Stewart, 60 F. Appx. 20, 22 (9th Cir.2003) (“[Administrators’] alleged policy of spraying 26 prisoners with pepper spray for refusing to follow directions falls within the wide-ranging zone of 27 deference accorded to prison officials in shaping ‘prophylactic or preventive measures intended to 28 reduce the incidence of . . . breaches of prison discipline.’” ); Banks v. McDonald, 81 Fed.Appx. 227 7 1 (9th Cir. 2003) (summary judgment on prisoner’s excessive force claim was proper where prisoner 2 was warned that refusing lawful orders to cuff up would result in being sprayed, prisoner was 3 sprayed six or seven times and the correctional officer stopped spraying once the prisoner complied); 4 see also Howard v. Nunley, No. CV-06-00191-NVW, 2010 WL 3785536, at *4-5 (E.D. Cal., 2010) 5 (discussing the variance of federal case law across jurisdictions and ultimately concluding that there 6 was not a clearly established right for a prisoner to be free from pepper spray when disobeying a 7 lawful order); cf. Vlasich v. Reynoso, 117 F. Appx 568, 569 (9th Cir. 2004) (finding “a reasonable 8 inference of wanton infliction of pain in violation of the Eighth Amendment” at the motion to 9 dismiss phase where officers still administered pepper spray after compliance rather than 10 administering pepper spray in order to gain compliance). 11 Plaintiff describes that security measures had increased in his facility at Tehachapi State 12 Prison, a maximum security prison, as a result of an attempted murder on a prison staff member. 13 Within this context, correctional officers were increasing cell searches and strip searches to ensure 14 against prisoners having dangerous contraband. Plaintiff states that the Defendants warned Plaintiff 15 and his cell-mate that their refusal to comply would result in the use of tear gas and Plaintiff admits 16 to willfully disobeying the lawful order of the officers. “The use of mace, tear gas or other chemical 17 agent of the like nature when reasonably necessary to . . . subdue recalcitrant prisoners does not 18 constitute cruel and inhuman punishment.” Soto v. Dickie, 744 F.2d 1260, 1270 (7th Cir. 1984); see 19 also Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979) (“use of . . . tear gas . . . in small amounts 20 may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell 21 or upon other provocation presenting a reasonable possibility that slight force will be required”); 22 Jones v. Shields, 207 F.3d 491, (8th Cir. 2000) (holding that correctional officer’s use of a 23 pepper-based chemical spray was not “repugnant to the conscience of mankind” when used to 24 subdue a “recalcitrant prisoner” locked in his cell or in handcuffs); Caldwell v. Moore, 968 F.2d 595, 25 600 (6th Cir. 1992) (listing cases from various jurisdictions supporting the use of force to maintain 26 discipline in the prison context). 27 Moreover, the fact that the officers were faced with two prisoners both engaging in a “no[n] 28 immediate threat protest” amplified a situation that already posed a threat to safety and security at 8 1 the prison and made the use of physical extraction absent a chemical agent a more dangerous option. 2 See Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.1996) (“because a limited use of mace 3 constitutes a relatively ‘mild’ response compared to other forms of force, the initial application of 4 mace indicates a ‘tempered’ response by the prison officials”); Soto v. Dickie, 744 F.2d 1260, 1267 5 (7th Cir. 1984) (discussing the unique dangers of a maximum security prison and how “refusal and 6 denial of authority places the staff and other inmates in danger.”).2 Prisoners do not enjoy the right 7 to engage in a “no[n] immediate threat protest” of a lawful order nor do prisoners enjoy a right to 8 give counter demands to officers’ lawful orders. See e.g., Soto v. Dickey, 744 F.2d 1260, 1267 (7th 9 Cir. 1984) (“Orders given must be obeyed. Inmates cannot be permitted to decide which orders they 10 will obey, and when they will obey them.”). “When an order is given to an inmate there are only so 11 many choices available to the correctional officer. If it is an order that requires action by the 12 institution, and the inmate cannot be persuaded to obey the order, some means must be used to 13 compel compliance, such as a chemical agent or physical force. ” Soto v. Dickey, 744 F.2d 1260, 14 1267 (7th Cir. 1984). 15 Prison regulations governing the conduct of correctional officers are also relevant in 16 determining whether an inmate’s right was clearly established and whether an officer would have 17 been on notice of the apparent unlawfulness of certain conduct. See Hope v. Pelzer, 536 U.S. 730, 18 743-44 (2002). The regulatory code for the California Department of Corrections and Rehabilitation 19 states that “reasonable force” includes “[t]he force that an objective, trained and competent 20 correctional employee, faced with similar facts and circumstances, would consider necessary and 21 reasonable . . . to gain compliance with a lawful order” and that use of chemical agents is a “use of 22 23 24 25 26 27 28 2 See also Jimenez v. Sambrano, No. 04cv1833, 2007 W L 4961207, at *3 (S.D. Cal. 2007), where the court found the declaration from an expert in the California Department of Corrections procedures and policies to be persuasive and “comport with common sense” where the expert stated that: [R]andom cell searches are an integral part of maintaining security and safety in the prison, and are performed to control contraband and discover escape risks . . . . “Plaintiff’s request to speak with a supervising officer [was] not a valid basis for [a prisoner’s] refusal to exit the cell and ‘[should] not [have] delay[ed] the cell search as it could [have] give[n] Plaintiff time to dispose of contraband he [did] not want found and he [could] talk to a supervisor following the cell search. Additionally, cells are searched continuously and stopping to call a supervisor prior to all cell searches would be onerous and a threat to security.” Jimenez v. Sambrano, No. 04cv1833, 2007 W L 4961207, at *3 (S.D. Cal. 2007). 9 1 force option.” Cal. Code Regs., tit. 15 §§ 3268(a)(1), (c)(1) (emphasis added). Sections 3268(a)(1) 2 and (c)(1) would not give an officer reason to believe that the use of chemical agents to gain 3 compliance with an order to comply with a cell search would be unlawful. See Cal. Code Regs., tit. 4 15 §§ 3268(a)(1), (c)(1); see also Nawabi v. Wyatt, No. CV 08-04385-PSG, 2009 WL 3514849, at 5 *6 (C.D. Cal. 2009) (“The use of force by prison officials to quell resistance or gain compliance with 6 a lawful order is specifically authorized by Title 15 California Code of Regulations section 7 3268(a)(1)”). 8 Defendants Williams and Gonzales warned Plaintiff and his cell-mate that their continued 9 disobedience would result in the use of pepper spray. Although Plaintiff and his cell-mate eventually 10 complied with the strip search, they renewed their disobedience with the cell search. After Plaintiff 11 and his cell-mate continued in their “no[n] immediate threat protest,” Defendants eventually used 12 a pepper spray grenade to extract Plaintiff and his cell-mate. In light of pre-existing law, the 13 unlawfulness of Defendants actions in this instance was not apparent. There is not a clearly 14 established right for a prisoner to be free from pepper spray after being warned that it would be used 15 and a prisoner continues to disobey a lawful order. Therefore, the Court finds that the Defendants 16 are entitled to qualified immunity on the excessive force claim. 17 B. Conditions of Confinement in Violation of the Eighth Amendment 18 1. Facts 19 After administering the pepper spray grenade as described above, Plaintiff was handcuffed 20 and escorted to a cell in the clinic holding area where his handcuffs were then removed. Id. at 17. 21 Plaintiff remained in the holding cell for four hours without access to water or fresh moving air to 22 reduce the prolongs exposure and effects from the pepper spray. Id. at 18. During this four hour 23 period, Plaintiff continued to suffer from a burning sensation in the eyes, blistering skin, difficulty 24 breathing, uncontrollable gagging and coughing as well as temporary digestive and vision 25 impairment. Id. at 17, 18. Within the first hour of being placed in the holding cell, a registered nurse 26 observed Plaintiff through the door window and wrote a medical report without physically examining 27 Plaintiff. Id. at 18. Although Plaintiff requested to see a doctor regarding the pain and discomfort 28 10 1 experienced as a result of the pepper spray, the nurse ignored the request and told Plaintiff that the 2 symptoms should have already dissipated based on the fresh moving air during the walk to the clinic 3 holding cell. Id. at 19. 4 After four hours of being in the clinic holding cell, Plaintiff and his cell-mate were returned 5 to their original cell which was still contaminated by pepper spray without ever being allowed a 6 decontamination shower, clean bedding or cell cleaning supplies. Id. at 24. Upon return to the cell, 7 Plaintiff and his cell-mate immediately began experiencing “uncontrollable choking, coughing, 8 gaging, difficulty breathing, burning eyes, blistering skin and temporary digestive and vision 9 impairment.” Id. at 25. Plaintiff had to endure the effects of the pepper spray lingering in his cell 10 for three hours without their symptoms dissipating. Id. at 25. It was not until the next day that the 11 second watch unit staff supplied Plaintiff and his cell-mate with soap and disinfectant to clean and 12 wash their bed linen and personal property. Id. at 25-26. 13 2. Analysis 14 “For a prisoner to establish ‘cruel and unusual punishment,’ he must show both an objective 15 component, addressing whether a deprivation was sufficiently serious to be ‘cruel and unusual,’ and 16 a subjective component, addressing whether correction facility officials acted with ‘a sufficiently 17 culpable state of mind,’ so that the condition of confinement may be deemed to be ‘punishment.’” 18 Clouthier v. County of Contra Costa, 591 F.3d 1232, 1242 (quoting Wilson v. Seiter, 501 U.S. 294, 19 298 (1991). “The Eighth Amendment protects against conditions of confinement that ‘involve the 20 wanton and unnecessary infliction of pain . . . .’” Pollard v. The Geo Group, Inc., --- F.3d ----, 2010 21 WL 5028447, at *17 (9th Cir. 2010) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). 22 Notwithstanding that Plaintiff was allowed four hours to recover in the clinic’s holding cell 23 and was observed by a nurse, Defendants may have been deliberately indifferent to the conditions 24 of Plaintiff’s confinement when Plaintiff was returned to a cell that still had pepper spray residue, 25 was not allowed to shower until the next day, not given clean bedding until the next day and was not 26 given cleaning supplies to remove the pepper spray residue until the next day. See Clement v. 27 Gomez, 298 F.3d 898, 904-05 (9th Cir. 2002). Defendants would have been on notice of the 28 11 1 condition they created through the administration of a pepper spray grenade in a poorly ventilated 2 cell and the need to take proper measures to ensure that the painful effects of the pepper spray would 3 not effect Plaintiff after he was returned to his cell. See Clement v. Gomez, 298 F.3d 898, 904-05 4 (9th Cir. 2002). Taken in the light most favorable to Plaintiff, Defendants’ act of allowing Plaintiff’s 5 cell to remain contaminated with pepper spray and thus forcing Plaintiff to endure “uncontrollable 6 choking, coughing, gaging, difficulty breathing, burning eyes, blistering skin and temporary digestive 7 and vision impairment” long after the cell extraction without any remedy until the following day 8 would amounted to “cruel and unusual” punishment. See Clement v. Gomez, 298 F.3d 898, 904-05 9 (9th Cir. 2002). Moreover, preexisting law clearly establishes that a reasonable officer would have 10 thought that allowing a prisoner to return to a cell which remained grossly contaminated with pepper 11 spray would have violated a prisoner’s right to be free from unconstitutional conditions of 12 confinement. See Clement v. Gomez, 298 F.3d 898, 904-05 (9th Cir. 2002). 13 14 Therefore, the Court finds that the Defendants are not entitled to qualified immunity for the conditions of confinement claim. 15 V. Conclusion and Recommendation 16 As set forth herein, the Court HEREBY RECOMMENDS: 17 1. that Defendants’ unenumerated 12(b) motion to dismiss pursuant to § 1915(g) be 18 DENIED; 19 2. that Defendants’ 12(b)(6) motion to dismiss be GRANTED IN PART to the extent 20 that the excessive force claim against Defendants Williams and Gonzales be 21 DISMISSED WITH PREJUDICED based on Defendants’ entitlement to qualified 22 immunity; 23 4. that Defendants’ 12(b)(6) motion to dismiss be DENIED IN PART based on a 24 finding that Defendants were not entitled to qualified immunity for the conditions of 25 confinement claim. 26 /// 27 /// 28 12 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) 3 days after being served with these Findings and Recommendations, the parties may file written 4 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 Findings and Recommendations.” The parties are advised that failure to file objections within the 6 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 7 1153 (9th Cir. 1991). 8 9 IT IS SO ORDERED. 10 11 Dated: 0jh02o February 2, 2011 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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