Hoffman v. Peters

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHRISTOPHER ROY HOFFMAN, No. 2:18-cv-00720-HZ

Plaintiff, OPINION & ORDER

v.

COLLETTE PETERS, JUDY GILMORE,

JASON BELL, JOSHUA PATTERSON,

GREG WILSON, JOSEPH GODEK, MIKE

MCELROY, MATTHEW LYONS, JIM

MOORE, DAVID PLATT, ROBERT JONES,

ALBERT NASBY, WENDY BLEVINS,

Defendants.

Christopher Roy Hoffman

2889 S.E. Hillside Ct. #805

Milwaukie, OR 97222

Pro Se Plaintiff

Ellen Rosenblum

Attorney General

Michael R. Washington

Senior Assistant Attorney General

OREGON DEPARTMENT OF JUSTICE

1162 Court Street NE

Salem, OR 97301

Attorneys for Defendants

HERNÁNDEZ, District Judge:

Pro Se Plaintiff Christopher Roy Hoffman brings this civil rights action under 42 U.S.C.

§ 1983 against Defendants Collette Peters, Judy Gilmore, Jason Bell, Joshua Patterson, Greg

Wilson, Joseph Godek, Mike McElroy, Matthew Lyons, Jim Moore, David Platt, Robert Jones,

Albert Nasby, and Wendy Blevins. Plaintiff alleges Defendants violated his Eighth Amendment

rights when Defendants did not provide him with a shower for over 48 hours after exposure to

OC spray. Plaintiff and Defendants now move for summary judgment. For the reasons below, the

Court denies Plaintiff’s motion and grants in part and denies in part Defendants’ motion.

BACKGROUND

Plaintiff entered the custody of the Oregon Department of Corrections (“ODOC”) on

August 6, 2015, and was housed at Snake River Correctional Institution (“SRCI”) from

September 2, 2015 to August 9, 2017. Blevins Decl. ¶ 3, ECF 40. At the time of the events at

issue in this case, Defendants Patterson, Wilson, Godek, McElroy, Lyons, Moore, Platt, Jones,

Nasby, and Blevins were all correctional officers employed at SRCI. Am. Compl. at 2, ECF 19.

Defendants Gilmore and Bell were both assistant superintendents at SRCI in charge of

supervision of the segregated housing unit, and Defendant Peters was the director of ODOC. Id.

at 3.

On July 26, 2016, at about 12:30pm, Plaintiff was one of approximately 35 inmates

involved in a dining room riot at SRCI. First Hoffman Decl. Ex. 1 at 1, ECF 34. Correctional

staff responded to the incident and deployed oleoresin capsicum (“OC” or “pepper”) spray to

stop the fight. Id. at 2. Plaintiff was sprayed with OC spray by correctional staff, who then

escorted Plaintiff to the Disciplinary Segregation Unit (DSU) where he was handcuffed to a wall.

Id. Plaintiff was evaluated by a sick call nurse. Id. at 3; DiGiulio Decl. ¶ 5, Att. 1 at 8, ECF 39.

The nurse noted in medical records that Plaintiff denied injury and had been sprayed in the face.

DiGiulio Decl. ¶ 5, Att. 1 at 8. Plaintiff alleges that he told the nurse he was burning alive and

needed a shower and the nurse responded that a shower would be provided soon. Am. Compl. at

4. Plaintiff was provided with clean clothes and a wet towel to decontaminate upon entering the

DSU along with the 34 other inmates who had either been sprayed or exposed to OC spray. First

Hoffman Decl. Ex. 1 at 3. Plaintiff alleges he complained of horrific burning and pain to officers

and was told he would get a shower soon. Am. Compl. at 4.

Shortly thereafter, Plaintiff was placed in a cell in Unit B of the DSU (“DSB”). Am.

Compl. at 4. He alleges that he complained to Defendants Patterson and Wilson that he was in

pain and had yet to receive a shower. Id. He requested a shower and was denied. Id. Later, after

swing shift officers arrived, he complained to Defendants Godek and McElroy that he had been

sprayed, was “burning alive,” and had yet to be decontaminated. Id. at 4–5. He requested a

shower from both officers and was denied. Id. at 5. He contends that he spent the whole night

“suffering horrific burning.” Id. He attempted to decontaminate by splashing water from the sink

in his cell onto himself, but the spray ran off “into other areas to make matters worse.” Id. The

next morning, he asked day shift officers Defendants Wilson and Lyons for a shower but was

ignored. Id. at 5–6. He also asked to speak to a sergeant, but Defendants never contacted one. Id.

at 6.

On July 27, he was transferred to another cell in Unit C of the DSU (“DSC”). First

Hoffman Decl. Ex. 1 at 4. Showers were conducted for the side of DSC opposite Plaintiff’s cell.

Id. at 4–5. Defendant told Defendants Blevins, Platt, Moore, and McElroy that he had been

sprayed and had yet to receive a shower. Am. Compl. at 6. Defendants Blevins and Platt

responded with comments like “that sucks” and “yea that spray is no joke” but told Plaintiff he

would not receive a shower until the following day. Id. Again, Plaintiff’s request for new clothes,

a towel, and bedding was denied. Id. Plaintiff suffered a second night of horrible pain. Id. at 7.

He alleges that the spray was in his skin, that his “eyeballs felt like they were on fire and

melting,” and that his “eyelids were sticking to his eyeballs like glue.” Id. “It felt like Plaintiff

was cooking alive.” Id. His clothing and sheets were contaminated, so “Plaintiff was constantly

burning no matter what he did.” Id.

On July 28, 2016, Defendants Jones and Nasby began conducting showers on Plaintiff’s

side of DSC for the upper tier. Id. Plaintiff’s cell was on the bottom tier. Id. Plaintiff asserts that

he complained to both Defendants Jones and Nasby that he was suffering from the OC spray. Id.

He again requested a shower, and Defendants stated he would receive one when the next shift

arrived. Id. Plaintiff finally received a shower later that day, over 48 hours after being sprayed.

Id. at 8; First Hoffman Decl. Ex. 1 at 5. Defendants assert that they did not have the opportunity

to deviate from the set shower schedule in DSU during this time because of the influx of 35

inmates from the July 26 riot and the restrictions used in DSU, such as two person escorts. First

Hoffman Decl. Ex. 1 at 9.

Plaintiff submitted his first formal grievance on August 11, 2016, to complain that he was

denied a shower after being sprayed with OC spray. First Hoffman Decl. Ex. 6. Lieutenant Jantz

responded a few weeks later, finding that the use of force and decontamination complied with

current training and standards and noting that services may be limited or suspended during a

major disruption. First Hoffman Decl. Ex. 7. On September 4, Plaintiff appealed his grievance.

First Hoffman Decl. Ex. 8. On October 5, 2016, Defendant Gilmore responded to Plaintiff’s

grievance appeal by explaining that: “During a major disruption of the institution, services may

be limited or suspended based on institutional need. While not getting the opportunity to shower

on your time line must have been frustrating, you did get a shower at the institution’s earliest

convenience.” First Hoffman Decl. Ex. 9. Plaintiff filed a second grievance appeal and received

a final response on October 27, 2016, that reaffirmed Defendant Gilmore’s decision. First

Hoffman Decl. Exs. 10, 11.

Plaintiff subsequently filed this lawsuit. Plaintiff alleges Defendants violated his Eighth

Amendment right against cruel and unusual punishment when Defendants refused to provide him

with a decontamination shower 50 hours after exposure to OC spray. Am. Compl. at 9. He

asserts Defendants failed to abide by administrative rules, ODOC policy, and state law, and that

Defendants’ actions were “malicious, . . . sadistic, intentional, diliberate [sic], reckless and

calleous [sic].” Id. In addition, Plaintiff claims that Defendant Peters, Bell, and Gilmore are

liable for the conduct of their co-defendants by failing to adequately supervise, train, and

discipline their subordinates, which was the direct and proximate cause of his injuries. Id. at 10–

13. Plaintiff seeks a declaratory judgment, compensatory damages of $150,000, and punitive

damages in the amount of $300,000. Id. at 13–14.

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 Research, 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 his claim than would otherwise be necessary. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment is improper

where divergent ultimate inferences may reasonably be drawn from the undisputed facts.”

Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (internal

quotation marks omitted); see also Int'l Union of Bricklayers & Allied Craftsman Local Union

No. 20, AFL-CIO v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985) (“Even where the

basic facts are stipulated, if the parties dispute what inferences should be drawn from them,

summary judgment is improper.”).

DISCUSSION

Plaintiff alleges that in failing to decontaminate him for 50 hours after exposure to OC

spray Defendants violated the Eighth Amendment. Plaintiff brings his claim 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).

Plaintiff and Defendants now both move for summary judgment. Plaintiff moves for

summary judgment on the merits of his claims against Defendants Patterson, Wilson, Godek,

McElroy, Blevins, Moore, Platt, Jones, and Nasby, arguing that the undisputed facts establish

that Defendants were deliberately indifferent to his serious medical needs in violation of the

Eighth Amendment when they denied him the opportunity to shower for 50 hours after he was

exposed to OC spray. Pl. Mot. Summ. J. 1, ECF 34. Defendants move for partial summary

judgment and ask the Court to dismiss Defendants Blevins, Bell, Gilmore, Peters, and Jones

because they were not personally involved in the alleged constitutional deprivations at issue here

and cannot be liable under a theory of respondeat superior. Def. Mot. Partial Summ. J., ECF 38.

Because a reasonable jury could conclude that Defendants were not deliberately

indifferent to Plaintiff’s serious medical need, the Court denies Plaintiff’s motion. The Court,

however, grants in part and denies in part Defendants’ motion. There is a dispute of fact as to

whether Defendant Jones was personally involved in the underlying constitutional deprivation,

but Plaintiff has not presented evidence that Defendants Blevins, Bell, Gilmore, and Peters were

personally involved in the alleged constitutional violation. Accordingly, Defendants Blevins,

Bell, Gilmore, and Peters are dismissed from this case.

I. Plaintiff’s Motion for Summary Judgment

Plaintiff moves for summary judgment as to Defendants Patterson, Wilson, Godek,

McElroy, Blevins, Moore, Platt, Jones, and Nasby1 on the merits of his Eighth Amendment

claims. 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 citations 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 “mere

1 Plaintiff also moves for summary judgment against Defendant Saxton. However, Defendant

Saxton is not named in Plaintiff’s Amended Complaint. See Pl. Resp. Def. Mot. Summ. J. 2

(“Plaintiff concedes that he failed to name Defendant (Saxton) in his new amended complaint so

the court has valid grounds to dismiss this defendant.”). Accordingly, the Court declines to

address claims against Defendant Saxton.

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.

In Clement v. Gomez, bystander inmates were exposed to pepper spray vapors when

pepper spray was administered in a neighboring cell to stop a violent fight. 298 F.3d at 902.

Prison officials did not provide the bystander inmates with decontamination showers until four

hours after the incident. Id. The defendants moved for summary judgment on the plaintiffs’

Eighth Amendment claims, arguing that they were not deliberately indifferent to the bystander

inmates’ serious medical needs. Id. at 901. The Ninth Circuit first found that the plaintiffs’

submissions—which documented the painful effects of pepper spray—satisfied the objective

component of the Eighth Amendment test by demonstrating the presence of a serious medical

need. Id. at 904. The court then found that the plaintiffs might be able to show that the

defendants were subjectively aware of the risk of serious injury and therefore deliberately

indifferent in denying the plaintiffs showers and medical attention during the four-hour period.

Id. at 905. The court emphasized that the officers themselves were coughing and stepped outside

for fresh air, and that the prisoners alleged that they made repeated requests for attention; were

coughing, gaging, or choking; and complained of breathing problems, pain, and asthma attacks.

Id. at 905. The court therefore concluded the defendants were not entitled to summary judgment

on the plaintiff’s Eighth Amendment claim.

Similarly, here, the effects of the pepper spray may qualify as a “serious medical need.”

See Clement, 298 F.3d at 904. Based on the record, however, a reasonable jury could find that

Defendants lacked the requisite mental state. First, Defendants took various precautions after

Plaintiff was sprayed with OC spray in compliance with administrative regulations. Plaintiff was

provided a damp towel for his eyes. First Hoffman Decl. Ex. 1 at 3. Plaintiff was examined by a

nurse and observed for 30 minutes by officers following exposure. DiGiulio Decl. ¶¶ 5–6. Upon

admission to DSU, he was given clean clothing and a cell with access to water. First Hoffman

Decl. Ex. 1 at 3; Am. Compl. at 5. Such actions were consistent with Department of Corrections

regulations, which provide: “Those affected by a chemical agent shall be permitted to wash their

face, eyes, and other exposed skin areas, as soon as possible after the chemical agent has been

used.” OAR 291-013-0104(5)(f). These regulations further specify that inmates exposed to a

chemical agent shall be provided with clean clothing, an examination by a health care official,

observation in the half hour following application of the chemical agent, and “a shower as soon

as time and circumstance allows.” Id. at (h)–(k). Though not definitive, Defendants’

precautionary measures and compliance with administrative regulations suggest that they lacked

the requisite state of mind. See Jones v. Gomez, No. C 04-3034 SI(PR), 2005 WL 3001866, at

*4–6 (N.D. Cal. Nov. 8, 2005) (“Although prison officials cannot avoid liability in every case by

blindly following a prison's policy because the policy itself may be infirm, following the policy

here suggests a reasonable choice to deal with pepper spray.”).

Second, the record reflects that Defendants faced competing concerns throughout the

time Plaintiff requested a decontamination shower. See Clement, 298 F.3d at 905 n.4 (“These

competing tensions—the prisoners’ need for medical attention and the government’s need to

maintain order and discipline—may be important to the resolution of whether the officials had

the requisite subjective intent.”); see also Peralta, 744 F.3d 1076, 1082 (9th Cir. 2014) (“[T]he

Court has told us that prison officials aren't deliberately indifferent to a prisoner's medical needs

unless they act wantonly, and whether an official's conduct “can be characterized as ‘wanton’

depends upon the constraints facing [him].”) Specifically, Defendants assert that they were

unable to deviate from the set shower schedule in DSU because of the influx of the 35 inmates

involved in the underlying incident and restrictions in DSU. First Hoffman Decl. Ex. 1 at 9.

Defendant Gilmore indicated that Plaintiff received a shower “at the institution’s earliest

convenience.” First Hoffman Decl. Ex. 9. In short, while Defendants may have been on notice

that Plaintiff was suffering from the effects of the pepper spray, see Am. Compl. at 5–7, a

reasonable jury could find that Defendants did not act with deliberate indifference in denying

Plaintiff a shower. Summary judgment is therefore inappropriate in this case.

II. Defendants’ Partial Motion for Summary Judgment

Defendants also move for summary judgment on the claims against Defendants Blevins,

Bell, Gilmore, Peters, and Jones, arguing these Defendants should be dismissed from this case

because Plaintiff has not demonstrated that they were personally involved in the alleged

constitutional deprivation.2 Def. Mot. Summ. J. 3–4. “In order for 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[.]” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Thus, “there

is no respondeat superior liability under § 1983. Rather, a government official may be held liable

only for the official’s own conduct.” Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1097 (9th

Cir. 2013). “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

2 Defendants make additional arguments in support of their motion for summary judgment,

including Eleventh Amendment immunity and qualified immunity. But because Plaintiff has

failed to show that Defendants Blevins, Bell, Gower, Gilmore, Saxton, Peters, and Lo were

personally involved in the alleged constitutional deprivation, the Court declines to reach the

remainder of Defendants’ arguments.

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 (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), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994).

Here, Plaintiff asserts that he is not alleging that Defendants Bell, Gilmore, or Peters (the

“Supervisory Defendants”) had personal involvement in the underlying constitutional violations.

Pl. Resp. Def. Mot. Summ. J. 1–2, ECF 44. Rather, he contends, the Supervisory Defendants

“knowingly implement [sic] a deficient policy for decontamination of chemical agents in which

denied Plaintiff a shower for over 48 hours when the supervisors were put on notice in (2002).”

Id. Plaintiff cites a prior lawsuit against SRCI “FOR THE EXACT SAME THING.” Id. at 9

(citing First Hoffman Decl. Ex. 2 at 5–6). From this, Plaintiff suggests that the Supervisory

Defendants should have been aware of an unconstitutional policy or custom implemented by

their subordinates. Id. Plaintiff also contends that the holding of Clement constituted “notice” to

the Supervisory Defendants that “denying an inmate a shower who has been contaminated by

chemical agents for 4 hours was ruled unconstitutional.” Pl. Resp. Def. Mot. Summ. J. 2. The

heart of Plaintiff’s argument, therefore, appears to be that the Supervisory Defendants knowingly

failed to adequately train and supervise their staff, thus allowing the officers in this case to

“directly violate law established in Clement.” Id. at 2.

Here, however, Plaintiff presents insufficient evidence that the Supervisory Defendants

are liable for deliberate indifference. Plaintiff has offered no evidence that these Defendants were

personally involved with the alleged constitutional violation or had knowledge of the alleged

violation and failed to take action to stop it. While Clement may provide the requisite notice that

the failure to decontaminate a prisoner after exposure to pepper spray could constitute a violation

of a prisoner’s constitutional rights, it does not demonstrate that the prison officials here were on

notice that Defendant’s rights were being violated or that the officers in question customarily

disallowed showers. And in Clement, the plaintiffs’ submissions recited numerous uses of pepper

spray that had allegedly harmed bystander inmates such that supervisory liability could have

existed because of a deficient policy. 298 F.3d at 905 (“A factfinder may find that the

policymakers and supervisors were on actual or constructive notice of the need to train.”); see

also Starr, 652 F.3d at 1216 (where the county sheriff received reports of inmate deaths and

injuries related to ongoing culpable actions by his subordinates and failed to take corrective

action to protect inmates, the plaintiff had plausibly alleged that the sheriff had acquiesced to the

unconstitutional conduct of his subordinates and was therefore deliberately indifferent to the

danger posed to the plaintiff). By contrast, here, Plaintiff cites one lawsuit that was ongoing at

the time of this incident. The record reveals only that ODOC was “in the middle of a civil suit

with an inmate at SRCI for the exact same thing” and that “without admitting liability [ODOC]

settled two cases for $27,000 with an inmate who alleged that he had been sprayed with a

chemical agent and was not allowed a shower upon request.” First Hoffman Decl. Ex. 2 at 5–6.

Without further information, this suit does not—on its own—establish the requisite knowledge

of a constitutional violation to establish supervisory liability in this case.

Plaintiff otherwise fails to provide any evidence to support his allegations that

Defendants failed to discipline or adequately train and supervise officers with the proper policies,

procedures, or administrative rules. Rather, as described above, the evidence suggests that the

officers followed prison policies and administrative rules following Plaintiff’s exposure to OC

spray. See supra Section I. And Plaintiff does not argue that the policies in place at the time were

unconstitutional. Because there is no dispute of material fact about the lack of Defendants’

personal involvement in the underlying claims, summary judgment is granted to Defendants Bell,

Gilmore, and Peters.

As to Defendants Blevins and Jones, the Court finds that summary judgment is

appropriate only as to Defendant Blevins. Defendant Blevins states that she was in the control

room in the DSC and then assigned paperwork related to influx of inmates into the DSU during

the period in question. Blevins Decl. ¶ 5. Plaintiff concedes that Defendant Blevins had no

personal involvement in this case. Pl. Resp. Def. Mot. Summ. J. 2. By comparison, there is an

issue of fact over whether Defendant Jones was personally involved in the alleged Eighth

Amendment violation. Unlike Defendant Blevins, Defendant Jones was working as floor staff in

DSC on July 28. Jones Decl. ¶ 6, ECF 41. Though Defendant Jones does not recall “having much

interaction with [Plaintiff]” or Plaintiff asking Defendant Jones for a shower, id., Plaintiff

contends that on July 28, 2016, he asked Defendant Jones if he could shower because he was

suffering from the effects of the OC spray, Am. Compl. at 7. Accordingly, the Court denies

Defendants’ motion to dismiss Defendant Jones from this case.

CONCLUSION

The Court DENIES Plaintiff's Motion for Summary Judgment [34] and GRANTS in part

and DENIES in part Defendants’ Motion for Partial Summary Judgment [38]. Defendants Bell,

Gilmore, Peters, and Blevins are dismissed from this case.

IT IS SO ORDERED.

Dated this / h day of Lbs , 2019.

WN

ARCO A. HERNANDEZ,

United States District Judge

15 — OPINION & ORDER