Jones v. Walker, et al

Filing 28

ORDER signed by Chief Judge Robert H. Whaley on 6/11/2014 GRANTING 26 Motion for Summary Judgment; ENTERING JUDGMENT in favor of the defendant and against the plaintiff; STRIKING the telephonic hearing set for 6/17/2014; STRIKING all other deadlines and hearings. CASE CLOSED. (Michel, G)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

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EUGENE JONES, III,

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Plaintiff,

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NO. CV-08-2534-RHW

v.
CORRECTIONAL OFFICER J.
LEBECK,
Defendant.

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ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

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Before the Court is Defendant’s Motion for Summary Judgment, ECF No.

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16 26. The motion was heard without oral argument.
Plaintiff is a pro se state prisoner. He alleges Defendant used excessive force
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18 in violation of the 8th Amendment when he sprayed Plaintiff with pepper spray.
19 Defendant now moves for summary judgment.
20 A.

Motion Standard

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Summary judgment is appropriate if the “pleadings, depositions, answers to

22 interrogatories, and admissions on file, together with the affidavits, if any, show
23 that there is no genuine issue as to any material fact and that the moving party is
24 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). There is no genuine
25 issue for trial unless there is sufficient evidence favoring the nonmoving party for a
26 jury to return a verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477
27 U.S. 242, 250 (1986). The moving party had the initial burden of showing the
28 absence of a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 1

1 325 (1986). If the moving party meets it initial burden, the non-moving party must
2 go beyond the pleadings and “set forth specific facts showing that there is a
3 genuine issue for trial.” Id. at 325; Anderson, 477 U.S. at 248.
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In addition to showing there are no questions of material fact, the moving

5 party must also show it is entitled to judgment as a matter of law. Smith v.
6 University of Washington Law School, 233 F.3d 1188, 1193 (9th Cir. 2000). The
7 moving party is entitled to judgment as a matter of law when the non-moving party
8 fails to make a sufficient showing on an essential element of a claim on which the
9 nonmoving party has the burden of proof. Celotex, 477 U.S. at 323. The non10 moving party cannot rely on conclusory allegations alone to create an issue of
11 material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993).
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When considering a motion for summary judgment, a court may neither

13 weigh the evidence nor assess credibility; instead, “the evidence of the non-movant
14 is to be believed, and all justifiable inferences are to be drawn in his favor.”
15 Anderson, 477 U.S. at 255.
16 B.

Facts

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The following facts, viewed in the light most favorable to Plaintiff, the non-

18 moving party, are taken from Plaintiff’s deposition and Third Amended Complaint:
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On January 29, 2008, at around 3:45 p.m., Defendant Lebeck, Officer

20 Spitzer and other correction officers approached Plaintiff’s cell in order to conduct
21 a search. Plaintiff and his cell mate, Derek Brown, were told to leave the cell and
22 take a seat at one of the tables located in the day room.1 Plaintiff and Brown
23 complied and sat down at a table in the day room. The table was approximately 10
24 to 14 yards from their cell. They were not handcuffed; instead they were
25 unrestrained.
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While seated, Plaintiff observed Defendant Lebeck tossing his things all
In the past when Defendant’s cell was searched, he would be locked in the shower

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 2

1 over the place, stepping in the food boxes, and throwing things away. Defendant
2 Lebeck threw out some of Plaintiff’s art supplies, such as papers, pens, pencils, and
3 other items and he also threw out Brown’s magazines.
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As a result, Brown began to get agitated. He started questioning Defendant

5 Lebeck’s search methods. He questioned why the search was taking so long, and
6 telling Defendant Lebeck that he could not look through their legal papers in that
7 manner. Defendant Lebeck looked back and smirked, and said, to the effect, “I can
8 do what I want, don’t tell me how to do our job.” Brown asked to speak to a
9 sergeant.
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Defendant Lebeck then approached the two inmates and told them to turn

11 around in order to be cuffed and placed in the shower. Plaintiff and Brown
12 responded that they wanted to speak to the sergeant. According to Plaintiff,
13 Defendant Lebeck asked at least three times for Plaintiff and Brown to turn around
14 in order to be cuffed. They did not comply with the commands. Plaintiff
15 characterized their actions as a “light protest.”
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Defendant Lebeck activated the alarm, and then instructed Plaintiff and

17 Brown to get down to the ground. Neither Plaintiff or Brown complied with
18 Defendant Lebeck’s request to get on the ground. They remained seated at the
19 table. Defendant Lebeck then sprayed Brown with pepper spray. After Brown was
20 sprayed, he went to the ground. The encounter with Brown took approximately 821 10 seconds. Defendant Lebeck then told Plaintiff to get to the ground. Plaintiff
22 remained seated and Defendant Lebeck sprayed him with pepper spray. He was
23 sprayed in his face and mouth. Plaintiff estimates he was sprayed for 8 to 10
24 seconds. Defendant Lebeck used the same can of spray on both men and he
25 emptied his can on Plaintiff.
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Plaintiff was then escorted to the Sally port, which is a decontamination

27 carriage. He was locked in the shower while cuffed, and was sprayed with cold
28 water to minimize the effect of the pepper spray. After the shower, Plaintiff’s eyes,
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 3

1 head, scalp, torso and genital areas continued to burn for about three to six days.
2 C.

Eighth Amendment

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When prison officials use excessive force against prisoners, they violate the

Overview

5 inmate’s Eighth Amendment right to be free from cruel and unusual punishment.
6 Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002). Force does not amount to a
7 constitutional violation, however, if it is applied in a good faith effort to restore
8 discipline and order, and not “maliciously and sadistically for the purpose of
9 causing harm. Id. (quoting Whitley v. Albers, 475 U.S. 312, 320-21 (1986).2
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Under this analysis, then, in order to hold Defendant Lebeck liable, Plaintiff

11 must show that Lebeck used the pepper spray “maliciously and sadistically for the
12 very purpose of causing harm.” Courts have recognized that the use of tear gas or
13 pepper spray in small amounts may be a necessary prison technique if a prisoner
14 refuses after adequate warning to move from a cell or upon other provocation
15 presenting a reasonable possibility that slight force will be required. Furnace v.
16 Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013) (quoting Spain v. Procunier, 600
17 F.2d 189, 195 (9th Cir. 1979)). On the other hand, courts have also recognized that
18 it is a violation of the Eighth Amendment for prison officials to use mace, tear gas
19 or other chemical agents in quantities greater than necessary or for the sole purpose
20 of infliction of pain. Id.
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Five factors are considered by the courts in determining whether the force

22 used by the officers caused unnecessary and wanton pain and suffering: (1) the
23 extent of injury suffered by an inmate; (2) the need for application of force; (3) the
24 relationship between the need and the amount of force used; (4) the threat
25 reasonably perceived by the responsible officials; and (5) any efforts made to
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This standard necessarily involves a more culpable mental state than that required

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27 for excessive force claims arising under the Fourth Amendment’s unreasonable
28 seizures restriction. Clement, 298 F.3d at 903.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
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1 temper the severity of a forceful response. Id. (quoting Martinez v. Stanford, 323
2 F.3d 1178, 1184 (9th Cir. 2003). Courts must accord prison administrators “wide3 ranging deference in the adoption and execution of policies and practices to further
4 institutional order and security. Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir. 2001)
5 (quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)).
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2.

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Here, the undisputed facts show that Defendant used pepper spray only after

Analysis

8 Plaintiff and his cell mate refused to comply with numerous orders to submit to
9 handcuffs, to go into the shower during the cell search, and to get on the ground.
10 As such, Plaintiff has failed to raise a triable issue as to whether Defendant acted
11 maliciously and sadistically for the very purpose of causing harm.
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Plaintiff reported that he experienced residual discomfort for up to six days

13 as a result of the exposure to the pepper spray, but he did not require any follow up
14 medical treatment as a result of his exposure to the pepper spray. Nor was his
15 vision affected by the use of the pepper spray.3 As such, there are no questions of
16 material fact regarding the extent of Plaintiff’s injuries. These injuries do not
17 support a finding that Defendant applied the pepper spray maliciously and
18 sadistically for the purpose of causing harm.
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Also, it is undisputed that Plaintiff and his cell mate repeatedly refused to

20 comply with orders to turn around and be handcuffed. They also refused to comply
21 with orders to get to the ground. Plaintiff and his cell mate were unrestrained and
22 were getting agitated. This created a situation in which the prison staff reasonably
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“[T]he extent of injury suffered by an inmate is one factor that may suggest

24 ‘whether the use of force could plausibly have been thought necessary’ in a
25 particular situation, ‘or instead evinced such wantonness with respect to the
26 unjustified infliction of harm as is tantamount to a knowing willingness that it
27 occur.’” Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citation omitted). Absence of
28 serious injury is relevant but is not dispositive. Id.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
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1 believed their safety was in jeopardy–one in which the need for force was required.
2 Accordingly, there are no questions of material fact regarding Plaintiff’s failure to
3 comply with Defendant’s direct order. A reasonable jury would conclude that
4 Defendant’s decision to use the pepper spray to gain compliance was reasonable.
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Next, it is undisputed that Defendant sprayed Plaintiff with pepper spray for

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7 no more than 8-10 seconds. Moreover, Defendant discontinued the use of the
8 pepper spray after Plaintiff complied with Defendant’s request to get on the
9 ground. As such, there are no questions of material fact regarding the extent the
10 pepper spray was used. A reasonable jury would conclude that the amount of
11 pepper spray used was reasonable and not in a greater amount than was necessary.
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Finally, Plaintiff was brought to the decontamination port immediately after

13 the incident. He was allowed to shower in order to minimize the effect of the
14 pepper spray. Consequently, there are no questions of material fact regarding the
15 efforts to minimize the harm caused by the pepper spray. A reasonable jury would
16 conclude that Defendant’s actions in tempering the effects of the pepper spray do
17 not support a finding that Defendant acted maliciously and sadistically for the very
18 purpose of causing harm.
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Conclusion

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Plaintiff has not met his burden of showing there are genuine issues of

21 material fact regarding whether Defendant Lebeck used excessive force in
22 violation of the Eighth Amendment. Here, a reasonable jury would find Defendant
23 Lebeck used the pepper spray in good faith in order to gain Plaintiff’s compliance
24 and to maintain discipline and order, and he did not act maliciously and sadistically
25 for the purpose of causing harm.
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Accordingly, IT IS HEREBY ORDERED:

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1. Defendant’s Motion for Summary Judgment, ECF No. 26, is

28 GRANTED.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 6

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2. Judgment is entered in favor of Defendant and against Plaintiff.

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3. The telephonic hearing set for June 17, 2014 is stricken. All other

3 hearings and deadlines are stricken.
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IT IS SO ORDERED. The District Court Executive is directed to enter this

5 Order, forward a copy to Plaintiff and counsel, and close the file.
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DATED this 11th day of June, 2014.

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s/Robert H. Whaley
ROBERT H. WHALEY
United States District Judge

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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
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