Jennings v. Hays et al

Filing 67

ORDER - IT IS ORDERED: The reference to the Magistrate Judge is withdrawn as to Defendants' Motion for Summary Judgment (Doc. 51 ). Defendants' Motion for Summary Judgment (Doc. 51 ) is granted, and the claim is dismissed with prejudice. The action is terminated, and the Clerk of Court must enter judgment accordingly. Signed by Judge James A Teilborg on 4/19/11. (SAT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Lee Jennings,

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Plaintiff,
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vs.
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Unknown Hays, et al.,
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Defendants.
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_________________________________ )

No. CV 10-8004-PCT-JAT (JRI)
ORDER

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Plaintiff Robert Lee Jennings, who is confined at the Arizona State Prison Complex-

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Morey in Buckeye, Arizona, filed this civil rights action against various officials of the

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Arizona Department of Corrections (ADC). (Doc. 1.) The remaining Defendants—Sergeant

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Michael Hays and Correctional Officer (CO) II Timothy Heavrin—move for summary

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judgment on the only remaining Count.1 (Doc. 51.) The motion is ready for ruling. (Docs.

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61, 65.)
The Court will grant the motion and terminate the case.

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I.

Background

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In Count II of his Complaint, Plaintiff alleged that Hays and Heavrin entered

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Plaintiff’s cell to confiscate three humorous poems that Plaintiff had posted on his bulletin

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board. Plaintiff protested because he believed he was allowed to have the poems, and he

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The Court sent Plaintiff a Notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th
Cir. 1998), advising him of his obligation to respond. (Doc. 55.)

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requested that a lieutenant be called. Hays and Heavrin then used mace “maliciously and

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sadistically to harm . . . Plaintiff.” (Doc. 1.) Plaintiff also claims that there was no

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penological purpose for Defendants to use mace. (Id.)
The Court directed Hays and Heavrin to answer Count II. (Doc. 5.) The Court

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dismissed Counts I and III and the remaining Defendant.

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Defendants move for summary judgment on the grounds that (1) Defendants did not

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use excessive force; rather, minimal force was used in a good faith effort to restore or

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maintain discipline, and (2) Defendants are entitled to qualified immunity. (Doc. 51.)

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II.

Legal Standards

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1.

Summary Judgment

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A court “shall grant summary judgment if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Under

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summary judgment practice, the moving party bears the initial responsibility of presenting

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the basis for its motion and identifying those portions of the record, together with affidavits,

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which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.

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If the moving party meets its initial responsibility, the burden then shifts to the

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opposing party who must demonstrate the existence of a factual dispute and that the fact in

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contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the

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dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for

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the non-moving party. Id. at 250; see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216,

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1221 (9th Cir. 1995). Rule 56(c) provides that “[a] party asserting that a fact cannot be or

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is genuinely disputed must support the assertion by: (A) citing to particular parts of materials

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in the record . . . or (B) showing that the materials cited do not establish the absence or

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presence of a genuine dispute, or that an adverse party cannot produce admissible evidence

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to support the fact.” An issue of fact must be genuine. Matsushita Elec. Indus. Co., Ltd. v.

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Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The opposing party need not establish a
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material issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute

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be shown to require a jury or judge to resolve the parties’ differing versions of the truth at

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trial.” First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968).

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When considering a summary judgment motion, the court examines the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits

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or declarations, if any. See Fed. R. Civ. P. 56(c). At summary judgment, the judge’s

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function is not to weigh the evidence and determine the truth but to determine whether there

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is a genuine issue for trial. Anderson, 477 U.S. at 249. The evidence of the non-movant is

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“to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But,

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if the evidence of the non-moving party is merely colorable or is not significantly probative,

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summary judgment may be granted. Id. at 248-49.

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2.

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Whenever a prison official is accused of using excessive force in violation of the cruel

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and unusual punishment clause of the Eighth Amendment, liability turns on whether force

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was applied in a good-faith effort to maintain or restore discipline or maliciously and

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sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992)

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(citing Whitley v. Albers, 475 U.S. 312, 320-32 (1986)); see also Martinez v. Stanford, 323

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F.3d 1178, 1184 (9th Cir. 2003). A showing of deliberate indifference is not enough.

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Whitley, 475 U.S. at 320. In determining whether the use of force was wanton and

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unnecessary, the Court must consider the following factors: (1) the extent of injury suffered

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by the inmate; (2) the need for application of force; (3) the relationship between that need

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and the amount of force used; (4) the threat reasonably perceived by the responsible official;

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and (5) any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at

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III.

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Excessive Force

Motion for Summary Judgment
A.

Parties’ Contentions
1.

Defendants

In support of their motion, Defendants submit their Statement of Facts (Doc. 52
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(DSOF)); their declarations, with attachments (id. Ex. A, Hays Decl.; Ex. B, Heavrin Decl.);

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result of Disciplinary Hearing (id., Ex. C); and SOAP medical notes (id., Ex. D).

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On May 2, 2009, at approximately 8:31 a.m. Hays and Heavrin entered Plaintiff’s cell

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to remove an unauthorized picture—a cartoon2—from a bulletin board in his cell. Plaintiff

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was present. (Doc. 52, DSOF ¶ 2.) According to Defendants, Hays stated that he would be

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removing the cartoon from Plaintiff’s bulletin board, and Plaintiff stated that he was not

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going to allow it. (Id. ¶ 3.)

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As Hays began to remove the unauthorized picture, Plaintiff grabbed Hays’ right

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wrist and attempted to force Hays’ right hand behind his back. (Id. ¶ 4.) Defendants assert

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that Correctional Officers are trained to neutralize an inmate’s assault by using a use-of-force

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continuum, starting with the least amount of force and proceeding to use more force if

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necessary. (Id. ¶ 5.) The use of oleoresin capsicum or pepper spray is the first method on

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the use-of-force continuum used to respond to a physical assault and is the least amount of

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force available. (Id. ¶ 6.)

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Hays grabbed his pepper spray with his left hand and applied one short burst to

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Plaintiff’s face in self-defense to force him to release his grip on Hays. (Id. ¶ 6.) Plaintiff

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began to back off but then started to come at Hays again. (Id. ¶ 7.) Hays ordered Plaintiff

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to prepare to be handcuffed; Plaintiff refused. (Id. ¶ 8.) Hays grabbed Plaintiff’s left hand

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and tried to restrain him with handcuffs, but because Plaintiff had OC spray on his hands and

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arms, Hays was unable to maintain a secure grip and successfully apply the handcuffs. (Id.)

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Hays gave a second order to Plaintiff to “cuff up” (kneel down and place his hands

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behind his back to be handcuffed). (Id. ¶ 9.) Plaintiff again refused to cuff up and, instead,

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attempted to strike Hays with his fists and grabbed Hays’ left hand. (Id.) Heavrin then

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applied a single short burst of OC spray directed at Plaintiff’s face. (Id. ¶ 10.) Plaintiff

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released his grip on Hays’ hand, went to the sink in his cell, and began to wash his face. (Id.)

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Plaintiff continued to refuse to prepare to be handcuffed, so Hays and Heavrin exited

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Plaintiff refers to this item as a humorous poem.
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the cell and closed the cell door, leaving Plaintiff in the locked cell. (Id. ¶ 11.)

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By that time, other officers had arrived and ordered Plaintiff to get on his knees and

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put his hands behind his back to prepare to be handcuffed. (Id. ¶ 12.) He complied, and

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officers entered the cell, applied restraints, and escorted Plaintiff to medical for

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decontamination because of the pepper spray. (Id.) Plaintiff declined to irrigate his eyes and

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refused any type of medical care. (Id. ¶ 16.) Medical staff noted that there appeared to be

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no stress to Plaintiff’s lungs, he was talking clearly and in full sentences, and he had no facial

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or torso injuries. (Doc. 51 at Ex. D, Medical SOAP Notes, dated May 2, 2009.)

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Plaintiff injured Hays’ right shoulder; Hays completed an ADC Report of Industrial

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Injury on the same day as this incident. (PSOF ¶ 14.) A disciplinary hearing was held on

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this matter, and Plaintiff was found guilty of assaulting Hays. (Id. ¶ 15, Ex. C, Result of

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Disciplinary Hearing.)
2.

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In opposition, Plaintiff submits his Response (Doc. 61); his Statement of Facts (Doc.

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Plaintiff

62 (PSOF)), and numerous exhibits.3

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Plaintiff asserts that he has been incarcerated at 17 different ADC facilities and moved

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to Winslow Kaibab in 2006. (Doc. 62, PSOF ¶ 1.) The rooms have bulletin boards and

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Plaintiff immediately tacked 3 humorous poems to the board. (Id. ¶ 2.) He was in Kaibab

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over 2 1/2 years and was subject to over 800 cell searches. (Id. ¶ 4.) About 3 months before

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May 2, 2009, Heavrin had completed 15 to 20 cell inspections. (Id. ¶ 5.) Plaintiff had

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worked in the prison law library and had copied different ADC policies for himself. (Id. ¶

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6-7.)

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On April 28, Heavrin stopped Plaintiff and told him to remove the poems from his

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bulletin board; Plaintiff refused, stating that they violated no policy. (Id. ¶ 8.) Heavrin said

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that the next time he was in the building, he would remove them. (Id. ¶ 9.) Warden Garcia

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went to Plaintiff’s room that same day and Plaintiff asked him about the poems; Plaintiff was

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Plaintiff’s Response (Doc. 61) and PSOF (Doc. 62) are largely the same and PSOF
includes a discussion of legal authority. Therefore, the Court’s references are to Doc. 62.
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assured that there was nothing wrong with them. (Id. ¶¶ 10-12.)

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On May 2, as Plaintiff returned from breakfast, Heavrin told Plaintiff to return to the

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administration building because someone wanted to see him; Plaintiff refused because of his

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inhaler and medical condition, and he went to his room. (Id. ¶¶ 15-16.)

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Within a few minutes, the door opened, and Hays and Heavrin walked in; Hays stated

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they were there to confiscate the poems. (Id. ¶ 17.) Plaintiff got up from his desk and said

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that Garcia had told him there was no problem with the poems; Plaintiff asked to see a

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lieutenant to resolve the matter. (Id. ¶¶ 18-19.) Hays said that no lieutenant was needed.

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(Id. ¶ 19.)

Plaintiff asked for a lieutenant over and over “having watched [Hays’]

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interactions with black prisoners at the dining hall. . . .” (Id. ¶ 20.) Hays stated that he was

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going to confiscate the poems and that Plaintiff should not touch him. (Id. ¶ 21.) As Hays

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reached toward the board, Plaintiff put his hand up and their hands touched. (Id. ¶ 22.)

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Hays yelled for Plaintiff to leave the room, and Plaintiff again asked for a lieutenant,

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at which point Hays used his mace. (Id. ¶ 23.) Heavrin then sprayed another blast of

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chemicals. (Id. ¶ 24.)

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Plaintiff went immediately to the sink, gasping for air. Plaintiff asserts that he suffers

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from asthma and chronic obstructive pulmonary disease. (Id. ¶ 25.) Plaintiff ran cold water

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on his face and eyes; Hays took the opportunity to grab Plaintiff’s left arm to put it behind

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Plaintiff’s back but “due to chemical and water on the Plaintiff’s hands—allowed Plaintiff

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to easily slip from his grip to continue with the cold water.” (Id. ¶ 26.)

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At this point , Hays and Heavrin left the room and called for back up. (Id. ¶ 27.)

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Plaintiff’s asserts that the poems were in compliance with prison rules. (Id. at 7.)

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Plaintiff weighed 130 pounds, is 5' 10", was 67 years old, has a disability, and is a “frail and

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skinny man.” (Id.) Plaintiff alleges that Hays weighed 190 pounds, is 6' 1", and 44 years

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old. (Id. at 8.) Plaintiff argues that Defendants’ story is illogical because Plaintiff had neither

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the strength nor prison record to support Defendants’ claims that Plaintiff assaulted Hays.

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(Id. at 8, 9, 11.)

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Plaintiff contends that prior to the situation escalating to the use of pepper spray, Hays
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and Heavrin violated prison protocol when they refused to summon a higher authority after

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Plaintiff’s numerous requests. Hays had a duty to contact a lieutenant to come to the cell and

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resolve the matter, but he refused. (Id. at 10, Ex. 7.)

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Plaintiff argues that Defendants’ statements in their reports are different than the

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responses to interrogatories, specifically denying that Plaintiff had requested to see a

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lieutenant but then saying that he had. (Id. at 10-11, Ex. 8, Ex. 9.)

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Plaintiff argues that there is a record supporting his claim that Hays was a known

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racist who was transferred to another unit due to his overly aggressive, confrontational

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attitude toward black inmates. (Id. at 12, 14.) In his haste, Hays only saw an older black

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man who Hays felt he could intimidate and scare by commanding Plaintiff to leave the room.

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But Plaintiff responded by requesting a lieutenant, which angered Hays. (Id. at 12.) Hays

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refused and had no intention to adhere to procedures. (Id.)

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Plaintiff asserts that prison protocol is that if a prisoner resists an officer’s reasonable

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order, additional officers should be called to control the prisoner, even when the order is

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based on a prison rule that is later found to be unconstitutional. (Id.) Hays prevented

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Plaintiff from removing the chemicals from his face. (Id. at 14.)

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3.

Reply

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Defendants argue that Plaintiff concedes that he attempted to physically stop Hays

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from removing the prohibited cartoon and slipped his arm away when Hays attempted to

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handcuff Plaintiff after the pepper spray was used. (Doc. 65 at 1.) Plaintiff also admits that

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Hays told Plaintiff that he was there to take the poem and warned Plaintiff not to touch him.

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(Id. at 1-2.) He concedes that Hays told him to immediately leave the room cell after

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Plaintiff tried to prevent the cartoon from being removed and before any pepper spray was

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used. (Id. at 2.) Defendants argue that there is no material factual dispute that, after being

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warned, Plaintiff physically attempted to prevent his cartoon from being removed and

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resisted being handcuffed. (Id.)

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Defendants contend that age, size differentials, and Plaintiff’s medical condition are

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irrelevant because Plaintiff admits that he resisted Hays taking down his cartoon. (Id.) They
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assert that the racism allegations are without any foundation or support and nothing but pure

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speculation. (Id.)

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Defendants argue that the Ninth Circuit has held that the use of pepper spray may be

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reasonable as a general policy to bring an arrestee or inmate under control. (Id. at 2-3.)

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Plaintiff was upset that his cartoon was about to be removed and physically tried to prevent

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that. (Id. at 3.) He refused to comply with orders not to touch the officer and to leave the

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area. A small amount of pepper spray was used to resolve this situation and maintain or

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restore discipline. (Id.)

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As to qualified immunity, Defendants argue that Plaintiff has not established that there

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was clear precedent in the Ninth Circuit about the use of pepper spray to enforce prison

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discipline or to enforce a disobeyed order. (Id., citing Howard v. Nunley, 2010 WL 3785536

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at *3 (D. Ariz., Sept. 24, 2010) (collecting cases and granting qualified immunity).) They

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assert that the only clear Ninth Circuit law appears to be that the use of pepper spray may be

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reasonable as a general policy to bring an arrestee under control but not when an arrestee

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surrenders and is rendered helpless. (Id., citing LaLonde v. County of Riverside, 204 F.3d

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947, 961 (9th Cir. 2000).) Pepper spray was not used here after Plaintiff was under control.

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B.

Analysis
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No Constitutional Violation

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Applying the Hudson factors, the Court finds that there is no genuine dispute of fact

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that the force used was applied in a good faith effort to restore order and not maliciously or

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sadistically to cause harm. See Hudson, 503 U.S. at 7.

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a.

Extent of Injury

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The extent of a prisoner’s injury may suggest whether the use of force could plausibly

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have been thought necessary in a particular situation. Hudson, 503 U.S. at 7. Although the

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extent of a prisoner’s injury is relevant in the use of force determination, it is not decisive

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because a prisoner can state a claim even if he did not suffer a significant injury. See id. at

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4; Wilkins v. Gaddy, 130 S. Ct. 1175 (2010); Schwenk v. Hartford, 204 F. 3d 1187, 1196

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(9th Cir. 2000) (the attack need not result in permanent injury). “Otherwise, the Eighth
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Amendment would permit any physical punishment, no matter how diabolic or inhuman,

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inflicting less than some arbitrary quantity of injury.” Hudson, 503 U.S. at 9. But not every

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“malevolent touch by a prison guard” or every push or shove, gives rise to a federal cause

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of action. Id. at 9.

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Based on Plaintiff’s assertions that he was briefly unable to breathe, the Court finds

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that there is some evidence of injury, although there is no evidence of lasting injury. Because

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the injury was minor, the first factor weighs slightly in Plaintiff’s favor. See Hudson, 503

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U.S. at 10.
b.

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Need for Force

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The Ninth Circuit has held that “the force that was applied must be balanced against

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the need for that force: it is the need for force which is at the heart of the [excessive force

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determination].” Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th

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Cir. 1994). Where there is no need for force, any force used is objectively unreasonable for

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constitutional purposes. See P.B. v. Koch, 96 F.3d 1298, 1303-04 & n.4 (9th Cir. 1996).

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There are some disputes of fact in the versions of events related by the parties;

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specifically, they dispute the exact sequence of some events and whether Plaintiff attempted

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to twist Hays’ arm behind his back. Viewing the facts in the light most favorable to Plaintiff,

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Plaintiff concedes that after Hays and Heavrin entered Plaintiff’s cell,

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Plaintiff was told by Hays that Hays would remove the poems;
Plaintiff insisted on seeing a lieutenant to resolve the dispute;
Hays said that no lieutenant was needed;
Hays again told Plaintiff that Hays would confiscate the poems and that
Plaintiff should not touch him;
Hays reached to remove the poems, and Plaintiff put his hand up to
block Hays;
their hands touched;
Hays ordered Plaintiff to leave the room;
Plaintiff did not comply and again asked for a lieutenant;
Hays pepper sprayed Plaintiff and then Heavrin sprayed Plaintiff.

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The Ninth Circuit has ruled that the “use of [tear gas] in small amounts may be a

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necessary prison technique if a prisoner refuses after adequate warning to move from a cell

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or upon other provocation presenting a reasonable possibility that slight force will be

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required.” Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979). The court reasoned that

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in such circumstances, the substance may be a legitimate means to prevent small disturbances

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from becoming dangerous to other inmates or the prison personnel. (Id.) In Clement v.

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Gomez, the court found no Eighth Amendment violation where a small amount of pepper

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spray was used to quell fighting in a cell, even though the spray effected bystander inmates.

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298 F.3d 898, 903-04 (9th Cir. 2002). And the use of a chemical agent has been upheld

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“when reasonably necessary to . . . subdue recalcitrant prisoners. . . .” Soto v. Dickie, 744

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F.2d 1260, 1270 (7th Cir. 1984); Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996)

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(mace can be used in small quantities to control a recalcitrant inmate); see also Howard, 2010

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WL 3785536, at *4 (citing Soto and Spain but not reaching the constitutional question

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because the court found defendants were entitled to qualified immunity.) In sum, that

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Defendants were not dealing with a prison riot does not mean that force could not be used.

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Moreover, the Court rejects Plaintiff’s interpretation of prison procedures for dealing

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with a recalcitrant inmate who refuses to obey an order. Nothing in the description of ADC

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procedures offered by Plaintiff permits Plaintiff to refuse to obey orders or to interfere with

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an officer’s performance of his duties unless and until a higher authority is brought in to

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resolve a dispute, and nothing forbids the use of force until a higher authority is present.

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(See Doc. 62, Ex. 7.) Also, it is irrelevant that Plaintiff believed the poems in question to be

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permissible under ADC policy; Plaintiff’s opinion does not justify a refusal to obey Hays’

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orders or an attempt to block him from performing his job. The only issue is whether

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Plaintiff offers evidence that the use of the pepper spray was malicious and sadistic.

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Here, Plaintiff’s conduct—repeated refusal to permit Hays to remove the poems by

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insisting on bringing in a higher authority to resolve the dispute, by physically blocking Hays

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and touching him, and by refusing to leave the cell when ordered to do so—qualified Plaintiff

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as a recalcitrant inmate. See Howard, 2010 WL 3785536, at *4. According to Plaintiff, that

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is when Hays sprayed him. And Heavrin attests that after he used his radio to obtain back

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up and Hays sprayed Plaintiff, Plaintiff initially backed off but then came at Hays again.

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(Doc. 52, Ex. B, Heavrin Decl. ¶¶ 7-8.) It was then that Heavrin applied a short burst of

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pepper spray. (Id. ¶ 8.) Although Plaintiff denies assaulting Hays, he admits blocking him
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and does not deny moving toward Hays after being sprayed.

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Thus, the incident was precipitated by Plaintiff’s recalcitrance. There is a legitimate

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penological interest in maintaining prison security in general and in protecting staff in

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particular. In addition,“[w]hether in the context of a prison-wide disturbance or an individual

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confrontation between an officer and prisoner, corrections officers often must act

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immediately and emphatically to defuse a potentially explosive situation,” and they must

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make decisions in haste and under pressure. Jordan v. Gardner, 986 F. 2d 1521, 1528 (9th

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Cir. 1993). Therefore, prison officials are accorded great deference to execute measures when

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needed to maintain internal order and security. Whitely, 475 U.S. at 320-21; Bell v. Wolfish,

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441 U.S. 520, 547 (1979).

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Given the close proximity of Plaintiff and Defendants together in a cell, Hays’ order

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not to touch him, the physical blocking by Plaintiff and resultant physical contact, and

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Plaintiff’s refusal to leave the cell when ordered to do so, the efforts to restrain Plaintiff were

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appropriate to maintain security and order and were not the wanton infliction of pain.

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This factor weighs in Defendants’ favor.
c.

Relationship between Need for Force and Force Used

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Regardless of the disruption, corrections officers must balance the need to “maintain

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or restore discipline” through force against the risk of injury to an inmate. Hudson, 503 U.S.

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at 6. In analyzing the relationship between the need for force and the force used, a simple

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overreaction by an officer is not enough to establish an Eighth Amendment violation. Under

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the Eighth Amendment, the standard is malicious and sadistic force, not merely objectively

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unreasonable force, which is applicable under the Fourth Amendment. Clement v. Gomez,

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298 F.3d 898, 903 (9th Cir. 2002); see Hudson, 503 U.S. at 9 (not every malevolent touch

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gives rise to an Eighth Amendment claim). The infliction of pain in the course of a prison

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security measure is not cruel and unusual punishment “simply because it may appear in

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retrospect that the degree of force authorized or applied for security purposes was

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unreasonable, and hence unnecessary in the strict sense.” Whitely, 475 U.S. at 319. In other

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words, even if pepper spray was not reasonably necessary to subdue Plaintiff, it does not
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amount to cruel and unusual punishment unless the pain was inflicted “maliciously and

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sadistically for the very purpose of causing harm.” See id.

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Because Defendants have established that it was not wanton infliction of pain to

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pepper spray an inmate for refusing repeated orders not to interfere and to leave the cell,

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Plaintiff’s burden—to show that the actual acts to restrain him constituted the wanton and

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unnecessary infliction of pain—is extremely high. See Whitley, 475 U.S. at 325 (once it was

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established that an order to shoot low was not wanton, prisoner’s burden to show the actual

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shooting was wanton and unnecessary is extremely high). Plaintiff fails to meet this burden.

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The Court has already rejected Plaintiff’s claims that Defendants failed to follow procedures

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by refusing to call in a higher authority to resolve the dispute. Plaintiff argues that Hays was

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a known racist, but Plaintiff provides no evidence of this. Plaintiff’s conclusory allegations

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are insufficient. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). And Plaintiff

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provides no evidence of a racial animus, such as offensive name-calling, during the incident.

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Plaintiff offers no argument at all as to Heavrin.

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This factor weighs in Defendants’ favor.

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d.

Threat Perceived

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“[T]he extent of the threat to the safety of staff and inmates, as reasonably perceived

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by the responsible officials on the basis of the facts known to them” is also relevant.

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Whitely, 475 U.S. at 321. The Court cautioned that with the ever-present potential for

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violence, “a prison’s internal security is peculiarly a matter normally left to the discretion of

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prison administrators.” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)).

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As noted, Plaintiff concedes that he tried to blocked Hays’ from removing the poems,

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touched Hays’ hand, refused an order to leave the cell, and continued to insist on a higher

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authority. That Plaintiff was smaller than Defendants is not dispositive; he had already had

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physical contact with Hays, interfered, and refused a direct order to leave. Defendants were

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not required to continue to repeat orders or risk further escalation. For the reasons discussed

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above, Plaintiff’s allegations are insufficient to rebut Defendants’ claims regarding the

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perceived threat. This factor weighs in Defendants’ favor.
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e.

Efforts to Temper Force

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The only force used here by Defendants was the pepper spray and attempt to place

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Plaintiff in hand cuffs. Defendants had already warned Plaintiff not to interfere and then

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ordered him to leave the cell but he refused to comply. Defendants offer undisputed

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evidence that they are trained to use pepper spray as the least amount of force to respond to

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a physical assault. The Court finds that there was no lesser use of force available. See

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Williams, 77 F. 3d at 763 (because a limited use of mace is a relatively “mild” response

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compared to other forms of force, the application of mace indicates a “tempered” response

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by the prison officials.) This final factor weighs in favor of Defendants.

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f.

Conclusion

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In sum, four of the five Hudson factors weigh in favor of Defendants. The evidence,

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viewed in the light most favorable to Plaintiff, demonstrates that Plaintiff attempted to

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interfere with Defendants’ performance of their duties, physically blocked Hays from

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removing the contraband, touched Hays, and refused to leave the cell when ordered to do so.

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Defendants responded with two bursts of pepper spray, and Plaintiff suffered minor and

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temporary injuries. The evidence does not support a reliable inference that Defendants acted

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maliciously and sadistically for the very purpose of causing Plaintiff harm. The Court will

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grant summary judgment on the claim of excessive force.

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2.

Defendants Are Entitled to Qualified Immunity

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A defendant in a § 1983 action is entitled to qualified immunity from damages for

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civil liability if his or her conduct does not violate clearly established statutory or

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constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald,

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457 U.S. 800, 818 (1982). The qualified-immunity inquiry asks if the constitutional right

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was clearly established at the relevant time. Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

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This inquiry “must be undertaken in light of the specific context of the case, not as a broad

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general proposition.” Id. at 201. “The relevant, dispositive inquiry . . . is whether it would

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be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

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Id. at 202 (emphasis added).
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A right is clearly established if its contours are “sufficiently clear that a reasonable

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official would understand that what he is doing violates that right.” Kennedy v. City of

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Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (quoting Hope v. Pelzer, 536 U.S. 730, 739

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(2002)). It is not necessary that there be a prior case with the identical facts showing that a

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right is clearly established; it is enough that there is preexisting law that provides a defendant

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“fair warning” that his conduct was unlawful. Kennedy, 439 F.3d at 1065.

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The Court finds that Defendants are entitled to qualified immunity because they

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violated no clearly established right. The law is unclear regarding the parameters of the

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permissible use of pepper spray to address inmates who disobey orders or interfere with

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officers in the performance of their duties. In 1979, the court ins Spain stated that tear gas

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in small amounts might be appropriately used to subdue provocative inmates. 600 F. 3d at

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195. In Stewart v. Stewart, a district court held that an inmate failed to state an Eighth

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Amendment claim where he alleged that officials had a policy of spraying prisoners with

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pepper spray for refusing to follow directions. 60 Fed. Appx. 20, 22 (9th Cir. 2003). The

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court reasoned that such a policy “falls within the wide-ranging zone of deference accorded

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to prison officials in shaping ‘prophylactic or preventive measures intended to reduce the

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incidence of . . . breaches of prison discipline.’” Id., citing Whitley, 475 U.S. at 322.

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In sum, even if Defendants’ conduct violated the Eighth Amendment, that would not

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have been clear to a reasonable officer in the situation confronted, and they are entitled to

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qualified immunity on claims for damages.

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IT IS ORDERED:
(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion for

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Summary Judgment (Doc. 51).
(2) Defendants’ Motion for Summary Judgment (Doc. 51) is granted, and the claim

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is dismissed with prejudice.

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///

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///

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///
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(3)

The action is terminated, and the Clerk of Court must enter judgment

accordingly.
DATED this 19th day of April, 2011.

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