Opinion
3:19-cv-00441-AR
09-26-2023
JONATHAN JASON RODRIGUEZ, Plaintiff, v. WARD KING, LIEUTENANT JASON DUCHEK, SCHOTTS, HILLMICK, KAMMERZELL, EDDY, POPE, and HAZEN, Defendants.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, United States Magistrate Judge.
Plaintiff Jonathan Rodriguez, appearing pro se, brings this § 1983 action against defendants Ward King, David Shotts, Rodney Hillmick, Albert Hazen, George Eddy, Michael Pope, Travas Kammerzell, and Jason Duchek, all of whom were correctional officers or counselors at Eastern Oregon Correctional Institution (EOCI) while Rodriguez was held in custody there. Rodriguez alleges that, in violation of the Eighth Amendment, defendants used excessive force against him and Duchek acted with deliberate indifference to his serious medical needs. (Am. Compl., ECF No. 14). Before the court is defendants' Motion for Summary Judgment (Defs.' Mot). (ECF No. 40.) As the court explains, summary judgment should be granted to Shotts, Hillmick, Hazen, Eddy, Pope, and Kammerzell. But summary judgment should be denied to King and Duchek on Rodriguez's excessive force claims, and summary judgment should be denied to Duchek on Rodriguez's deliberate indifference claim.
On November 10, 2020, District Judge Immergut issued an Order dismissing Rodriguez's Amended Complaint in part and granting Rodriguez leave to file a second amended complaint to cure deficiencies of the dismissed claims. Order dated Nov. 11, 2020 (ECF No. 17). Rodriguez did not do so within the time provided, and on December 22, 2020, Judge Immergut issued an Order dismissing Rodriguez's claims against defendants Pedro, Amsberry, and Serrano. (Order Dec. 22, 2020, ECF No. 20.) The Order further provided that this action would proceed solely upon Rodriguez's excessive force claim against defendants King, Shotts, Hillmick, Hazen, Eddy, Pope, Kammerzell, and Duchek and his deliberate indifference claim against defendant Duchek.
FACTUAL BACKGROUND
When considering a motion for summary judgment, the court must “assume the truth of the evidence set forth by the nonmoving party.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). Further, a “plaintiff's verified complaint may be considered as an affidavit in opposition to summary judgment if it is based on personal knowledge and it sets forth specific facts admissible in evidence.” Lopez v. Smith, 203 F.3d 1122, 1132 n.14 (9th Cir. 2000). The court thus begins by setting out the facts below, taken as true from Rodriguez's verified complaint and from declarations submitted by defendants in support of their motion for summary judgment.
On March 26, 2018, Ward King, a counselor at EOCI, called Rodriguez into his office for an unscheduled intake interview, seeking to discuss work assignments and Rodriguez's request to notify others of his change of address. (Am. Compl. ¶ 17.) From the onset of the meeting, King seemed irritated, apparently because of a previous and unrelated issue he had with Rodriguez. (Id. ¶ 18.) Rodriguez had unsuccessfully applied for various jobs around the facility. (Id. ¶ 19.) Those applications were blocked by King, who told Rodriguez that he could only apply for entry-level positions, such as working in the kitchen. Rodriguez replied that he could not work in the kitchen because he had been previously attacked by a correctional officer there. (Id. ¶ 20.) The topic then shifted to the request for King to inform Rodriguez's attorneys and DHS worker of his change in address. (Id. ¶ 21.) Rodriguez had arrived at Eastern Oregon Correctional Institution just 12 days prior and had an upcoming court hearing. (Id.; Decl. of Ward King in Supp. of Summ. J. (King Decl.) Attach. 1 at 2, ECF No. 41.) More importantly to Rodriguez, he wanted King to contact his DHS worker so that he could talk with his daughter. (Am. Compl. ¶ 21.) King declined to share the change in address and told Rodriguez “yeah well thats not gonna happen and these job applications yeah I'm just gonna throw these in the trash!” (Id. (quotation unaltered).) Rodriguez responded: “alright cool, so what your telling me is your fucking useless, got it, I think were done talking here can I go now?” King then got close to Rodriguez's face and screamed “what do you think your some kind of bully!” (Id. ¶ 22 (quotations unaltered).)
King began to berate Rodriguez in a raised voice, causing spit to hit his face. Rodriguez rose from his seat and backed away while covering his face to avoid King's spit. King tried to grab Rodriguez as he backed up. Rodriguez continued to retreat until he was standing with his back against a bookcase along the office wall. There, King “advanced on [Rodriguez] again, when he reached [Rodriguez] he chest bumped [Rodriguez] then started pushing his head against [Rodriguez's] chest.” Rodriguez pushed his arms out to “physically distance King from [himself]” while saying “what the hell get out of my face.” (Id. ¶ 23.) King “swatted” Rodriguez's arms down and “wrenched” Rodriguez towards him by his shirt collar. Rodriguez yelled “don't fucking touch me” as he shoved King off him. King “came back throwing a punch,” which Rodriguez side-stepped while pushing King away again. (Id.)
Phil Morrison, another counselor at EOCI, arrived and helped King try to restrain Rodriguez. Morrison yanked Rodriguez to the floor by the shirt collar, causing him to trip and fall on the ground. While Morrison tried to pin Rodriguez down, King repeatedly punched Rodriguez in the side and ribs and tried to jump on his back. After getting back on his feet Rodriguez pushed King away a final time. (Id. ¶ 24) Then, Morrison pinned Rodriguez's left arm behind his back. Rodriguez attempted to “extract [himself] from the situation” by leaving the office and “walked forward with Morrison still attached.” Rodriguez told Morrison to let him go three times until Morrison was assured Rodriguez would “be cool” and let go of his arm. (Id. ¶¶ 24-25.) The scuffle temporarily ceased, and Rodriguez began to pace near the end of the hallway. (Id. ¶ 25.) Meanwhile, King went into a frenzy in his office, crashing, slamming, and kicking objects, and then called over the radio “staff assault F-4.” (Id. ¶ 26.) With Morrison separating them, King called to Rodriguez “why don't you come in my office and fight me now?!” (Id. ¶¶ 26-27.)
Counselors David Shotts and Rodney Hillmick, and correctional officers Travas Kammerzell, Michael Pope, George Eddy, and Lieutenant Albert Hazen immediately responded to King's call. (King Decl. 3; Shotts Decl. 2, ECF No. 43; Hillmick Decl. 2, ECF No. 46; Hazen Decl. 2, ECF No. 42; Eddy Decl. 2, ECF No. 45; Pope Decl. 2, ECF No. 47; Kammerzell Decl. 2, ECF No. 48.) Upon their arrival, King ordered Shotts and Hillmick to remove Rodriguez from his office area and hallway. (Am. Compl. ¶ 27.) As Rodriguez walked past Morrison towards the responding staff, they collectively pushed him into the wall while punching him and pushing his face into the wall. (Id. ¶ 28.) Then, Shotts twisted Rodriguez's arm behind his back while bending his middle finger backwards. (Id. ¶ 29.) Rodriguez, believing his finger would break, pushed back. The staff repeatedly slammed Rodriguez against the wall while punching him. In the ensuing scuffle, Rodriguez tripped on a grate causing the entire group to fall to the ground on top of him, causing difficulty in his breathing. (Id. ¶ 30.) When Rodriguez pushed himself up to breathe, Pope, who was standing directly below the grate, sprayed oleoresin capsicum (OC) spray for 10-12 seconds in Rodriguez's eyes, nose, mouth, and neck. (Id. ¶¶ 30-31.) Eddy, who was in the pile, also sprayed OC spray into Rodriguez's face, right ear, right side of neck, and back of head. (Id. ¶ 31.)
Staff forcefully handcuffed Rodriguez, and as Rodriguez gasped for breath, he inhaled OC spray, causing him to cough, gasp, and choke. (Id. ¶ 32.) EOCI staff continued to restrain Rodriguez-in a manner that was extremely painful and restricted his breathing. (Id. ¶¶ 32-33.) Eventually, Rodriguez was “forcefully pulled up by the back of [his] shirt collar.” (Id. ¶ 33.) After descending the stairs, staff lifted Rodriguez's arms (which were handcuffed behind his back) “forcing [him] to bend down even further, which caused [him] extreme pain and stress in [his] shoulder blades, torso, ribcage and lower back.” (Id. ¶ 34.) In this position, Rodriguez struggled to walk and breathe normally causing him to stop and kneel on the ground. (Id. ¶ 35.) Out of frustration, staff picked Rodriguez up by the shirt collar and belt buckle and dragged him about 50 feet to a holding cell, during which he could not breathe. In the cell, Rodriguez's hands were lifted high behind his back as he was on his knees, and his handcuffed arms were attached to a bolt on the wall. Rodriguez was left there for 15 minutes screaming in pain while the OC spray continued to burn. (Id. ¶ 36.)
Rodriguez was then helped up, uncuffed, and instructed to strip for a shower. As he stripped and turned to the wall, Duchek smashed his face into the wall. (Id. ¶ 37.) Several months later, Duchek said that he smashed Rodriguez's face into the wall because he was “afraid [Rodriguez] would spit on him.” Next, pictures were taken of Rodriguez, he was handcuffed, and Duchek escorted him to the shower. (Id. ¶ 38; Duchek Decl. ¶ 7, ECF No. 44.) Duchek did not provide Rodriguez with shower shoes, soap, or a rag. In the shower, Rodriguez tried to wipe off the OC spray but the spray is “oily and greasy so it just spreads.” That is, “Imagine cleaning a bacon pan with just water and your hands.” The temperature of the water “kept rising and rising,” which activated the burning sensation of the OC spray “ten times worse than before,” spreading throughout Rodriguez's entire body, even to areas that had not been affected before. Rodriguez describes the pain as “like being burned alive.” (Am. Compl. ¶ 38.)
After the shower, Rodriguez was given clean clothes and asked to see the nurse “because [he] couldn't breathe.” (Id. ¶ 39) Duchek denied Rodriguez's request unless he put on a spit mask. Upset, Rodriguez “lost [his] cool and screamed ‘stop treating me like an animal' while punching a window.” (Id.) Rodriguez argued over getting medical attention for 10 minutes and was ultimately taken to the nurse. (Id. ¶ 40.) After that, Rodriguez was put in an isolation cell on “total restriction status,” where he continued to wipe off the OC spray with cold water and toilet paper. (Id.) Rodriguez continued to feel the after-effects of being OC sprayed for the next two days. (Id. ¶ 41.) He used his milk from breakfast to wash his face, ear, and armpits. (Id.) He twice asked unidentified officers for aspirin, paper, and a pen from a supply cart and was denied both times. (Id.) On the morning of March 29, 2018, Rodriguez was pulled from his cell to talk to Duchek about his close-supervision status. (Id. ¶ 42.) During that conversation, Duchek stated that he'd “known Ward King for years and he could see King doing some of the things [Rodriguez had] described.” (Id.)
Defendants move for summary judgment on Rodriguez's excessive force and indifference to medical needs claims, arguing that (1) defendants did not use excessive force against him, (2) Duchek was not deliberately indifferent to his serious medical needs, and (3) defendants are otherwise entitled to qualified immunity.
Defendants also argue that Rodriguez's official capacity claims are barred by the Eleventh Amendment. (Defs.' Mot. at 10-11.) The Court need not address this argument because Rodriguez is suing Defendants in their personal capacity only. (Pl.'s Am. Resp. in Opp'n at 8.)
LEGAL STANDARD
Summary judgment is appropriate where the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2019). The moving party bears the initial burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet this burden, the party asserting that a fact cannot be genuinely disputed must support that assertion with admissible evidence. Fed.R.Civ.P. 56(c).
If the moving party establishes the absence of a genuine issue of material fact, the nonmoving party must go beyond the allegations in the complaint to demonstrate a genuine issue for trial. Celotex, 477 U.S. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus should be entered against “a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
The court views the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). Although the court construes a pro se litigant's pleadings liberally, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), a pro se party involved in civil litigation is held to the same standards in responding to a motion for summary judgment and “should not be treated more favorably than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).
DISCUSSION
A. Excessive Force
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). When a plaintiff alleges that correctional officers used excessive force against them, the issue is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam); Furnace, 705 F.3d at 1028. The standard has both objective and subjective elements. Objectively, the alleged wrongdoing must be “harmful enough to establish a constitutional violation.” Hudson, 503 U.S. at 8 (simplified). Subjectively, prison officials must act “with a sufficiently culpable state of mind,” but an “express intent to inflict unnecessary pain is not required.” Id.; Whitley v. Albers, 475 U.S. 312, 319 (1986) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
The objective element is “contextual and responsive to ‘contemporary standards of decency.'” Hudson, 503 U.S. at 6. It is the use of force itself, rather than the resulting injury, that ultimately drives the inquiry. See Wilkins, 559 U.S. at 37-38 (noting that injury and force “are only imperfectly correlated, and it is the latter than ultimately counts”). To determine whether the force at issue inflicted unnecessary and wanton pain and suffering, the court may utilize the following factors: (1) the extent of injury suffered by an [AIC], (2) the need for application of force, (3) the relationship between that need and the amount of force used, (4) the threat reasonably perceived by the responsible officials, and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7 (citing Whitley, 475 U.S. at 321).
The malicious and sadistic use of force for the purpose of causing harm, whether such force results in significant injury, always violates contemporary standards of decency. Wilkins, 559 U.S. at 37-38 (citing Hudson, 503 U.S. at 9); see also Rodriguez v. Cnty. of Los Angeles, 891 F.3d 776, 797 (9th Cir. 2018) (“More than de minimis force applied for no good faith law enforcement purpose violates the Eighth Amendment.”). A factfinder may infer an actor's subjective intent from circumstantial evidence. Cf. Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999) (explaining that intent to inhibit speech element of § 1983 retaliation claim “can be demonstrated either through direct of circumstantial evidence”).
King. To begin with, the court notes that defendants' argument as to King relies in large part on the lack of any injury sustained by Rodriguez as a result of King's actions. (Defs.' Mot. 12-15.) Although Rodriguez does not allege any injury from his confrontation with King and the extent of injury is a relevant consideration under the Hudson factors, the lack of an injury is not dispositive. Wilkins, 559 U.S. at 36-38. As to the second, third, and fourth Hudson factors-the nature of the threat, need for the force, and relationship between that need and the amount of force used-they are all disputed by Rodriguez's allegations. Rodriguez alleges that he was not acting aggressively and stood up to avoid King's tirade. (Am. Compl. ¶ 22.) Then, Rodriguez was pushed back by King, held against a bookshelf, and eventually punched. (Id. ¶¶ 22-23.) King claims that Rodriguez stood up to a fighting stance with clenched fists and pushed him after refusing to follow commands to remain seated. (King Decl. Attach. 2 at 18.) Both parties agree that Rodriguez, while standing with his back against the bookshelf, pushed King away. (Id.; Am. Compl. ¶ 23.) Viewing the evidence in the light most favorable to Rodriguez: no threat existed, King was the initial aggressor, Rodriguez's push was defensive posturing, and King's punches were unnecessary. Thus, factors two, three, and four favor Rodriguez.
The fifth Hudson factor also favors Rodriguez. It is undisputed that after Morrison separated the parties, King requested an “A-Team” response to a “staff assault.” (Id. ¶ 26; King Decl. Attach. 2 at 18.) The circumstances of King's request for backup are disputed. King claims that Rodriguez was yelling at him to “come and fight.” (Id. ¶ 7.) Alternatively, Rodriguez states that King said, “why don't you come in my office and fight me now!?” (Am. Compl. ¶ 27.) It is undisputed that Rodriguez remained in the hallway. (Id. ¶¶ 26-27; King Decl. Attach. 2 at 19.) During this time, Morrison gave Rodriguez verbal directives to “relax, breathe, and stay calm.” (Id.) As evidence that he was not aggressive in the hallway, Rodriguez offers a note from Morrison thanking him for “[his] efforts that day on the F4 appendage, with [his] willingness to listen and follow my directives.” (Decl. of Jonathan Rodriguez (Rodriguez Decl. 1), Ex. 2, ECF No. 63.) After drawing factual inferences in favor of Rodriguez, the evidence suggests that King did not take efforts to temper the severity of his response. Rather, King tried to re-engage in a fight that he started while backup was on the way. Thus, the fifth factor favors Rodriguez.
Rodriguez has identified sufficient evidence from which a reasonable jury could infer that King used force with the intent to harm Rodriguez. Rodriguez offers evidence (as explained above) that suggests King was the initial aggressor. With King as the initial aggressor, it is not a reasonable inference that King applied force “in a good faith effort to restore discipline.” Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (citing Whitley, 475 U.S. at 320-21). Further, Rodriguez's account of King's challenge to fight as backup was on the way, is circumstantial evidence that King acted intending to cause harm. Finally, Rodriguez has offered a declaration from another AIC and a quote from Duchek as circumstantial evidence that suggests King has a proclivity for harassing and intimidating AICs. (Rodriguez Decl. 1, Ex. 3, 4; Am. Compl. ¶ 42.) Taken together, this evidence is sufficient for a jury to infer that King acted “maliciously and sadistically” rather than as part of a “good-faith effort to maintain or restore discipline.” Wilkins, 559 U.S. at 37.
Rodriguez has established the objective and subjective elements and raised genuine issues of material fact. Thus, if all inferences are drawn in favor of Rodriguez as required on summary judgment, it could establish a violation of his Eighth Amendment rights if it is found that the use of force was malicious and sadistic. For these reasons, the court recommends the denial of King's motion for summary judgment on the issue of excessive force.
Shotts, Hillmick, Hazen, Eddy, Pope, Kammerzell. As for the force used against Rodriguez by defendants Shotts, Hillmick, Hazen, Eddy, Pope, and Kammerzell, the evidence before the court, even when viewed in the light most favorable to Rodriguez, establishes that there was a need for some application of force and that Shotts, Hillmick, Hazen, Eddy, Pope, and Kammerzell acted in good faith and not “maliciously and sadistically for the very purpose of causing harm.” Applying the Hudson factors, Rodriguez has not established the objective or subjective elements required and has not raised a genuine issue of material fact that those defendants acted with a culpable mental state.
As for the extent of injury inflicted on Rodriguez, the court notes that though not dispositive, Rodriguez was moderately injured. Rodriguez alleges that he suffered “deep lacerations and gashes” from the handcuffs and burns to his skin and eyes from the OC spray. (Rodriguez Decl. 1 at 2; Am. Compl. ¶ 31.) The pictures taken of Rodriguez's hands shortly after the incident, however, show no apparent gashes or lacerations on his wrists. (King Decl. Attach. 2 at 15.) Along with the pain of the initial contact, Rodriguez alleges that his skin continued to burn two days later. See Furnace, 705 F.3d at 1029 (describing burns, blisters, and skin irritation from pepper spray that persisted for three or four days as a moderate injury).
There was a need to apply force. Shotts, Hillmick, Hazen, Eddy, and Kammerzell were the first staff members to respond to King's staff assault call. (King Decl. 3; Shotts Decl. 2; Hillmick Decl. 2; Hazen Decl. 2; Eddy Decl. 2; Pope Decl. 2; Kammerzell Decl. 2.) Although it is disputed whether King was assaulted, the responding staff had no way of knowing the legitimacy of the call. In that context, reasonable force was necessary and applied in a good-faith effort to restore discipline. And defendants used a reasonable amount of force given the circumstances. Pope and Eddy deployed OC spray only after repeated orders to stop resisting, and the remaining defendants reasonably responded to King's report that he had been assaulted. (See, e.g., King. Decl. 2-3; Pope Decl. 2; Eddy Decl. 2.) Moreover, defendants reasonably perceived that Rodriguez's conduct posed an imminent threat and their actions in response to a reported staff assault were appropriate and not to inflict any unnecessary harm or pain to Rodriguez. Finally, defendants gave Rodriguez verbal warnings ordering him to stop his aggressive behavior and to comply with directives, including to stop resisting or he would be sprayed with OC spray. (See, e.g., Pope Decl. 2; Eddy Decl. 2.) Rodriguez does not mention if a warning was issued before he was sprayed. (See generally, Am. Compl.)
Rodriguez has offered no evidence that the defendants who responded to King's call for assistance did so with a malicious and sadistic state of mind. The Hudson factors favor Shotts, Hillmick, Hazen, Eddy, Pope, and Kammerzell; no reasonable jury could find that they violated Rodriguez's Eighth Amendment rights. Summary judgment should therefore be granted to Shotts, Hillmick, Hazen, Eddy, Pope, and Kammerzell.
Duchek. Rodriguez alleges that Duchek used “excessive and unnecessary force” by “smashing [Rodriguez's] face against the wall[.]” (Am. Compl. ¶ 59.) Rodriguez does not allege that he was injured, but again, the lack of injury is not dispositive in an excessive force claim. Wilkins, 559 U.S. at 36-38. The Supreme Court has emphasized that “[i]njury and force . . . are only imperfectly correlated, and it is the latter that ultimately counts,” and has noted that “[a]n [AIC] who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury.” (Id.) In an unpublished opinion, the Ninth Circuit similarly emphasized that “it is not the degree of injury which makes out a violation of the [E]ighth [A]mendment. Rather, it is the use of official force or authority that is intentional, unjustified, brutal and offensive to human dignity.” Renteria v. Williams, 340 Fed.Appx. 382, 383 (9th Cir. 2009) (simplified) (also noting that “to establish an Eighth Amendment violation [a plaintiff] must establish that the use of force was more than de minimis; not that his injury was more than de minimis.”). Here, a reasonable jury could find that Duchek smashing Rodriguez's face into a wall was more than a de minimis use of force. See Simmons v. Adams, No. 1:10-CV-01259-LJO, 2013 WL 2991142, at *7 (E.D. Cal. June 14, 2013), report and recommendation adopted, 2013 WL 3815603 (E.D. Cal. July 23, 2013) (“declin[ing] to find that slamming an [AIC]'s face into a fence and then into a concrete wall constitutes a de minimis use of force” or that “the force used was reasonable as a matter of law”).
Rodriguez also alleges that Duchek used excessive force by “giving [him] a hot decontamination shower with no amenities to clean off the OC spray[.]” (Am. Compl. ¶ 59.) However, Rodriguez does not explain how that alleged failure involved the use of force. There is no question that Rodriguez may plausibly state a claim for deliberate indifference by alleging, as he does, that Duchek “refused [Rodriguez] the ability to properly decontaminate himself[.]” (Am. Compl. ¶ 60.)Yet Rodriguez does not cite, and the court is unaware of, any case that recognizes a claim for excessive force based on a corrections officer's failure to respond to an AIC's medical need-like the need for decontamination supplies after being OC sprayed. Thus, the court will address Duchek's alleged failure to provide Rodriguez with proper amenities under Rodriguez's deliberate indifference claim and not as part of his excessive force claim.
As for the other Hudson factors, and based on the only evidence in the record regarding this incident-which comes from Rodriguez alone-a reasonable jury could also find that there are factual disputes as to whether Duchek smashed Rodriguez's face into a wall as part of a “good-faith effort to maintain or restore discipline.” Wilkins, 559 U.S. at 37. According to Rodriguez, Duchek said that he smashed Rodriguez's face into the wall because he was “afraid [Rodriguez] would spit on him.” (Id. ¶ 37.) However, the record does not show that Rodriguez had spit on anyone, including Duchek, or was threatening to do so, or that Duchek had any other grounds to use force against Rodriguez. (See Am. Compl. ¶ 59 (asserting that Duchek “smashed [Rodriguez's] face against the wall . . . when [Rodriguez] was not violating any prison rule”); see also Rodriguez Decl. 2 at 2, ECF No. 66 (Rodriguez stating under penalty of perjury that “Duchek slammed my face into the wall for no reason.”)). Moreover, because this specific incident between Rodriguez and Duchek is not addressed in defendants' motion for summary judgment or in the declaration submitted by Duchek, Duchek does not dispute Rodriguez's allegation, or contend that he had good cause to use force against Rodriguez, or otherwise assert that he acted reasonably. Thus, Duchek has failed to show that there is no dispute about whether he used force against Rodriguez in a “good-faith effort to maintain or restore discipline.” Wilkins, 559 U.S. at 37; see Celotex Corp., 477 U.S. at 323 (noting that the party moving for summary judgment bears the initial burden of establishing the absence of a genuine dispute of material fact). The court therefore finds that Duchek is not entitled to summary judgment on Rodriguez's excessive force claim. See Cooper v. San Bernardino Sheriff Dep't, No. EDCV16949PSGPLA, 2018 WL 5870084, at *7 (C.D. Cal. Jan. 17, 2018), report and recommendation adopted, 2018 WL 5861529 (C.D. Cal. Mar. 2, 2018) (denying summary judgment to defendants on excessive force claim where “neither defendants' use of a ‘rear wrist lock' nor their action in slamming plaintiff against a wall were objectively reasonable” and where “[n]o evidence . . . reflects the need for the use of any force, . . . [or] that either Deputy attempted to limit the amount of force used, . . . [or] that any security problem or threat remained to be addressed at the time that force was used by the Deputies against plaintiff').
B. Deliberate Indifference to Serious Medical Needs
Deliberate indifference to the serious medical needs of an AIC is “cruel and unusual punishment” under the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). To establish an Eighth Amendment claim based on inadequate medical care and treatment, a plaintiff must show: (1) they had a “serious medical need,” and (2) the defendant was “deliberately indifferent” to that need. Id. at 104. “A medical need is serious when the failure to treat it could result in significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9thCir. 2006).
Deliberate indifference may be satisfied by showing: “(a) a purposeful act or failure to respond to a[n AIC]'s pain or possible medical need and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). “Indifference ‘may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.'” Id. at 1096 (citation omitted). Yet “an ‘inadvertent [or negligent] failure to provide adequate medical care' alone does not state a claim under § 1983.” Id. at 1096 (citation omitted).
Here, Rodriguez's deliberate indifference claim alleges that Duchek denied him supplies to decontaminate himself from the OC spray. Rodriguez specifically alleges that Duchek left him handcuffed to a wall while he was “covered in OC spray and later refused [Rodriguez] the ability to properly decontaminate himself.” (Am. Compl. ¶ 60.) Rodriguez states that Duchek brought him to a hot shower with no soap, rag, or any cleaning supplies which, in turn, made it impossible for Rodriguez to remove the “oily and greasy” OC spray from his skin. (Id. ¶ 38.)
Rodriguez states that the hot water caused the OC spray “to activate burning ten times worse than before.” (Id.) Rodriguez also states that he continued to feel “a lot of areas of [his] body burning” the day after he was OC sprayed and used “milk from breakfast to wash mainly [his] face, right ear, and armpits.” (Id. ¶ 41.)
As to injury, Duchek argues that Rodriguez did not suffer a “serious illness or injury” from the alleged denial of a proper decontamination process. (Defs.' Mot. 17.) A reasonable jury, however, could disagree based on evidence that Rodriguez experienced pain “like being burned alive” when the hot water came into contact with the OC spray on his skin. (Am. Compl. ¶ 38; see Jett, 439 F.3d at 1096 (a medical need is “serious” when “the failure to treat it could result in . . . the unnecessary and wanton infliction of pain”); see also McGuckin, 974 F.2d at 1059 (a “serious medical need” may be shown by “the existence of . . . substantial pain[.]”)). Thus, Rodriguez has cited sufficient evidence to establish the objective component of his claim for deliberate indifference.
As to the subjective component of a deliberate indifference claim, the record shows that there is a genuine dispute as to Duchek's underlying actions and his subjective state of mind. On the one hand, Duchek cites an EOCI “Chemical Agent Deployment Form” showing that Rodriguez received a medical assessment and was “allowed to flush eyes” and “allowed wet and dry towels” within a few minutes of being sprayed. (Duchek Decl. Attach. 2 at 13.) Duchek also states in his declaration that Rodriguez “demanded a shower” despite Duchek “advis[ing] . . . [him] against a shower because it could reactivate the spray and cause more discomfort.” (Duchek Decl. ¶ 7 (emphasis added)). But Rodriguez disputes Duchek's account of what occurred and states in his declaration that no one, including Duchek “ever advised [him] a shower would re-activate and intensify the spray[.]” (Rodriguez Decl. 2 at 3.) Rodriguez also disputes that he received medical attention and states that officers “never gave me rags to wipe off the OC spray [and] never allowed me at any time to flush my eyes out.” (Rodriguez Decl. 1 at 2; Rodriguez Decl. 2 at 2-3.)
Given the parties' conflicting evidence, and viewing it in the light most favorable to Rodriguez, a reasonable jury could credit Rodriguez's declarations over Duchek's declaration and infer that Duchek provided Rodriguez with no decontamination supplies and no warning before escorting Rodriguez to a hot decontamination shower-despite knowing that the hot water would exacerbate the burning effects of the OC spray on Rodriguez's skin. See Jackson v. Romero, No. 17CV0882-CAB (BLM), 2019 WL 3288957, at *19 (S.D. Cal. July 22, 2019) (noting that, when a “[plaintiff's] affidavit contrasts starkly with the [defendants' affidavits, . . . any inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party” and noting further that “a [p]laintiffs evidence need only be such that a ‘jury might return a verdict in his favor'”) (citing Anderson, 477 U.S. at 257)). Although Duchek's evidence shows that Rodriguez received prompt care after he was OC sprayed and was warned against taking a hot water shower, Rodriguez's evidence creates a genuine dispute as whether those actions occurred. Duchek is therefore not entitled to summary judgment on the issue of decontamination supplies.
Two judges in this district recently granted summary judgment to the defendants in two cases that alleged deliberate indifference based on corrections officers at EOCI providing the plaintiffs with hot or warm water decontamination showers to remove OC spray. See Garcia v. Pope, No. 2:18-CV-01573-MC, 2020 WL 1068239, at *1 (D. Or. Mar. 5, 2020), aff'd, 841 Fed.Appx. 28 (9th Cir. 2021); Gomez v. Peters, No. 2:18-CV-01607-HZ, 2020 WL 7647470, at *1 (D. Or. Dec. 23, 2020). Unlike this case, there was no dispute in either Garcia or Gomez that, after the plaintiff had been OC sprayed, the plaintiff was “observed by a correctional officer every ten minutes for the first thirty minutes, examined by a nurse, allowed wet and dry towels, and placed in an open-air area.” Garcia, 2020 WL 1068239, at *1; Gomez, 2020 WL 7647470, at *1 (describing identical decontamination protocols). Moreover, in both Garcia and Gomez, the plaintiff did not allege that he was denied soap or other cleaning supplies in the decontamination shower that he received. Here, in contrast, the parties dispute whether Rodriguez received a wet towel, the chance to flush his eyes, soap for his shower, or any other decontamination supplies. Nor were the merits of the plaintiff's deliberate indifference claim addressed in either Garcia or Gomez, and the courts instead granted summary judgment to the defendants based on qualified immunity and after finding that “it was not clearly established that [the] plaintiff's Eighth Amendment rights would be violated by exposure to a warm decontamination shower.” Garcia, 2020 WL 1068239, at *3; Gomez, 2020 WL 7647470, at *6 (same). The Garcia court emphasized that “the [p]laintiff does not allege any disregard to his health or safety aside from the warm shower,” Garcia, 2020 WL 1068239, at *3 (emphasis added), and the Gomez court similarly noted that the plaintiff alleged deliberate indifference based only on “the temperature of the water.” Id. at *6. Here, in contrast, Rodriguez's deliberate indifference claim alleges that Duchek failed to provide him with any decontamination supplies before, during, and after the hot decontamination shower which exacerbated the burning effects of the OC spray on his skin and caused him unnecessary pain and suffering. (See Am. Compl. ¶ 38.)
Rodriguez also alleges that Duchek “refused” to give him aspirin, Am. Compl. ¶ 60, but Rodriguez cites no evidence that he requested aspirin from Duchek or that he suffered pain or serious illness because he was allegedly denied aspirin. There is also no evidence in the record that Duchek knew that Rodriquez allegedly needed aspirin or knew that Rodriguez would suffer harm or injury without it. Thus, to the extent that Rodriguez bases his deliberate indifference claim on Duchek's alleged failure to provide him with aspirin, Duchek is entitled to summary judgment.
C. Qualified Immunity
Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
“Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). To be clearly established,
a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be “settled law,” which means it is dictated by “controlling authority” or “a robust consensus of cases of persuasive authority[.]” It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply. Otherwise, the rule is not one that “every reasonable official” would know.District of Columbia v. Wesby, 138 S.Ct. 577, 589-90 (2018) (simplified). The Supreme Court has repeatedly admonished lower courts that “the clearly established right must be defined with specificity.” City of Escondido v. Emmons, 139 S.Ct. 500, 503 (2019) (per curiam); Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018) (noting that the Court has “‘repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality'”) (simplified).
Excessive Force Claim Against King and Duchek. King and Duchek are not entitled to qualified immunity on Rodriguez's excessive force claim. Defendants broadly assert that “it would not be clear to a reasonable prison official that the actions taken by [defendants were unlawful.” (Defs.' Mot. 18.) The court disagrees. As discussed above, Rodriguez cites evidence that King was the initial aggressor in their altercation, that Rodriguez posed no threat, and that King tried to re-engage his fight with Rodriguez. Rodriguez also cites evidence that he never provoked Duchek to smash his face into the wall. Thus, Rodriguez's evidence creates a genuine factual dispute over whether King or Duchek had any penological reason to use force against him. Based on the record before the court, a reasonable jury could therefore conclude that King and Duchek used force against Rodriguez to cause him harm. Under Hudson, “[w]hen prison officials maliciously and sadistically use force to cause harm . . . contemporary standards of decency always are violated . . . whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9 (emphasis added). Therefore, since Hudson, every reasonable correctional officer would have understood that it is unconstitutional to use any level of force against an AIC where “there is no evidence of any incident requiring the need to maintain or restore order[.]” Simmons, 2013 WL 2991142, at *8 (denying qualified immunity to the defendant because “the law was sufficiently clear that a reasonable officer would have known he could not slam an inmate into a fence and a wall” for no penological purpose and “for the very purpose of causing harm to the AIC”); see also, Alexander v. Perez, 124 Fed.Appx. 525, 526 (9th Cir. 2005) (“Since 1992, the legal standard articulated in Hudson has provided officers with ample notice that malicious or sadistic use of force is unlawful.”).
The court concludes, therefore, that King and Duchek are not entitled to qualified immunity on Rodriguez's excessive force claim. See Fugawa, 718 Fed.Appx. at 551-52 (denying the defendant qualified immunity because, “[s]ince Hudson, a person serving a term of incarceration has had a clearly established right not to have his face slammed into the ground for the purpose of maliciously and sadistically causing harm”-even where the “[plaintiff]'s injuries were not severe” citing Hudson, 503 U.S. at 9.).
Deliberate Indifference Claim Against Duchek. The court finds that Duchek is not entitled to qualified immunity on Rodriguez's deliberate indifference claim. In Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002), the Ninth Circuit held that a plaintiff may establish a claim for deliberate indifference based on the failure of corrections officers to provide AICs with prompt decontamination procedures after exposing the AICs to the harmful effects of pepper spray. See id. at 905. In Clement, the plaintiffs alleged that pepper spray vapors drifted into their cells after officers had pepper sprayed AICs in neighboring cells. Id. at 902. The plaintiffs alleged that they struggled to breathe, sought medical attention, and asked to be removed from their cells so that they could take showers. After four hours, the prison official “finally escorted the bystander [AIC]s out of their cells for showers.” Based on the record before the court, the Ninth Circuit found that the plaintiffs “may be able to show that the defendants were subjectively aware of the risk of serious injury when they denied showers and medical attention to the [AIC]s for the 4 hour period.” Id. at 905. Put differently, a reasonable jury could find that the defendants were “deliberately indifferent” to the AICs' serious medical need for prompt decontamination procedures and supplies. Thus, the court held that the defendants were not entitled to qualified immunity because “it was clearly established that the officers could not intentionally deny or delay access to medical care.” Id. at 906 (emphasis added) (citing Estelle, 429 U.S. at 104-05).
Here, like the plaintiffs in Clement, Rodriguez alleges that Duchek was subjectively aware of Rodriguez's serious medical needs from being OC sprayed and intentionally failed to provide him with decontamination supplies-despite knowing that the hot water shower would exacerbate the burning effects of the OC spray. Although there is a genuine dispute about whether Duchek provided Rodriguez with decontamination supplies before his shower or warned Rodriguez against taking a hot shower, Rodriguez might persuade a reasonable jury that Duchek provided no decontamination supplies, knew that hot water would exacerbate the burning effects of the OC spray, and still brought Rodriguez to a hot water shower with no warning that it would cause him significant pain. In other words, a reasonable jury could find that Duchek was “subjectively aware of the risk of serious injury” to Rodriguez, Clement, 298 F.3d at 905, when he escorted Rodriguez to a hot shower while he was still covered in OC spray and had no soap or other method to remove the OC spray from his skin. Under Clement, therefore, Duchek is not entitled to qualified immunity. See id. (denying qualified immunity to the defendants where a reasonable jury could find that they were “subjectively aware of the risk of serious injury when they denied showers and medical attention to [AIC]s” after exposing the AICs to OC spray).
District Court Judge Michael McShane acknowledged in Garcia that the Ninth Circuit held in Clement that “the failure to provide an [AIC] with prompt decontamination procedures after the use of pepper spray can establish a claim for deliberate indifference.” 2020 WL 1068239, at *2. Judge McShane nevertheless granted qualified immunity to the defendants in Garcia because “no controlling or even persuasive authority has held that warm-water decontamination showers constitute deliberate indifference.” Id. In Garcia, however, there was no dispute-unlike here-that the plaintiff received prompt medical attention and decontamination supplies prior to his hot shower, and there was no evidence that the defendants knew that the hot water shower would exacerbate the effects of the residual OC spray. Given that the plaintiffs in Clement alleged no harm stemming from a hot decontamination shower, Clement did not give the defendants in Garcia fair notice that providing an AIC with a hot decontamination shower would violate the Eighth Amendment. That said, Clement did give Duchek fair warning that a corrections officer may not intentionally delay or deny proper decontamination procedures to an AIC who has been exposed to OC spray. See 298 F.3d at 906. Put differently, under Clement and the precedent cited by the Ninth Circuit, it was clearly established that an AIC has a constitutional right to receive prompt decontamination supplies and procedures after being exposed to OC spray. Duchek is therefore not entitled to qualified immunity on Rodriguez's deliberate indifference claim. See id. Although a jury might ultimately relieve Duchek of liability, that jury might alternatively find credible Rodriguez's version of the facts and conclude that Duchek was deliberately indifferent to Rodriguez's medical needs after the incident involving OC spray.
CONCLUSION
For the above reasons, the court recommends that defendants' motion for summary judgment (ECF No. 40) be GRANTED for defendants Shotts, Hillmick, Hazen, Eddy, Pope, and Kammerzell, and DENIED for defendants King and Duchek.
SCHEDULING ORDER
The Findings and Recommendation will be referred to District Judge Immergut. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.