STANLEY A. BOONE, Magistrate Judge.
Plaintiff Virgil E. Holt is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
This action is proceeding on Plaintiff's second amended complaint against Defendants R. Nicholas, A. Holguin, J. Ortega, L. Machado, J. Juden, G. Adame, F. Rivera, R. Valverde, D. Cootnz, M. Bubbel, K. Prior, J. Tyree, Large, Soto, Yuberta, Worrell, Vo, Knight, T. Crouch, Pinkerton, Velasco for violation of the Eighth Amendment, and against Defendants Carrasco and D. Zanchi for supervisory liability.
Now pending before the Court is Defendants' motion for summary judgment filed April 30, 2014. Plaintiff filed an opposition on August 18, 2014.
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
Defendants do not bear the burden of proof at trial and in moving for summary judgment, they need only prove an absence of evidence to support Plaintiff's case.
However, in judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
In the second amended complaint, Plaintiff contends on or about April 9, 2007, Plaintiff was sitting on his bunk when he heard the sound of officers running towards Plaintiff's cell. Plaintiff's cell mate was attempting to flush pruno down the toilet. Defendants Nichols, Holguin, and Ortega appeared at Plaintiff's cell door, and Defendants Nicholas and Holguin began to spray Plaintiff's cell with pepper spray. Defendants ordered Plaintiff and his cell mate to get down and cuff up. Plaintiff and his cell mate complied, but Defendants Nichols and Holguin continued to spray Plaintiff with pepper spray. Defendant Ortega then told Defendant Holguin to deploy a T-16 pepper spray gas grenade into the cell despite Plaintiff and his cell mate being prone on the floor. Plaintiff and his cell mate were in the cell for two minutes for the pepper spray grenade to take effect. Plaintiff had difficulty breathing, and his skin was burning so severely he felt like it was melting.
Defendants Holguin and Nicholas wrote incident and rules violation reports charging Plaintiff with resisting a peace officer. Defendants Machado and Juden stood by and did nothing to intervene as Defendants Nicholas, Holguin, and Ortega applied the unnecessary use of chemical force. Defendant Machado ordered Plaintiff to remove his clothes and crawl backwards towards the cell door. Defendants Machado and Juden dragged Plaintiff out of his cell by his ankles, scraping the skin off both of Plaintiff's knees. Defendant Nicholas then threatened to shoot someone; Plaintiff assumes this was because of hostility towards black inmates because of attempted assault on a correctional officer by a black inmate.
Plaintiff alleges Defendants Carrasco and Zanchi authorized the use of force against Plaintiff. Defendants Carrasco and Zanchi were aware of the abusive conduct and prior acts of excessive force by Defendants Nicholas and Holguin against inmates but repeatedly failed to take corrective action against them or control their behavior.
Plaintiff asked Defendants Machado, Juden, Ortega, Nicholas, and Holguin to provide him with decontamination, but they ignored Plaintiff. Plaintiff was escorted outside the housing unit by Defendant Valverde. Plaintiff informed Defendant Valverde that he had been pepper-sprayed and had not been decontaminated, and had difficulty breathing and was severely burning. Defendant Valverde ordered Plaintiff to the ground, and stated that if Plaintiff moved, he would bash Plaintiff's head in. Defendant Valverde ignored Plaintiff's request for decontamination.
Plaintiff and his cell mate were escorted to the clinic holding cell, where the sink was clogged and filled to the rim with foul water, and the faucet head was under the rim of the sink. Plaintiff informed Defendants Rivera, Adame, Valverde, and Coontz upon their entering the holding area that the sink was clogged and Plaintiff needed to decontaminate. Defendants ignored Plaintiff's request.
After Plaintiff's requests for decontamination were ignored, he was seen by Defendant Bubbel for a medical incident/injury review report. Plaintiff informed Defendant Bubbel that he had been pepper-sprayed and was in need of decontamination. Defendant Bubbel ignored Plaintiff's request and did nothing to provide Plaintiff with any medical attention. Plaintiff saw Defendant Vo enter the clinic area and informed him that he had been pepper sprayed and was in need of decontamination. Defendant Vo ignored Plaintiff's request.
Plaintiff was interviewed later that afternoon by Defendants Crouch, Tyree, and Hopkins. Plaintiff informed them he had not been decontaminated, and that the use of pepper spray and grenade in the morning was severely burning him. After finishing their investigation, Defendants left the clinic holding area and did nothing to provide Plaintiff with decontamination.
After several hours without decontamination, Plaintiff began to scream in agony, and other inmates yelled for someone to provide assistance. Defendants Knight, Pinkerton, and Velasco eventually responded and Plaintiff informed them he was in need of decontamination. Defendants ignored Plaintiff's request for assistance.
Defendants Worrell, Soto, Yubeta, and Large went to the clinic holding area to find out why Plaintiff was screaming. Plaintiff showed Defendants that his skin was purplish, burgundy in color from the exposure to the pepper spray without decontamination. Defendants ignored Plaintiff's request; Defendant Soto told Plaintiff he should use the toilet water if he wished to decontaminate. Plaintiff and his cell mate had no clothing.
At approximately 9:00 p.m., Defendant Prior entered the clinic holding area. Defendant Prior ordered Plaintiff and his cellmate to receive some paper boxers. Plaintiff requested that he be provided with decontamination, but Defendant Prior ignored the request.
Plaintiff was later placed into administrative segregation. Plaintiff spent the night sleeping in his contaminated clothing, which caused his mattress and bedding to be covered in chemical agents. The next day, Plaintiff was provided a ten-minute shower. Despite his request, Plaintiff was not provided new linens and had to sleep in the contaminated conditions until April 19, 2007.
Plaintiff submitted a medical request on April 11, 2007, to Defendant Vo, because his skin had begun to blister and peel. Plaintiff's request was ignored. Plaintiff alleges supervisory liability against Defendants Carrasco and Zanchi for authorizing the use of force and failing to supervise, resulting in Plaintiff's exposure to chemical agents for ten days.
Supervisory personnel may not be held liable under section 1983 for the actions of subordinate employees based on respondeat superior, or vicarious liability.
In this instance, Defendant Carrasco was an Associate Warden at CCI, and Defendant Zanchi was a Facility Captain. Plaintiff contends that Carrasco and Zanchi were "aware of, and had been placed on notice of, the abusive conduct and prior acts of excessive force of defendants R. Nicholas and A. Holguin against inmates, by numerous complaints and grievances of the previous months and years but have repeatedly failed to take corrective or disciplinary action against them or otherwise control their behavior." (2nd Amd. Compl. at 11 ¶ 58; ECF No. 21.)
Pursuant to this Court's screening order, the only claim found to be cognizable against Defendants Carrasco and Zanchi is "for having knowledge of Defendant Holguin and Nicholas's history of excessive force against inmates and failing to discipline them." (F&R at 10; ECF No. 23.) It was specifically noted, contrary to both parties briefing of the present motion, that Plaintiff did not state a cognizable supervisory liability claim for authorizing use of force and failing to supervise. (
Plaintiff has not meet his burden of demonstrating a supervisory liability claim based on the failure to discipline Defendant Holguin and Nicholas's for use of excessive force, in that there is no evidence to suggest that either Defendant Holguin and/or Nicholas's had a history of excessive use of force, so as to support the allegation that Defendants Carrasco and Zanchi knew of such alleged history and failed to take corrective action.
Nor is there any evidence to find that either Carrasco or Zanchi believed, nor have any reason to believe, that Nicholas, Holguin, or anyone else posed a threat of harm to Plaintiff. They did not believe, or have any reason to believe, that anyone would use excessive force against Plaintiff, or refuse to properly decontaminate Plaintiff from exposure to O.C. pepper spray. Thus, Carrasco and Zanchi are entitled to summary judgment because Plaintiff seeks to hold them liable for conduct of their subordinates based solely on a theory of respondeat superior, which is not cognizable. A causal link between a supervisor and the claimed constitutional violation must be specifically alleged.
The unnecessary and wanton infliction of pain violates the Cruel and Unusual Punishments Clause of the Eighth Amendment.
A prisoner's rights can be violated by a prison official's deliberate indifference by failing to intervene.
There is no dispute that on April 9, 2007, Nicholas and Holguin participated in a series of cell searches in Housing Unit 3, Section B. Holguin and Nicholas were searching for contraband, including inmate manufactured weapons, and evidence that prison gangs or disruptive groups were planning violence against staff or other inmates. Holguin and Nicholas knew that inmates can keep notes in their cells regarding plans to commit acts of violence, and the identities of intended victims. Inmates who are not members of prison gangs or disruptive groups are also called upon to keep notes. Before staff arrived at cell 102, Plaintiff and Garner could hear staff running toward their cell.
The parties version of events that occurred immediately after Defendants Nicholas and Holguin arrived at Plaintiff's cell are disputed.
Defendants Nicholas and Holguin contend that as they approached cell 102 (Plaintiff and inmate Garner's cell), they saw inmate Garner flushing unidentified items down the toilet. Holguin and Nicholas ordered inmate Garner to stop what he was doing and get down on the ground. Garner ignored the orders and continued to flush the unidentified items down the toilet. Holguin and Nicholas believed that Garner was disposing of contraband, including information that prison officials needed to protect the lives of other inmates and staff, but they could not determine specifically what contraband Garner was flushing.
Because Garner refused to comply with repeated orders to stop flushing items down the toilet and get down on the ground, Nicholas and Holguin simultaneously drew and deployed their O.C. pepper spray canisters. Each deployed an eight to ten second burst of spray to the face and upper torso of inmate Garner in an attempt to gain control of the situation and prevent Garner from continuing to dispose of the unidentified contraband. As Nicholas and Holguin were spraying, they both continued to order Garner to stop what he was doing, and for both Plaintiff and Garner to get down on the ground. Inmate Garner returned to the locker where the pruno was stored, retrieved another bag, and dumped it into the toilet.
During this time, Plaintiff was sitting on his bunk toward the back of the cell. Nicholas and Holguin were spraying inmate Garner, Plaintiff could hear staff yelling, "Cuff up. Get down." Plaintiff did not get down on the ground. Instead, he "froze."
Garner eventually stopped flushing the bags and ran toward Plaintiff at the back of the cell. Plaintiff was first exposed to O.C. pepper spray when Nicholas and Holguin were attempting to spray inmate Garner as he ran toward Plaintiff. Plaintiff "didn't register" that staff were ordering him to get down on the ground until he was exposed to O.C. pepper spray.
When inmate Garner reached the back of the cell, Garner realized that he did not have anywhere else to run, then he turned and hid beneath the locker. Staff continued to order Plaintiff and Garner to get down on the ground, and then submit to the application of handcuffs at the cell door. Garner refused to comply with these orders, and he continued to hide under the locker, while Plaintiff got down on the ground. Neither inmate approached the cell door to permit staff to secure them in handcuffs. Plaintiff does not recall how many times he was ordered to "cuff up."
A T-16 O.C. pepper spray grenade disperses the same type of O.C. pepper spray as a canister, but does so more broadly. Holguin did not believe the T-16 round was a risk to Garner or Plaintiff's safety, but rather Holguin believed the T-16 round was necessary to quickly and safely expose inmate Garner and Plaintiff to O.C. pepper spray and compel them to stop what they were doing, come to the cell door, and be restrained. Thus, Holguin deployed a T-16 round into cell 102. Plaintiff was exposed to O.C. pepper spray for approximately two or three minutes before he exited his cell.
Plaintiff contends that at 9:20 a.m. on April 9, 2007, upon arriving at Plaintiff's cell door, Defendants Nicholas and Holguin opened the tray slot to Plaintiff's cell and without warning immediately began spraying pepper spray into the cell. During this time, they were simultaneously issuing orders for Plaintiff's cellmate (Garner) to get down. Plaintiff was sitting on his bunk in the back of the cell doing nothing wrong.
Garner was attempting to dump out pruno kicker into the toilet. The bags of kicker were on Garner's shelf. Plaintiff did nothing to assist Garner in disposing of the kicker. Garner dumped the contends of the bag of kicker into the toilet then took 1 ½ steps towards the back of the cell, turned around and dove on the ground underneath his locker. Plaintiff contends that Defendants Nicholas and Holguin could see the kicker pulp on the rim of the toilet. The lockers are situated approximately 3 ½ to 4 feet above the ground level and are mounted to the right side wall. The space underneath the lockers is unobstructed from view when looking into the cell through the window on the door from outside the cell. Plaintiff had no reason to get down because the defendants were pepper spraying Garner and Plaintiff was not engaged in any misconduct.
After Garner dove to the ground Defendants Nicholas and Holguin began to pepper spray Plaintiff. While Plaintiff was being pepper sprayed he heard the Defendants issue an order to get down and cuff up. Defendants never addressed Plaintiff by name. Plaintiff immediately got down while being pepper sprayed but the Defendants continued to spray him and did not give Plaintiff an opportunity to cuff up. While lying on the ground, Defendants Nicholas and Holguin continued to pepper spray Plaintiff and again did not give him a change to cuff up. Immediately after Nicholas and Holguin finished using their MC9 O.C. streamers on Plaintiff, they slammed the tray slot closed, opened it back up and threw a T-16 (particulate) grenade into Plaintiff's cell.
After deploying the T-16 grenade into the cell, and closing the tray slot, neither of the Defendants reopened the tray slot to provide Plaintiff and Garner an opportunity to submit to cuffs. Instead, the Defendants let Plaintiff and Garner marinate in the combined chemical soup for two to three minutes. The intensity of the burning from the combined chemicals were so severe that Plaintiff couldn't breathe, Plaintiff could not see, Plaintiff's skin felt like it was melting.
If Plaintiff's version of the facts are believed, there is genuine issue of material fact as to whether Defendants Nicholas and Holguin used excessive force by dispensing a eight to ten second burst of pepper spray and a subsequent T-16 grenade. A factual dispute exists as to whether the amount of pepper spray used to extract Plaintiff was an excessive use of force.
Plaintiff's second amended complaint, he contends that Defendant Nicholas went to location of Plaintiff's holding cell and told him "next time I'm going to shoot one of you mother fuckers." (2nd Amd. Compl. at p. 10 ¶ 56.) Based on this statement, Plaintiff contends he is certain that the chemical force used, was done so with the sole purpose of inflicting harm and pain for no other reason than to satisfy overflowing hostilities toward Black inmates. (
It is undisputed that Defendant Ortega was present during the cell search/extraction on April 9, 2007.
Plaintiff contends that he heard Defendant Ortega issue an order for Defendant Holguin to deploy a T-16 grenade bomb into Plaintiff's cell, despite the fact that Plaintiff and his cellmate were proned out on the floor. Plaintiff further contends that Defendant Ortega stood there and did nothing to prevent the unnecessary use of force by Defendants Holguin and Nicholas.
Defendant Ortega declares that on April 9, 2007, he observed Defendants Nicholas and Holguin's interaction with Plaintiff and Garner and provided additional security and support. Ortega declares that he did not use any force, nor did he see the other officers use any force intended to injure Plaintiff. Ortega believed the force used by Nicholas and Holguin was necessary to gain control of the situation and prevent Garner from continuing to dispose of the unidentified contraband. Ortega did not believe the O.C. pepper spray posed a risk to Plaintiff's safety.
Based on Plaintiff's version of the facts, if believed, there is a genuine issue of fact as to whether Defendant Ortega failed to intervene during the use of excessive force by Defendants Nicholas and Holguin.
In order to state an excessive force claim against correctional officer-bystanders, a plaintiff must allege circumstances demonstrating that these officers had an opportunity to intervene and prevent or curtail the violation, but failed to do.
It is undisputed that Defendants Machado, and Juden were present at some point in time during the cell search/extraction on April 9, 2007.
It is undisputed that Defendants Machado and Juden were not present during use of chemical force, and had no realistic opportunity that could have intervened. Thus, there is no cognizable claim for failure to protect against Defendants Machado and Juden.
Machado declares that he arrived at Housing Unit 3, Section B, cell 102 after the O.C. pepper spray had been utilized. Machado observed inmates Garner and Plaintiff exit cell 102 and officer J. Juden secure them in restraints. Machado does not recall anyone dragging Plaintiff on April 9, 2007.
Juden declares that he did not observe anyone use any O.C. pepper spray during the subject incident with Plaintiff on April 9, 2007. Juden arrived at Housing Unit 3, Section B, cell 102, after the O.C. pepper spray was used.
Juden observed Defendant Machado order Plaintiff and inmate Garner to get down on the ground and exit the cell. After Garner exited the cell, Juden secured him in leg irons and handcuffs. Plaintiff crawled backward out of the cell, and Juden secured him in leg irons and handcuffs. Juden does not recall anyone dragging Plaintiff on April 9, 2007.
Plaintiff contends that at 9:23 a.m on April 9, 2007, while Plaintiff was crawling backwards outside of the cell as ordered, Defendants Machado and Juden grabbed Plaintiff's ankles and drug him out of the cell and onto the tier, scraping the skin off both of Plaintiff's knees. Neither Plaintiff nor Garner presented any threat to the Defendants. Defendant Juden placed Plaintiff in restraints.
Although Defendants present and argue that an unidentified non-Defendant moved Plaintiff out of the doorway, based on Plaintiff's allegations both in his second amended complaint and opposition, it was Defendants Machado and Juden who engaged in such conduct. Indeed, in Plaintiff's second amended complaint, Plaintiff alleges, in relevant part, "Approximately two minutes after the pepper spray and T-16 grenade had been deployed into plaintiff's cell and on plaintiff's person, as if coming from a great distance, plaintiff heard defendant L. Machado say `take off your cloths and crawl backwards toward the door. Plaintiff is unaware if the order was issued to plaintiff or plaintiff's cellmate because plaintiff was dismayed, was having extreme difficulty breathing, couldn't see, was severely burning and was extremely disoriented. However, plaintiff immediately complied and took off plaintiff's cloths and immediately crawled backwards towards the cell door. As plaintiff reached the cell door, defendants L. Machado and J. Juden grabbed plaintiff's ankles and drug plaintiff out onto the tier-scraping the skin off both of plaintiff's knees in the process. (2nd Amd. Compl. at ¶¶ 53-55.) The medical examination by Defendant Bubbel, Licensed Nurse, following the incident noted "minor scrapes to knees." (Decl. of Bubbel, at Ex. A.)
The fact that neither Defendant Machado nor Juden recall anyone dragging Plaintiff from his cell and deny doing so themselves, a genuine issue of material fact exists as to whether excessive force was used by them when moving Plaintiff out of his cell. At summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party; if evidence produced by the moving party conflicts with evidence produced by the nonmoving party, the court must assume the truth of the evidence set forth by the nonmoving party.
There is no dispute that the use of pepper spray constitutes a serious medical need. The issue in this case turns on whether the decision to provide one type of decontamination over another constitutes deliberate indifference.
Plaintiff's claims against Defendants Adame, Bubbel, Coontz, Crouch, Knight, Large, Pinkerton, Prior, Rivera, Soto, Tyree, Valverde, Velasco, Vo, Worrell, and Yuberta relate to: (1) whether air decontamination is medically appropriate for exposure to O.C. pepper spray; (2) whether Adame and Rivera provided Plaintiff with air decontamination; (3) whether Defendants are entitled to qualified immunity because they could have reasonably believed that Plaintiff was provided proper decontamination; and (4) whether Defendants refused to provide any decontamination upon Plaintiff's arrival in the Administrative Segregation Unit.
The undisputed facts demonstrate that Plaintiff was escorted out of the Housing Unit Three, Section B. Defendants Adame and Rivera, arrived approximately fifteen minutes outside the Housing Unit Three to escort Plaintiff to a holding cell in the medical clinic. Defendants Adame and Rivera declare that when they arrived at the scene, Plaintiff was not coughing, gagging, or short or breath when Adame and Rivera observed him. Plaintiff told Adame and Rivera, "They ain't give me no decontamination, man. This stuff is still burning me. Man, I need some decontamination. Somebody do something." Other than the burning sensation to his skin, Plaintiff did not advise Adame or Rivera that he was having any adverse reactions to the pepper spray.
Plaintiff contends that he requested decontamination from Defendants Adame and Rivera due to the adverse effects of the combined chemical agents, but they ignored him. Prior to placing Plaintiff into the clinic holding cell, Defendants Adame and Rivera looked into the cell from outside to ensure it was clear then placed Plaintiff into it. It took approximately 1 ½ minutes for Defendants Adame and Rivera to briskly escort Plaintiff from outside the Housing Unit 3 to the 4A clinic holding cell, which is approximately fifty yards. Plaintiff contends that from the time he was brought outside of Housing Unit 3 until his escort to the 4A clinic, it was hot and stifling outside with no moving or flowing air or wind. After escort to the clinic holding cell, Plaintiff discovered the sink was clogged and there was no access to fresh running water. Both Plaintiff and his cellmate Garner informed all staff who entered the building that they were in need of decontamination and the sink was clogged. Neither Adame or Rivera provided Plaintiff with any decontamination, nor notify any staff in the administrative segregation unit that Plaintiff was in need of a decontamination shower.
Defendants submit evidence that the California Correctional Institution's decontamination policy, as applicable in April 2007, states that individuals exposed to o.c. pepper spray may be decontaminated with either exposure to fresh air or by flushing the affected body areas with cool water. (Declaration of K. Prior at ¶ 4, Ex. A, ECF No. 123-5.) In this instance, Plaintiff was allowed to remain in the fresh air for approximately fifteen minutes, and was then escorted from the outside of Housing Unit 3, Section B to the clinic holding area which required additional travel outside for several minutes. (
Defendants Adame and Rivera placed Plaintiff in holding cell number 122. There is a sink inside holding cell 122, which was clogged with brown water. However, at the time Adame and Rivera placed Plaintiff in the holding cell, they believed that the sink inside the cell was working properly, and Plaintiff had cool running water available to him from the faucet. (Declaration of Adame at ¶ 11; Declaration of Rivera at ¶ 11.) Furthermore, Plaintiff did not advise Defendants Adame or Rivera that the sink inside his holding cell was clogged. (Pl's Depo. 136:24-137:11, 139:1-7.)
Defendants Adame and Rivera also believed that staff inside Plaintiff's new building would provide him with the opportunity to wash up upon being rehoused. (Declaration of Adame at ¶ 12; Declaration of Rivera, at ¶ 12.) After he left the clinic holding area, Defendant Adame did not have any personal knowledge of how long Plaintiff occupied the holding cell, but he did not believe, or have any reason to believe, that anyone would fail to provide additional decontamination to Plaintiff, if necessary. (Declaration of Adame at ¶¶ 2, 13; Declaration of Rivera at ¶ 12.)
Based upon this evidence, Plaintiff has failed to demonstrate a genuine issue of material fact that either Defendant Adame or Rivera knew of and disregarded an excessive risk to his serious medical condition. While Plaintiff states Defendants Adame and Rivera failed to provide requested decontamination, he fails to set forth facts to show why it would be obvious that the decontamination was insufficient. Plaintiff's complaint merely states the sink was clogged and he was severely burning, which is consistent with exposure to pepper spray and fails to show that he was at risk of serious harm. Plaintiff's conclusory statement that the defendants were aware that additional decontamination was needed is insufficient to show that Defendant Adame and/or Rivera were aware he was at risk of serious harm and failed to act in response.
As to Defendant Medical Technical Assistant Bubbel, Plaintiff contends that at 9:25 a.m. on April 9, 2007, he was medically assessed for Administrative Segregation Unit placement by Defendant Bubbel. Plaintiff complained to Defendant Bubbel that he was in need of decontamination but Bubbel ignored his request. Plaintiff contends that Bubbel conducted a visual assessment of Plaintiff while outside the holding cell by looking through a glass window. Bubbel noted the scraped skin off of Plaintiff's knees. Bubbel never entered the holding cell to determine if there was access to fresh water in the sink.
As to Defendant Medical Doctor, Vo, Plaintiff contends when he entered the clinic holding area, Plaintiff advised him that he swallowed pepper spray and felt sick. Plaintiff informed Defendant Vo that it felt like his skin was melting and he was in need of decontamination and medical attention. Defendant Vo stated that it did not look like Plaintiff's skin was melting and walked away without providing decontamination or medical care. Plaintiff contends that Doctor Vo did not enter the holding cell to determine if there was access to fresh water in the sink.
Defendant Bubbel contends that on April 9, 2007, he was assigned to report to the 4A clinic holding area to examine several inmates, including Plaintiff, for exposure to O.C. pepper spray. Prior to the examination, Bubbel was advised that Plaintiff was exposed to O.C. pepper spray at approximately 9:00 a.m. Bubbel examined Plaintiff for approximately five minutes at approximately 9:25 a.m. Plaintiff told Bubbel, "Man, we've been sprayed with this pepper spray. Man, we need some decontamination. Man, this stuff is burning."
Bubbel declares that on April 9, 2007, he was aware that Plaintiff was outside from Housing Unit 3 to the clinic holding area for several minutes. Thus, Bubbel believed that Plaintiff had already been provided sufficient air decontamination before the examination. (Declaration of Bubbel, at ¶¶ 5-11.) Because it is not uncommon for an individual to experience burning for up to forty-five minutes prior to the examination, Bubbel did not consider Plaintiff's complaints to be unusual or the basis for any further medical treatment. (
Bubbel observed that Plaintiff was not having any problem breathing, other respiratory distress, or skin irritation. (
At all times relevant to this suit, Bubbel believed the sink inside the holding cell was working, and that Plaintiff had access to cool running water. (
Dr. Vo did not refuse to decontaminate Plaintiff for exposure to O.C. pepper spray. (Declaration of Vo, at ¶¶ 3-7.) Shortly after Plaintiff was examined by Bubbel, Plaintiff told Vo that he hadn't been decontaminated, that the stuff was burning. Plaintiff told Dr. Vo "I felt sick because I had swallowed some of the pepper spray. I told him that it felt like my skin was melting." (Pl's Depo. at 155:17-20; ECF No. 21 ¶¶ 76-77.) Dr. Vo believed that Plaintiff was provided proper air decontamination before he arrived in the clinic holding area. (Declaration of Vo, at ¶¶ 3-7.)
Defendants Bubbel and Vo are entitled to summary judgment on this claim. Plaintiff presents no evidence that either Bubbel or Vo were deliberately indifferent to a serious medical need.
Although Plaintiff complains generally that he was in need of further decontamination, the undisputed evidence demonstrates that Defendant Bubbel conducted a visual examination of Plaintiff for approximately five minutes just twenty-five minutes after the use of the pepper spray. During the examination, Plaintiff was not having any breathing, respiratory distress, or skin irritation. Although Bubbel observed minor scratches on Plaintiff's knees, there were no other injuries and further medical treatment was not necessary.
Plaintiff fails to show how Defendant Bubbel's evaluation amounted to deliberate indifference. Although Plaintiff now claims that Defendant Bubbel did not conduct an actual visual examination but only while outside the holding cell and through a glass window. Plaintiff's contention is refused by his deposition testimony, in which he admitted that Defendant Bubbel performed "a whole body check thing, that whole type of stuff." (Pl's Depo. at 132:20-22.) Defendant Bubbel "look at the stuff on my knees, you know, did a visual." (
Plaintiff's self-serving and speculative assertion, contrary to his deposition testimony, fails to create a genuine dispute for trial, as it is nothing more than a sham attempt to defeat summary judgment.
With regard to Defendant Doctor Vo, although Plaintiff contends that he informed Doctor Vo that he felt his skin was melting, to which Doctor Vo disagreed, Plaintiff's disagreement about whether he was in need of immediate further decontamination with water is a disagreement with the course of treatment, that does not show deliberate indifference under the Eighth Amendment.
Plaintiff contends that in 2003, he was diagnosed with a medical condition known as anti-nuclear antibodies (ANA) production where his immune system is producing antibodies that are attacking itself and Plaintiff. Plaintiff has also been diagnosed with an abnormally low platelet count, which Plaintiff believes contributed to the prolonged adverse reaction to the chemical agents. (Opp'n at pp. 12-13.)
Although Plaintiff contends in 2003 he was diagnosed with anti-nuclear antibodies, beyond Plaintiff's mere contention, he fails to submit any medical evidence to support such conclusion, and Plaintiff's deposition testimony contradicts such contention. (
Plaintiff contends that prior to Defendant Tyree and Crouch arriving at the 4A clinic holding cell, Plaintiff may have inadvertently smudged some of the chemicals off of part of his chest and face while sitting on top of the bench (inside the holding cell) naked. At one point Plaintiff became so desperate to relieve some of the burning from Plaintiff's eyes and face by using the rancid and fetid toilet water because the sink was clogged. Defendants Tyree and Crouch never entered into the holding cell to determine if Plaintiff had access to fresh water. Defendant Tyree and Crouch interviewed Plaintiff and took pictures about gang stuff. Approximately one and one-half hours after Plaintiff was exposed to the chemical agents Tyree and Crouch took pictures of Plaintiff while majority of Plaintiff's body was still saturated with the chemical agents used on Plaintiff. While being interviewed by Defendant Crouch and Tyree, Plaintiff requested decontamination, and Plaintiff's cellmate Garner informed Crouch and Tyree that the sink in the holding cell was clogged.
Defendants Tyree and Crouch took photographs of inmates in the clinic holding area to document both the presence and absence of gang tattoos. (Declaration of Tyree, at ¶ 10.) While inside the holding cell, Plaintiff washed the O.C. pepper spray residue off his face and most of his chest. (
Plaintiff told Tyree, "We was still burning from the pepper spray, and that we hadn't been decontaminated, that we needed decontamination." Tyree believed that Plaintiff was provided proper air decontamination before he arrived in the clinic holding area. When Plaintiff spoke to Tyree, his skin was not discolored. At all times relevant to this suit, Tyree believed the sink inside holding cell 122 was working properly, and Plaintiff had cool running water available to him from the faucet. Plaintiff did not advise Tyree that the sink inside his holding cell was clogged.
Crouch believed that Plaintiff was provided proper decontamination before he arrived in the clinic holding area. When Plaintiff spoke to Crouch, his skin was not discolored. At all times relevant to this suit, Crouch believed the sink inside holding cell 122 was working properly, and Plaintiff had cool running water available to him from the faucet. Plaintiff did not advise Crouch that the sink inside his holding cell was clogged.
Based upon this evidence, Plaintiff has failed to demonstrate a genuine issue of material fact that either Defendant Tyree or Crouch knew of and disregarded an excessive risk to his serious medical condition. While Plaintiff states Defendants Tyree and Crouch failed to provide requested decontamination, he fails to set forth facts to show why it would be obvious that the decontamination was insufficient. Plaintiff's complaint merely states the sink was clogged and he was severely burning, which is consistent with exposure to pepper spray and fails to show that he was at risk of serious harm. Plaintiff's conclusory statement that the defendants were aware that additional decontamination was needed is insufficient to show that Defendant Tyree and/or Crouch were aware he was at risk of serious harm and failed to act in response.
Although Plaintiff contends that his cellmate Garner informed Defendants Tyree and Crouch that the sink in the holding cell was clogged, even assuming the truth of such assertion, this does not create a genuine issue of material fact. Testimony by Plaintiff's cellmate is inadmissible hearsay and cannot be used to create a dispute of fact. Fed. R. Civ. P. 56(c);
As to Defendant Knight, Plaintiff contends he saw him enter the clinic holding area, and Plaintiff informed Knight that he had not been decontaminated. Defendant Knight was also informed that the sink in the holding cell was clogged and Plaintiff had no access to fresh water. Knight did not enter the holding cell to determine if he had access to fresh water.
As to Defendant Pinkerton, Plaintiff contends when he entered the clinic holding area, Plaintiff informed him that he had not been decontaminated and was in need of medical attention. Pinkerton was informed that the sink in the holding cell was clogged and Plaintiff had not access to fresh water. Pinkerton never entered Plaintiff's holding cell or provided any decontamination.
As to Defendant Prior, Plaintiff contends when he entered the clinic holding area, Plaintiff informed him he was in need of decontamination and medical attention. Prior gave Plaintiff a pair of paper undershorts and denied Plaintiff's request for decontamination or medical attention. Prior was informed that the sink in the holding cell was clogged. Prior told Plaintiff that he would receive a shower when he arrived at the Administrative Segregation Unit (ASU). Prior did nothing to ensure that Plaintiff was afforded decontamination upon his arrival at the ASU. Prior never entered the holding cell to determine if there was access to fresh water in the sink. Upon Plaintiff's arrival at the ASU, twelve hours after being exposed to the chemical agents, Plaintiff was denied a decontamination shower to wash the combined chemicals off of his body. Plaintiff may have inadvertently smudged some of the combined chemicals off of some of his chest and face, Plaintiff had to use the rancid water in the toilet to relive the burning in his eyes and face.
As to Defendant Cootnz, Plaintiff contends that when he entered the clinic holding area, Plaintiff informed him that the sink was clogged. Defendant Cootnz ignored Plaintiff's request for decontamination and never entered the holding cell to determine if there was fresh running water in the sink.
As to Defendants Large, Soto, Worrell, and Yubeta, Plaintiff contends that upon seeing them enter the clinic holding area, as Plaintiff and other inmates yelled for assistance, Plaintiff informed the Defendants that he needed decontamination and medical attention, and his skin was discolored and the sink was clogged. The defendants asked why Plaintiff was in the holding cell naked and screaming for help. After learning that Plaintiff was suffering from the effects of the chemical agents, Sergeant Soto advised Plaintiff to have his cellie wash his backside using the toilet water, then Defendants left and ignored Plaintiff's requests for decontamination. Large, Yuberta, Worrell, and Soto never entered Plaintiff's holding cell to determine if Plaintiff had access to fresh water. Plaintiff used toilet water to try to relieve the burning in Plaintiff's eyes and face. Plaintiff inadvertently smudged part of the chemical agents off of his chest and face when he pulled his knees to his chest while sitting atop of the holding cell benches trying to conceal his nakedness.
Each of these Defendants submit personal declarations in which each declares that they have no recollection of any interaction with Plaintiff on April 9, 2007. (Exs. 4, 8, 9, 13, 14, 16, 18, 21, 22, Declarations of Knight, Large, Pinkerton, Prior, Soto, Valverde, Worrell, Yubeta, and Cootnz.) However, if these Defendants had been advised by Plaintiff "that he was exposed to o.c. pepper spray in his housing unit and the responding staff failed to decontaminate him prior to placement in the clinic holding area, each Defendant declares that "[i]t is impossible to travel between housing unit three at CCI, where Plaintiff resided on April 9, 2007, and the clinic holding area, without traveling outside for several minutes, which should have constituted sufficient air decontamination to exposure of the o.c. pepper spray." (
Plaintiff's conclusory claims do not overcome the evidence submitted by Defendants by way of their declarations that they have no recollection of any interaction with Plaintiff on April 9, 2007. Plaintiff presents no evidence that any of these Defendants engaged in any specific conduct giving rise to a claim of deliberate indifference to a serious medical need. Each Defendant declares that
Even viewing the evidence in the light most favorable to Plaintiff and assuming the truth of his allegations, the only evidence before the Court demonstrates that these Defendants believed, or would have believed, that Plaintiff was provided proper air decontamination prior to placement in the clinic holding cell, and Defendants cannot be held liable for deliberate indifference if they were not aware of the risk of serious harm.
Defendant Velasco declares, in part, that "[b]etween April 9, 2007, and April 19, 2007, [he] did not refuse to decontaminate inmate [Plaintiff] for exposure to o.c. pepper spray. I was not aware of anyone that failed to properly decontaminate [Plaintiff], and [he] did not believe, or have any reason to believe, that anyone would refuse to properly decontaminate [Plaintiff]. (Decl. at ¶ 2.) Further, "[Plaintiff] had cool running water available to him from the faucet located inside his holding cell. To the best of [his] knowledge, the faucet and sink in the clinic holding cell were working properly on April 9, 2007. [He did] not believe, or have any reason to believe, that the faucet and sink in the clinic holding cell that [Plaintiff] occupied were not working properly on April 9, 2007." (
Plaintiff alleges (by way of verified complaint and opposition) that Defendant Velasco was in the clinic control observation booth, observed Plaintiff naked in the cell screaming, crying and pleading for decontamination and medical attention due to the adverse reaction Plaintiff was having from prolonged exposure to the combined chemical agents. While in the clinic holding area Plaintiff informed Velasco that he was in need of decontamination and Velasco was informed that the sink was clogged inside Plaintiff's holding cell. Velasco observed Plaintiff use fetid toilet water desperate to wash the chemical agents out of Plaintiff's eyes. Velasco laughed at Plaintiff and taunted him stating, "Hey, which one of you is Holt . . . It burns huh?" Velasco continued to laugh at Plaintiff and ignored his requests for medical attention. (Opp'n at 15; 2nd Amd. Compl. at 15 (identified then as "Doe 7").)
Beyond Defendant Velasco's bare declaration that he did not refuse Plaintiff's decontamination between April 9, 2007, and April 19, 2007, and belief that Plaintiff had a working sink and faucet with running water, Defendant Velasco does not address Plaintiff's specific claim that he taunted Plaintiff after the use of pepper spray, which creates a genuine issue of material fact as to whether Defendant Velasco acted with deliberate indifference or malicious or sadistically for the very purpose of causing Plaintiff harm. Therefore, Defendant Velasco is not entitled to summary judgment on this claim and his motion should be granted.
Between April 9, 2007, and April 19, 2007, Plaintiff did not encounter any of the named Defendants in the ASU at CCI.
Plaintiff claims that he continued to burn from the effect of the pepper spray until April 19, 2007, because Does 8 and 9 refused to provide him a shower upon his arrival in the administrative segregation unit, and after Plaintiff was provided a shower on April 10, 2007, Doe 10 knowingly refused to replace Plaintiff's bedding which was covered with pepper spray residue. (ECF No. 21, ¶¶ 113-121.
To the extent defense counsel moves for summary judgment in favor of unidentified Doe Defendants, not yet served, counsel may not make an appearance on their behalf and move for summary judgment in their favor. In a separate order, the Court will address Plaintiff's claims against unidentified and un-served Doe Defendants. Thus, there is no basis to rule on Defendants' motion for summary judgment as to this claim as it relates to unidentified and un-served Doe Defendants.
In his complaint, Plaintiff seeks an injunction requiring Defendants to implement a new policy relating to the procedures relating to use of force and decontamination. (ECF NO. 21 p. 44.) Federal-court jurisdiction requires the existence of a pending case or controversy. U.S. Const. art III. When there no longer "`exists a present controversy as to which effective relief can be granted,'" the request for relief is moot, "preempt[ing] any determination on the merits."
When an inmate seeks injunctive or declaratory relief concerning the prison where he is incarcerated, his claims for such relief become moot when he is no longer subjected to those conditions.
Plaintiff's claims for injunctive relief became moot when he transferred from CCI, and the docket in this case reflects that Plaintiff is presently incarcerated at California State Prison — Los Angeles. The Defendants in this action do not work at California State Prison — Los Angeles, and they do not have any authority or control over Plaintiff's day-to-day activities at the prison.
An exception to the mootness rule applies in cases which are "capable of repetition yet evading review."
Neither exception applies here. There is no indication, and certainly not a reasonable expectation, that Defendants will have any authority over Plaintiff, who is confined at California State Prison — Los Angeles. There is also no indication that Plaintiff will be transferred back to CII, and the mere possibility that such a transfer may occur is insufficient to satisfy the mootness exception. See Murphy, 455 U.S. at 482. Therefore, Plaintiff claims for injunctive relief are moot and must be dismissed from the action.
Based on the foregoing, IT IS HEREBY RECOMMENDED that:
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
