Romero v. Ellery et al, No. 3:2012cv01084 - Document 99 (N.D. Cal. 2016)

Court Description: ORDER DENYING 83 MOTION FOR SUMMARY JUDGMENT by Hon. William H. Orrick. (jmdS, COURT STAFF) (Filed on 8/15/2016)
Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MICHAEL ROMERO, 7 Case No. 12-cv-01084-WHO Plaintiff, 8 ORDER DENYING MOTION FOR SUMMARY JUDGMENT v. 9 S. S. ELLERY, et al., 10 Re: Dkt. No. 83 Defendants. United States District Court Northern District of California 11 INTRODUCTION 12 Plaintiff Michael Romero alleges Pelican Bay State Prison correctional officers S. Ellery 13 14 and P. Harman used excessive force against him in violation of 42 U.S.C. § 1983. The 15 defendants1 move for summary judgment, arguing that on this record there is no Eighth 16 Amendment violation and that the officers are also protected by qualified immunity. Defendants 17 present strong arguments that, at a minimum, qualified immunity should apply. However, a 18 genuine dispute of material fact exists, created by the difference in testimony between Romero and 19 the defendants about the incident. Crediting Romero’s version of events, Ellery’s multiple blasts 20 of pepper spray without warning constituted excessive force that caused unnecessary and wanton 21 pain and suffering under clearly established law. As a result, defendants’ motion for summary 22 judgment is DENIED. BACKGROUND 23 On April 23, 2011, Romero was an inmate at Pelican Bay State Prison in the Security 24 25 Housing Unit (“SHU”). First Amended Complaint (“FAC”) at p. 3-4 [Dkt. No. 7]; Romero Depo. 26 27 28 1 Although the motion was brought on behalf of Ellery, Harman, and Grenert, Grenert was previously dismissed with prejudice from the action. Dkt. No. 90. Therefore, this Order focuses only on the remaining two defendants, Harman and Ellery. 1 at 18:6-8 [Dkt Nos. 84-1, 93-6]. The SHU is organized into at least two “sides,” a C-side and a D- 2 side, and each side is divided into multiple pods. Harman Depo. at 64:3-8 [Dkt. Nos. 84-3, 93-9]. 3 A pod is a single corridor of cells, with an upper and lower tier. Id. at 30:25-31:5. “Pod raids,” or searches of numerous cells, are performed periodically in the SHU. Ellery 4 5 Depo. at 106:20-107:20 [Dkt. Nos. 84-2, 94-7]. Generally, during a pod raid, multiple officers 6 enter the pod and shout variations of “lights on,” “cuff up,” and “shirt, shorts and shower shoes.” 7 Harman Depo. at 68:21-69:7; Ellery Depo. at 93:9-96:4. Officers typically expect an inmate to 8 respond by turning the cell’s light to “bright” (the light can be off, dim, or bright and is controlled 9 by a switch in the cell) and presenting himself in his shorts, t-shirt, and shower shoes in front of the cuff port. Harman Depo. at 48:9-23, 62:12-63:16; Ellery Depo. at 95:6-25. The inmate is then 11 United States District Court Northern District of California 10 expected to remove his clothing and pass it through the cuff port so that the officers can search it, 12 after which the inmate puts the clothing back on and submits his wrists in order to be “cuffed up.” 13 Ellery Depo. at 95:15-21. The cell door is only opened after the occupants are cuffed. Id. at 93:9- 14 96:4. 15 At approximately 6:15 p.m. on April 23, 2011, correctional officers Ellery and Harman 16 participated in a pod raid of two of the SHU pods. Id. at 36:10-24; Harman Depo. at 63:17-25. 17 The SHU houses inmates who have been “validated” as gang member by the California 18 Department of Corrections and Rehabilitation or have a history of violence. Pickett Depo. at 19 66:21-68:19 [Dkt. No. 93-13]; Ellery Depo. at 86:14-87:8. The D4 unit, where Romero was 20 located, houses the validated gang members. Harman Depo. at 99:20-24. Ellery and Harman 21 were not regularly assigned to the pod. Ellery Depo. at 88:11; Harman Depo. at 64:4-8. 22 As Ellery and Harman approached Romero’s cell, they ordered him to turn on his cell 23 lights, to submit to a search, and to cuff up. Ellery Depo. at 106:8-107:24. Other officers were 24 yelling similar orders for the other inmates. Jones Depo. at 26:11-27:25 [Dkt. No. 93-10]. This 25 procedure is standard for any cell search or pod raid and Romero was familiar with it. Romero 26 Depo. at 95:19-97:10. At the time the pod raid started, Romero was taking a “bird bath” in his cell 27 sink. Id. at 27:12-19; 28:20-31:8. When Ellery arrived at Romero’s cell, Ellery opened the cuff 28 port so that Romero could submit to cuffing. Ellery Depo. at 110:7-20. 2 Romero’s light, which had been on, went to off at some point around the time the officers 1 2 approached the cell. Id. at 104:14-105:2; Romero Depo. at 32:3-12, 39:14-41:17. According to 3 Romero, he had the light on dim and it malfunctioned to off when he tried to turn it to bright. 4 Romero Depo. at 32:3-12, 40:17-41:7-17. He testified that when a switch is wet, it sometimes 5 malfunctions by going to off and not to bright. Id. at 41:7-17. Exactly when the light was turned 6 off is unclear. Romero does not remember if the light was still on when the officers were at his 7 cell door. Id. at 54:10-55:14. Harman and Ellery testified that the light was on when they arrived 8 and, after Romero was instructed to turn the bright light on, he turned the light off. Harman Depo. 9 at 70:24-71:4; Ellery Depo. at 104:3-105:2. After the light malfunctioned, Romero says that he attempted to dry off and retrieve his t- 10 United States District Court Northern District of California 11 shirt and shower shoes from his locker located in the back of his cell. Romero Depo. at 49:14-22, 12 58:17-20. Defendants observed him rummaging around in the back of his cell. Ellery Depo. at 13 108:16-109:2, 116:4-12; Harman Depo. at 108:16-109:2. Defendants testified that upon observing 14 these actions, they were immediately concerned because they had never experienced an inmate 15 turn the light off during a pod raid. Ellery Depo. at 108:2-15; Harman Depo. at 70:17-23. The 16 officers were especially concerned that Romero was going to “gas” or spear them. 2 Harman Depo. 17 at 83:15-25. Ellery and Harman testified they shouted repeated commands to Romero, including 18 instructing him to let them see his hands, to stop what he was doing, and to turn the light on. 19 Ellery Depo. at 109:4-17, 113:6-5; Harman Depo. at 73:4-7. Romero does not recall hearing orders that were specifically directed at him. Romero 20 21 Depo. at 71:13-18. But Romero does remember one of the officers say something along the lines 22 of “can I spray him?” Id. at 69:11-72:24. He recalls another officer say “yes” and then feeling the 23 first blast of oleoresin capsicum (“O.C.”) spray. Id. at 83:8-17. He testified that he did not recall 24 receiving any warning that his behavior was going to lead to being pepper sprayed. Id. at 101:22- 25 103:2, 105:24-106:11. At the time of the first blast, he was squatting in the lower right portion of 26 27 28 2 “Gassing” occurs when an inmate mixes bodily fluids and waste, such as feces, urine, and saliva, and throws it onto another person. Ellery Depo. at 40:22-44:9. Spearing occurs when an inmate throws or stabs someone with a manufactured spear or weapon. Id. at 43:9-13. 3 1 his cell with his left side facing the cell door. Id. at 84:11-22. After being sprayed the first time, 2 Romero testified he repeatedly told the guards that he was “not doing anything.” Id. at 102:23-24; 3 105:20. The officers testified that Romero made “no response” and “completely ignored” them. 4 Ellery Depo. at 115:12-17. After repeating orders to cuff up and receiving no response, Ellery dispensed another burst 5 of O.C. spray. Ellery Depo. at 115:21-116:12. Romero has no recollection of the time between 7 the blasts because it all happened so quickly. Romero Depo. at 101:22-102:8. Ellery recalls a 8 delay between five to ten seconds, Ellery Depo. at 115:24-116:3, whereas Harman testified that he 9 did not recall exactly but it “could have been around 30 seconds or so,” Harman Depo. at 81:3-9. 10 After the second spray, Ellery testified that Romero continued to “totally ignore[]” them and did 11 United States District Court Northern District of California 6 not comply with their verbal orders. Ellery Depo. at 116:13-20. Romero stated that at this time he 12 was blinded and trying to feel his way to the door. Romero Depo. at 99:1-101:21. He repeatedly 13 tried to tell the officers that he was “not doing nothing.” Id. at 102:22-23; 105:19-20. Romero was sprayed a third time. Ellery Depo. at 118:21-23. None of the blasts hit him 14 15 straight on; most hit his side. Romero Depo. at 127:24-128:8. After the third blast, Romero 16 reached the front of the cell and was handcuffed. Ellery Depo. at 118:24-119:4. According to 17 Ellery, the whole incident lasted less than a minute. Id. at 114:23-25. The duration of the blasts is in dispute. Defendant Harman testified that each burst of 18 19 pepper spray lasted approximately two seconds. Harman Depo. at 130:4-13. Romero stated that 20 each blast lasted approximately five to ten seconds. Romero Depo. at 89:8-21, 92:16-20, 93:25- 21 94:1. 22 As a result of the incident, Romero felt as though his body was “on fire” and he was 23 “drowning” in his own saliva. Id. at 126:24-127:4. After the three rounds of spray, he had to get 24 extra boxers because the ones he had on were “soaked.” Id. at 127:19-23. At some point after the 25 incident, he was escorted out of his cell to the shower in the pod. Id. at 136:2-11. He stood under 26 the shower for a “few minutes” until he told the officer he was finished. Id. at 136:20–137:10. 27 The shower cooled down the burning sensation he was feeling but he was still coughing and 28 choking and his vision was blurry. Id. at 137:13-17. After his shower, Romero was placed in a 4 1 holding cell until a nurse came to see him. Id. at 138:5-10. When he returned to his cell, it was 2 not fully decontaminated and so he spent most of the night cleaning it. Id. at 148:13-149:11. He 3 was prescribed artificial tears and Aller-chlor, an antihistamine, to treat the effects of the pepper 4 spray. Id. at 158:3-11. It took approximately six days for the burning to subside and Romero had 5 difficulty sleeping for at least ten days afterward. Id. at 149:12-17; 150:12-13. To this day he still 6 worries about being sprayed again and feels like he has to be “on guard” every time his cell door 7 opens. Id. at 158:12-159:18. LEGAL STANDARD 8 9 A party is entitled to summary judgment where it “shows that there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 11 United States District Court Northern District of California 10 dispute is genuine if it could reasonably be resolved in favor of the nonmoving party. Anderson v. 12 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material where it could affect the 13 outcome of the case. Id. 14 The moving party has the initial burden of informing the court of the basis for its motion 15 and identifying those portions of the record that demonstrate the absence of a genuine dispute of 16 material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the movant has 17 made this showing, the burden shifts to the nonmoving party to identify specific evidence showing 18 that a material factual issue remains for trial. Id. The nonmoving party may not rest on mere 19 allegations or denials from its pleadings, but must “cit[e] to particular parts of materials in the 20 record” demonstrating the presence of a material factual dispute. Fed. R. Civ. P. 56(c)(1)(A). The 21 nonmoving party need not show that the issue will be conclusively resolved in its favor. See 22 Anderson, 477 U.S. at 248-49. All that is required is the identification of sufficient evidence to 23 create a genuine dispute of material fact, thereby “requir[ing] a jury or judge to resolve the parties’ 24 differing versions of the truth at trial.” Id. (internal quotation marks omitted). If the nonmoving 25 party cannot produce such evidence, the movant “is entitled to...judgment as a matter of law 26 because the nonmoving party has failed to make a sufficient showing on an essential element of 27 her case.” Celotex, 477 U.S. at 323. 28 5 1 On summary judgment, the court draws all reasonable factual inferences in favor of the 2 nonmoving party. Anderson, 477 U.S. at 255. “Credibility determinations, the weighing of the 3 evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a 4 judge.” Id. However, conclusory and speculative testimony does not raise a genuine dispute and 5 is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 6 F.2d 730, 738-39 (9th Cir. 1979). DISCUSSION 7 8 9 I. EXCESSIVE FORCE VIOLATION The treatment a prisoner receives in prison is subject to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official violates the Eighth 11 United States District Court Northern District of California 10 Amendment when: (1) “the deprivation alleged [is] sufficiently serious;” and (2) the prison official 12 possesses a “sufficiently culpable state of mind.” Id. at 834. The state of mind required for an 13 excessive force claim is fulfilled if a prison official applies force “maliciously and sadistically” so 14 as to cause harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). Five Hudson factors are 15 generally considered in determining whether a violation occurred: “(1) the extent of injury 16 suffered by an inmate; (2) the need for application of force; (3) the relationship between that need 17 and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and 18 (5) any efforts made to temper the severity of a forceful response.” Martinez v. Stanford, 323 F.3d 19 1178, 1184 (9th Cir. 2003) (citing Hudson, 503 U.S. at 7). 20 A. Extent of Injury 21 “[T]he extent of injury suffered by an inmate is one factor that may suggest whether the 22 use of force could plausibly have been thought necessary in a particular situation, or instead 23 evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a 24 knowing willingness that it occur.” Hudson, 503 U.S. at 7 (internal quotation marks omitted). 25 Following the incident, Romero experienced considerable physical and psychological 26 effects. After the first blast of O.C. spray, Romero began coughing and feeling as though he was 27 blinded and could not breathe. Romero Depo. at 100:5-11. He closed his eyes after being pepper 28 sprayed the first time, but he continued to cough and choke during the following two blasts. Id. at 6 1 101:6-16. As a result of the three blasts of O.C. spray, Romero was sprayed “all over” his face 2 and body. Id. at 103:10-13; 127:19-23. Everything he had on was “soaked.” Id. at 127:23. 3 After he submitted to being handcuffed, he was required to wait in his cell for what seemed 4 like a “long time.” Id. at 126:6-7. He felt like his body was “basically on fire.” Id. at 127:15. He 5 was worried he was going to “drown in [his] saliva and mucus” so, while he waited, he tried to 6 lean over the toilet and blow out his nose while his hands were still in handcuffs. Id. at 125:1- 7 126:15. He was allowed to shower after the incident. Following the shower, he was returned to 8 his cell where he used a washcloth to clean it because it was not decontaminated following the 9 incident. Id. at 148:13-149:11. He did not get “any kind of sleep” for approximately ten days following the incident because his body was so swollen and burned that any time he tried to lay 11 United States District Court Northern District of California 10 down, the contact with his skin would wake him up immediately. Id. at 149:12-25. Although he 12 gave himself a “birdbath” every day, it took at about six days for the burning in his eyes to stop. 13 Id. at 150:12-13. He was given medicine by the medical staff to ease his symptoms, but the pain 14 did not go away for about twenty days. Id. at 150:19-22. He reported to medical staff that he felt 15 “queasy, headaches, [and] loss of appetite.” Id. at 155:12-21. The incident left him with lasting 16 nervousness every time his cell door opens and he is “constantly worried” about whether it will 17 happen again. Id. at 158:12-159:18. 18 While Romero sustained no severe or permanent physical damage, the incident caused him 19 at least moderate injuries. See Furnace v. Sullivan, 705 F.3d 1021, 1029 (9th Cir. 2013) 20 (characterizing burns, blisters, and skin irritation that persisted for three or four days after being 21 pepper sprayed as moderate injuries); Williams v. Young, No. 2:12-cv-0318, 2015 WL 4617985, at 22 *12 (E.D. Cal. July 31, 2015) (“The extent of injury allegedly suffered by plaintiff was moderate; 23 in addition to suffering pain and burning in his eyes, plaintiff claims the effects lasted for about a 24 week, and that he had to deal with a period of dizziness and had real bad blurriness.”) (internal 25 quotation marks omitted). 26 B. 27 “Whether the prison disturbance is a riot or a lesser disruption, corrections officers must 28 Need for Force and Amount of Force Used balance the need to maintain or restore discipline through force against the risk of injury to 7 1 inmates.” Hudson, 503 U.S. at 6 (internal quotation marks omitted). “Not every instance of 2 inmate resistance justifies the use of force, and use of pepper spray will not be justified every time 3 an inmate questions orders or seeks redress for an officers actions.” Treats v. Morgan, 308 F.3d 4 868, 872-73 (8th Cir. 2002) (internal citation omitted). 5 Ellery and Harman responded to Romero’s non-complaint behavior by pepper spraying 6 him three times. As discussed above, the length of each blast of pepper spray is contested. 7 Romero testified each blast lasted between five and ten seconds, whereas Harman testified that 8 each blast lasted approximately two seconds. Romero Depo. at 89:14-16; Harman Depo. at 130:4- 9 13. The time between each blast is unclear. Romero testified “everything happened so fast” that he could not recall the time between the blasts. Romero Depo. at 101:22-102:8. Ellery’s 11 United States District Court Northern District of California 10 recollection is that five to ten seconds elapsed between the first and second blast. Ellery Depo. at 12 115:24-116:3. 13 According to the Department of Corrections and Rehabilitation’s Department Operations 14 Manual in place at the time of the incident, when immediate force is necessary for inmates 15 confined in their cells, O.C. spray is the preferred option for carrying out the immediate use of 16 force. AGO00860. Defendants argue Ellery’s use of the O.C. spray was “necessary to squelch 17 Romero’s actions and restore order and security.” Mot. at 11 [Dkt. No. 83]. However, the manual 18 specifically instructs that “a verbal warning shall be given before force is used unless the 19 circumstances require immediate force that precludes a verbal warning.” Id. In this case, Romero 20 testified that at no time was he given a warning that O.C. spray would be used against him, 21 Romero Depo. at 101:22-103:2, and Ellery does not recall giving one, Ellery Depo. at 114:14-18. 22 The officers testified that they repeatedly commanded Romero to cuff up, but Romero does not 23 recall hearing them. Romero Depo. at 101:6-102:8. Despite his efforts to “find a bunk or a wall 24 in order to get [himself] to the door” following the first blast of O.C. spray, he was pepper sprayed 25 twice more. Id. at 101: 13-21. 26 Taking all factual inferences in Romero’s favor, as I must, three blasts of O.C. spray, each 27 lasting between five and ten seconds, is not a de minimis amount of force. Ellery saw that the first 28 blast had hit Romero in the head. Ellery Depo. at 115:4-17. A reasonable officer would know that 8 1 spraying someone with O.C. spray in the face or head area can be disorienting and lead to 2 impaired vision. Even if the first blast was justified, which is not clear on this record, considering 3 that the second and third blasts came in quick succession with no warning, a reasonable jury could 4 find that this conduct constituted a significant use of force. A triable issues exist whether 5 defendants should have allowed Romero more time to comply with their commands and provided 6 a clear warning that (further) force would be used. 7 C. 8 A court must take into account “the extent of the threat to the safety of staff and inmates, 9 Perceived Threat as reasonably perceived by the responsible officials on the basis of the facts known to them.” Whitley v. Albers, 475 U.S. 312, 321 (1986). In this case, a triable dispute of material fact exists 11 United States District Court Northern District of California 10 as to whether the perceived threat warranted the force imposed. 12 Instead of encountering the cell light on and Romero ready to be handcuffed, as per pod 13 raid instructions, the officers observed Romero’s cell light going off and Romero rummaging in 14 the back of his cell. Ellery Depo. at 108:16-109:2. The officers repeated their verbal orders but 15 Romero remained at the back of his cell. At the time force was used, Romero was approximately 16 six feet away from the officers and the cuff port was open. Id. at 110:2-6. It is undisputed that 17 Romero did not have a weapon or gas in his cell, he did not verbalize any threat to the officers, nor 18 did he make any actively aggressive gestures. Nevertheless, given that the cell light was off and 19 Romero was seemingly reaching for something in the back of his cell, a juror could certainly find 20 that the officers’ fears of being gassed or speared were reasonable. 21 Ellery testified that defendants were two of eight officers on the tier at that time, including 22 at least one other officer within arm’s reach. Id. at 112:3-21. While the presence of other officers 23 does not reduce the chance of being gassed or speared, it is notable that Ellery and Harman were 24 not on their own and could have called on the other officers had the situation escalated. Of course, 25 the officers’ perception of the situation is contrasted with Romero’s testimony that after he was 26 pepper sprayed he repeatedly tried to tell the officers that he was “not doing nothing.” Romero 27 Depo. at 102:23-24; 105:20. Although the defendants testified they did not hear Romero, Ellery 28 indicated that if an inmate offers a reasonable explanation for a delay or inability to comply with 9 1 an order, the use of force such as O.C. spray can be avoided. Ellery Depo. at 116:15-117:12. 2 D. Efforts to Temper the Severity of the Response 3 This factor does not weigh heavily in favor of either side. The whole incident happened in 4 less than a minute. As discussed above, it is undisputed that no warning was given regarding the 5 use of O.C. spray or that failure to comply would result in additional uses of force. Nor does it 6 appear that the officers attempted to otherwise change their response to the situation by backing 7 away from the perforated cell door to avoid any potential gassing or spearing or by engaging the 8 assistance of the other officers who were present. On the other hand, Ellery stopped pepper 9 spraying Romero once Romero presented himself for handcuffing at the cell door. Romero was 10 also given access to a shower after the incident in order to ameliorate the effects of the O.C. spray. In sum, applying the Hudson factors to Romero’s version of the facts, I find there are United States District Court Northern District of California 11 12 multiple triable issues of material fact that preclude granting summary judgment in favor of 13 defendants. 14 II. 15 QUALIFIED IMMUNITY Even if a violation is established, qualified immunity shields government officials from 16 civil damages unless their conduct violates “clearly established statutory or constitutional rights of 17 which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). 18 The determination of whether the law was clearly established “must be undertaken in light of the 19 specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may “not define 20 clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 21 (2011). Rather, at the time of the challenged conduct, case law must have established the contours 22 of the right alleged to have been violated with sufficient clarity that a “reasonable official would 23 have understood that what he is doing violates that right.” Id. at 2083; see also Alston v. Read, 24 663 F.3d 1094, 1098 (9th Cir. 2011) (“[T]he right the officials are alleged to have violated must be 25 clearly established in a more particularized, and hence more relevant, sense.”) (internal quotation 26 marks omitted). It is Romero’s “burden to show that the contours of the right were clearly 27 established” at the time of the alleged misconduct. Clairmont v. Sound Mental Health, 632 F.3d 28 1091, 1109 (9th Cir. 2011). 10 1 I focus my inquiry on cases decided prior to the date of the incident, April 2011. As 2 multiple other district courts within this circuit have noted, prior to April 2011, the case law 3 regarding the parameters of the permissible use of O.C. spray to address inmates who disobey or 4 interfere with officers’ commands was not well defined. See, e.g., Jennings v. Hays, No. 10-cv- 5 8004, 2011 WL 1480038, at *9 (D. Ariz. Apr. 19, 2011) (“The law is unclear regarding the 6 parameters of the permissible use of pepper spray to address inmates who disobey orders or 7 interfere with officers in the performance of their duties.”); Brown v. Williams, No. 09-cv-00792, 8 2011 WL 386852, at *5 (E.D. Cal. Feb. 3, 2011), report and recommendation adopted, No. 09-cv- 9 00792, 2011 WL 1344564 (E.D. Cal. Apr. 8, 2011) (“There is little Supreme Court and Ninth Circuit published precedent that addresses the use of chemical agents to maintain prison 11 United States District Court Northern District of California 10 discipline, let alone the use of chemical agents to establish compliance with a lawful 12 order.”)(citations omitted); Howard v. Nunley, No. 06-cv-00191-NVW, 2010 WL 3785536, at *4 13 (E.D. Cal. Sept. 24, 2010), aff’d, 465 F. App'x 669 (9th Cir. 2012) (“Supreme Court and published 14 Ninth Circuit precedent have little to say about the appropriate use of pepper spray or similar 15 agents to enforce prison discipline.”). 16 Relevant cases decided prior to the incident demonstrate that the administration of pepper 17 spray to induce a prisoner “to follow directions falls within the wide-ranging zone of deference 18 accorded to prison officials in shaping prophylactic or preventive measures intended to reduce the 19 incidence of breaches of prison discipline.” Stewart v. Stewart, 60 Fed. App’x 20, 22 (9th Cir. 20 2003) (unpublished memorandum disposition) (internal quotation marks and modifications 21 omitted); see also Rodriguez v. Elmore, 407 F. App’x 124, 125 (9th Cir. 2010) (affirming the 22 district court’s grant of summary judgment in favor of the correctional officer when the defendant 23 had administered pepper spray to the plaintiff and his cellmate after they repeatedly refused to 24 comply with orders to exit their cell and be handcuffed) (unpublished memorandum disposition) 25 (unpublished memorandum disposition); Allen v. Bosley, 253 F. App’x 658, 659 (9th Cir. 2007) 26 (holding that the plaintiff failed to raise a triable issue that the correctional officers used excessive 27 force when they administered pepper spray to induce another inmate to comply with orders to 28 submit to handcuffing) (unpublished memorandum disposition); Robinson v. Okamoto, 26 F. 11 1 App’x 749 (9th Cir. 2002) (affirming the district court’s grant of summary judgment to the 2 defendant who sprayed the plaintiff after he refused to comply with the officer’s commands) 3 (unpublished memorandum disposition). 4 Defendants argue that because the Ninth Circuit “regularly affirms” decisions where 5 correctional officers use pepper spray to restore discipline, Ellery and Harman are entitled to 6 qualified immunity. Mot. at 19. But, as Romero notes, in multiple cases that grant summary 7 judgment in favor of defendants, inmates were given a verbal warning that O.C. spray would be 8 used. See, e.g., Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (“We think the record 9 further indicates, however, that use of the substance in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell or upon other 11 United States District Court Northern District of California 10 provocation presenting a reasonable possibility that slight force will be required.”); Randle v. 12 Miranda, 315 F. App’x 645, 645 (9th Cir. 2009) (affirming the district court’s grant of summary 13 judgment to the defendants when the inmate had been informed that the officer would use pepper 14 spray if he failed to comply with her orders) (unpublished memorandum disposition); Howard v. 15 Nunley, 465 F. App’x 669, 670 (9th Cir. 2012) (affirming the district court’s grant of summary 16 judgment to defendant after the inmate had received a warning not to repeat his offensive behavior 17 and that he would be pepper sprayed if he did) (unpublished memorandum disposition). 18 Here, if one accepts Romero’s description of the case, defendants acted contrary to the 19 direction of the Department of Corrections and Rehabilitation’s Department Operations Manual in 20 place at the time of the incident because they failed to give a verbal warning. The Manual 21 instructs that a verbal warning “shall be given” before the use of immediate force unless the 22 circumstances “require immediate force that precludes a verbal warning.” AGO00860. 23 Defendants testified that the darkened cell and Romero’s non-compliance with their commands 24 caused them to be concerned for their safety. But they had time to repeatedly shout instructions 25 during the incident, both prior to the use of the O.C. spray and between blasts. Romero testified 26 that, prior to the first pepper spray blast, he heard an officer ask the other whether he should use 27 O.C. spray and heard the individual say “yes.” Romero Depo. at 83:8-17. This testimony, if 28 believed, indicates that the officers had time to deliberate regarding the appropriate use of force. 12 1 Taking all factual inferences in favor of Romero, the need for a warning was clearly established at 2 the time of the incident and the circumstances did not preclude defendants from issuing a verbal 3 warning that pepper spray would be used. The need to give a verbal warning prior to the application of immediate force is consistent 4 5 with clearly established law in the Ninth Circuit at the time. See Furnace v. Sullivan, 705 F.3d 6 1021 (9th Cir. 2013). In that case, an inmate requested a vegetarian breakfast, was told he was not 7 entitled to one and was given the option to accept a non-vegetarian meal or be marked as refusing 8 it. 705 F.3d at 1025. 3 He attempted to speak with one of the officers by “squatting down and 9 putting his fingertips on the bottom portion of the open food port” from where he intended to call 10 out to the officer. Id. “Without warning, [an officer] sprayed Furnace with pepper spray.” Id. In considering whether the officers were entitled to qualified immunity, the Ninth Circuit United States District Court Northern District of California 11 12 recognized that, as of the time of the decision, “very few of our cases deal with constitutional 13 limits on the use of pepper spray on confined inmates.” Id. at 1028. Although the court went on 14 to reason that the principles previously articulated with respect to tear gas also apply to pepper 15 spray, it acknowledged that officers are not required to have the “legal knowledge culled by the 16 collective hindsight of skilled lawyers and learned judges.” Id. It therefore focused its analysis on 17 whether the use of force caused “unnecessary and wanton pain and suffering, as defined in 18 Hudson, since that law was undoubtedly clear.” Id. In concluding that the officers were not 19 shielded by qualified immunity, the Ninth Circuit explained that it was not persuaded that the use 20 of “violent force, prior to a verbal warning, was necessary to gain Furnace’s compliance.” Id. at 21 1029. The court focused on the prison’s Operations Procedure which directed officers to issue a 22 warning that a chemical agent will be used if an inmate takes control of a food port. Id. The court 23 declared that, barring urgency or exigent circumstance, the interests protected by qualified 24 immunity are “less compelling when the appropriate response to a situation has been prescribed by 25 the prison’s own written policies.” Id. at 1030. The combination of the lack of verbal warnings, the multiple blasts of pepper spray and the 26 27 3 28 Although the Ninth Circuit’s decision was issued in 2013, the underlying events occurred in 2005. See Furnace v. Sullivan, No. 07-cv-4441-MMC, Dkt No. 37 (N.D. Cal. March 31, 3010). 13 1 difference in testimony between Romero and defendants about what happened during the incident 2 creates a genuine dispute that prevents summary judgment. On this record, defendants have not 3 established that they are entitled to qualified immunity on Romero’s excessive force claim. CONCLUSION 4 5 For the reasons described above, defendants’ motion for summary judgment is DENIED. 6 IT IS SO ORDERED. 7 8 9 Dated: August 15, 2016 ______________________________________ WILLIAM H. ORRICK United States District Judge 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14