RALPH R. BEISTLINE, District Judge.
At
Summary judgment is appropriate if, when viewing the evidence in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment in its favor as a matter of law.
In general, in ruling on a motion for summary judgment, a court may not weigh the evidence or judge the credibility of witnesses.
After screening, the Court determined that Montgomery properly pled two claims: (1) an Eighth Amendment excessive force claim against Defendants Smith and Sanchez; and (2) an Eighth Amendment failure to protect claim as against Defendants Smith and Duncan.
The incident complained of occurred on August 14, 2010, while Montgomery was incarcerated at Kern Valley State Prison ("KVSP"). In his Complaint Montgomery alleges Defendant Sanchez used unnecessary and excessive force in spraying Montgomery with pepper spray without provocation or justification. Montgomery further alleges that Defendant Smith also used excessive force in spraying Montgomery with pepper spray. Finally, Montgomery alleges that Defendants Smith and Duncan failed to protect Montgomery from the attack by his cell-mate, Ivan Frost. Although for the most part the facts in this case are undisputed, this Court views the facts in the light most favorable to Montgomery.
1. Montgomery and Frost were housed together in the same cell from August 3, 2010, through August 14, 2010.
2. Prior to being housed with inmate Frost, Montgomery had interactions with Frost, and their relationship had been cordial.
3. During the nine-month period between meeting Frost in December 2009 and being housed with him on August 3, 2010, although Montgomery would see Frost daily, they had never had any conflicts with each other.
4. No compatibility chronos were in place between Montgomery and Frost; nor was Frost listed, designated, or recorded as Montgomery's enemy.
5. Montgomery celebrated his birthday on August 11, 2010, by making a meal and sharing it with Frost, and his relationship with Frost was cordial.
6. On August 13, 2010, Frost became hostile towards Montgomery because he accepted a food tray prepared by Special Needs Yard (SNY) inmates, to which Frost was opposed.
7. After breakfast on August 13, 2010, Montgomery spoke with Smith, stating, "look, man, this dude is threatening me. I got to get a cell move, please. I need to get out of here because it's going to get hostile. He's going to get violent."
8. Smith does not recall having any conversation with Montgomery regarding a cell move at any point on August 13, 2010.
9. At no point prior or subsequent to Montgomery's alleged discussion with Smith after breakfast on August 13, 2010, did Montgomery speak with Smith concerning his fears about his safety, or to request a cell move.
10. On August 14, 2010, Frost again became hostile towards Montgomery because Montgomery accepted another food tray prepared by SNY inmates.
11. Between August 7 and August 14, 2010, Frost neither spoke to any of the Defendants or any other correctional officer to request a cell re-assignment. Frost instead always remained sitting and quiet, and never spoke to either Smith or Sanchez.
12. Between August 7 and August 14, 2010, Smith neither personally observed any hostility between Montgomery and Frost, nor spoke with Montgomery regarding any safety concerns; Smith did not receive any objective information, from any source that would have lead him to infer that Montgomery faced a substantial risk of serious harm by his continued housing with Frost.
13. On August 14, 2010, Montgomery and Frost got into a heated argument, and Frost informed Montgomery that he either had to move on his own or Frost would remove him.
14. Prior to the assault, in an attempt to get the attention of the guards, Montgomery started falsely yelling "man down," to which Officer Soto responded, followed a few minutes later by Sanchez. Although Montgomery informed both officers of his fear of being assaulted, both left without taking any action.
15. Subsequently, Montgomery was assaulted by Frost: When Frost charged him, although Montgomery threw up his hands, Frost punched him in the nose and left eye, knocking him out.
16. After Montgomery regained consciousness, bleeding with blood on his shirt and the cell floor, he got up and was holding on to the cell door.
17. At approximately 10:20 a.m., Smith was notified by Control Booth Officer Pelayo to report to A-Section, Cell Number 107 because Pelayo believed that Montgomery and Frost, the inmates housed therein, were fighting.
18. In response to Officer Pelayo's notification, Smith, accompanied by Sanchez, immediately went to A-Section, Cell Number 107 to investigate.
19. When Sanchez arrived at the cell, he looked into the cell and directed both Montgomery and Frost to "prone out."
20. At the time Sanchez ordered Montgomery to "prone out," Montgomery was at the front of the cell, about three feet from the door, and Frost was all the way at the back, on the top bunk.
21. In response to Sanchez's order, Montgomery dropped to his knees and Frost jumped down from the top bunk.
22. At that time, based upon his observation of the movements made by Montgomery and Frost, the visible blood in the cell and on Montgomery's person, and both inmates' failure to comply with orders to assume a prone position on the floor, Smith believed that the inmates were or had been engaged in a fight.
23. Sanchez then opened the food port and sprayed pepper spray through the food port.
24. When Sanchez sprayed the pepper spray, Montgomery was still on his knees, not in a prone position; the spray hit Montgomery directly in the face.
25. When Sanchez sprayed the pepper spray, Frost was in the process of jumping down from his bunk onto the table or a stool.
26. When Montgomery turned his head away from the pepper spray, he saw Frost still moving and attempting to crawl underneath under the cell bunks; Montgomery was then hit again with pepper spray in the back of his head.
27. When Smith was trying to spray Frost he hit Montgomery in the back of the head because Montgomery was blocking the way.
28. When the pepper spray was deployed, Frost was not in a prone position.
29. While the pepper spray was being deployed, Montgomery did not see Smith.
30. After being pepper sprayed, both Montgomery and Frost complied with the order to prone out.
31. Between August 7, 2010, and August 14, 2010, Duncan did not personally observe any hostility between Montgomery and Frost, nor did he receive any objective information, from any KVCP employee that would have led him to infer that Montgomery faced a substantial risk of serious harm by his continued housing with Frost.
32. Prior to the assault, Montgomery never personally addressed any safety concerns with Duncan.
Initially the Court notes that to a significant extent Montgomery attempts to attack the credibility of the Defendants. As does Montgomery, this Court views with concern and a significant degree of displeasure the marked discrepancies between the facts as stated by the Defendants in the internal rules violation proceeding and the facts as set forth in the declarations filed in this proceeding. That concern notwithstanding, as noted above, in ruling on the pending motions the Court views the facts in the light most favorable to Montgomery. In so doing, the Court accepts the facts as presented by Montgomery to the extent those facts are supported by competent, admissible evidence.
The discrepancy between the rules violation reports and the facts as asserted by the Defendants in their pending motions relate to whether or not there was a "fight" between Montgomery and his cell-mate, Frost. It is undisputed that there was an altercation, as a result of which Montgomery was injured and called for assistance. Whether or not Montgomery was an active or passive participant in that altercation is irrelevant to the issues before this Court: (1) did Sanchez and Smith use excessive force in using pepper spray;
The law in this Circuit is clear that the use of chemical agents in quantities greater than necessary to restore order or for the sole purpose of infliction of pain violates the Eighth Amendment.
In resolving the issues presented in this case, the Court must apply the five Hudson-Furnace factors. First, as did the Ninth Circuit in Furnace, this Court finds that the injuries caused by the use of the pepper spray were moderate.
The Court first addresses the claim against Sanchez. In this case, unlike Furnace, it is undisputed that at the time Sanchez pepper sprayed him, Montgomery had been ordered to "prone out," an order he had not yet obeyed. The critical issue raised is whether or not Montgomery was given sufficient time to comply with that order.
Initially the Court notes that Sanchez did not provide his own declaration in support of his motion. Instead, Sanchez relies solely upon what he perceives to be the lack of evidence to support Montgomery's claims. This Court is limited to the evidence in the record before it. After a careful and thorough review of Montgomery's deposition, and the declarations of Smith, Duncan, and Adams, the evidence, as opposed to the conclusory statements, it is apparent that the "fight" was over and does not conclusively establish that Montgomery was given sufficient time to comply with the order to "prone out."
On the other hand, Montgomery's claim as against Smith fails under an independent basis. The undisputed evidence is that in using his pepper spray, Smith was attempting to spray Frost, not Montgomery. Montgomery does not challenge the propriety of the use of pepper spray on Frost. While it may be possible for a jury to find that in spraying Montgomery Smith was negligent or even possibly grossly negligent, under the facts as presented no properly instructed, rational jury could find that Smith did not act in a good-faith effort to maintain or restore discipline, or that, with respect to Montgomery, he applied the pepper spray maliciously and sadistically to cause harm. Accordingly, Smith is entitled to judgment in his favor on this count.
The gravamen of this claim is that Smith and Duncan failed to protect Montgomery from being assaulted by Frost. The law is clear that "prison officials have a duty . . . to protect prisoners from violence at the hands of other prisoners."
The Supreme Court has further noted that deliberate indifference entails a stringent standard of fault, requiring that the actor disregarded a known or obvious consequence of the actor's action or inaction.
The record before this Court is devoid of any evidence that Frost had a history of violent acts directed at or assaulting fellow prisoners. There is no evidence in the record indicating that there was any hostility or animosity between Montgomery and Frost prior to the day immediately preceding the attack, let alone any specific threat. No officer observed any threatening, belligerent, or otherwise hostile actions by Frost. Furthermore, by his own admission, Montgomery had been engaged in a heated argument with Frost, a mutual two-sided encounter. More importantly, however, is the fact that less than an hour preceding the attack, Montgomery, like the child who cried wolf, had falsely raised the "man down" alarm. While one might surmise that Montgomery had a real, subjective fear for his safety, there is no objective evidence to support a finding that either Smith or Duncan disregarded a known or obvious risk of harm to Montgomery, or that the altercation was a result of their inaction. The evidence when viewed in the light most favorable to Montgomery falls far short of establishing that either Smith or Duncan acted with deliberate indifference to Montgomery's safety. Thus, both are entitled to judgment in their favor on this claim.
Based upon the foregoing:
1. The Motion for Summary Judgment by Defendant Illich Sanchez at
2. The Motion for Summary Judgment by Defendants H. B. Smith and S. W. Duncan at
