1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 14 GARY RAYMOND XAVIER, Case No. 19-cv-05587-JSW

15 Plaintiff,

ORDER GRANTING MOTION FOR

16 v. PARTIAL SUMMARY JUDGMENT

17 C. TANORI, E.W. BEAM. J. RAMIREZ, Re: Dkt. No. 54 and R. FERRARI., 18 Defendants.

19

20 Plaintiff Gary R. Xavier (“Plaintiff”) is a California state prisoner formerly housed at the 21 Salinas Valley State Prison where the incident giving rise to his claims took place. Plaintiff, 22 originally proceeding pro se, filed a complaint alleging civil rights violations under 42 U.S.C. 23 Section 1983 against four officials for an incident on August 30, 2017 (“the Incident”) during 24 which Plaintiff was sprayed with Oleoresin Capsium (“OC”) pepper spray. Plaintiff had alleged 25 claims for relief under Section 1983 against Defendants Correctional Officer C. Tanori, 26 Correctional Sergeant E.W. Beam, and Correctional Officer J. Ramirez for violating his Eighth 27 Amendment rights by using excessive force and failing to intervene in that use of force, as well a 1 claim for violation of his Eighth Amendment rights against Registered Nurse R. Ferrari for failing 2 to provide him with medical care necessary to address a serious medical need. (See generally Dkt. 3 No. 1, Complaint; Dkt. No. 9, Order of Service dated November 12, 2019.) 4 On August 30, 2107, Plaintiff was transferred to the Salinas Valley State Prison and, upon 5 arrival, was kept in a holding cell to await the issuance of his property and assignment to his 6 designated housing cell. (Complaint at ¶¶ 9, 13.) During an altercation in the holding cell, 7 Defendant Tanori used OC pepper spray twice on Plaintiff. (Id. at ¶¶ 19, 20, 23-31.) Plaintiff 8 alleges that Defendants Ramirez and Beam failed to intervene or assist him when excessive force 9 was used against him by Defendant Tanori. (Id. at ¶¶ 17, 18, 26-28, 32, 33, 35, 36.) Plaintiff 10 further alleges that Defendant Ferrari failed to provide him with medical care necessary to treat the 11 effects of the pepper spray. (Id. at ¶¶ 52-57.) 12 Defendants Ramirez, Beam, and Ferrari filed a motion for partial summary judgment on 13 the grounds that (1) Plaintiff failed to exhaust his administrative remedies before filing suit; (2) 14 Defendants Ramirez and Beam did not use excessive force; (3) Defendant Ferrari was not 15 deliberately indifferent to Plaintiff’s serious medical needs. On October 13, 2021, the Court 16 granted the motion, leaving only the claims against Officer Tanori. Officer Tanori now moves for 17 partial summary judgment of the claims pending against him on the basis that he was justified in 18 his use of force and also that he is entitled to qualified immunity. 19 The Court shall address other relevant facts as necessary in the remainder of its order. 20 ANALYSIS 21 A. Standard of Review. 22 Summary judgment is proper where the pleadings, discovery and affidavits show that there 23 is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a 24 matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of 25 the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material 26 fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the 27 nonmoving party. 1 The party moving for summary judgment bears the initial burden of identifying those 2 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 3 issue of material fact. Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). When the moving 4 party has met this burden of production, the nonmoving party must go beyond the pleadings and, 5 by its own affidavits or discovery, set forth specific facts showing that there is a genuine issue for 6 trial. If the nonmoving party fails to produce enough evidence to show a genuine issue of material 7 fact, the moving party wins. Id. 8 At summary judgment, the judge must view the evidence in the light most favorable to the 9 nonmoving party: if evidence produced by the moving party conflicts with evidence produced by 10 the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving 11 party with respect to that fact. Tolan v. Cotton, 572 U.S. 650, 656-57 (2014). 12 B. Use of Force. 13 Plaintiff claims that Officer Tanori subjected him to excessive force in violation of the 14 Eighth Amendment to the United States Constitution when twice spraying OC at him during the 15 Incident. 16 A prison official violates the Eighth Amendment when two requirements are met: (1) the 17 deprivation alleged must be, objectively, sufficiently serious, and (2) the prison official possesses 18 a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994). In prison- 19 conditions cases, the necessary state of mind is one of “deliberate indifference.” Id. Neither 20 negligence nor gross negligence will constitute deliberate indifference. Id. at 835-37 & n.4. 21 Deliberate indifference is the same standard as criminal recklessness, i.e., the prison official 22 knows of and disregards an excessive risk to inmate health or safety. Id. at 837. The official must 23 both be aware of facts from which the inference could be drawn that a substantial risk of serious 24 harm exists, and he must also draw the inference. Id. An Eighth Amendment claimant need not 25 show, however, that a prison official acted or failed to act believing that harm actually would 26 befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a 27 substantial risk of serious harm. Id. at 842. 1 “After incarceration, only the unnecessary and wanton infliction of pain . . . constitutes 2 cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 3 312, 319 (1986). Whenever prison officials stand accused of using excessive force in violation of 4 the Eighth Amendment, the core judicial inquiry is whether force was applied in a good-faith 5 effort to maintain or restore discipline, or maliciously and sadistically to cause harm. Id. at 320- 6 21. 7 Where a prisoner claims that prison officials used excessive force, he must show that the 8 officials applied force maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 9 U.S. 1, 6-7 (1992); see also Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (reversing 10 district court’s grant of defendants’ motion for summary judgment because plaintiff raised triable 11 issue of fact whether spraying two cans of pepper spray at him without significant provocation 12 from him or warning from the officer was necessary to gain his compliance). The requisite 13 constitutional analysis “relies primarily on whether the force used by the officers caused 14 unnecessary and wanton pain and suffering.” Furnace, 705 F.3d at 1028. “The question whether 15 the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on 16 whether force was applied in a good faith effort to maintain or restore discipline or maliciously 17 and sadistically for the very purpose of causing harm.” Hudson, 593 U.S. at 6 (citations omitted). 18 In addition, the “malicious and sadistic” standard applies where a prisoner challenges not so much 19 conditions of confinement or indifference to his medical needs that do not clash with important 20 governmental responsibilities, but rather levels his complaint at measured practices and sanctions 21 used in exigent circumstances or imposed to maintain control over difficult prisoners. See 22 LeMaire v. Maass, 12 F.3d 1444, 1452-54 (9th Cir. 1993) (citing Whitley, 475 U.S. at 320-22, and 23 Hudson, 503 U.S. at 6-7). The Ninth Circuit has “identified five factors set forth in Hudson to be 24 considered in determining how [this] question should be answered; namely, (1) ‘the extent of 25 injury suffered by an inmate; (2) the need for application of force; (3) the relationship between that 26 need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; 27 and (5) any efforts made to temper the severity of a forceful response.’” Furnace, 705 F.3d at 1 U.S. at 7. 2 In this matter, a substantial portion of the operative facts are disputed. The Court has 3 determined that it cannot find, as a matter of law, that the undisputed facts establish the extent of 4 Plaintiff’s injuries, the need for application of force, the amount of force actually used, the 5 perceived threat, or any efforts made to temper the severity of the response. Plaintiff testifies that 6 he was severely injured. Defendants testify that he was not. Plaintiff testifies that the altercation 7 revolved around an exchange of insults and not because he was spitting or throwing things at the 8 officers. Defendants offer evidence that Plaintiff was at first recalcitrant and then aggressively 9 spitting and throwing objects at the officers. Plaintiff claims he was not violent or needed to be 10 restrained while he was in his holding cell and that Officer Tanori used the entirety of the pepper 11 spray remaining in the canister. Defendants claim that Plaintiff was spitting and throwing things 12 from his cell and that Officer Tanori only used two two-second blasts of pepper spray. Finally, 13 Plaintiff alleges that he was using foul language only and that no effort was made by Officer 14 Tanori to temper the severity of his response to this verbal provocation. Defendants claim that the 15 two two-second blasts of pepper spray were necessary to restrain Plaintiff from further attacking 16 the officers outside his cell. 17 Because nearly every detail about the provocation and the response in the Incident are 18 disputed, the Court finds that it cannot make a determination as a matter of law that the use of 19 force by Officer Tanori was either made in a good-faith effort to maintain or restore discipline, or 20 that it was done maliciously and sadistically to cause harm. See Whitley, 475 U.S. at 320-21. 21 C. Qualified Immunity. 22 Officer Tanori next moves for summary judgment on the claims pending against him on 23 the basis that he is shielded from suit by virtue of qualified immunity. Qualified immunity 24 “shields an officer from suit when she makes a decision that, even if constitutionally deficient, 25 reasonably misapprehends the law governing the circumstances she confronted.” Brosseau v. 26 Haugen, 543 U.S. 194, 198 (2004). A claim for qualified immunity requires the court to evaluate 27 the defense using a two-step inquiry in Saucier v. Katz, 533 U.S. 194 (2001). The first step is to 1 v. Callahan, 555 U.S. 223, 231 (2009). Under the second step of Saucier, the issue is whether the 2 allegedly violated constitutional rights was “clearly established” in the specific factual context 3 confronting the officers. See Saucier, 533 U.S. at 202. “If an official could reasonably have 4 believed her actions were legal in light of clearly established law and the information she 5 possessed at the time, she is protected by qualified immunity.” Franklin v. Fox, 312 F.3d 423, 437 6 (9th Cir. 2002). Courts may choose which prong of this analysis to address first. See Pearson, 7 555 U.S. at 236-39. 8 The Court has already found there are sufficient contested facts regarding the 9 constitutionality of Officer Tanori’s response during the Incident. However, under the second step 10 of the analysis, a defendant in a Section 1983 action for violation of a constitutional right is 11 entitled to qualified immunity from damages for civil liability if his or her conduct does not 12 violate clearly established statutory or constitutional rights of which a reasonable person would 13 have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly established if its 14 contours are “sufficiently clear that a reasonable official would understand that what he is doing 15 violates that right.” Kennedy v. City of Ridgefield, 439 F.3d 1055, 1065 (9th Cir. 2006) (quoting 16 Hope v. Pelzer, 536 U.S. 730, 739 (2002)). “It is not necessary that there be a prior case with the 17 identical facts showing that a right is clearly established; it is enough that there is preexisting law 18 that provides a defendant ‘fair warning’ that his conduct was unlawful.” Jennings v. Hays, No. 19 CV10-8004-PCT-JAT, 2011 WL 1480038, at *9-10 (D. Ariz. Apr. 19, 2011) (quoting Kennedy, 20 439 F.3d at 1065). It is the burden of the Plaintiff to show that the contours of the right were 21 clearly established at the time of the alleged misconduct. Clairmont v. Sound Mental Health, 632 22 F.3d 1091, 1109 (9th Cir. 2011). 23 Here, the Court finds that Officer Tanori is entitled to qualified immunity because he 24 violated no clearly established right. The “law is unclear regarding the parameters of the 25 permissible use of pepper spray to address inmates who disobey or interfere with officers in the 26 performance of their duties.” Jennings, 2011 WL 1480038, at *9. As early as 1979, the Ninth 27 Circuit held that tear gas in small amounts might be appropriately used to subdue provocative 1 that a policy of using pepper spray on prisoners who refused to follow direction “falls within the 2 wide-ranging zone of deference accorded to prison officials in shaping ‘prophylactic or preventive 3 measures intended to reduce the incidence of … breaches of prison discipline.’” Stewart v. 4 Stewart, 60 Fed. App’x 20, 22 (9th Cir. 2003) (citing Whitley, 475 U.S. at 322). However, other 5 decisions in the circuit have found a constitutional right to be free from cruel and unusual 6 punishment when prisoners are subject to the use of pepper spray while in custody. See, e.g., 7 Vlasich v. Reynoso, 117 Fed. App’x 568, 569 (9th Cir. 2004) (holding that initial failure to follow 8 orders from prison officials followed by six bursts of pepper spray, when viewed in the light most 9 favorable to the plaintiff, could support a reasonable inference of wanton infliction of pain in 10 violation of the Eighth Amendment) (citing Whitley, 475 U.S. at 320-21)). 11 Multiple cases have held that the law is unclear with regard to the parameters of the use of 12 pepper spray on inmates. See Jennings, 2011 WL 1480038, at *9 (“The law is unclear regarding 13 the parameters of the permissible use of pepper spray to address inmates who disobey orders or 14 interfere with officers in the performance of their duties.”); Brown v. Williams, No. 09-cv-00792, 15 2011 WL 386852, at *5 (E.D. Cal. Apr. 8, 2011) (“There is little Supreme Court and Ninth Circuit 16 published precedent that addresses the use of chemical agents to maintain prison discipline, let 17 alone the use of chemical agents to establish compliance with a lawful order.”) (citations omitted); 18 Howard v. Nunley, No. 06-cv-00191-NVW, 2010 WL 3785536, at *4 (E.D. Cal. Sept. 24, 2010), 19 aff’d, 465 Fed. App’x 669 (9th Cir. 2012) (“Supreme Court and published Ninth Circuit precedent 20 have little to say about the appropriate use of pepper spray or similar agents to enforce prison 21 discipline.”). 22 In sum, even if Officer Tanori’s conduct violated the Eighth Amendment, it would not 23 have been clearly established to a reasonable officer in the situation he confronted that use of 24 pepper spray was not permitted. Accordingly, Officer Tanori is entitled to qualified immunity on 25 claims for damages. 26 CONCLUSION 27 For the reasons explained above, the Court GRANTS Officer Tanori’s motion for partial 1 Court shall issue a separate judgment and the Clerk is instructed to close the matter. 2 3 IT ISSO ORDERED. SO ] 4 || Dated: April 27, 2022 | ( Th 4 5 / / JEFFVIEY 8. WHITE 6 | “Unita States Pfstrict Judge 7 9 10 11 12

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