Opinion
No. 2:18-cv-00402-HZ
10-09-2020
RICKY WAYNE KARLE, Plaintiff, v. COLETTE PETERS, JUDY GILMORE, JASON BELL, DAVID PLATT & SCOTT BREWER Defendants.
Jessica Ashlee Albies Maya Rinta ALBIES & STARK, LLC 1 SW Columbia, Suite 1850 Portland, OR 97204 Attorneys for Plaintiff Michael R. Washington OREGON DEPARTMENT OF JUSTICE Trial Division 1162 Court Street NE Salem, OR 97301 Attorney for Defendants
OPINION & ORDER Jessica Ashlee Albies
Maya Rinta
ALBIES & STARK, LLC
1 SW Columbia, Suite 1850
Portland, OR 97204
Attorneys for Plaintiff Michael R. Washington
OREGON DEPARTMENT OF JUSTICE
Trial Division
1162 Court Street NE
Salem, OR 97301
Attorney for Defendants HERNÁNDEZ, District Judge:
Plaintiff Ricky Wayne Karle brings this § 1983 suit against Defendants Colette Peters, Judy Gilmore, Jason Bell, David Platt, and Scott Brewer. Defendants move for summary judgment arguing: (1) Plaintiff cannot establish an Eighth Amendment violation against Defendants Platt and Brewer and (2) Defendants Peters, Bell, and Gilmore cannot be held liable under a theory of respondeat superior. Before Plaintiff had counsel, Plaintiff also moved for summary judgment on his Eighth Amendment claims against Defendants Platt and Brewer. For the reasons below, the Court grants in part and denies in part Defendants' motion and denies Plaintiff's motion.
BACKGROUND
At approximately 5:00 PM on August 6, 2017, officers entered the Disciplinary Segregation Unit (DSU) at Snake River Correctional Institution (SRCI) and deployed chemical agents—both OC spray and a product that combines OC and CS spray—to extract an inmate from his cell. Beaumont Decl. Att. 2 at 5; Rinta Decl. Ex. 22 (RFA 1). At the time, Plaintiff was incarcerated in a nearby cell in the DSU. Id. at Ex. 1 (Karle Dep.) 12:25. Plaintiff testified that after multiple bursts of the OC/CS spray were deployed in the inmate's cell, the spray entered Plaintiff's cell. Id. at 15:4-16. His eyes, face, and arms were affected by the exposure, and he had difficulty breathing, began gagging and itching, and experienced a burning sensation. Id. at 17:4-10, 18:15-24, 12:18-19; 21:21-25.
When the OC/CS spray was deployed in the DSU on August 6, 2017, the air control system was not functioning properly. Earlier that year, Carrier Corporation updated the DSU air control systems. The update lasted until sometime in mid-November 2017. Rinta Decl. Ex. 8 (Pettis Dep.) 10:15-20, 13:8-16, 22:19-25. As a result of the update, the exhaust fans in each cell kept running when the system was put into tear gas mode and the rest of the system was shut off. Id. at 11:3-10. The updated system created negative air space in each cell, forcing air from the common area to enter the individual cells. Id. at 16:2-6.
After he was exposed to the OC/CS spray, Plaintiff asked Defendants Brewer and Platt—both corrections officers at SRCI—for a shower but was denied. Id. at Ex. 1 (Karle Dep.) 22:7-23, 24:22-25:3. Defendant Brewer noticed lingering OC/CS spray when he first arrived onsite with a clean-up crew. Id. at 23:4-6; Rinta Decl. Ex. 3 (Brewer Dep.) 7:19-21. According to Plaintiff, Defendant Brewer denied Plaintiff's request, stating that only those directly sprayed "get decontaminated." Rinta Decl. Ex. 1 (Karle Dep) 23:4-6; Rinta Decl. Ex. 22 (RFA 12). The cleanup crew wore gloves and protective masks to filter out the chemical agent as they cleaned. Rinta Decl. Ex. 2 (Platt Dep.) 11:1-4; Rinta Decl Ex. 6 (Beaumont Dep.) 25:3-19.
Despite attempting to decontaminate himself with a towel and his cell's sink, Plaintiff continued to feel the burning sensation of the chemical agent. Rinta Decl. Ex. 1 (Karle Dep.) 13:4-19:18. He suffered throughout the night and into the next day. He coughed and gagged. His throat still hurt, and his skin felt like it "was on fire." Id. at 21:19-22:4, 37:4-10. He had difficulty sleeping. Id. at 37:11-38:2. He suffered anxiety, shock, and emotional distress because prison officials dismissed his pain and medical needs. Id. at 38:5-39:22. He did not get a shower until 68 hours after his exposure to the OC/CS spray, when he received his regularly-scheduled shower. Id. at 34:11-17; Beaumont Decl. ¶ 8.
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 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 Rsch., 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 its claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
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).
Both Defendants and Plaintiff move for summary judgment on Plaintiff's Eighth Amendment claims against Defendants Brewer and Platt. Defendants also move for summary judgment on Plaintiff's supervisory liability claims against Defendants Peters, Gilmore, and Bell (the "Supervisory Defendants"). The Court addresses each in turn.
I. Deliberate Indifference
Plaintiff alleges that Defendants Brewer and Platt were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. 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 quotations omitted)
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.
Summary judgment is inappropriate on Plaintiff's claims against Defendants Brewer and Platt. There is a dispute of fact as to whether Defendant Brewer was subjectively aware of Plaintiff's serious medical needs. Defendant Brewer was a DSU officer on August 6, 2017, and escorted the body spill orderly to the cell that was contaminated by OC/CS spray. Brewer Decl. ¶ 5. Defendant Brewer recalls being asked by two unknown inmates on the top tier of the unit for a shower without any indication that they were in discomfort. Id. And Defendant Brewer declares he did not speak to Plaintiff—who was on the bottom tier—that night. Id. Plaintiff, however, testified that he asked Defendant Brewer for a decontamination shower, and Defendant Brewer denied his request. Rinta Decl. Ex. 1 (Karle Dep.) 22:7-23:6.
There is a similar dispute of fact regarding the claim against Defendant Platt. Defendant Platt declares that he never saw Plaintiff on August 6, 2017, and could not have been asked for a shower by Plaintiff. Platt Decl. ¶ 5. Defendant Platt was assigned to a different unit of the DSU on the day in question but went to Plaintiff's unit to assist with the extraction. Id. He recalls returning to his assigned unit after the extraction was complete and never entering the bottom tier of Plaintiff's unit. Id. Plaintiff, however, testified that he asked Defendant Platt for decontamination because the spray was affecting him. Rinta Decl. Ex. 1 (Karle Dep.) 22:7-24, 24:22-25:3. Defendant Platt responded "[i]t's not happening." Id. at 24:22-25:3.
Defendants also emphasize that Defendants Platt and Brewer were facing competing concerns throughout the time Plaintiff sought a shower. Defendant Platt was part of the response team responsible for the inmate extraction, and Defendant Brewer escorted the body spill orderly to the unit to clean the cell. Platt Decl. ¶ 5; Brewer Decl. ¶ 5. But whether these concerns are relevant to Defendant's subjective intent is for the jury to decide, particularly where—as here—these concerns were limited in duration and Plaintiff was not provided a shower for 68 hours. See Clement, 298 F.3d at 905 (finding that the plaintiffs might "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"). Accordingly, the Court denies both Plaintiff and Defendants summary judgment on the Eighth Amendment claims against Defendants Brewer and Platt.
II. Supervisory Liability
Defendants also move for summary judgment on Plaintiff's § 1983 claim against the Supervisory Defendants. "[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). "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)). "'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).
Here, Defendants argue that Plaintiff has not demonstrated the Supervisory Defendants were personally involved in the underlying constitutional violation. Def. Mot. 8. Plaintiff responds that there is sufficient evidence in the record for a reasonable jury to find a causal connection between the Supervisory Defendants' actions and Plaintiff's injury. Pl. Resp. 24.
Plaintiff argues that Defendant Peters—Director of ODOC—acquiesced to a deficient and constitutionally repugnant chemical agent decontamination policy that was the moving force behind Plaintiff's injuries. Pl. Resp. 26. He notes that the Director of ODOC is answerable for prisoners' safekeeping and responsible for promulgating ODOC policy. Id. at 25 (citing Or. Rev. Stat. § 423.075(5)(d)). Plaintiff asserts that "[a]s such, and because Defendant Peters had knowledge of prisoners' complaints and the injurious effects of OC spray, there exists sufficient evidence for a reasonable jury to determine that Defendant Peters 'knew or reasonably should have known' of the improper decontamination at issue and that she 'acquiesced in deficient policy that was the moving force' behind [Plaintiff's] injury." Id. But the evidence submitted shows that Defendant Peters was aware of formal and informal complaints regarding decontamination after direct exposure and does not create a reasonable inference that Defendant Peters knew or should have known that ODOC decontamination policies were constitutionally inadequate with regard to secondary exposure. Rinta Decl. Ex. 17 (RFA 4, 5); see Walsh v. Peters, 2:15-cv-01012-MO. In other words, there is no evidence that Defendant Peters was on actual or constructive notice of the risk of constitutional injury here.
Plaintiff also fails to present evidence of Defendant Gilmore's involvement in the underlying constitutional violation. Defendant Gilmore is the Assistant Superintendent of Correctional Rehabilitation at SRCI. Rinta Decl. Ex. 19 (RFA 1). As early as 2016, Defendant Gilmore knew of prisoners' complaints that officers took too long to provide decontamination showers to prisoners suffering from direct exposure to OC spray. Id. (RFA 4, 5). She was also aware that direct exposure to OC spray causes intense burning and pain. Id. (RFA 9). But Plaintiff cites no evidence to suggest that Defendant Gilmore knew or should have known of prisoners' complaints regarding decontamination protocols after indirect exposure to chemical agents. And Defendant Gilmore denied that she had any oversight of security operations, including security training and training development. Id. (RFA 1, 2, 3, 8). Based on the record, there is no evidence that Defendant Gilmore is liable for her own "action or inaction in the training, supervision, or control of her subordinates; for [her] acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of" Plaintiff. See Starr, 652 F.3d at 1208.
A reasonable jury could conclude, however, that Defendant Bell is liable in a supervisory capacity. Defendant Bell is the Assistant Superintendent of Security at SRCI. Rinta Decl. Ex. 4 (Bell Dep.) 7:13-20. As such, he is responsible for DSU security issues, including some oversight of officer training and disciplinary action against officers who violate policies. Id. at 8:1-16; Rinta Decl. Ex. 18 (RFA 1, 2, 3). He testified that he was aware of earlier complaints of issues with secondary exposure. Rinta Decl. Ex. 4 (Bell Dep.) 7:5-8, 29:11-17. Defendant Bell also knew that secondary exposure could cause discomfort as he had briefly been exposed to chemical agents himself during a training. Id. at 20:4-21:14. Taken together, a reasonable jury could infer that Defendant Bell knew or should have known that secondary exposure to OC/CS spray could lead to Plaintiff's injuries, and his failure to take some action to provide decontamination for inmates secondarily exposed to chemical agents could be the moving force behind Plaintiff's injury. See Clement, 298 F.3d at 905 (where inmates recited "numerous instances of the use of pepper spray that allegedly harmed uninvolved bystander inmates" the court concluded that a factfinder could find that policymakers were on "actual or constructive notice of the need to train" (quotations omitted)). Thus, while Defendants' motion should be granted with regard to Defendants Gilmore and Peters, it should be denied as to the claim against Defendant Bell. /// /// ///
Defendants also argue that they are entitled to qualified immunity on Plaintiff's claims, arguing Plaintiff has not demonstrated that Defendants violated Plaintiff's Eighth Amendment rights. Def. Mot. 18-19. Because this argument is duplicative of the Court's analysis regarding the merits of Plaintiff's Eighth Amendment claims, the Court declines to address it separately.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment [48] and DENIES Plaintiff's Motion for Summary Judgment [25]. Defendants Gilmore and Peters are dismissed from this case.
IT IS SO ORDERED.
DATED: October 9, 2020.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge