Opinion
No. 2:18-cv-00607-HZ
12-04-2020
HAMZAI TARIK RUDOLPH, Plaintiff, v. COLLETTE PETERS, MICHAEL GOWER, BRAD CAIN, JUDY GILMORE, JASON BELL, "JOHN" KING, "JOHN" TURNER, "JOHN" DOE, "JOHN" DOE, and "JOHN" ALY, Defendants.
Jesse A. Merrithew LEVI MERRITHEW HORST LLP 610 SW Alder Street Portland, OR 97205 Attorney for Plaintiff Michael R. Washington OREGON DEPARTMENT OF JUSTICE Trial Division 1162 Court Street NE Salem, OR 97301 Attorney for Defendants
OPINION & ORDER Jesse A. Merrithew
LEVI MERRITHEW HORST LLP
610 SW Alder Street
Portland, OR 97205
Attorney 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 Hamzai Tarik Rudolph brings this § 1983 suit against Defendants Collette Peters, Michael Gower, Brad Cain, Judy Gilmore, Jason Bell, "John" King, "John" Turner, "John" Aly, "John Doe," and "John Doe." Defendants now move for summary judgment arguing: (1) Plaintiff cannot establish an Eighth Amendment violation against Defendants King and Turner and (2) Defendants Peters, Gower, Cain, Bell, and Gilmore cannot be held liable under a theory of respondeat superior. Defendants also argue that they are entitled to qualified immunity. For the reasons that follow, the Court GRANTS in part and DENIES in part Defendants' motion.
At oral argument, Plaintiff also stipulated to the dismissal of Defendants "John" Aly, "John" Doe, and "John" Doe. Accordingly, these Defendants are dismissed from this case. --------
BACKGROUND
At around 5:50 PM on November 18, 2017, while Plaintiff was housed in the Disciplinary Segregation Unit ("DSU") at Snake River Correctional Institution ("SRCI"), officers deployed oleoresin capsicum spray containing orthochlorobenzalmalonitrile ("OC/CS spray") as part of the cell extraction of four inmates from three cells in the DSU. King Decl. ¶ 6, Att. 2 at 8-11. Before the extractions began, Defendant King—the Special Housing Lieutenant that evening—requested that the Special Housing Control notify the Physical Plant to deactivate the air handlers on the unit to minimize the effects of the OC/CS spray on bystander inmates. Id. at ¶ 6. But Plaintiff tesitified that he was secondarily exposed because the vents were left on during the extractions. Merrithew Decl. Ex. 1 ("Rudolph Dep.") 31:13-25, 33:2-14. According to Plaintiff, the prisoners screamed at prison staff to turn off the vents because they were still on after the cell extractions began. Id. But staff continued with the extractions without taking any steps to remove the fumes from the air. See id. at 33:2-14.
Both Defendant King and Defendant Turner were on the unit during the extractions. Defendant Turner—who was in the control center—recalls hearing inmates expressing concerns about the ventilation system at the beginning of the final extraction. Merrithew Decl. Ex. 2 (Turner Dep.) 13:10-22, 14:16-25. After the last extraction around 7:30 PM, Defendant King spoke with an inmate who was concerned that the air handlers were still on, causing them to feel the secondary effects of the OC/CS spray. King Decl. ¶ 7, Art. 2 at 10-11. Defendant King followed up with the physical plant and discovered that the air handlers had been turned on before the last extraction was complete. Id. at ¶ 7; Turner Decl. ¶ 6. The air handlers were deactivated again, the smoke evacuation system activated, and each inmate on the unit where Plaintiff was housed was offered clean clothing and an opportunity to shower. King Decl. ¶¶ 7-8; Turner Decl. ¶¶ 6-7.
Plaintiff testified that he and other inmates asked officers for a shower but were not offered one until after the night shift took over. Rudolph Dep. 33:15-24. At approximately 10:40 PM—over four hours after Plaintiff says he was first exposed and alerted prison staff to his exposure—Plaintiff was finally offered a decontamination shower. Id. at 33:17-20, 35:15-22, 37:2-24. He declined because he had already taken a "bird bath" and a hot shower would reactivate the spray, causing him additional pain. Id. at 35:15-22, 18:20-19:5, 47:13-20; King Decl. Att. 2 at 29. Plaintiff also refused a shower offered the next morning. Turner Decl. ¶ 8. He testified that he would have accepted a cold shower if one had been offered. Id. at 47:1-12. Plaintiff's pain from his secondary exposure was a "seven." Rudolph Dep. 29:9-30:13. His chest hurt, he had trouble breathing, and his throat was sore the next day from coughing. Id. at 29:9-30:13, 41:4-14.
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).
Defendants move for summary judgment on Plaintiff's Eighth Amendment claim against Defendants King and Turner and on Plaintiff's supervisory liability claims against Defendants Peters, Cain, Gower, Bell, and Gilmore (the "Supervisory Defendants"). The Court addresses each claim in turn.
I. Deliberate Indifference
Plaintiff alleges that Defendants Turner and King 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, the 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 the plaintiff to succeed, he must show the defendant 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.
There is an issue of fact as to whether Defendant King was deliberately indifferent to Plaintiff's serious medical needs. As Defendants note, Defendant King took various precautionary steps to limit any secondary exposure to the OC/CS spray. Def. Mot. 15-16 (citing King Decl. ¶ 6). Defendant King also asserts that he—along with Defendant Turner—took immediate remedial action once notified of the possible secondary exposure after the last cell extraction, including ordering the physical plant to deactivate the air handlers, activating the smoke evacuation system, and offering inmates showers and clean clothes. King Decl. ¶¶ 7-8. According to Plaintiff, however, Defendant King was notified of the potential problems with the ventilation system earlier in the evening when prisoners began screaming during the first of three extractions. Rudolph Dep. 31:13-25. In addition, Plaintiff testified that he was not provided a shower until 10:40 PM, over four hours after he and other inmates first notified prison staff of their exposure. Id. at 33:17-20, 35:15-22, 37:2-24. Thus, viewed in the light most favorable to Plaintiff, the facts show that Defendant King knew of Plaintiff's potential secondary exposure and delayed pursuing any remedial actions for four to five hours thereafter. See Clement, 298 F.3d at 905 ("In this case, the prisoners may be able to show that the defendants were subjectively aware of the risk of serious injury when they denied showers and medical attention for the inmates for the 4 hour period.").
Similarly, there is a dispute of fact as to whether Defendant Turner was deliberately indifferent to Plaintiff's serious medical needs. Like Defendant King, there is evidence in the record that Defendant Turner became aware that the air handlers had not been turned off during the deployment of the OC/CS spray. Merrithew Decl. Ex. 2 (Turner Dep.) 14:16-25. That evening, he was on the unit as the officer in charge of all operations until 10:20 PM. Id. at 7:22-24. Again, Plaintiff testified that he was not offered a shower until four to five hours after deployment of the spray and after Defendant Turner's shift was over. Thus, viewed in the light most favorable to Plaintiff, Defendant Turner may have been deliberately indifferent to his serious medical needs: Defendant Turner had knowledge of Plaintiff's exposure and failed to provide him with adequate decontamination.
Defendants also emphasize the competing concerns faced by Defendants King and Turner in assembling an extraction team. Def. Mot. 16-17. But whether these concerns are relevant to Defendants' subjective intent is for the jury to decide, particularly as the extraction was complete a few hours before Plaintiff was offered a shower. See King Decl. Art. 2 at 10. Because a reasonable jury could conclude that Defendants King and Turner knew of the risk of harm to Plaintiff and yet delayed decontamination, Defendants King and Turner may be liable for deliberate indifference.
II. Supervisory Liability
Defendants also move for summary judgment on Plaintiff's § 1983 claims 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)) (emphasis added). "'The requisite causal connection can be established . . . by setting in motion a series of acts by others or by knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury.'" Rodriguez v. Cnty. 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. Cnty. 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).
The Court finds that Defendants are entitled to summary judgment on Plaintiff's claim against the Supervisory Defendants. Viewed in the light most favorable to Plaintiff, the evidence does not demonstrate that Defendant Peters acquiesced to an unconstitutional chemical agent decontamination policy that was the moving force behind Plaintiff's injuries. Defendant Peters has policymaking responsibilities related to the safekeeping of prisoners, Pl. Resp. 15 (citing Or. Rev. Stat. § 423.075(5)(d)), and she admitted that she had knowledge of both formal and informal complaints from inmates that officers took too long to provide showers to inmates who had been directly exposed to chemical agents, Merrithew Decl. Ex. 5 (RFA 4, 5). Defendant Peters was also a named defendant in a 2015 prisoner civil rights case alleging improper decontamination after direct exposure to OC spray. See Walsh v. Peters, 2:15-cv-01012-MO. Plaintiff, however, has not demonstrated that Defendant Peters knew or should have known ODOC's decontamination policy was inadequate as it relates to inmates who are indirectly exposed to chemical agents. Cf. 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)).
Similarly, no reasonable jury could conclude that Defendant Cain is liable for Plaintiff's injury. As with the claims against Defendant Peters, Plaintiff here argues that Defendant Cain knew or should have known of the improper decontamination issue and acquiesced to a deficient policy that was the moving force behind Plaintiff's injury. Pl. Resp. 17. Defendant Cain is the Superintendent of SRCI. As Superintendent, he likely received an email alerting ODOC superintendents to issues with decontamination after direct exposure to chemical agents: "Questions have been raised regarding our methods of allowing inmates to decontaminate after having received an application of OC Spray. These are incidents of direct exposure and not those inmates that may have received secondary exposure from being in the vicinity of the application." Merrithew Decl. Ex. 8. Two months after the incident, Defendant Cain responded to a grievance from another inmate regarding the November 18 incident. Merrithew Decl. Ex. 7. And five months later he signed off on incident reports regarding the use of force that evening. Merrithew Decl. Ex 6. But again, this evidence does not demonstrate that Defendant Cain knew or should have known at the time of Plaintiff's injury that SRCI's decontamination process or policy was deficient as it relates to inmates indirectly exposed to chemical agents.
Plaintiff makes no argument and provides no evidence as to the personal involvement of Defendants Gower, Bell, or Gilmore. Accordingly, Defendants' motion for summary judgment on Plaintiff's supervisory liability claim is granted, and the Supervisory Defendants are dismissed from this case.
III. Qualified Immunity
Defendants also argue that they are entitled to qualified immunity on Plaintiff's claims because it is not clearly established that providing a hot—rather than cold—shower for decontamination constituted deliberate indifference the Eighth Amendment. Def. Mot. 19. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When analyzing a qualified-immunity question, the court applies a two-step process. First, a court "must decide whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right." Id. at 232. "Second . . . the court must decide whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts have discretion regarding "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236.
"A clearly established right is one that is 'sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'" Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Courts "'do not require a case directly on point'" to defeat a claim of qualified immunity, "'but existing precedent must have placed the statutory or constitutional question beyond debate.'" Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); see also Greisen v. Hanken, 925 F.3d 1097, 1108-09 (9th Cir. 2019). In conducting this analysis, "[t]he dispositive question is 'whether the violative nature of particular conduct is clearly established.'" Mullenix, 136 S. Ct. at 308 (quoting al-Kidd, 563 U.S. at 742). "This inquiry 'must be undertaken in light of the specific context of the case, not as a broad general proposition.'" Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)); see also City of Escondido, Cal. v. Emmons, 139 S. Ct. 500, 503 (2019).
The Court finds that Defendants are not entitled to summary judgment on Plaintiff's Eighth Amendment claim. In Garcia v. Pope, the plaintiff alleged that the defendants were deliberately indifferent to the plaintiff's health and safety when they exposed him to a warm-water decontamination shower. 2:18-cv-01573-MC, 2020 WL 1068239, at *1 (D. Or. March 5, 2020). The defendants argued that qualified immunity defeated the plaintiff's claim, and the court agreed, citing cases from other districts and finding that "no controlling or even persuasive authority has held that warm-water decontamination showers constitute deliberate indifference." Id. at *2 (citing cases from the Southern District of New York, Southern District of Ohio, District of Maryland, Western District of Virginia, Central District of California, Eastern District of Virginia, Eastern District of North Carolina, and the Southern District of California). The court noted, however, that "[i]n the few cases denying qualified immunity, the inmates were subjected to additional conditions that exacerbated their pain and discomfort." Id. at *3 (citing cases from the Southern District of West Virginia and the Eastern District of California where the plaintiff was subjected to "excessively hot water" and was denied medical assistance or moved to solitary confinement without fresh clothing or bedding). Because the plaintiff in Garcia "[did] not allege any disregard to his health or safety aside from the warm water," was provided other methods of decontamination, and was not forced to take a shower, the court concluded that "it was not clearly established that [the] plaintiff's Eighth Amendment rights would be violated by exposure to a warm decontamination shower." Id. at *3.
Here, unlike in Garcia, Plaintiff's Eighth Amendment claim against Defendants King and Turner is not solely based on the temperature of the water in the DSU. Rather, Plaintiff also alleges that Defendants knew that the inmates in the DSU on November 18 had been indirectly exposed to chemical agents and delayed in providing them any relief. Compl. 1-2, ECF 2. When viewed in the light most favorable to Plaintiff, the record shows that Defendants Turner and King had notice of the issues with the ventilation system during the first extraction but failed to turn off the ventilation system and clear the air until all three extractions were complete. They also failed to provide Plaintiff with an opportunity to shower until over four hours after they had notice of Plaintiff's exposure. At the time of this incident, it was clearly established that a delay in providing relief after exposure to chemical agents may constitute an Eighth Amendment violation. See Clement, 298 F.3d at 904 (finding prison officials may have violated the Eighth Amendment "if, in fact, they were aware of the harmful effects of the pepper spray and of the inadequacy of their ventilation methods and yet purposefully refused to provide showers, medical care, or combative instructions[.]"). Accordingly, Defendants are not entitled to qualified immunity.
CONCLUSION
The Court GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment [44]. Defendants Peters, Gower, Cain, Bell, Gilmore, "John" Aly, "John" Doe, and "John" Doe are dismissed from this case.
IT IS SO ORDERED.
DATED: December 4, 2020.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge