explaining that chemical agents may not be used as punishment, and may be used in non-dangerous quantities only in situations reasonably likely to result in injury to persons or a substantial amount of valuable property
How later courts described this case
- explaining that chemical agents may not be used as punishment, and may be used in non-dangerous quantities only in situations reasonably likely to result in injury to persons or a substantial amount of valuable property
- setting forth requirements for qualified immunity to apply
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2025
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID L REED, No. 24-2705
D.C. No. 2:19-cv-00103-RFB-NJK
Plaintiff - Appellee,
v. MEMORANDUM*
BEAN, Associate Warden; Lt GLENN
FOWLER; ERIC ROMERO,
Defendants - Appellants,
and
JAMES DZURENDA, Director,
Defendant.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware, II, District Judge, Presiding
Submitted June 18, 2025**
Before: CANBY, S.R. THOMAS, and SUNG, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendants-appellants appeal from the district court’s interlocutory order
denying their motion to dismiss, on the basis of qualified immunity, David L.
Reed’s 42 U.S.C. § 1983 action alleging excessive force and failure-to-protect
claims arising during pretrial detention. We have jurisdiction under 28 U.S.C.
§ 1291 and the collateral order doctrine. Garraway v. Ciufo, 113 F.4th 1210, 1216
(9th Cir. 2024). We review de novo. Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.
2010). We affirm.
The district court properly denied qualified immunity because Reed alleged
facts sufficient to show that defendants-appellants violated the Fourteenth
Amendment when they participated in pepper-spraying Reed three hours after
visually verifying that he lay calmly in his bunk and posed no threat, and
defendants-appellants’ actions contravened clearly established law at the time of
the incident. See Castro v. County of Los Angeles, 833 F.3d 1060, 1068-71 (9th
Cir. 2016) (en banc) (setting forth standard for pretrial detainee claims under the
Fourteenth Amendment); Dunn, 621 F.3d at 1199 (setting forth requirements for
qualified immunity to apply); Spain v. Procunier, 600 F.2d 189, 195-96 (9th Cir.
1979) (explaining that chemical agents may not be used as punishment, and may
be used in non-dangerous quantities only in situations reasonably likely to result in
injury to persons or a substantial amount of valuable property).
We do not consider matters not specifically and distinctly raised and argued
2 24-2705
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
AFFIRMED.
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