Smith v. Alexander

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JAMMIE T. SMITH Case No. 3:22-cv-01698-MK

aka JAMMIE SIMMONS,

OPINION AND ORDER

Plaintiff,

v.

T. JACKSON, Multnomah County

Sheriff’s Deputy, individually and in

his official capacity,

Defendant.

_______________________________

KASUBHAI, Magistrate Judge.

Plaintiff, previously an adult in custody (AIC) at the Multnomah County Detention

Center (MCDC), brought this civil rights action and alleged that Defendant used excessive force

and exposed Plaintiff to a substantial risk of harm by leaving him in a cell contaminated with OC

spray. Defendant now moves for summary judgment, and the parties have consented to

resolution of this action by magistrate judge. Upon review of the record and arguments, Plaintiff

fails to raise a genuine issue of material fact to defeat summary judgment, and Defendant’s

motion is GRANTED.

BACKGROUND

At all relevant times, Plaintiff was a pretrial detainee housed at MCDC. The following

facts are taken primarily from Plaintiff’s Amended Complaint and his responses to Defendant’s

Motion for Summary Judgment.1

On October 5, 2020, MCDC deputies deployed OC spray while forcibly removing

another AIC from Cell 3 in Dorm 7. Rodriguez Decl. Ex. 2. Cell 3 remained unoccupied for

several days.

On October 9, 2020, at approximately 10:15 a.m., Plaintiff was moved to Cell 3 in Dorm

7. Am. Compl. ¶ 8. Immediately upon entering the cell, Plaintiff claims that he smelled OC

spray, began coughing, and walked out of the cell. Id. Plaintiff maintains that other AICs

informed him and Defendant that OC spray had been deployed in Cell 3 and the cell had not

been cleaned. Plaintiff then asked Defendant for cleaning supplies. Id. ¶ 9. Plaintiff allegedly told

Defendant that he suffered from preexisting respiratory issues, including asthma. Defendant

denied Plaintiff’s request for cleaning supplies and ordered Plaintiff to remain in Cell 3 and close

the door. Id. ¶ 10.

Fifteen minutes later, Plaintiff pressed the emergency call button and Defendant

responded. Plaintiff claims that his eyes were watery and his breathing was labored. Plaintiff

requested medical assistance and Defendant allegedly responded that Plaintiff would be “all

1 Defendant moves to strike Plaintiff’s second response, construed as a Sur-Reply,

arguing that the Sur-Reply is untimely and fails to comply with the Court’s Local Rules. I agree

that Plaintiff’s Sur-Reply is untimely and acknowledge Defendant’s additional objections.

However, given Plaintiff’s pro se status, I am not inclined to strike the Sur-Reply and would

have allowed Defendant the opportunity to respond if the Sur-Reply arguably raised a genuine

issue of material fact. For the reasons explained below, it does not.

right.” Am. Compl. ¶ 11. Approximately five to ten minutes later, Defendant conducted a

security check of the dorm, and Plaintiff again requested medical assistance for his breathing

difficulties. Defendant responded that he did not have time to address Plaintiff’s complaints

because he had to “give another deputy a break.” Id. ¶ 12. Defendant then left the unit to cover

another deputy’s workstation.

Plaintiff pressed the emergency call button again and Defendant responded after

approximately fifteen to twenty minutes. Id. ¶ 13. Plaintiff requested medical assistance, and

approximately ten to fifteen minutes later, a deputy checked on Plaintiff at Defendant’s request.

Id. The deputy requested the assistance of a nurse, who arrived in approximately ten to fifteen

minutes. Id. ¶¶ 13-14.

The nurse examined Plaintiff and reported that he appeared “slightly tremulous,” with

“slightly” shallow breathing and “no audible wheezing or coughing.” Rodriguez Decl. Ex. 8 at 1.

Plaintiff told the nurse that he had taken puffs of his inhaler and was feeling “a little better.” Id.

The nurse prescribed nasal spray and recommend that Plaintiff be moved to another cell. Id. Ex.

8 at 2. Although the cells in Dorm 7 were full, Plaintiff was moved from Cell 3 after another AIC

offered to “trade” cells. Id. Ex. 5, Ex. 7 at 2. Plaintiff claims that he requested a cold shower to

decontaminate from any contact he may have had with residual OC spray and Defendant denied

the request.2

After October 9, 2020, Plaintiff did not report additional complaints or request further

medical treatment for respiratory distress or breathing problems. Id. Ex. 13 at 2-4.

2 Defendant’s recollection of events on October 9, 2020 differs slightly from Plaintiff’s.

Defendant’s subsequent report indicates that Plaintiff complained about smelling OC spray about

forty minutes after his transfer to Cell 3, and Defendant instructed Plaintiff to “cell in” at that

moment because Defendant did not have time to address Cell 3’s cleanliness. Rodriguez Decl.

Exs. 5, 9. Defendant further reported that dorm workers told him that they had cleaned Cell 3

“vigorously” after the incident on October 5. Id. Ex. 5.

DISCUSSION

Plaintiff alleges that Defendant exhibited deliberate indifference to his health and safety

and used excessive force by ordering him to remain in a cell contaminated with residual OC

spray for over an hour. Defendant moves for summary judgment on grounds that he used no

force against Plaintiff and the evidence does not establish deliberate indifference.

To prevail on his motion for summary judgment, Defendant must show that there is no

genuine dispute as to any material fact and he is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Defendant must present

evidence of record, together with affidavits, if any, that demonstrate the absence of a genuine

issue of material fact. Celotex, 477 U.S. at 323. If Defendant meets this burden, the burden shifts

to Plaintiff to demonstrate the existence of a genuine issue of fact for trial. Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Fed. R. Civ. P. 56(c)(1).

The Court must construe the evidence and all reasonable inferences in favor of Plaintiff,

as the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 255 (1986). The

Court “does not weigh the evidence or determine the truth of the matter, but only determines

whether there is a genuine issue for trial.” Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.

1999). “Where the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec, 475 U.S. at 587 (citation

and quotation marks omitted).

A. Deliberate Indifference

Under the Fourteenth Amendment’s Due Process Clause, pretrial “detainees have a right

against jail conditions or restrictions that ‘amount to punishment.’” See Pierce v. Cty. of Orange,

526 F.3d 1190, 1205 (9th Cir. 2008) (citation omitted). An objective standard applies to

constitutional claims of deliberate indifference brought under the Fourteenth Amendment.

Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). Under this standard, a

pretrial detainee must show:

(i) the defendant made an intentional decision with respect to the conditions under

which the plaintiff was confined; (ii) those conditions put the plaintiff at

substantial risk of suffering serious harm; (iii) the defendant did not take

reasonable available measures to abate that risk, even though a reasonable official

in the circumstances would have appreciated the high degree of risk involved –

making the consequences of the defendant’s conduct obvious; and (iv) by not

taking such measures, the defendant caused the plaintiff’s injuries.

Id. at 1125; see also Sandoval v. Cty. of San Diego, 985 F.3d 657, 669 (9th Cir.), cert. denied,

142 S. Ct. 711 (2021). To satisfy the third element, the plaintiff must show that the defendant's

actions were “objectively unreasonable,” which requires a showing of “more than negligence but

less than subjective intent – something akin to reckless disregard.” Gordon, 888 F.3d at 1125

(quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)).

The evidence of record does not support a claim for deliberate indifference. When

construed in Plaintiff’s favor, the record shows that Defendant ordered Plaintiff to remain in a

cell contaminated with residual OC spray for a little over one hour. Plaintiff presents no evidence

suggesting that Defendant knew or should have known that Cell 3 contained traces of residual

OC spray, or that that the deployment of OC spray three to four days earlier would pose a

substantial risk of serious harm. Plaintiff did not present serious symptoms and was not

wheezing or coughing, and no evidence suggests that other AICs complained about the smell or

presence of OC spray prior to Plaintiff’s transfer to Cell 3. Rodriguez Decl. Ex. 8 at 1. Further,

Plaintiff concedes that Defendant asked another deputy to check on Plaintiff after he repeated his

request for medical help, and Plaintiff was examined by a nurse and moved to another cell.

Finally, Plaintiff admitted that he could have showered during his subsequent “walk time” if he

needed to decontaminate. Id. Ex. 14 at 2. While Plaintiff insists that Defendant was negligent in

failing to obtain immediate medical assistance, negligence cannot sustain a claim for deliberate

indifference. See Pl.’s Opp’n to Mot. Summ. J. (ECF NO. 45); Castro, 833 F.3d at 1071 (stating

that the “‘mere lack of due care by a state official’ does not deprive an individual of life, liberty,

or property under the Fourteenth Amendment”). Under these circumstances, Defendant’s

conduct did not rise to the level of reckless disregard within the meaning of the Fourteenth

Amendment.

Even if Plaintiff arguably raised a genuine issue of fact regarding deliberate indifference,

Defendant is entitled to qualified immunity.

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)

(citation omitted). Determining the application of qualified immunity “involves two inquiries: (1)

whether, taken in the light most favorable to the party asserting the injury, the facts alleged show

the official’s conduct violated a constitutional right; and (2) if so, whether the right was clearly

established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th

Cir. 2009). “To be clearly established, a legal principle must have a sufficiently clear foundation

in then-exiting precedent” and “be ‘settled law.’” District of Columbia v. Wesby, 583 U.S. 48, 63

(2018). Ultimately, “the ‘dispositive inquiry’ in the clearly-established analysis is ‘whether it

would be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted,’ based on the law at the time.” Sandoval, 985 F.3d at 672 (quoting Estate of Ford v.

Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002)).

The Ninth Circuit has held that the failure to provide an AIC with decontamination

procedures after exposure to OC spray can establish a claim for deliberate indifference. Clement

v. Gomez, 298 F.3d 898 (9th Cir. 2002). In Clement, the plaintiffs were indirectly exposed to OC

spray when it was deployed nearby and drifted into their cells. Id. at 901-02. The plaintiffs

alleged that prison officials failed to provide medical treatment and decontamination showers for

at least four hours, despite the ill effects suffered by the plaintiffs. Id. at 902. Under those

circumstances, the Ninth Circuit found that the plaintiffs arguably could “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.” Id. at 905. The Ninth Circuit noted that

the plaintiffs alleged that they were “coughing, gagging, or choking” and the officers themselves

were coughing and stepped “outside for fresh air.” Id.; see also Walsh v. Gower, 2020 WL

1149912, at *5 (D. Or. Mar. 9, 2020) (holding that qualified immunity did not apply when “a

reasonable officer in Defendants’ position would understand that it was unlawful to ignore

Plaintiff’s complaints of pain and deny Plaintiff the opportunity to decontaminate after secondary

exposure to OC spray”).

The facts of this case are easily distinguishable from Clement. Here, Plaintiff was not

exposed, directly or indirectly, to the deployment of OC spray; rather, he was placed in a cell

with residual OC spray left over from its deployment three or four days earlier. Plaintiff received

medical attention within an hour or so after reporting respiratory difficulties, and he was moved

to another cell at the nurse’s recommendation. Given these facts, no reasonable officer in

Defendant’s position would have believed that his actions violated Plaintiff’s rights under the

Fourteenth Amendment.

Accordingly, Plaintiff fails to raise a genuine issue of material fact to defeat summary

judgment on his claim for deliberate indifference.

B. Excessive Force

Plaintiff also alleges that Defendant’s order to remain in Cell 3 constituted the use of

excessive force. To prevail on an excessive force claim brought under the Fourteenth

Amendment, “a pretrial detainee must show only that the force purposely or knowingly used

against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97

(2015). Importantly, “an excessive force claim requires the actual use of ‘force.’” Burns v.

Decarr, 2010 WL 744395, at *3 (S.D. Cal. Mar. 2, 2010) (granting summary judgment on an

excessive force claim where the plaintiff admitted that the defendant “never put his hands on”

him).

Here, Defendant used no force whatsoever against Plaintiff; Defendant did not grab,

shove, or strike Plaintiff and only ordered him to remain in Cell 3. These facts do not support a

claim for excessive force, and summary judgment is granted on this claim.

CONCLUSION

Defendant’s Motion for Summary Judgment (ECF No. 26) is GRANTED, and

Defendant’s Motion to Strike (ECF No. 49) is DENIED. This action is DISMISSED. Any appeal

of this Order or Judgment dismissing this case would be frivolous or not taken in good faith, and

Plaintiff’s IFP status is REVOKED.

IT IS SO ORDERED.

DATED this 14th day of December 2023.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (He / Him)

United States Magistrate Judge