Walsh et al v. Gower et al
Filing
65
ORDER: GRANTING in part and DENYING in part Defendants' Motion for Summary Judgment 53 . Defendants Bell, Cain, Gilmore, Gower, King, and Peters are dismissed from this case. Signed on 3/9/2020 by Judge Marco A. Hernandez. (Mailed to Pro Se party on 3/9/2020.) (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOSHUA VINCENT WALSH,
Plaintiff,
v.
MICHAEL GOWER, COLETTE PETERS,
BRAD CAIN, JASON BELL, JUDY
GILMORE, WILLIAM KING, BRIAN
GAFFNEY, and RICO RODRIGUEZ,
Defendants.
Joshua Vincent Walsh
Oregon State Penitentiary
2605 State Street
Salem, OR 97310
Pro Se Plaintiff
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No. 2:18-cv-00098-HZ
OPINION & ORDER
Ellen Rosenblum
Attorney General
Michael R. Washington
Senior Assistant Attorney General
OREGON DEPARTMENT OF JUSTICE
1162 Court Street NE
Salem, OR 97301
Attorneys for Defendants
HERNÁNDEZ, District Judge:
Pro Se Plaintiff Joshua Vincent Walsh brings this civil rights action under 42 U.S.C.
§ 1983 against Defendants Michael Gower, Colette Peters, Brad Cain, Jason Bell, Judy Gilmore,
William King, Brian Gaffney, and Rico Rodriguez. Plaintiff alleges Defendants violated his
Eighth Amendment rights by failing to allow Plaintiff an opportunity to decontaminate after
secondary exposure to OC spray. Plaintiff also alleges that Defendants have no effective policy
to ventilate an area that has been contaminated with OC spray. Defendants now move for
summary judgment. For the reasons below, the Court grants in part and denies in part
Defendants’ motion.
BACKGROUND
Plaintiff entered the custody of the Oregon Department of Corrections (“ODOC”) on
August 30, 2013, and was housed at Snake River Correctional Institution (“SRCI”) from
September 25, 2013, to March 7, 2018. King Decl. ¶ 3, ECF 56. At the time of the events at issue
here, Defendants Gaffney and Rodriguez were correctional officers employed at SRCI working
in the Disciplinary Segregation Unit (“DSU”). Am. Compl. at 3–4, ECF 23. Defendant King was
a lieutenant at SRCI supervising the DSU. Am. Compl. at 3. Defendants Gilmore and Bell were
both assistant superintendents at SRCI in charge of supervision of the DSU. Am. Compl. at 4.
Defendant Cain was the superintendent of SRCI, and Defendant Gower was the Assistant
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Director of Operations for the Oregon Department of Corrections. Am. Compl. at 4. Defendant
Peters was the Director of ODOC. Am. Compl. at 4.
At approximately 8:15 PM on May 5, 2017, DSU staff deployed chemical agents—“OC
spray” or “pepper spray”— in a cell on the tier located above Plaintiff’s cell in the DSU. Am.
Compl. at 5; King Decl. ¶¶ 5–6, Att. 2. Prior to deploying the OC spray, Defendant King notified
the physical plant at SRCI to deactivate the air handlers on the unit to minimize secondary
exposure to the OC spray. King Decl. ¶ 6; see also Pettis Decl. ¶¶ 5–8, ECF 58 (describing “tear
gas mode” and noting that “[t]he entire system is designed to limit the possibility of second hand
exposure to the chemical agents”). Plaintiff, however, alleges that fumes from the OC spray
filled the DSU, seeping under cell doors and causing Plaintiff and other inmates on the tier to
choke and gag. Am. Compl. at 5. Plaintiff alleges that air vents blowing into the cells were shut
off after the extraction team deployed the OC spray, but the air vents “sucking out” air were left
on, causing a vacuum effect and filling his cell with toxic fumes. Am. Compl. at 5. The fumes
caused Plaintiff’s skin to itch and burn. Am. Compl. at 5. According to Plaintiff, fifteen minutes
after the OC spray was deployed the vents were turned back. Am. Compl. at 5. From 9:00 to 9:50
PM, Hazmat orderlies removed the OC spray from the affected cell. King Decl. ¶ 7, Att. 2 at 17.
Defendant Rodriguez was assigned to the DSU as a floor officer on May 5, 2017.
Rodriguez Decl. ¶ 5, ECF 57. Around 8:20 PM, Defendant Rodriguez offered a shower to the
inmate who was directly sprayed with OC spray, but the inmate refused. Id. Defendant
Rodriguez reported the refusal to a sergeant, logged it into the logbook, and wrote a memo
stating that he had offered the inmate a shower. Id. Before heading back to the DSU, Defendant
Rodriguez also spoke with Defendant King. Id. Plaintiff alleges that in the fifteen minutes
following deployment of the OC spray he confronted Defendant Rodriguez, and Defendant
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Rodriguez responded that there was nothing he could do. Am. Compl. 6. Plaintiff asserts that
Defendant Rodriguez left the unit to get fresh air and did not return for an hour and a half. Am.
Compl. 6. A little before 10:00 PM, Plaintiff and another inmate—Aaron Kent—asked
Defendant Rodriguez for a shower. Walsh Decl. Ex. 4 (“Kent Decl.”), ECF 62; Am. Compl. at 8.
Defendant Rodriguez asserts that Plaintiff never spoke to him or asked him for anything that
night, and that he would have recalled if Plaintiff had because Plaintiff “was so quiet.”
Rodriguez Decl. ¶ 5.
Plaintiff also alleges that about 20 minutes after the incident, Defendant Gaffney entered
the unit and immediately began choking and gagging. Am. Compl. at 6. Plaintiff alleges he and
others were yelling at Defendant Gaffney while he was walking through the unit, continuing to
choke and gag. Am. Compl. at 6. Plaintiff asserts that they specifically complained to Defendant
Gaffney about the air vent being prematurely turned back on and told him that they could not
breathe. Am. Compl. at 6–7. As Defendant Gaffney approached Plaintiff’s cell, Plaintiff banged
on his window and said: “I am burning, I can’t breathe and I need a shower to decontaminate.”
Am. Compl. at 7. Defendant Gaffney ignored Plaintiff and was not seen again that night. Am.
Compl. at 7.
Plaintiff alleges on the morning of May 6, 2017, Plaintiff complained to a nurse of
burning and irritation and was told he was signed up to see someone. Am. Compl. at 9. Plaintiff
also alleges that he spoke with another nurse on May 7, 2017, and complained that his skin was
burning and itching and his throat was “raw from breathing the toxic fumes of chemical agent.”
Am. Compl. at 9. Medical records from SRCI suggest that Plaintiff did not request to be seen by
sick call on May 6, 2017, the day after the use of OC spray in DSU-C. DiGiulio Decl. ¶ 5, ECF
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55. Instead, Plaintiff signed up to see a sick call nurse for a sore throat on May 7, 2017, but later
cancelled the appointment. Id.
Plaintiff had access to a towel and a sink in his cell which “help[ed] a little bit.”
Washington Decl. Ex. 1 (Walsh Dep. 24:5–11, 48:22–49:3), ECF 54. Plaintiff was given a
shower two days after the incident when showers were provided to his side of the DSU pursuant
to the typical shower rotation. Walsh Decl. Ex. 1 at 7–8 (Response to Plaintiff’s Requests for
Admission 29 and 30); King Decl. ¶ 8.
Plaintiff filed grievances regarding Defendants’ failure to adequately clear the air from
the unit and to provide Plaintiff with a shower on May 5 and 7, 2017. Walsh Decl. Exs. 5–6.
Plaintiff appealed these grievances twice, exhausting the prison’s grievance procedure. Am.
Compl. at 7–10. On January 17, 2018, Plaintiff filed this suit. Compl., ECF 2.
STANDARDS
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion and
identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present “specific facts”
showing a “genuine issue for trial.” Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 927-28 (9th
Cir. 2009) (internal quotation marks omitted). The nonmoving party must go beyond the
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pleadings and designate facts showing an issue for trial. Bias v. Moynihan, 508 F.3d 1212, 1218
(9th Cir. 2007) (citing Celotex, 477 U.S. at 324).
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court draws inferences from the facts in the
light most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d
1108, 1112 (9th Cir. 2011). If the factual context makes the nonmoving party’s claim as to the
existence of a material issue of fact implausible, that party must come forward with more
persuasive evidence to support his claim than would otherwise be necessary. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
Plaintiff alleges that in failing to decontaminate him and adequately “air out” his unit
after exposure to OC spray, Defendants violated the Eighth Amendment. Plaintiff brings his
claims under 42 U.S.C. § 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law[.]
“To state a claim under § 1983, a plaintiff must both (1) allege the deprivation of a right secured
by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by
a person acting under color of state law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir.
2006).
Defendants move for summary judgment, arguing first that Defendants Peters, Gower,
Cain, Bell, Gilmore, and King (the “Supervisory Defendants”) were not personally involved in
the alleged constitutional deprivations and cannot be liable under a theory of respondeat
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superior. Defs. Mot. Summ. J. (“Def. Mot.”), ECF 53. Defendants also argue that Plaintiff has
failed to establish an Eighth Amendment violation against all the named Defendants. Id.
The Court grants in part and denies in part Defendants’ motion. A reasonable jury could
conclude that Defendants Rodriguez and Gaffney were deliberately indifferent to Plaintiff’s
serious medical needs. Plaintiff, however, has not presented evidence that the Supervisory
Defendants were involved in the alleged constitutional violation as required by § 1983.
Accordingly, Defendants Peters, Gower, Cain, Bell, Gilmore, and King are dismissed form this
case.
I.
Defendants Gaffney and Rodriguez
In moving to dismiss Defendants Gaffney and Rodriguez, Defendants make two
arguments. First, Defendants argue that Plaintiff cannot establish a claim for deliberate
indifference under the Eighth Amendment against either Defendant. Def. Mot. 17–18. Second,
Defendants argue that Defendants Gaffney and Rodriguez are entitled to qualified immunity
because a reasonable officer in their positions would not have believed that his actions were
unlawful. Id. at 19. The Court finds both arguments unavailing.
A.
Deliberate Indifference
A prison official violates an inmate’s Eighth Amendment rights if they are “deliberately
indifferent” to the inmate’s “serious medical need.” Estelle v. Gamble, 429 U.S. 97, 103–05
(1976). Thus, to establish an Eighth Amendment claim, Plaintiff must show: (1) that he had a
“serious medical need” and (2) that Defendants were deliberately indifferent to that need. Id. at
104. “[A] serious medical need is present whenever the failure to treat a prisoner's condition
could result in further significant injury or the unnecessary and wanton infliction of pain[.]”
Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (internal citations omitted).
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Deliberate indifference may be satisfied by showing: “(a) a purposeful act or failure to
respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.”
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citing McGuckin v. Smith, 974 F.2d 1050,
1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133
(9th Cir. 1997)). “[T]he official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer v. Brennan, 511 U.S. 825, 837 (1994). “Indifference ‘may appear when prison officials
deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in
which prison physicians provide medical care.’” Jett, 439 F.3d at 1096 (quoting McGuckin, 974
F.2d at 1059). For Plaintiff to succeed, he must show Defendants acted with more than “[m]ere
negligence.” Clement, 298 F.3d at 904 (citing Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.
1998)). Rather, “the official’s conduct must have been ‘wanton,’ which turns not upon its effect
on the prisoner, but rather, upon the constraints facing the official.” Id.
In Clement v. Gomez, bystander inmates were exposed to pepper spray vapors when
officers administered pepper spray in a neighboring cell to stop a violent fight. 298 F.3d at 902.
Prison officials did not provide the bystander inmates with decontamination showers until four
hours after the incident. Id. The defendants moved for summary judgment on the plaintiffs’
Eighth Amendment claims, arguing that they were not deliberately indifferent to the bystander
inmates’ serious medical needs. Id. at 901. The Ninth Circuit first found that the plaintiffs’
submissions—which documented the painful effects of pepper spray—satisfied the objective
component of the Eighth Amendment test by demonstrating the presence of a serious medical
need. Id. at 904. The court then found that the plaintiffs might be able to show that the
defendants were subjectively aware of the risk of serious injury and therefore deliberately
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indifferent in denying the plaintiffs showers and medical attention during the four-hour period.
Id. at 905. The court emphasized that the officers were coughing and stepped outside for fresh
air, and that the prisoners alleged that they made repeated requests for attention; were coughing,
gaging, and choking; and complained of breathing problems, pain, and asthma attacks. Id. at 905.
The court therefore concluded the defendants were not entitled to summary judgment on the
plaintiffs’ Eighth Amendment claims.
Here, Defendants argue that Defendants Gaffney and Rodriguez did not violate Plaintiff’s
Eighth Amendment rights. Defendants first assert that the facts in the record show that
Defendant Rodriguez did not have any personal interaction with Plaintiff when Plaintiff alleges
Defendant Rodriguez denied him access to a shower. Def. Mot. 16–17. As to Defendant Gaffney,
Defendants argue that “even though Defendant Gaffney may have been on notice that Plaintiff
was alleging he had been impacted by secondary exposure to the OC spray deployed during the
cell extraction, Plaintiff has failed to establish that Defendant Gaffney purposefully ignored or
failed to respond to his pain or possible medical need in a timely manner.” Id. at 17. Finally,
Defendants contend that Plaintiff has failed to establish an objectively serious illness or injury.
Id.
Turning first to the claim against Defendant Rodriguez, the Court finds that there is an
issue of fact as to whether Defendant had any personal interaction with Plaintiff. According to
Defendants, Defendant Rodriguez—who was a DSU floor officer on the night of an incident—
could not have been subjectively aware of Plaintiff’s condition because he was not in the DSU
for a period of time following the deployment of OC spray in order to complete paperwork and
speak with Defendant King. Rodriguez Decl. ¶ 5. Defendant Rodriguez also asserts in his
declaration that he did not speak with Plaintiff that evening and would have recalled if he had
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done so because Plaintiff is a quiet inmate. Id. But Plaintiff alleges he confronted Defendant
Rodriguez in the fifteen-minute period following the deployment of OC spray “when only one
vent was shut off.” Am. Compl. at 6. Plaintiff also contends that Defendant Rodriguez was
choking because of the OC spray as he walked through the unit. Am. Compl. at 6. And Plaintiff
and fellow inmate Aaron Kent both assert that they requested a shower from Defendant
Rodriguez around 10:00 PM. Am. Compl. at 8; Kent Decl. Plaintiff alleges that Defendant
Rodriguez responded “its 10 PM and if I give you a shower I have to give everyone a shower and
I’m not doing that.” Am. Compl. 8. In sum, Plaintiff’s evidence shows that he alerted Defendant
Rodriguez to his discomfort at least twice on the night of the incident, and Defendant Rodriguez
was choking on the contaminated air in the unit. Yet, Defendant Rodriguez declined to assist
Plaintiff. Thus, viewing the record in the light most favorable to Plaintiff, a reasonable jury could
find that Defendant Rodriguez was subjectively aware of the risk of injury to Plaintiff and
therefore deliberately indifferent to Plaintiff’s serious medical need in denying Plaintiff a chance
to decontaminate.
Turning next to the claim against Defendant Gaffney, Defendants argue that Plaintiff has
“failed to establish that Defendant Gaffney purposefully ignored or failed to respond to
[Plaintiff’s] pain or possible medical need in a timely matter” even if Defendant Gaffney was on
notice that Plaintiff was alleging he had been secondarily exposed to OC spray. Def. Mot. 17.
Specifically, Defendants point to the competing concerns that the officers faced that evening,
including assembling an extraction team, deploying a chemical agent, and assembling a Hazmat
team to clean the cell. Id. These competing concerns, however, are documented by Defendant
King, not Defendant Gaffney. See King Decl. ¶¶ 5–7. Moreover, deployment of the OC spray
and removal of the inmate from his cell occurred at least twenty minutes before Plaintiff’s
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conversation with Defendant Gaffney, Am. Compl. at 6, and there is no evidence Defendant
Gaffney was involved in assembling the Hazmat team or in the cell extraction, see King Decl.
Att. 2 at 2–3 (Unusual Incident Report). In addition, Plaintiff claims that Defendant Gaffney
immediately began choking and gagging when he entered the tier, and that Plaintiff was yelling
out of his cell at Defendant Gaffney that he could not breathe and needed a shower to
decontaminate. Am. Compl. at 7. According to Plaintiff, Defendant Gaffney ignored Plaintiff.
Am. Compl. at 7. There is an issue of fact as to whether Defendant Gaffney—who, like
Defendant Rodriguez, is alleged to have experienced the effects of the OC spray as he walked
through the tier and ignored Plaintiff’s requests—acted with deliberate indifference to Plaintiff’s
medical needs.
Finally, Defendants argue that Plaintiff has failed to establish that he suffered a serious
injury as a result of his secondary exposure to OC spray. Def. Mot. 17. Defendants focus
Plaintiff’s failure to obtain medical care in the days following the incident and on the air
circulation system, which Defendants contend make it impossible for air from one cell to flow
into another cell on a different tier. Id. (citing Pettis Decl. ¶¶ 6–8). But, on this record, there is an
issue of fact as to whether Plaintiff had a serious medical need. Though the air circulation system
is designed to “limit the possibility of second hand exposure to the chemical agents” and “air
from one cell is not blown into another cell even when the system is not in tear gas mode,” Pettis
Decl. ¶ 8, the evidence does not demonstrate that it is impossible for air from one cell to flow
into another cell on a different tier. Nor do Defendants provide any evidence to counter
Plaintiff’s assertion that the system was returned to normal operation before the Hazmat team
finished cleaning. Am. Compl. at 6; see also Walsh Decl. Ex. 1 at 2 (stating in Response to
Plaintiff’s Request For Admission 12: “There is no documentation of the time the vents were
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turned back on[.]”). Defendants also admit that fumes could spread if the air system was turned
back on before cleaning and cause some secondary exposure. Walsh Decl. Ex. 1 at 2 (Response
to Plaintiff’s Request for Admission 14). Further, Plaintiff submits evidence that both he and
another inmate experienced pain and breathing problems along with choking, gagging, burning,
and itching throughout the night. Am. Compl. at 6–8; Kent Decl.; see also Clement, 298 F.3d at
904 (The plaintiffs’ satisfied the objective component of the test for an Eighth Amendment
violation because their “submissions document[ed] the painful effects of pepper spray.”). Thus,
whether Plaintiff had a serious medical need as a result of secondary exposure to pepper spray is
a question for the jury.
B.
Qualified Immunity
Government officials may be entitled to qualified immunity for claims brought under
§ 1983. To determine whether a government official is entitled to qualified immunity, “[t]he
court must first determine whether, examining the facts in the light most favorable to the
plaintiff, the official violated the plaintiff’s constitutional rights.” Barnes v. Gower, No. 2:12CV-01880-HZ, 2015 WL 736348, at *8 (D. Or. Feb. 17, 2015) (citing Clement, 298 F.3d at 903).
Then, if the court finds the official violated the plaintiff’s constitutional rights, it must determine
“whether the right was clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001). While
“there must be some parallel or comparable factual pattern[,] . . . the facts of already decided
cases do not have to match precisely the facts with which [the government employer] is
confronted.” Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011) (citing
Fogel v. Collins, 531 F.3d 824, 833 (9th Cir. 2008)).
First, as described above, a reasonable jury might conclude that Defendants Rodriguez
and Gaffney were deliberately indifferent to Plaintiff’s medical needs in violation of the Eighth
12 – OPINION & ORDER
Amendment. Second, when Defendants Rodriguez and Gaffney are alleged to have violated
Plaintiff’s Eighth Amendment rights, Plaintiff’s rights were clearly established. In Clement, the
Ninth Circuit found that very similar circumstances may have established a violation of the
Eighth Amendment. See Clement, 298 F.3d at 905 (finding that when officers were coughing and
gagging and opening the door to circulate air, and the inmates were repeatedly complaining to
officers of breathing problems and pain, the inmates “may be able to show that the defendants
were subjectively aware of the risk of serious injury when they denied showers and medical
attention for the inmates for the 4 hour period.”). Thus, viewing the record in the light most
favorable to Plaintiff, a reasonable officer in Defendants’ position would understand that it was
unlawful to ignore Plaintiff’s complaints of pain and deny Plaintiff the opportunity to
decontaminate after secondary exposure to OC spray. Defendants Gaffney and Rodriguez are
therefore not entitled to qualified immunity.
II.
Supervisory Defendants
Defendants move for summary judgment on the claims against the Supervisory
Defendants, arguing they should be dismissed from this case because Plaintiff has not shown that
the Supervisory Defendants were personally involved in the alleged constitutional violation.1
“[F]or a person acting under color of state law to be liable under section 1983 there must be a
showing of personal participation in the alleged rights deprivation: there is no respondeat
superior liability under section 1983.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
Defendants make additional arguments in support of their motion for summary judgment
against the Supervisory Defendants. Because Plaintiff has failed to show that the Supervisory
Defendants were personally involved in the alleged constitutional deprivation, the Court declines
to reach the remainder of Defendants’ arguments.
1
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“A supervisor may be liable 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.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir.
1989) (citing Thompkins v. Belt, 828 F.2d 298, 303–04 (5th Cir. 1987)) (emphasis added). “‘The
requisite causal connection can be established . . . by setting in motion a series of acts by others
or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or
reasonably should have known would cause others to inflict a constitutional injury.’” Rodriguez
v. Cty. of Los Angeles, 891 F.3d 776, 798 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202,
1207–08 (9th Cir. 2011)). Thus, “‘[a] supervisor can be liable in his individual capacity for his
own culpable action or inaction in the training, supervision, or control of his subordinates; for his
acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous
indifference to the rights of others.’” Starr, 652 F.3d at 1208 (quoting Watkins v. City of
Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). In addition, “[s]upervisory liability exists even
without overt personal participation in the offensive act if supervisory officials implement a
policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving
force of the constitutional violation.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1446–47 (9th
Cir. 1991) (internal citations and quotations omitted), abrogated on other grounds by Farmer v.
Brennan, 511 U.S. 825 (1994).
For example, in Clement, the circuit court concluded that a failure to institute adequate
prison policies can lead to liability where it “‘reflects a deliberate or conscious choice’ to ‘follow
a course of action . . . from among various alternatives.’” Clement, 298 F.3d at 905 (quoting City
of Canton v. Harris, 489 U.S. 378, 389 (1989)). Specifically, the court held that the plaintiff
must show that “in light of the duties assigned to specific officers or employees, the need for
14 – OPINION & ORDER
more or different training is obvious, and the inadequacy so likely to result in violations of
constitutional rights, that the policy-makers . . . can reasonably be said to have been deliberately
indifferent to the need.” Id. (internal citations and quotations omitted). On the record before it,
the court found that a factfinder could find that the supervisors and policymakers were “on actual
or constructive notice of the need to train,” noting “[t]he plaintiffs’ submissions recite[d]
numerous instances of the use of pepper spray that allegedly harmed uninvolved bystander
inmates.” Id.
Here, Plaintiff concedes that his claims against Defendants Peters, Gower, Bell, Gilmore,
Cain, and King are based on supervisory liability. However, Plaintiff argues that his claims
against the Supervisory Defendants should survive summary judgment because the Supervisory
Defendants have been ineffective in training their subordinates to assist inmates secondarily
exposed to OC spray. Pl. Resp. 1, ECF 62. Plaintiff contends that the Supervisory Defendants
have a known history with secondary exposure claims but have failed to change the policies and
procedures that have led to such claims. Id. To demonstrate the Supervisory Defendants’
knowledge, Plaintiff states that they have been “sued by Plaintiff 2 x and settled both claims but
then changed no procedures which caused Plaintiff to suffer this experience 2 more times.” Pl.
Resp. 3.
Plaintiff, however, has presented no evidence that the Supervisory Defendants are liable
for deliberate indifference. Though there does not appear to be an official policy or procedure in
place for assisting inmates who have been indirectly exposed to OC spray, see Pl. Resp. 2–3,
Plaintiff has not established that the Supervisory Defendants were on actual or constructive
notice that these procedures were ineffective or harmful or that the training of their subordinates
was inadequate, cf. Clement, 298 F.3d at 905 (finding that the plaintiffs may have established
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that supervisors were on actual or constructive notice of the need to train in submitting
“numerous instances of the use of pepper spray that allegedly harmed bystander inmates.”).
Plaintiff writes in his motion that he has successfully sued Defendants for secondary exposure in
the past, but—except for a single allegation in his verified complaint—there is no evidence of or
citation to the suits in the record. See Am. Compl. at 10 (“Judy Gilmore was just sued by
Plaintiff for the same exact thing and Plaintiff prevailed so Defendant Gilmore knew the
importance of not admitting my request for a shower and being denied. . . . [W]hen Plaintiff won
the previous suits it was agreed that inmates now get showers but SRCI changed nothing.”).
Without more, the Court finds that no reasonable jury could conclude that the Supervisory
Defendants are liable for the alleged Eighth Amendment violation.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants’ Motion for Summary
Judgment [53]. Defendants Bell, Cain, Gilmore, Gower, King, and Peters are dismissed from this
case.
IT IS SO ORDERED.
Dated ________________________________.
March 9, 2020
MARCO A. HERNÁNDEZ
United States District Judge
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