The opinion
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11 UNITED STATES DISTRICT COURT
12 NORTHERN DISTRICT OF CALIFORNIA
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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.,
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Defendants.
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Plaintiff Gary R. Xavier (“Plaintiff”) is a California state prisoner formerly housed at the
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Salinas Valley State Prison where the incident giving rise to his claims took place. Plaintiff,
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originally proceeding pro se, filed a complaint alleging civil rights violations under 42 U.S.C.
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Section 1983 against four officials for an incident on August 30, 2017 (“the Incident”) during
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which Plaintiff was sprayed with Oleoresin Capsium (“OC”) pepper spray. Plaintiff had alleged
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claims for relief under Section 1983 against Defendants Correctional Officer C. Tanori,
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Correctional Sergeant E.W. Beam, and Correctional Officer J. Ramirez for violating his Eighth
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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.
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3 IT ISSO ORDERED. SO ]
4 || Dated: April 27, 2022 | ( Th 4
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/ JEFFVIEY 8. WHITE
6 | “Unita States Pfstrict Judge
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