Alba v. Amsberry

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JASON EDWARD ALBA, No. 2:20-cv-00545-HZ

Plaintiff, OPINION & ORDER

v.

SUPERINTENDENT BRIGITTE

AMSBERRY; ASST. SUPERINTENDANT

RICHARD McGRAW; LIEUTENANT

JASON DUCHEK; SERGEANT SCOTT

BROWN; LIEUTENANT J. McLOUTH; &

OFFICERS M. KING, J. TOVAR, J. BRADY,

L. FERGUSON, K. STOCKTON, T. HART,

Defendants.

Franz Bruggemeier

Juan Chavez

PO Box 5248

Portland, OR 97208

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 Jason Edward Alba brings this § 1983 case against Defendants Superintendent

Brigitte Amsberry, Assistant Superintendent Richard McGraw, Lieutenant Jason Duchek,

Sergeant Scott Brown, Lieutenant J. McLouth, Officer M. King, Officer J. Tovar, Officer J.

Brady, Officer L. Ferguson, Officer K. Stockton, and Officer T. Hart. Defendants move for

summary judgment arguing: (1) Plaintiff cannot establish an Eighth Amendment violation

against Defendants McLouth, King, Tovar, Brady, Ferguson, Stockton, and Hart; (2) Defendants

Amsberry, McGraw, Duchek, and Brown cannot be held liable under a theory of respondeat

superior; and (3) Defendants are entitled to qualified immunity. For the reasons that follow, the

Court grants Defendants’ motion.

BACKGROUND

On April 8, 2018, Plaintiff was involved in an altercation with other inmates at Eastern

Oregon Correctional Institution. Duchek Decl. Exs. 1–2, ECF 17. To stop the altercation, officers

sprayed Plaintiff in the head, face, and neck with oleoresin capsicum (“OC”) spray, and he was

taken to the Disciplinary Segregation Unit (“DSU”). Alba Decl. ¶ 4, ECF 30.

When he arrived at the DSU, Plaintiff was placed into a small plexiglass cell for at least

40 minutes. Id. ¶¶ 5, 27. Plaintiff was not provided any fresh air, which made it difficult for

Plaintiff to breathe. Id. ¶¶ 5–6. Plaintiff also felt like he was “on fire,” and his eyes hurt so much

he thought he “was going to go blind.” Id. ¶ 6. But Plaintiff was not offered any way to wash or

decontaminate his face or eyes other than a wet towel. Id. ¶¶ 7–8. A nurse came by to evaluate

Plaintiff for injuries from the fight but did not ask him about his pain from the chemical agent or

provide him with any advice on decontamination. Id. ¶ 10. After 45 minutes, Plaintiff was

offered a shower by Defendant King. Id. ¶ 11. He was provided a hot shower, which only

intensified his pain. Id. ¶ 12. He was then placed into a DSU housing cell, where his clean

clothes and bedding were contaminated with the OC spray remaining on his body. Id. ¶ 13. The

spray on his body, clothes, and bedding caused him pain, made him cough and choke, and

affected his ability to sleep for days. Id. ¶¶ 14–15. Days later, a second shower—provided on

Plaintiff’s regularly-scheduled shower day—reactivated the spray for a few more days. Id. ¶ 20.

Plaintiff asserts that he sought additional decontamination measures but was denied. Soon

after his exposure, he asked Defendant King if he could wash his face and was told he would

only get a wet towel. Id. ¶ 9. In the days that followed, he asked everyone he could about

decontamination, including whether he should use hot or cold water and how he could

decontaminate to stop the pain he was experiencing. Id. ¶ 16. According to Plaintiff, Defendants

said that he could only get a shower and that they could not control the temperature of the water.

Id. Plaintiff also asserts that he told each officer walking the tier multiple times about the pain he

was experiencing and asked for a shower and clean clothes. Alba Decl. ¶¶ 18, 23, 28, 30, 31.

According to Plaintiff, at least two of the Defendants—Officers Stockton and Brady—made

statements suggesting they believed Plaintiff deserved his ongoing pain because he had been

fighting and was in the DSU. Id. ¶ 32.

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 Scott, King, Tovar, Brady, Ferguson, Stockton, and Hart (the “Officer Defendants”),

and on Plaintiff’s supervisory liability claims against Defendants Amsberry, Duchek, and Brown

(the “Supervisory Defendants”).1 Defendants also argue that they are entitled to qualified

immunity on Plaintiff’s claims. The Court addresses each in turn.

I. Deliberate Indifference

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

1 Plaintiff concedes that he does not have enough evidence to support his claims against

Defendants McGraw and McLouth. Accordingly, Defendants McGraw and McLouth are

dismissed from this case.

(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 “[ml]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.

Here, the Officer Defendants were not deliberately indifferent to Plaintiff’s medical needs

in the period immediately following his exposure to OC spray. As Defendants point out, Plaintiff

was provided a wet towel, observed for 30 minutes by Defendant King, examined by a nurse,

and provided a shower in the hour after he was sprayed. Duchek Decl. § 5. Though Plaintiff

alleges discomfort during this one-hour period, the actions of the Officer Defendants do not arise

to an Eighth Amendment violation. Cf Clement, 298 F.3d at 905 (finding a four-hour delay of

medical attention and showers after secondary exposure to OC spray could amount to deliberate

indifference under the Eighth Amendment); Perez v. Nooth, No. 2:18-cv-01244-HZ, 2020 WL

3037214, * 5 (D. Or. June 5, 2020) (finding a reasonable jury could conclude the defendants

were deliberately indifferent where the plaintiff waited at least an hour for a shower and there

was evidence that another inmate who had “minimum contact with OC spray” was offered and

refused a shower forty minutes earlier).

After his hot shower, however, the Officer Defendants’ actions may have been

constitutionally deficient. Plaintiff submits evidence that the temperature of the shower

6 — OPINION & ORDER

exacerbated his pain. Alba Decl. ¶¶ 11, 12. As a result, Plaintiff suffered from significant

discomfort while in his DSU cell. Id. ¶¶ 12–15 (declaring that he could not adequately wash

because of the water temperature so his linens and clothing were contaminated by the spray

remaining on his body). He repeatedly requested additional decontamination and was denied

until his next regularly-scheduled shower day a few days later. Id. ¶¶ 16, 18, 20, 23, 28, 30, 31.

And Plaintiff alleges that each of the Officer Defendants was personally involved. Plaintiff asked

each of the Officer Defendants for additional decontamination when they walked by his cell. Id.

Taken in the light most favorable to Plaintiff, a reasonable jury could conclude that the Officer

Defendants were aware of Plaintiff’s risk of harm and yet failed to provide Plaintiff with

adequate decontamination. Accordingly, Defendants may be liable for deliberate indifference.

II. Supervisory Liability

“[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. 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).

The evidence does not demonstrate that the Supervisory Defendants are liable. Plaintiff

submits evidence that Defendant Amsberry knew or should have known that hot showers can

exacerbate OC resin on skin. Bruggemeier Decl. Ex. 2 (2016 email to ODOC superintendents),

ECF 31. Plaintiff also declares that Defendant Amsberry as the Superintendent “runs everything

in the prison and is responsible for making or approving policies and making sure the prison

follows the laws and the OARs.” Alba Decl. ¶ 25. But aside from Plaintiff’s own declaration,

there is no evidence in the record as to the responsibilities or authority of Defendant Amsberry in

her role as the Superintendent of EOCI. Similarly, Plaintiff submits no evidence as to the

responsibilities or authority of Defendant Duchek other than broad assertions that he “ran the

DSU,” “made sure the policies are followed,” and “was the top of DSU chain.” Id. ¶ 26. Without

evidence as to the responsibilities of these Defendants, no reasonable jury could find that

Defendant Ducheck and Amsberry’s actions, inactions, or acquiescence to a policy could be the

moving force behind Plaintiff’s injury. Accordingly, the claim against Defendants Ducheck and

Amsberry are dismissed.

reheT rea onsitgaella that ntndaDfee Brown was ylrslpeona dvenvoli ni het ngyirlunde

,ntdeinci but shi lduavindii onsitca ddi not etaolvi het hghtiE .ntendmAem ffintiPal sgeella that

ntndaDfee Brown detnsrucit rsecfiof ot vegi het setanmi dolc gsra nda showrse wnhe yhet

dverria ni het DSU, nda he detcredi na recfiof ot put ffintiPal ni het small sasglxiepl oslurence ni

het hour refta he was d.syepra Abal Decl. ƒ 27. As stated ,bovea ,rhowvee sheet stcfa d o not

sriea ot na hghtiE ntendmAem on.itaolvi ,ynglordiAcc ryasmum nteudgmj si osla dentgra sa ot

het mialc nsitgaa ntndaDfee Brown.

III. Qualified Immunity

“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 . . . 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).

In Garcia v. Pope, the district court was presented with a similar Eighth Amendment

claim. Case No. 2:18-cv-01573-MC, 2020 WL 1068239, at *2 (D. Or. March 5, 2020), aff’d 841

F.App’x 28 (9th Cir. March 25, 2021). There, 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. Id. at *1. The defendants argued that qualified immunity

defeated the plaintiff’s claim, and the court agreed, finding that “no controlling or even

persuasive authority has held that warm-water decontamination showers constitute deliberate

indifference.” Id. at *2. The court further noted that “most courts addressing this issue have

rejected claims of deliberate indifference arising from a warm or hot decontamination shower.”

Id. (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). And “[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 shower,” 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, too, Plaintiff’s claims are barred by qualified immunity. Like the plaintiff in

Garcia, the crux of Plaintiff’s Eighth Amendment claim relates to the hot temperature of the

shower. As noted above, the allegations stemming from the hour-long period before his shower

do not amount to an Eighth Amendment violation. And Plaintiff’s discomfort after his shower is

the direct result of the hot shower. At the time of this incident, it was not clearly established that

Plaintiff’s Eighth Amendment rights would be violated by exposure to a hot or warm

decontamination shower or by the failure to provide a second shower for further

decontamination. In other words, a reasonable officer would not have known that he was

violating the Eighth Amendment in providing Plaintiff with a hot shower or failing to provide

him with a second shower. Because the claims related to the hot-water shower are the sole

deliberate indifference claims remaining in this case, the Court finds that Defendants are entitled

to summary judgment and this case is dismissed.

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CONCLUSION

The Court GRANTS Defendants’ Motion for Summary Judgment [66]. This case is

dismissed.

IT IS SO ORDERED.

DATED:___O__c_t_o_b_e_r_ 2_9_,_ 2__0_2_1_____.

MARCO A. HERNÁNDEZ

United States District Judge