Still v. Schmidt et al

Filing 40

ORDER: re Motion to Dismiss 25 and Motion to Dismiss for Failure to State a Claim 37 . (see order for full details). Signed by Judge Sharon L. Gleason on 03/15/2013. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

JACOB T. STILL,
Plaintiff,
vs.
JOSEPH D. SCHMIDT, et al.,
Defendants.

Case No. 3:12-cv-00084-SLG
ORDER RE MOTION TO DISMISS

Before the Court is a Motion to Dismiss filed at Docket 25 by Defendants
Schmidt, Brunger, Barnhardt, March, Erickson, Kitter, Blades, Heiker, and Knight. The
remaining Defendant, Defendant McKeown, had not been served at the time the Motion
was filed, but subsequently joined it at Docket 37 after service on him had been
effected. 1 The Motion seeks dismissal of the Complaint filed by Plaintiff Jacob Still, a
prisoner representing himself.

Mr. Still opposed at Docket 32 and the moving

Defendants replied at Docket 33. Oral argument was not requested by the parties and
is not necessary to the Court’s determination of the Motion.
FACTUAL AND PROCEDURAL BACKGROUND
The facts, as alleged under penalty of perjury in Mr. Still’s Complaint, for
purposes of this Motion to Dismiss, are as follows: 2

1

2

Defendant McKeown is identified in the Complaint as “Don McLean.”

Mr. Still and the Defendants included affidavits with their briefing on this Motion. As the
affidavits contain factual matter outside the pleadings, the Court has not included them in this
recitation of facts. See discussion infra at 10-11 (consideration of facts on 12(b)(6) motion
limited to allegations made in the pleadings). However, the Court has considered the affidavits

For the duration of the events giving rise to this action, Mr. Still was incarcerated
at Mat-Su Pretrial Facility (“MSPF”). 3 Defendant Schmidt was the Commissioner of the
Alaska Department of Corrections. 4 The remaining Defendants all worked at MSPF:
Defendant Brunger was the superintendent, Defendant Barnhardt was the lieutenant,
Defendants Erickson and Marsh were shift sergeants, Defendants Blades, Kitter,
Knight, and McKeown were correctional officers, and Defendant Heiker was a security
officer.
On May 7, 2010, Mr. Still and another inmate were transferred from Palmer
Correctional Center to MSPF, 5 where they were both placed in segregation cell unit 3
(“Cell 3”). 6 Mr. Still observed that the toilet in Cell 3 was not functioning and Defendants
Ericson and Marsh were notified. 7 Two inmates in a neighboring cell informed Mr. Still
that they had been transferred from Cell 3 the previous day because of the nonfunctioning toilet. 8

Defendant Ericson was again notified of the toilet issue and

responded that “we have been having problems with this cell.” 9

When Mr. Still

in a limited fashion solely with respect to Defendants’ exhaustion argument. See discussion
infra at 12-13 (consideration of matters outside the pleadings permitted for PLRA exhaustion
purposes).
3

Docket 1 at 1 ¶ 3.

4

Docket 1 at 2 ¶ 4.

5

Docket 1 at 2 ¶ 15.

6

Docket 1 at 2 ¶ 16.

7

Docket 1 at 3 ¶¶ 17-19.

8

Docket 1 at 3 ¶ 20.

9

Docket 1 at 3 ¶¶ 21-22.

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requested to be transferred to a cell with a functioning toilet, Defendant Erickson
indicated that he had no knowledge of the reasons for Mr. Still’s placement and was
unable to transfer him. 10
Mr. Still remained in Cell 3 with the non-functioning toilet for three days. 11 On the
first day, Mr. Still “was able to hold his bowels with only moderate pains,” which became
“substantially more sever[e]” on the second day. 12 Mr. Still informed Defendants Marsh
and Erickson of these symptoms and requested permission to use a toilet in another
cell, which they denied. 13 Instead, Mr. Still and his cellmate were required to “defecate
in a corner inside their cell and put the feces into small brown paper bags and store the
fecal filled bags until meal service,” when they were required to pass the bags out the
same tray slot through which their meal trays were delivered. 14 On the evening of May
10, 2010, Mr. Still and his cellmate “flooded the segregation mod in [an] attempt to get
the defendants to move plaintiff to a cell with a working toilet.” 15
Mr. Still alleges that Defendants Brunger and Barnhardt knew or reasonably
should have known of these events. 16

10

Docket 1 at 3 ¶¶ 23-24.

11

Docket 1 at ¶ 25.

12

Docket 1 at 3 ¶¶ 26-28.

13

Docket 1 at 3 ¶¶ 29-30.

14

Docket 1 at 3 ¶¶ 31-32.

15

Docket 1 at 3 ¶ 33.

16

Docket 1 at 4 ¶ 34.

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Mr. Still alleges that later in the evening of May 10, 2010, Defendants Marsh,
Heiker, McKeown, Blades, and Kitter came to Cell 3, opened the cell door, and
questioned him about the flooding of the unit. 17 Defendant Marsh had a large canister
of “O.C. Pepper Spray held at ready.” 18 At Defendant Marsh’s command, Mr. Still and
his cellmate were handcuffed and then escorted to the shower, where they were
secured while their personal and state-issued items were removed from Cell 3 and the
water to the cell was shut off. 19 Mr. Still and his cellmate were then led back to Cell 3,
still handcuffed. The cellmate slipped on a rag on the wet cement floor and “[a] small
amount of water may have gott[e]n on one of the officers.”20 Defendant Marsh then
ordered Mr. Still, whose hands were still cuffed behind his back, to turn around; and
when Mr. Still turned around, Defendant March pepper sprayed him in the face. 21 Mr.
Still attempted to walk toward the shower, but was forced back into Cell 3.22
Defendants Marsh and Heiker then pepper sprayed Mr. Still and his cellmate, who were
still handcuffed with their backs to the Defendants, emptying two canisters into the
cell. 23 Defendant Marsh then ordered the door to Cell 3 closed and the Defendants left

17

Docket 1 at 4 ¶¶ 36, 38-39.

18

Docket 1 at 4 ¶ 37.

19

Docket 1 at 4 ¶¶ 40-44.

20

Docket 1 at 4 ¶¶ 46-48.

21

Docket 1 at 5 ¶¶ 49-51.

22

Docket 1 at 5 ¶ 52.

23

Docket 1 at 5 ¶¶ 53-54.

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the unit. 24 Mr. Still alleges that Defendants Blades, Kitter, and McKeown observed this
incident but did not attempt to intervene. 25
Mr. Still alleges that the Defendants left him in Cell 3, handcuffed, with no way to
decontaminate, as they had shut off the water supply to Cell 3. 26 Mr. Still maneuvered
his hands in front of him and unsuccessfully attempted to rinse his face “with the only
water available, this being the water contained in the toilet bowl[.]” 27 Mr. Still alleges
that by this point, he was “experiencing sever[e] respiratory difficulties,” presumably
from the pepper spray, and used the intercom button in Cell 3 to notify Defendant
Knight, who was on duty in the control room, that he was on anxiety medication, unable
to breathe, and close to losing consciousness, and that he required medical
assistance. 28 Mr. Still’s cellmate also informed Defendant Knight that Mr. Still needed
immediate medical assistance and stated that he wanted to make a report with the
Alaska State Troopers. 29 Mr. Still alleges that Defendant Knight responded “nobody is
coming to help you so fuckin deal with it.” 30

24

Docket 1 at 5 ¶ 56.

25

Docket 1 at 5 ¶ 55.

26

Docket 1 at 5 ¶ 57.

27

Docket 1 at 5 ¶ 57.

28

Docket 1 at 5-6 ¶¶ 60-62.

29

Docket 1 at 6 ¶ 63.

30

Docket 1 at 6 ¶ 64.

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Mr. Still alleges that approximately an hour later, he was escorted to the shower
and permitted to decontaminate. 31

Afterward, he was not given a towel or clean

clothing before being escorted back to Cell 3, naked, by Defendant Kitter, a female
officer. Mr. Still was locked in Cell 3, which was still contaminated, “with nothing to
cover himself with or any place to sit down that was not contaminated” for over an hour,
at which point he was escorted, still naked, to a different cell (“Cell 2”) occupied by Mr.
Still’s previous cellmate and another incarcerated individual. 32 After approximately 1520 minutes, Mr. Still was provided with clothing. 33
Mr. Still alleges that Defendant Barnhardt informed Mr. Still, presumably at some
point after this incident, that “he is and has been on a ‘spray first status,’” meaning that
“officers were ordered to use pepper spray in the event of any disruptions.”34 Mr. Still
received three disciplinary write-ups from the incident. 35
Mr. Still alleges that he attempted to filed a grievance regarding this incident, but
that Defendants Barnhardt and Marsh told him that “as he was given disciplinary writeups[,] the matter was not grievable[.]” 36 They informed him that he could appeal the
disciplinary write-ups to the superintendent after he had been found guilty. 37 Mr. Still
31

Docket 1 at 6 ¶ 66.

32

Docket 1 at 6 ¶¶ 67-70.

33

Docket 1 at 6 ¶ 71.

34

Docket 1 at 6 ¶ 72.

35

Docket 1 at 6 ¶ 74.

36

Docket 1 at 6 ¶ 73.

37

Docket 1 at 6 ¶ 73.

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subsequently appealed the three disciplinary write-ups, but his appeals “did nothing to
rem[e]dy the action of the defendants” described in his Complaint. 38
On April 19, 2012, Mr. Still filed this prisoner civil rights Complaint under 42
U.S.C. § 1983. Mr. Still asserts that the Defendants are liable for conspiracy to violate
his Eighth Amendment rights; excessive use of force and cruel and unusual
punishment; failure to provide medical treatment and decontamination; violation his right
to privacy; and violation of his right to due process. 39 Mr. Still also raises state tort
claims, including negligence and the intentional torts of battery and assault. 40
Specifically, Mr. Still asserts the following specific claims:
•

By “maliciously and sadistically” depriving Mr. Still of adequate living
conditions, Defendants Ericson and Marsh committed a violation of his
rights under the Eighth Amendment and the tort of negligence. 41

•

By using unnecessary force and a chemical agent against Mr. Still,
Defendants Marsh and Heiker committed a violation of his rights under the
Eighth Amendment and the torts of assault and battery. 42

38

Docket 1 at 7 ¶¶ 75-76.

39

Docket 1 at 2-7.

40

Docket 1 at 7-8.

41

Docket 1 at 8 ¶¶ 78-79.

42

Docket 1 at 8 ¶¶ 80-81.

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•

By failing to act, Defendants McKeown, Blades, and Kitter committed a
violation of Mr. Still’s rights under the Eighth Amendment and the tort of
negligence. 43

•

By failing to ensure that Mr. Still received medical attention in compliance
with D.O.C. policy, Defendant Marsh committed a violation of Mr. Still’s
Eighth Amendment rights and the tort of negligence. 44

•

By failing to notify the supervisor of Mr. Still’s need for medical attention
Defendant Knight committed a violation of Mr. Still’s Eighth Amendment
rights and the tort of negligence. 45

•

The actions of Defendants Blades and Kitter violated Mr. Still’s Fourth
Amendment right to privacy. 46

•

The actions of Defendants Barnhardt and Marsh violated Mr. Still’s right to
due process under the 14th Amendment. 47

•

Defendant Brunger “is respons[i]ble for all subordinates and ensuring
inmates[’] constitutional rights are upheld.”48

43

Docket 1 at 8 ¶¶ 82-83.

44

Docket 1 at 8 ¶¶ 84-85.

45

Docket 1 at 8 ¶¶ 86-87.

46

Docket 1 at 8 ¶ 88.

47

Docket 1 at 8 ¶ 89.

48

Docket 1 at 8 ¶ 90.

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Mr. Still does not assert claims against Defendant Schmidt, stating that he has named
Defendant Schmidt as a defendant “to aid in disclosure and production discovery[.]” 49
Mr. Still names Defendants Barnhardt, Blades, Erickson, Heiker, Kitter, Knight,
Marsh, and McKeown in their individual capacities and seeks declaratory judgment and
monetary damages from each. 50 Mr. Still names Defendant Brunger in his individual
and official capacities and seeks monetary, declarative, and injunctive relief. 51 Mr. Still
names Defendant Schmidt solely in his official capacity and seeks injunctive relief
only. 52

Mr. Still seeks an injunction requiring Defendants Schmidt and Brunger to

implement D.O.C. policy to prevent the recurrence of the events described in the
Complaint and requiring Defendant Schmidt or Brunger to expunge the three
disciplinary convictions that Mr. Still received.
The Defendants filed their Motion to Dismiss on August 27, 2012, seeking
dismissal of Mr. Still’s Complaint for failure to state a claim for which relief can be
granted.

Mr. Still Opposed on November 9, 2012 and the Defendants replied on

November 26, 2012. Defendant McKeown joined the Motion on January 14, 2013.
Because the Defendants submitted extrinsic materials with the Motion, the Court issued

49

Docket 1 at 8 ¶ 91.

50

Docket 1 at 2, 8-9.

51

Docket 1 at 2, 8-9.

52

Docket 1 at 2, 9.

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an order on January 23, 2013 giving Mr. Still notice of his opportunity to develop the
record. 53 No additional materials were submitted.
DISCUSSION
I.

Standard for Dismissal.
Federal Rule of Civil Procedure 12(b)(6) permits a party to seek dismissal of an
action for failure to state a claim for which relief can be granted.
This Court applies the “facial plausibility” pleading standard as analyzed by the
Supreme Court in Ashcroft v. Iqbal. 54 Under that standard, to survive a Rule 12(b)(6)
motion to dismiss “a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim for relief that is plausible on its face.’” 55 This plausibility standard
requires “more than a sheer possibility” of entitlement to relief, though it need not rise to
the level of probability. 56 “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” are insufficient. 57

If the plaintiffs

“have not nudged their claims across the line from conceivable to plausible, their
complaint must be dismissed.”58 But “[w]hen there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether they plausibly give

53

Docket 38; Docket 39.

54

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

55

Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

56

Id.

57

Id. at 678 (citing Twombly, 550 U.S. at 555).

58

Twombly, 550 U.S. at 570.

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rise to an entitlement to relief.”59 Making such a determination is “a context-specific
task that requires the . . . court to draw on its judicial experience and common sense.”60
Because Mr. Still is a self-represented prisoner, the Court must liberally construe
his pleadings and give him the benefit of the doubt. 61 And before dismissing the action,
the Court must provide Mr. Still with an opportunity to amend, unless it is clear that
amendment would be futile. 62
Mr. Still’s Complaint asserts claims arising from events that occurred while he
was in confinement. Accordingly, his claims are subject to the restrictions of the Prison
Litigation Reform Act (“PLRA”). 63

The PLRA contains such requirements as the

exhaustion of administrative remedies, 64 a prior physical injury, 65 and specific standards
for injunctive relief, 66 which were raised in the Defendants’ Motion and are discussed
below.
59

Iqbal, 556 U.S. at 679.

60

Id. at 679 (citation omitted).

61

See Hebbe v. Plier, 627 F.3d 338, 342 (9th Cir. 2010) ("[O]ur 'obligation' remains [after Iqbal],
'where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally
and to afford the petitioner the benefit of any doubt.'") (citation omitted).
62

See Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (“Pro se complaints . . . may be
dismissed for failure to state a claim only where it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.”) (citations and
internal quotations omitted); McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir.
2004) (“The district court did not err in denying leave to amend because amendment would
have been futile.”).
63

42 U.S.C. § 1997e; 18 U.S.C. 3626.

64

42 U.S.C. § 1997e(a).

65

42 U.S.C. § 1997e(e).

66

18 U.S.C. § 3626(a)(1)(A).

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II.

Defendants’ Motion to Dismiss.
The Defendants argue that Mr. Still’s Complaint merits dismissal for four reasons:

(A) Mr. Still has failed to exhaust his administrative remedies as required by 42 U.S.C.
§ 1997e, (B) Mr. Still has failed to allege physical injury as required by 42 U.S.C.
§ 1997e(e), (C) Mr. Still has failed to allege facts warranting injunctive relief, and (D) as
against Defendants Schmidt and Brunger, Mr. Still has failed to allege facts showing
personal participation by those Defendants. 67
A. Exhaustion of Administrative Remedies.
The Defendants first argue that Mr. Still’s Complaint is barred because he has
failed to exhaust his administrative remedies, as required under the PLRA.
The PLRA provides that “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”68
Failure to exhaust is an affirmative defense. 69

Thus, the burden is on the

defendant to prove it. 70 However, if a lack of exhaustion has been shown, the burden
then shifts to the plaintiff to prove the administrative remedies were not available to him.
In deciding a motion to dismiss for failure to exhaust, a court is permitted to look beyond

67

Docket 25 at 1-2.

68

42 U.S.C. § 1997e(a).

69

Albino v. Baca, 697 F.3d 1023, 1031 (9th Cir. 2012) (citations omitted).

70

Id.

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the pleadings to determine disputed issues of fact without converting the motion to one
for summary judgment under Federal Rule of Civil Procedure 56. 71
The Defendants attached an affidavit by Defendant Brunger to their Opposition
and an affidavit by Sergeant Heather Land to their Reply, and Mr. Still attached an
affidavit to his Opposition. 72

The affidavits testify to factual matter outside the

Complaint. As some of the testimony presented addresses the issue of exhaustion and
some goes to other issues raised in this Motion, the Court has limited its consideration
of the affidavits to those portions that are relevant to the issue of exhaustion.
The Defendants assert and provide testimony that Mr. Still did not file any
grievances arising from this incident. 73

In his Opposition, Mr. Still emphasizes the

language from the PLRA that requires exhaustion of “such administrative remedies as
71

The Ninth Circuit has “held that the failure to exhaust nonjudicial remedies that are not
jurisdictional should be treated as a matter in abatement, which is subject to an unenumerated
Rule 12(b) motion.” Akhtar v. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (quoting Wyatt v.
Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003)). Because “[e]xhaustion under the PLRA is not
jurisdictional . . . a defendant may raise failure to exhaust under the PLRA in an unenumerated
Rule 12(b) motion.” Id. at 1210 (citing Payne v. Peninsula Sch. Dist., 653 F.3d 863, 869 (9th
Cir. 2011), cert. denied, __U.S.__ (2012); Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.
2003)). In deciding such a motion, “the court may look beyond the pleadings and decide
disputed issues of fact.” Wyatt, 315 F.3d at 1120 (citing Ritza v. Int’l Longshoremen's and
Warehousemen's Union, 837 F.2d 365, 369 (9th Cir. 1988)); see also Akhtar, 698 F.3d at 1210
(citing Wyatt, 315 F.3d at 1119-20).
72

Docket 26 (Aff. of Brunger); Docket 32 (Aff. of Still); Docket 33-1 (Aff. of Land).

73

Docket 25 at 4; Docket 33-1. Initially, Defendant Brunger testified in his affidavit that MSPF’s
“Facility and Standards officer Sgt. Heather Land has advised me that Still did not file any
grievances while he was at [MSPF].” Docket 26 at 2 ¶ 3. When Mr. Still provided sworn
testimony disputing this, Docket 32 at 12 ¶ 8, the Defendants changed positions and stated that
“Still filed at least eleven grievances while in the Delta segregation at MatSu at various times
from May, 7, 2010 until he was returned to the Palmer Correctional Center on March 16, 2012.”
Docket 33 at 2 (referencing Docket 33-1 at 2 ¶ 5 (Aff. of Land)). However, the affidavit of
Sergeant Land attached to the Reply indicates that Mr. Still did not begin filing grievances until
January 20, 2011.

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are available.”74 As Mr. Still’s Complaint and Opposition make clear, part of the basis
for his action is that he was not permitted to file a grievance. 75 Thus, he maintains that
he should not be barred from bringing this action for failing to file a grievance because
the grievance process was not available to him. 76 The Defendants concede that the
exhaustion requirement is excused where the grievance process is unavailable to a
prisoner. 77

However, they argue that the Ninth Circuit requires a prisoner to

demonstrate that he took “reasonable and appropriate steps to exhaust his remedies”
before the requirement can be excused and that Mr. Still has not made such a
showing. 78
The Ninth Circuit has held that to meet the burden of showing that a grievance
procedure was unavailable, a prisoner must show “(1) that jail staff affirmatively
interfered with his ability to exhaust administrative remedies or (2) that the remedies
were unknowable[.]”79

Here, both Mr. Still’s Complaint and Opposition assert that

MSPF staff prevented him from filing a grievance, thereby affirmatively interfering with
his ability to exhaust.
The D.O.C. policy attached to Defendant Brunger’s affidavit establishes the
procedure for filing a grievance: a prisoner must “first attempt to speak directly with the
74

42 U.S.C. § 1997(e)(a) (emphasis added); Docket 32 at 2.

75

Docket at 6 ¶ 73; Docket 32 at 2.

76

Docket 32 at 2.

77

Docket 33 at 2.

78

Docket 33 at 2 (citing Nunez v. Duncan, 591 F.3d 1217 (9th Cir. 2010)).

79

Albino, 697 F.3d at 1033.

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staff member aware of or directly involved with the incident.” If that attempt fails, the
prisoner must then file a Request for Interview Form; if that does not resolve the issue,
he must file a Prisoner Grievance Form; if that determination is unfavorable, he must
then file a Grievance Appeal. All documents are to be placed by the prisoner “in the
appropriate locked box.” The policy requires MSPF to “make locked boxes available
near each of the institutional housing units” for the filing of grievances. 80
In his Complaint, Mr. Still alleges that he “attempted to grieve the defendants[’]
action” and was told that “as he was given disciplinary write-ups[,] the matter was not
grievable[.]” 81 He alleges that he was informed that he could appeal the disciplinary
write-ups to the superintendent, which he subsequently did. 82 Mr. Still supplements
these allegations in his affidavit as follows:
5. I attempted to the best of my limited ability to exhaust all
administrative remedies concerning claim one in the original
complaint and was denied access to grievance forms or the
grievance forms were not properly handles by the defendant’s, as
set forth in D.O.C. policy and procedure 808.03;
6. I attempted to the best of my limited ability to exhaust
administrative remedies concerning the remaining claims in the
complaint and was denied access to grievance forms, being
informed that the matters at hand were disciplinary and not
grievable, due to receiving three incident reports concerning the
events described;
7. The locked box in the segregation unit of Mat-Su Pretrial (at the
time of the incident complained) was marked “Books Only” and was
used for library books. Inmates are instructed to place all personal
80

Docket 26-1 at 4.

81

Docket 1 at 6 ¶ 73.

82

Docket 1 at 6 ¶¶ 73-75.

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mail and institution mail i.e. cop-outs and grievances under their
cell door to be collected by the inmate janitor each evening[.] 83
The Defendants attached to their Reply an affidavit from Sergeant Heather Land,
the MSPF compliance sergeant responsible for processing prisoner grievances.
Sergeant Land testified that while disciplinary decisions cannot be grieved, Mr. Still
could have filed grievances regarding his “claims of the non-working toilet, excessive
force, subjecting an inmate to nudity, and not allowing a prisoner to access the
grievance process[,]” as those claims “are separate and distinct from the disciplinary
process[.]”84 Sergeant Land further testified that Mr. Still’s disciplinary write-ups were
dismissed on appeal, and that “[e]ven if Still had been told that he could not grieve his
issues because they were disciplinary in nature, Still could have grieved the issues after
the disciplinary matters were dismissed.” 85 Thus, the Defendants argue that Mr. Still’s
allegations and affidavit testimony do not show “that he took reasonable and
appropriate steps to exhaust his remedies regarding his claims and that he was actually
prevented from filing a grievance by any corrections officials.” 86
The parties present differing versions of the facts on the exhaustion issue: Mr.
Still asserts that he was prevented from grieving his claims; the Defendants assert that
he had the ability to do so. Construing the disputed facts in Mr. Still’s favor for purposes
of this Motion to Dismiss, the Court finds that he has plausibly alleged and testified that
83

Docket 32 at 11-12 ¶¶ 5-8.

84

Docket 33-1 at 3 ¶ 6.

85

Docket 33-1 at 3 ¶ 7.

86

Docket 33 at 2.

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he took reasonable and appropriate steps to try to pursue his administrative remedies,
and that the grievance process was not made available to him. Accordingly, the Court
finds that, based on the record currently before the Court, the exhaustion requirement of
the PLRA does not bar Mr. Still’s claim. 87
B. Physical Injury.
The Defendants argue that Mr. Still “has failed to allege the requisite physical
injury for a civil rights claim.” 88 42 U.S.C. § 1997e(e) places the following limitation on a
prisoner’s ability to bring suit: “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury.” To satisfy this
requirement, a prisoner must allege more than a de minimis physical injury. 89
The Defendants argue that Mr. Still “alleges no physical injury whatsoever as a
result of his claims.”90

Mr. Still asserts that he suffered injury from being pepper

sprayed and that this injury was not de minimis. 91 The Defendants do not address this
issue in their Reply. 92

87

This ruling is without prejudice to the Defendants seeking to raise the defense of exhaustion
on summary judgment at a later stage in this action, after discovery has taken place.
88

Docket 25 at 5; Docket 32 at 11-12 ¶¶ 5-6.

89

Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) (“we hold today that for all claims to which it
applies, 42 U.S.C. § 1997e(e) requires a prior showing of physical injury that need not be
significant but must be more than de minimis.”).

90

Docket 25 at 5.

91

Docket 32 at 4.

92

See Docket 33.

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The Court finds the recently-issued decision of Furnace v. Sullivan dispositive on
this issue. 93 In Furnace, the Ninth Circuit reviewed the Northern District of California’s
grant of summary judgment to the defendants.

Mr. Furnace, a self-represented

prisoner, had brought a civil rights action arising from the defendants’ alleged denial of
his religious request for vegetarian meals and their use of pepper spray on him. Mr.
Furnace was entitled to vegetarian meals for religious reasons.

One morning, the

officers did not give Mr. Furnace his vegetarian breakfast. The subsequent events were
disputed. The Defendants asserted that Mr. Furnace had actively held the food port
open and attempted to reach through it in a threatening manner; Mr. Furnace alleged
that he had merely rested his hands in the open port. The Defendants asserted that
they had struck Mr. Furnace with two short blasts of pepper spray; Mr. Furnace alleged
that they had sprayed him for a full minute and emptied two canisters.
Mr. Furnace alleged that his face, chest, stomach and groin area were struck by
the pepper spray, causing the skin to blister and burn. After being pepper sprayed, Mr.
Furnace was allowed to decontaminate in his cell, as required by prison procedure, and
was not given a vegetarian breakfast.

Mr. Furnace alleged that he experienced a

burning sensation for several days afterward and developed a rash in the groin area
that may have resulted from the pepper spray.

On the basis of these events, Mr.

Furnace claimed that the officers had violated his right to equal protection by failing to
provide him with a vegetarian breakfast and had violated the Eighth Amendment by
using excessive force on him.
93

The District Court found that Mr. Furnace had not

705 F.3d 1021 (9th Cir. 2013). This opinion was issued after the parties concluded their
briefing on this motion.

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demonstrated that the officers intentionally deprived him of his vegetarian breakfast and
dismissed the equal protection claim on that basis. The District Court dismissed Mr.
Furnace’s Eighth Amendment claim on qualified immunity grounds, finding that, under
the defendants’ version of events, they could reasonably have perceived Mr. Furnace
as a threat.
The Ninth Circuit affirmed the District Court’s dismissal of Mr. Furnace’s equal
protection claim, but reversed and remanded its dismissal of his Eighth Amendment
claim. The Ninth Circuit ruled that, when all inferences were drawn in the plaintiff’s
favor, genuine issues of material fact precluded summary judgment. In rendering this
decision, the Ninth Circuit found that the difference between the parties’ account of
events (Mr. Furnace actively holding the food port open versus simply resting his fingers
on it) and the discrepancy of the parties’ accounts of how much pepper spray was used
(two quick blasts versus a full minute that emptied two canisters) were material. The
Ninth Circuit held that the District Court should have relied on Mr. Furnace’s version of
events for purposes of the summary judgment motion, as doing so would have impacted
its qualified immunity determination.

The Ninth Circuit then adopted the “generally

recognized” rule, existent in other circuits, that “‘it is a violation of the Eighth
Amendment for prison officials to use mace, tear gas or other chemical agents in
quantities greater than necessary or for the sole purpose of infliction of pain.” 94 The
Ninth Circuit concluded that Mr. Furnace’s injuries were “moderate” and that, under his

94

Id. at 1028 (citing Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (quoting Soto v.
Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984), cert. denied, 470 U.S. 1085 (1985)); Iko v. Shreve,
535 F.3d 225, 240 (4th Cir. 2008)).
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version of events, granting qualified immunity to the defendants on summary judgment
was inappropriate. 95
While the Ninth Circuit in Furnace did not explicitly hold that injuries suffered as a
result of being pepper sprayed meet the physical injury requirement of the PLRA, the
holding implicitly recognizes that pepper spray can result in physical injury. Moreover,
Furnace was decided on a motion for summary judgment, which requires a greater
factual showing from the plaintiff than a motion to dismiss. This Court reads the Ninth
Circuit’s holding in Furnace to indicate that injuries suffered as a result of being pepper
sprayed “plausibly give rise to an entitlement to relief.” 96
Applying the precedent of Furnace, the Court finds that Mr. Still’s allegations of
being struck with two cans of pepper spray and not permitted to decontaminate meet
the “physical injury” requirement of the PLRA. Accordingly, the Court finds that for
purposes of this Motion to Dismiss, Mr. Still has adequately alleged physical injury. 97
C. Injunctive Relief.
The Defendants argue that Mr. Still has not alleged facts to justify the injunctive
relief he seeks against Defendants Schmidt and Brunger. 98 They cite to 18 U.S.C. §
3626(a)(1)(A), part of the PLRA, which provides:

95

Id. at 1029-30.

96

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

97

The Court makes this ruling only in the context of this Motion to Dismiss; it has no bearing on
Mr. Still’s ability to maintain his claims later in this action, for example in the context of any
summary judgment motions or at trial, where a stronger factual showing may be required.
98

Docket 25 at 5.

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Prospective relief in any civil action with respect to prison
conditions shall extend no further than necessary to correct the
violation of the Federal right of a particular plaintiff or plaintiffs. The
court shall not grant or approve any prospective relief unless the
court finds that such relief is narrowly drawn, extends no further
than necessary to correct the violation of the Federal right, and is
the least intrusive means necessary to correct the violation of the
Federal right. The court shall give substantial weight to any
adverse impact on public safety or the operation of a criminal
justice system caused by the relief.
The Defendants argue that Mr. Still “has not stated any facts which show the violation of
a federal right that requires injunctive relief to issue” and that Mr. Still’s Complaint
makes “no mention of policies . . . and only cursory mention of disciplinary
proceedings.” 99 They additionally assert that Mr. Still “has also failed to exhaust the
prisoner grievance regarding these claims for injunctive relief.” 100
Mr. Still seeks an injunction requiring Defendants Schmidt and Brunger to
“implement the polic[ies] D.O.C. ha[s] to prevent the actions described in this
complain[t] from reoccurring in the future.”101 But Mr. Still does not identify a specific
policy that he seeks to have enforced, and appears rather to be requesting that
Defendants Schmidt and Brunger be required to enforce D.O.C. policy as a general
rule. Thus, the Court finds that this requested relief is not narrowly drawn to correct the
violations Mr. Still alleges and appears to extend further than necessary to correct the
alleged violations of his particular rights.

99

Docket 25 at 6.

100

Docket 25 at 6.

101

Docket 1 at 9 ¶ B.1.

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Accordingly, the Defendants’ Motion to

Dismiss is GRANTED with respect to Mr. Still’s claim for injunctive relief requiring
Defendants Schmidt and Brunger to enforce D.O.C. policy.
Mr. Still also seeks an injunction ordering Defendant Schmidt or Defendant
Brunger to expunge the three disciplinary write-ups Mr. Still received in connection with
the events described in his Complaint. 102 The Court finds that this requested relief is
narrowly drawn and extends no further than necessary to correct the violations Mr. Still
has alleged, and the Defendants have not argued otherwise. Accordingly, the Court
finds that for purposes of this Motion to Dismiss, Mr. Still has stated a claim for
injunctive relief with regard to the expungement of his disciplinary write-ups. Mr. Still’s
Complaint contains allegations that indicate that Defendant Brunger is the appropriate
individual for this relief, as he is the Superintendent to whom Mr. Still appealed the
write-ups. The Complaint does not allege that Defendant Schmidt has responsibility for
MSPF disciplinary write-ups.

Accordingly, the Defendants’ Motion to Dismiss is

DENIED with respect to Mr. Still’s claim for expungement against Defendant Brunger, 103
and GRANTED with respect to Mr. Still’s claim for expungement against Defendant
Schmidt.

As this ruling leaves no claims pending against Defendant Schmidt,

Defendant Schmidt is therefore DISMISSED from this action. 104

102

Docket 1 at 9 ¶ B.2.

103

As explained more fully in n. 98, this ruling applies solely in the context of this Motion to
Dismiss.

104

In his Opposition, Mr. Still argues that “Courts have allowed prisoners to keep high-level
supervisors as defendants, even without evidence of personal involvement, for purposes of
discovery to determine who the proper defendants are.” Docket 32 at 7. However, the case law
Mr. Still cites predates Ashcroft v. Iqbal, a Supreme Court case that significantly modified the
pleading standard and renders Mr. Still’s discovery argument obsolete. 556 U.S. 662, 678-79

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Mr. Still may, however, amend his Complaint to include (1) specific allegations
that demonstrate how his request for enforcement of D.O.C. policy fits within the
PLRA’s requirements and/or (2) specific allegations that indicate that Defendant
Schmidt is an appropriate party for purposes of the requested injunctive relief.
D. Personal Participation by Defendants Schmidt and Brunger.
The Defendants argue that Mr. Still’s “damage claims against Commissioner
Schmidt and Superintendent Brunger must be dismissed due to his failure to allege that
the[y] personally participated in his alleged civil rights violations.” 105 As a threshold
matter, Mr. Still has not alleged any specific claims against Defendant Schmidt and
does not seek damages from him; Mr. Still has named him as a defendant solely for
purposes of injunctive relief. 106 Accordingly, the Court will consider the Defendants’
argument as it applies to his claims for monetary damages against Defendant Brunger
only.
To state a claim for monetary relief against a defendant, Mr. Still must allege that
the defendant participated in causing his injuries. 107 “Section 1983 suits . . . do not
support vicarious liability. ‘[E]ach government official, his or her title notwithstanding, is

(2009) (“Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions.”); cf. Docket 32 at 7 (citing Iqbal).
105

Docket 25 at 6.

106

Docket 1 at 2, 8 ¶¶ 9, 91.

107

See OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012) (“To state a claim
under § 1983 against state officials in their individual capacities, a plaintiff must plead that the
officials, acting under color of state law, caused the deprivation of a federal right.” (citations and
internal quotations omitted)).
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only liable for his or her own misconduct.’”108 Therefore, to hold a government official
liable in a § 1983 suit, “a plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the Constitution.” 109 The Ninth
Circuit has held that “[a] defendant may be held liable as a supervisor under § 1983 ‘if
there exists either (1) his or her personal involvement in the constitutional deprivation,
or (2) a sufficient causal connection between the supervisor's wrongful conduct and the
constitutional violation.’” 110
The Defendants argue that Mr. Still has not alleged sufficient facts to support his
claim against Defendant Brunger. In his Complaint, Mr. Still alleges that Defendant
Brunger “knew or reasonabl[y] should have known” of MSPF’s failure to provide Mr. Still
with a non-functioning toilet and the events associated with that, 111 that Defendant
Brunger “is responsible for all subordinates and ensuring inmates constitutional rights
are upheld[,] 112 and that Defendant Brunger “fail[ed] to curb the actions of his
subordinates.” 113

In his Opposition, Mr. Still argues that it is part of Defendant

Brunger’s “job and duty” as superintendent to ensure that MSPF “policy and procedures
are being u[p]held and followed, in order to maintain a safe and orderly
108

Id. at 1069 (quoting Iqbal, 556 U.S. at 677).

109

Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.”) (citations omitted).

110

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011), cert. denied, 132 S. Ct. 2101 (2012)
(citations omitted).

111

Docket 1 at 4 ¶ 34.

112

Docket 1 at 8 ¶ 91.

113

Docket 1 at 9 ¶ 8.

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environment[.]”114 He seeks damages from Defendant Brunger “for the conditions of
plaintiff’s confinement and the physical and emotional injury resulting from the
defendants[‘] actions in conne[c]tion to the events described in this complaint.”115
The Court finds that Mr. Still’s Complaint does not adequately allege “either (1)
[Defendant Brunger’s] personal involvement in the constitutional deprivation, or (2) a
sufficient causal connection between [Defendant Brunger’s] wrongful conduct and the
constitutional violation.’” 116 Mr. Still has thus failed to state a claim for money damages
against Defendant Brunger.
Accordingly, the Defendants’ Motion to Dismiss is granted with respect to Mr.
Still’s claim for money damages against Defendant Brunger.

This ruling does not

preclude Mr. Still from filing an Amended Complaint that includes additional allegations
against Defendant Brunger that satisfy the requirements outlined above.
E. Amendment of the Complaint.
An amended complaint supersedes an original complaint. 117 After amendment,
the Court will treat the original Complaint as nonexistent. 118 Thus, any causes of action
alleged in the original Complaint which are not alleged in the Amended Complaint are

114

Docket 32 at 5.

115

Docket 1 at 9 ¶ 1.

116

Starr, 652 F.3d at 1207.

117

Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner
& Co., 896 F.2d 1542, 1546 (9th Cir. 1990).

118

Ferdik, 963 F.2d at 1262.

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waived, and any Defendants named in the original Complaint who are not named in the
Amended Complaint are dismissed. 119
If Mr. Still amends his Complaint, the Amended Complaint must be retyped or
rewritten in its entirety and may not incorporate any part of the original Complaint by
reference. 120 Mr. Still must clearly designate on the face of the document that it is the
“Amended Complaint.”
CONCLUSION
For the foregoing reasons, the Court orders the following with regard to the
Defendants’ Motion to Dismiss at Docket 25, as joined by Defendant McKeown at
Docket 37:
1. The Defendants’ Motion to Dismiss is GRANTED in part as follows:
a. Mr. Still’s claim for money damages against Defendant Brunger is
DISMISSED.
b. Defendant Schmidt is DISMISSED from this action.
c. Mr. Still’s claim for an injunction requiring enforcement of D.O.C. Policy is
DISMISSED.
2. The balance of the Defendants’ Motion to Dismiss is DENIED.

119

Hal Roach Studios, 896 F.2d at 1546.

120

For example, the proposed Amended Complaint attached to Mr. Still’s earlier Motion for
Leave to File an Amended Complaint would not meet this requirement, as Mr. Still submitted a
document containing only the paragraphs of the Complaint that he intended to modify and did
not retype the Complaint in its entirety. Docket 30 (denied at Docket 31 on grounds that
amendment was unnecessary because Mr. Still sought only to correct a clerical error).
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3. Mr. Still may, within 30 days of the date of this Order, file an Amended Complaint
in compliance with the terms of this Order.

DATED this 15th day of March, 2013, at Anchorage, Alaska.

/s/ Sharon L. Gleason
United States District Judge

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