Opinion
Case No. 2:19-cv-01289-MK
11-24-2020
WILLIE L. JOHNSON, Plaintiff, v. COLETTE PETERS; BRAD CAIN; RICO RODRIGUES; C/O WHITE; BRENDA J. BROOKS, Defendants.
FINDINGS AND RECOMMENDATION :
Plaintiff, an inmate housed at the Snake River Correctional Institution (SRCI), filed this action under 42 US.C. § 1983 and alleged that defendants violated his constitutional rights by denying him a decontamination shower for three hours after he was exposed to pepper spray. The parties now move for summary judgment. Defendants' motion for summary judgment should be granted as to plaintiff's Fourteenth Amendment claim and his Eighth Amendment claim for damages against defendants Peters, Cain, and Brooks. Summary judgment should be denied as to plaintiff's remaining Eighth Amendment claims for damages and injunctive relief, because plaintiff raises genuine issues of material fact that preclude judgment as a matter of law.
BACKGROUND
Plaintiff is an inmate in the custody of the Oregon Department of Corrections (ODOC) and was housed at SRCI during the time relevant to this lawsuit.
On March 5, 2018, at approximately 2:55 p.m., a fight between two inmates broke out in a dayroom near plaintiff's cell. Plaintiff was not involved in the altercation. Correctional officers responded and deployed pepper spray to stop the fight. The two inmates were taken to disciplinary segregation, and all other inmates in the area were ordered to "cell in." According to plaintiff, correctional officers White, Brooks, and Rodriguez remained in the unit.
Correctional staff participated in a debriefing of the incident and all staff involved were offered Emergency Staff Services. Rodriguez Decl. at ¶ 7. Following the debriefing, correctional officers conducted a cell count and decontaminated the dayroom area. Id.
At approximately 3:03 p.m., plaintiff pushed the emergency call button from his cell to notify Officer White, the unit officer, that he was having trouble breathing due to the pepper spray. Plaintiff received no response.
At approximately 3:26 p.m., plaintiff again pushed the emergency call button to repeat his complaint that he was having trouble breathing. Officer Rodriguez answered plaintiff's call and asked, "What is it?" Plaintiff responded that his eyes and skin were burning, and he was having difficulty breathing due to the pepper spray. Plaintiff asked to be moved to another location and to receive a decontamination shower. Officer Rodriguez responded, "Yeah, well, I need a shower too but I can't get one." Pl.'s Decl. at 2.
At approximately 4:15, Officer White conducted the cell count, and plaintiff asked for a decontamination shower. Plaintiff's maintains that his request was ignored. Pl.'s Decl. at 3.
Plaintiff remained in his cell until inmates in his unit were called out for dinner. Plaintiff maintains that he was forced to eat dinner in the kitchen area while still suffering the effects from the pepper spray. Id.
At approximately 6:15 p.m., plaintiff was allowed to take a decontamination shower.
Plaintiff filed a grievance regarding the delay in receiving a shower. Officer Rodriguez responded to the grievance and stated, "Due to the contamination in the day room area of 2A during the incident it was not an appropriate environment due to the amount of chemical agent residue and bodily fluid in the area. The affected area is sanitized by body spill as quickly as possible.... I understand you were afforded the opportunity to shower, when time and circumstances permitted." Rodriguez Decl. Att. 3 (ECF No. 20 at 47).
In August 2019, plaintiff filed this action.
DISCUSSION
Plaintiff alleges that defendants were deliberately indifferent to his health and safety and denied him due process by prohibiting him from taking a shower for three hours after his cell was contaminated by pepper spray. Plaintiff seeks compensatory and punitive damages and injunctive relief.
Defendants move for summary judgment on plaintiff's Eighth Amendment claim, on grounds that he fails to show any defendant personally participated in the alleged deprivation, the undisputed facts do not establish deliberate indifference to his health or safety, and defendants are entitled to qualified immunity. Defendants also move for summary judgment on plaintiff's Fourteenth Amendment claim and all claims against them in their official capacities. In turn, plaintiff moves for summary judgment on the merits of his claims.
To prevail on their respective motions for summary judgment, the parties must show that there is no genuine dispute as to any material fact and they are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Cross motions for summary judgment are evaluated separately, with the non-moving party for each motion given "the benefit of all reasonable inferences." Am. Civil Liberties Union of Nev. v. City of Las Vegas, 333 F.3d 1092, 1097 (9th Cir. 2003).
A. Eighth Amendment Claim
1. Deliberate Indifference
The Eighth Amendment's prohibition against cruel and unusual punishment requires prison officials to ensure that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Foster v. Runnels, 554 F.3d 807, 812 (9th Cir. 2009). An Eighth Amendment claim requires a plaintiff to make a two-part showing: 1) an objective showing that the alleged deprivation was "sufficiently serious;" and 2) a subjective showing that the defendant exhibited deliberate indifference to the inmate's health or safety. Farmer, 511 U.S. at 834; Foster, 554 F.3d at 812. A prison official acts with "deliberate indifference" in violation of the Eighth Amendment if the official "knows of and disregards an excessive risk to inmate health and safety." Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (citation omitted).
The Ninth Circuit has held that the failure to provide an inmate with prompt decontamination procedures after exposure to pepper spray can establish a claim for deliberate indifference. Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002). In Clement, inmates were exposed to pepper spray after it was employed in a nearby cell, and the plaintiff alleged that prison officials exhibited deliberate indifference by failing to provide the bystander inmates with decontamination showers for four hours. Id. at 902. Under those circumstances, the Ninth Circuit found that "the prisoners may be able to show that the defendants were subjectively aware of the risk of serious injury when they denied showers and medical attention for the inmates for the 4 hour period." Id. at 905. The court noted that the prisoners alleged they were "coughing, gagging, or choking" and complained of pain and breathing problems, and that the officers themselves were coughing and stepped "outside for fresh air." Id.
In this case, defendants do not dispute that plaintiff waited more than three hours for a decontamination shower. Defendants maintain that they faced competing concerns during that time and provided plaintiff with a decontamination shower as soon as possible. Id. at 905, n. 4 ("These competing tensions - the prisoners' need for medical attention and the government's need to maintain order and discipline - may be important to the resolution of whether the officials had the requisite subjective intent."). However, defendants do not describe the competing concerns they faced or explain why plaintiff was not allowed to shower for three hours. Rather, as Rodriguez did in his grievance response, defendants vaguely assert that "[d]ue to the contamination in the day room area of 2A during the incident it was not an appropriate environment due to the amount of chemical agent residue and bodily fluid in the area," and that the "safety and security of both staff, and inmates, must be re-established following an altercation before dayroom activities, such as showers, can resume." Rodriguez Decl. ¶ 8; Brooks Decl. ¶ 8. Defendants provide no specific facts to justify the three-hour delay in allowing plaintiff to shower, and plaintiff disputes the assertion that showers were provided as soon as practicable.
Defendants also state that prior to his shower, plaintiff "had access to cool water, a towel, and a change of clothes." Rodriguez Decl. ¶ 9. However, the cited attachment to the declaration does not support this statement. Rodriguez Decl. Att. 3 (ECF No. 20 at 47). While the inmates involved in the altercation received cool water, a towel, and a change of clothes, no document indicates that plaintiff or other bystander inmates received these items, aside from limited access to water in their cells. Plaintiff further disputes that he received a change of clothes. Pl.'s Decl. at 3.
According to plaintiff, inmates were called into the kitchen to eat before they were provided with the opportunity to shower. Defendants do not dispute this fact or explain why inmates received a meal before plaintiff could receive a decontamination shower. Plaintiff also points out that when officers similarly deployed pepper spray in the dayroom on March 2, 2018, plaintiff was allowed to take a decontamination shower within approximately twenty minutes. Pl.'s Mot. at 23-24. Again, defendants do not explain why a decontamination shower was delayed for three hours on March 5, 2018 when plaintiff was allowed to shower within twenty minutes under allegedly similar circumstances on March 2, 2018.
Plaintiff also argues that defendants failed to follow ODOC policy and protocol regarding the use of pepper spray. However, non-compliance with state regulations or ODOC policy does not constitute an Eighth Amendment violation. --------
The existing record does not permit this Court to find, as a matter of law, that defendants were or were not deliberately indifferent to plaintiff's health. Whether defendants faced competing concerns sufficient to justify the delay in providing a decontamination shower is a question of fact for the jury.
Questions of fact similarly preclude summary judgment on grounds of qualified immunity. "Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam) (citation and quotation marks omitted). "[A] district court should decide the issue of qualified immunity as a matter of law when the material, historical facts are not in dispute, and the only disputes involve what inferences properly may be drawn from those historical facts." Conner v. Heiman, 672 F.3d 1126, 1131 (9th Cir. 2012) (internal quotation marks and citation omitted). However, when "historical facts material to the qualified immunity determination are in dispute," the claim should be decided by a jury. Id.
Here, questions of fact remain regarding the circumstances faced by defendants and the actions taken in response to plaintiff's complaints. Thus, "historical facts" critical to determining qualified immunity are in dispute, and qualified immunity is not appropriate at this stage of the proceedings.
2. Personal Participation and Supervisory Liability
Defendants next move for summary judgment on grounds that they did not personally participate in the alleged deprivation of plaintiff's rights.
Generally, liability under § 1983 arises upon a showing of personal participation by each defendant, and a supervisor is not liable for the constitutional violations of employees unless the supervisor "participated in or directed the violations, or knew of the violations and failed to act to prevent them." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). A plaintiff must show a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. "The requisite causal connection can be established...by setting in motion a series of acts by others or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury." Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (internal quotation marks and citation omitted).
Construing the facts in plaintiff's favor, he raises genuine issues of fact regarding Rodriguez's and White's personal involvement. Defendants admit that Rodriguez took command of the situation after the two inmates fought, and plaintiff maintains that White was the officer in charge of the unit and ignored plaintiff's request for a shower as he conducted the cell count. Pl.'s Decl. at 3. From these facts, it can be inferred that Rodriguez and possibly White could have permitted plaintiff to take a shower.
However, plaintiff presents no facts suggesting that Brooks was involved in the decision to delay a decontamination shower, and he does not allege that Brooks exercised control over the situation. Accordingly, summary judgment should be granted in her favor on plaintiff's Eighth Amendment claim.
Similarly, plaintiff presents no facts suggesting that either ODOC Director Peters or Superintendent Cain participated in the actions that led to plaintiff's delayed shower. Rather, plaintiff argues that Peters and Cain are responsible for a change in ODOC policy that now denies immediate attention to inmates who are exposed to secondary, rather than direct, effects of pepper spray. The relevant administrative rule and its history do not support plaintiff's argument. See Or. Admin. R. 291-013-0104(5).
The prior version of the rule did not include a provision regarding showers for inmates affected by pepper spray, and the rule was changed to make clear that inmates receiving a direct application of pepper spray must be allowed to shower "when circumstances permit." Compare Or. Admin. R. 291-013-0104(5)(k) (2017) with Or. Admin. R. 291-013-0104(5) (2015). The rules governing bystander inmates did not change; the rule continues to provide that those affected by pepper spray shall be allowed to move to an unaffected area and wash exposed parts of the body "as soon as possible." Id. 291-013-0104(5)(f),(g).
Thus, this rule change cited by plaintiff does not support his claims against Peters or Cain in their role as supervisors, and plaintiff cannot show that their actions set in motion the conduct that led to his delayed decontamination shower.
3. Official Capacity Liability
Defendants also move for summary judgment on plaintiff's claims against them in their official capacities. A "suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (citation omitted). The State of Oregon is not a "person" for purposes of a § 1983 civil rights action, and it is immune from suit for damages in federal court under the Eleventh Amendment. Id. at 65-66. Accordingly, plaintiff may not seek damages against defendants in their official capacities.
However, Eleventh Amendment immunity does not bar plaintiff from seeking prospective injunctive relief against defendants in their official capacities. Doe v. Regents of the Univ. of Cal., 891 F.3d 1147, 1153 (9th Cir. 2018). A "plaintiff seeking injunctive relief against the State is not required to allege a named official's personal involvement in the acts or omissions constituting the alleged constitutional violation. Rather, a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief." Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (citations omitted).
None of the named correctional officers would be appropriate officials to effectuate the requested change in ODOC or SRCI pepper spray protocol. Peters and Cain, as ODOC Director and SRCI Superintendent, respectively, arguably would be the officials who could appropriately respond to plaintiff's requested injunctive relief. Accordingly, plaintiff's official capacity claims against them should be allowed to proceed.
B. Fourteenth Amendment Claim
Plaintiff alleges that the denial of a decontamination shower for three hours deprived him of his rights to due process under the law. However, plaintiff does not allege a deprivation of his liberty necessary to assert a violation of his procedural due process rights. Sandin v. Connor, 515 U.S. 472, 483-84 (1995).
To the extent plaintiff intends to allege a violation of his substantive due process rights, such a claim is not cognizable because defendants' alleged conduct falls within the scope of the Eighth Amendment. Cty. of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (reaffirming that "where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.") (citation omitted). Accordingly, summary judgment should be granted as to plaintiff's Fourteenth Amendment claim.
CONCLUSION
Defendants' Motion for Summary Judgment (ECF No. 18) should be GRANTED in part and DENIED in part. Defendants' motion should be GRANTED with respect to 1) plaintiff's Eighth Amendment claims against Peters, Cain, and Brooks in their individual capacities; 2) plaintiff's Eighth Amendment claims against defendants Brooks, White, and Rodriguez in their official capacities; and 3) his Fourteenth Amendment claim in its entirety. Defendants' motion should be DENIED with respect to plaintiff's Eighth Amendment claim asserted against Rodriguez and White in their individual capacities and against Peters and Cain in their official capacities.
Plaintiff's Motion for Summary Judgment (ECF No. 23) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of this recommendation within which to file specific written objections with the court. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72, 6. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 24th day of November 2020.
s/ Mustafa T. Kasubhai
MUSTAFA T. KASUBHAI
United States Magistrate Judge