# SPADA

> District Court, W.D. Pennsylvania · July 22, 2022

URL: https://www.frixlaw.com/law-library/cases/11342296

## Case

- **Full name:** Zachary Spada v. Captain Richard Houghton, et al.
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** July 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ZACHARY SPADA, :
Plaintiff :
v. : Case No. 1:20-cv-223-SPB-KAP
CAPTAIN RICHARD HOUGHTON, :
et al., :
Defendants :
Report and Recommendation
Recommendation
I recommend that the pending motion for summary judgment, ECF no. 53, be
granted, and this case ended.
Report
Plaintiff Zachary Spada, an inmate in the Pennsylvania prison system familiar to
the Court from Case No. 3:13-cv-113-KAP, Case No. 3:13-cv-256-KRG-KAP, Case No.
3:14-cv-26-KRG-KAP, Case No. 1:18-cv-273-SPB, Case No. 1:14-cv-107-JFM-SPB, Case
No. 1:14-cv-299-SPB, Case No. 1:20-cv-298-SPB-RAL, Case No. 1:15-cv-202-SPB, Case
No. 1:18-cv-255-KRG-KAP, and Case No. 1:21-cv-158-SPB-KAP, submitted a complaint
in August 2020 alleging federal and state law claims against employees of the Erie County
Prison (Prison) as a result of the use of oleoresin capsicum (OC) spray against him on six
occasions in September through November of 2018, when Spada was a pretrial detainee
at the Prison. After screening of the complaint led to the dismissal of defendants not
involved in the episodes of use of OC spray, colorable claims remained against the
defendants who did use OC spray on Spada: Richard Houghton, Shawn Bolt, and Albert
Wood. After discovery, defendants filed a motion for summary judgment and supporting
documents, ECF nos. 53-57, to which Spada responded, ECF nos. 58-61, with a surreply
by defendants, ECF no. 62. Key documents are Spada’s deposition, ECF no. 54-1, his
counterstatement of facts, ECF no. 59, and his affidavit, ECF no. 58.
Legal standards
A party moving for summary judgment bears the initial burden of pointing the
district court to the basis in the record for its argument that there is no genuine issue of
material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). If the moving party
does so, Fed.R.Civ.P. 56 then obliges the party opposing summary judgment to show by
competent evidence that there is a genuine factual dispute, that is, that sufficient evidence
exists so that a reasonable jury applying the relevant law could return a verdict for the
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nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). Where
there is a factual dispute, all reasonable inferences must be drawn in favor of the
nonmoving party, in this case the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). This does not mean that the burden of proof shifts to the
defendants: Spada still has to show a genuine issue for trial under the governing law.
To state a claim for the excessive use of force, a pretrial detainee like Spada must
show that the force purposely or knowingly used against him was objectively
unreasonable. There is no subjective component. Kingsley v. Hendrickson, 576 U.S. 389,
396–97 (2015). Objective reasonableness is a case-specific finding that depends on the
perspective of a reasonable corrections officer on the scene at the time of the use of force,
taking into account the legitimate government interest in deciding what policies are
appropriate to manage pretrial detention facilities. See Florence v. Bd. of Chosen
Freeholders of Cty. of Burlington, 566 U.S. 318, 322–23, (2012) (In the course of
approving strip searches of all detainees booked in two New Jersey county prisons, the
Supreme Court observed “In addressing this type of constitutional claim courts must
defer to the judgment of correctional officials unless the record contains substantial
evidence showing their policies are an unnecessary or unjustified response to problems
of jail security.”) See also id. at 326 (“Maintaining safety and order at these institutions
requires the expertise of correctional officials, who must have substantial discretion to
devise reasonable solutions to the problems they face.”).
A nonexhaustive list of factors that bear on the reasonableness or
unreasonableness of the force used includes the relationship between the need for the use
of force and the amount of force used, the extent of the plaintiff's injury, any effort made
by the officer to temper or to limit the amount of force; the severity of the security problem
at issue; the threat reasonably perceived by the officer; and whether the plaintiff was
actively resisting. Kingsley v. Hendrickson, supra, 576 U.S. at 397. This is well-settled
law. See Smith v. Mensinger, 293 F.3d 641, 648-49 (3d Cir.2002), quoting Brooks v.
Kyler, 204 F.3d 102, 106 (3d Cir.2000)(balancing the need for use of force, the
relationship between the need and the amount of force used, the extent of injury inflicted,
the threat to staff and other inmates perceived by the corrections officers, and any efforts
made to temper the severity of the force used.)
The focus in excessive force claims is on the use of force and not any injury,
although as precedent uniformly recites the extent of injury is a relevant factor in deciding
whether a use of force is excessive. Given the development of chemical sprays (CN, CS,
OC gas), electric shock devices (tasers, stun guns), high decibel/low frequency acoustic
devices (sound cannons), and impact devices (bean bag rounds, “rubber” bullets, water
cannons), law enforcement officers now have numerous alternatives along the spectrum
from using no force to using lethal force. Use of lethal force was, is, and hopefully always
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will be a rarity, but it is an error to evaluate a nonlethal use of force with the unexamined
assumption that the default choice is “no force” because historically that was the only
alternative to lethal force. When evaluating whether a jury could find a particular use of
nonlethal force excessive, a court must focus instead on events from the perspective of the
law enforcement officers, asking what was the threat to order reasonably perceived by the
officers and what were the available responses.
OC spray, considered by itself, is far down the spectrum of available nonlethal
options. OC is a naturally occurring substance produced from the oily resin of cayenne
and other peppers, and the same chemical reaction that makes hot peppers desirable in
cooking or makes capsaicin cream useful as a pain reliever is why OC is used by law
enforcement officers and civilians. The burning sensation from the spray causes
incapacitation from lacrimation and swelling when it contacts the eyes and from swelling
of the mucous membranes of the trachea when it is inhaled. The effects are, and are
intended to be, painful and temporary. Because of its popularity as an alternative to older,
more toxic (and in some cases banned) agents such as CS (“tear gas”) and CN (“mace”),
OC spray has been used an uncounted number of times in the last 30 years (and the Court
can take judicial notice that in many jurisdictions OC spray is widely available for civilian
use). For background reading, see “The Effectiveness of and Safety of Pepper Spray,” NCJ
195739, available at the Department of Justice’s Office of Justice Programs National
Institute of Justice website. (A paper copy is appended to this report for the benefit of
plaintiff.) Unsurprisingly, there is a substantial body of law specifically involving the use
of OC spray by law enforcement officers. Precedent can be summed up as holding the use
of OC to obtain compliance with a legitimate order does not violate any rights, but use of
OC as a form of corporal punishment does. See McCoy v. Alamu, 950 F.3d 226, 231 (5th
Cir. 2020), vacated on other grounds, 141 S. Ct. 1364 (2021) (vacating a finding of
qualified immunity for officer who intentionally used OC to spray an inmate in his cell
without warning or provocation after a different inmate had thrown something at the
officer). This is consistent with the longstanding principle that corporal punishment is
not a permissible sanction within our constitutional system. For just two examples, see
then-Judge Blackmun’s opinion in Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968),
outlawing use of flogging in Arkansas, and Hope v. Pelzer, 536 U.S. 730 (2002), declaring
that it is clearly established law that punishing an inmate by hitching him to a post
shirtless in the June sun of Alabama is cruel and unusual.
Applying that principle, it follows that using OC on an inmate locked in his cell who
poses no threat to staff or inmates, even if no serious injury is caused, can be found by a
jury to be corporal punishment and therefore to violate the Eighth Amendment. See
Robinson v. Danberg, 673 Fed.Appx. 205, 212 (3d Cir. 2016). But this is true of a
gratuitous punch or unjustified prolonged solitary confinement as well as of the
gratuitous use of OC spray: the fact that OC spray is painful does not place it in a different
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legal category from other nonlethal uses of force, although its action as a respiratory
agonist when inhaled calls for care when the person sprayed has other conditions that
would hamper breathing such as asthma or similar conditions, or is morbidly obese, or
is in physical or postural restraints.
The fact that an inmate is no threat to physically harm another person also does
not make the use of OC spray to obtain compliance with orders excessive. See Passmore
v. Ianello, 528 Fed.Appx. 144, 148 (3d Cir. 2013)( In a case from the Erie County Prison,
the court wrote “[B]efore Defendant Ianello resorted to using the pepper spray, he warned
Passmore, giving him one more chance to comply. In light of these undisputed facts, the
use of pepper spray was reasonable in these circumstances and the District Court properly
granted the Defendants' motion.”) See also Giles v. Kearney, 516 F. Supp. 2d 362, 369 (D.
Del. 2007), aff'd, 571 F.3d 318 (3d Cir. 2009) (“[T]he use of force was justified in response
to Giles defiant and argumentative behavior, as well as his repeated refusals to obey
orders. By spraying capstun instead of using physical handling, Blades applied
proportionate force to quell Giles' behavior.”), and see Enoch v. Perry, 2020 WL 4057643,
at *7 (W.D.Pa. July 20, 2020) (use of pepper spray on an inmate by an officer to secure
compliance with an order was objectively reasonable, but the later use of the spray on the
inmate when unconscious was not); Brown v. Beard, 2009 WL 10701467, at *12 (W.D. Pa.
Mar. 9, 2009) (inmate did not comply with orders to submit himself to be handcuffed
through the food slot, and a corrections officer administered a two-second burst of OC
through the aperture in the cell door. A later burst of OC spray and a stun gun were used
to obtain compliance with a strip search.)
As the history of McCoy v. Alamu illustrates, a second legal principle is important
here: corrections officers are shielded by qualified immunity from liability for money
damages when their conduct does not violate clearly established legal rights. See Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). If official defendants “reasonably but mistakenly
conclude[]” that their conduct conformed to the law they are entitled to immunity. Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). Qualified immunity therefore operates
to additionally protect officers from liability at the “sometimes hazy border between
excessive and acceptable force,” unless they were on notice that their conduct was
unlawful. Couden v. Duffy, 446 F.3d 483, 492 (3d Cir.2006) (Fourth Amendment),
quoting Saucier v. Katz, 533 U.S. 194, 206 (2001). Another way of putting that is that to
find a corrections officer, the officer had to have “fair warning” that his “specific acts were
unconstitutional.” Taylor v. Riojas, 141 S. Ct. 52, 53, 208 L. Ed. 2d 164 (2020)(per
curiam).
On September 1, 2018, Spada arrived at the Prison. He had previously been in the
state prison system, most recently at S.C.I. Houtzdale for several years while serving a
previous sentence imposed for crimes also committed in Erie. ECF no. 54-1 at 10-11.
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Houtzdale staff had notified Prison staff that Spada “claimed to be a sovereign citizen,
claimed to be suicidal, and might otherwise be combative with staff upon his admission
to the facility.” ECF no. 54, ¶ 6. It is not in dispute that Spada is mentally ill (in fact Spada
alleged his mental illness as a basis for an attempted ADA claim in a civil suit he was
prosecuting when he was committed to the Prison, and in a more recent habeas corpus
petition as a claim that his misconducts should be excused because of his mental illness);
according to defendants, Spada has a mental health diagnosis of Type I Bipolar Disorder.
ECF no. 54 at 2. In his deposition, Spada stated, “When I am off my medication I
frequently go what they call manic, having racing thoughts, inability to sleep,
impulsiveness, restlessness. Generally manic.” ECF no. 54-1 at 4.
Spada was a behavioral problem from the outset, and in fact was criminally
charged with aggravated assault (he later pleaded guilty to aggravated harassment by a
prisoner) for biting a corrections officer while he was being booked. See ECF no. 54-6.
Later that day, Spada was sprayed with OC spray (the incident is not one which Spada
claims is excessive, See ECF no. 54-1 at 17-20) for banging on his cell walls and barricading
himself behind a mattress. Defendants’ Concise Statement of Material Facts lists
numerous other misconducts at the Prison for which Spada was found guilty, including
another criminal charge for Spada’s conduct on day two in the Prison (September 2, 2018)
in which Spada threatened a corrections officer and his family, referencing the officer’s
home address and his son by name. Spada later pleaded to disorderly conduct. See ECF
no. 54-1 at 20 and Exhibits, passim. Spada argues in his Counterstatement of Facts that
these other episodes are irrelevant to the case. See ECF no. 59, ¶¶ 1, 6-25. That is
incorrect: any jury evaluating the use of force by Prison staff would have to consider the
information available to them about what problems or potential problems Spada posed.
Spada himself tacitly admits that his behavioral issues were real by explaining that they
were due to medication dosages issues which were not corrected until after November 2,
2018. See ECF no. 59, ¶28; ECF no. 58, ¶20. Spada also admits that as early as September
4, 2018, he expressly told the Prison’s deputy warden that he would be a model prisoner
if he were housed as he desired but that there would be “an extraordinary incident every
day” if he were not. ECF no. 54-1 at 25-26.
After the biting and barricading incidents Spada was placed in the Restricted
Housing Unit. See ECF no. 54, ¶¶ 8-18. Spada’s disruptive behaviors continued there
almost daily, and included loud singing and screaming, assault, throwing water on the
floor, slapping the walls and shaking the bars of his cell, urinating and defecating on the
floor and the walls of his cell, self-mutilation, harassment, refusal of orders, threats,
destroying, defacing, or damaging property, and interfering with the duties of staff. Spada
argues that he was not aware of the Prison’s rules against these activities because he
destroyed his prison handbook upon receipt, ECF no. 59, ¶¶ 5, 54. In most cases Spada
admits to the noisemaking activity that corrections officers described, but complains that
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the Prison was overly restrictive compared to what he had become accustomed to at
Houtzdale. See ECF no. 58 ¶ 13. In Spada’s own words, he was placed in the RHU there
many times but even when he would kick the door to his cell repeatedly in defiance of
orders to stop, “they still don’t use OC spray.” See ECF no. 58, ¶12. Spada’s position is
that his interpretation of the policies at Houtzdale sets the standard for the Prison and
“No inmate should be sprayed for verbally screaming [but] not causing a physical
disturbance.” Id. ¶ 20. As for banging on cell fixtures and surfaces, that is a customary
form of aggression in Houtzdale called “bang[ing] each other out.” ECF no. 58, ¶12. In
fact, Spada explains his banging on cell fixtures as a “technique of banging when buttons
aren’t answered” he “learned” at Houtzdale. ECF no. 58 ¶15. According to Spada, OC spray
was not used there even for “shit[ting] one another down,” ECF no. 58, ¶12, another
Houtzdale practice which, just as it sounds, is an inmate’s use of feces or urine as weapons.
In this connection, Spada admits that he defecated outside the toilet in his cell on
numerous occasion, thus arming himself with potential weapons.
The first disputed use of OC spray was in the evening of September 4, 2018. See
ECF no. 54, ¶¶ 31-38. Earlier that day, Spada had made a claim of sexual harassment in
order to gain access to the prison hotline, which he used to attempt to call his
grandmother. That evening, Wood said he observed Spada repeatedly banging on his cell
gate and window with his hands and head. Wood ordered Spada to stop and asked if
Spada had any thoughts of hurting himself. According to Wood, Spada did not respond
and resumed the banging, and Wood use a single burst of OC spray to Spada’s face and
head, at which point Spada ceased banging. Spada admits he was banging (using only his
hands) on the cell gate to get “help.” ECF no. 59, ¶31, and states he stopped the banging
and had turned and was walking away when Wood sprayed him. See ECF no. 54-1 at 29-
30; ECF no. 58, ¶¶ 5-6. Spada was taken to the medical unit for decontamination. Spada
could not remember whether he admitted the behavior which led to the use of OC spray
(“I fucked up… it’s my fault) because he allegedly was in extreme distress (eyes burning,
mucous spewing from mouth and nose) from the OC spray which, if his version of the
facts were accurate, could only have hit him in the back of the head. ECF no. 58, ¶10.
Spada asserts that if he had continued to bang it would not have mattered anyway because
his cell had nothing in it he could destroy. ECF no. 58, ¶11 (Spada repeats this in
subsequent incidents, see ECF no. 58, ¶20).
On the morning of October 3, 2018, Spada slammed his meal tray against his cell
wall. See ECF no. 54, ¶¶ 64-70. Around noon, Spada was brought to the RHU conference
room for purposes of observation while his cell was being inspected. When told to
surrender his glasses and prison uniform, Spada engaged in a physical altercation with
the correctional officers and bit one of them. Someone sprayed Spada with OC spray to
to gain control over him, though the record does not identify which staff member sprayed
Spada. Spada was immediately escorted to the prison shower for decontamination and
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then returned to an observation cell and placed in a restraint chair. Spada later pleaded
guilty to aggravated assault for biting the officer. Spada does not dispute these events but
claims they are immaterial to the events later that day. ECF no. 59, ¶¶ 65-69.
Later that night, see ECF no. 54, ¶¶ 75-77, Spada again was banging on his cell and
screaming. Spada believes that he was sprayed on this occasion due to his screaming and
the use of spray was excessive because in his view screaming is part of permissible conduct
in the RHU. ECF no. 58, ¶17. He refused orders to stop screaming and according to
defendants climbed on his cell desk and appeared to be tampering with the wall-mounted
light fixture. Houghton responded to the disturbance and ordered Spada to get down
from the desk and Spada refused. Houghton administered a burst of OC spray against
Spada to gain his compliance. This caused burning and stinging and made Spada cry; he
thought Houghton was trying to kill him and that he was going to die. ECF no. 58, ¶22.
Spada was then removed from his cell for decontamination. Spada admits that he was
screaming, but not standing on a desk or banging on anything, and asserts that Houghton
used OC spray without warning. ECF no. 54-1 at 36-39. Spada later pleaded guilty to
misconducts for damaging property and refusing orders in this episode, but Spada states
that he pleaded guilty to a host of offenses without knowing what conduct they entailed.
Id.
On October 3, 2018, Spada covered the observation camera in his cell with a
sticker, and was issued a misconduct to which he pleaded guilty; he repeated this
tampering with the camera lens on October 4, 2018. ECF no. 54-1 at 39-40. On October
8, 2018, Spada smeared his cell observation camera with cream he had obtained from the
medical department. When he responded to the cell, Houghton (Spada admits Hughton
had told him not to cover his cell camera, ECF no. 54-1 at 42, but due to his mental illness
he could not remember that instruction on October 8, 2018, ECF no. 59, ¶83) used a short
burst of OC spray into Spada’s cell. Spada was escorted to the gym shower for
decontamination and denied physical injury. When Spada was charged with institutional
offenses he replied, “He didn’t warn me. He just sprayed me.” ECF no. 54, ¶ 89; ECF no.
58, ¶27. Spada’s position is that it was objectively unreasonable for Houghton to use OC
spray “because no warning was given directly before Houghton used OC and an inmate is
entitled to know what punishment a given action will carry.” ECF no. 59, ¶84. See also
ECF no. 58, ¶¶ 31-32 (explaining he was not “actively resisting” because no order had been
given.) Spada’s asserted injury from this third contested use of spray was the same
burning pain lasting several days that OC spray always caused, see ECF no. 58, ¶33, and
ECF no. 58, ¶48, plus having to go through the decontamination process, which Spada
calls “torture” because he claims water “activates” the oil-based molecules of oleoresin
capsicum. ECF no. 59, ¶34; ECF no. 58, ¶49. Spada does not explain what other
decontamination process could be used. He admits that he previously denied any injury
and that he refused an offer to have his eyes rinsed out in addition to the shower. ECF no.
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54-1 at 43.
The fourth and fifth claims are based on events of October 29, 2018. ECF no. 54,
¶¶ 100-105. The previous day Spada had flooded his cell by stuffing his mattress in the
toilet; he also tampered with the electrical outlet and the light. ECF no. 54-1 at 44-47. On
October 29, Deputy Warden Holman told Spada there would be no more final chances or
warnings, but Spada does not recall that OC spray was mentioned. In any case, later that
morning Spada was singing and yelling in his cell, and he ripped his paper gown and
stuffed it in the cell toilet. Bolt told him to quit putting his gown in the toilet. According
to Bolt, Spada stopped stuffing the toilet but continued to yell and sing and repeatedly
struck his sink with his fists and arms. Spada admits the stuffing and yelling but denies
striking his sink, and claims Bolt sprayed him to punish him for screaming after he
removed the paper gown from the toilet and had stopped screaming and laid down in his
bunk. ECF no. 58, ¶¶36, 38-39. A team took Spada to the gym shower for
decontamination.
After decontamination on October 29, 2018, Spada was placed in an isolation cell
at the gym to cool down. During that time, Spada asked to use the bathroom, and while
there Spada made a “urine bomb” by removing his new paper gown, placing it over the
toilet, and urinating into it. Houghton came to the scene and ordered Spada to “dump it
out.” When Spada failed to comply Houghton used a burst of OC spray on Spada. Spada
was taken to the shower for decontamination once again, and returned to the RHU. ECF
no. 54, ¶¶ 107-113. Spada, for his part, admits to urinating in his gown, ECF no. 58, ¶42
but avers that he couldn’t hear Houghton’s orders and thought Houghton might only be
telling him to take the gown out of the toilet because that was what Bolt had told him to
do earlier in the day. ECF no. 54-1 at 50, 52. When Spada told Houghton that Spada
couldn’t hear him, Spada says Houghton opened the tray slot in the door and used OC
without further warning, ECF no. 54-1 at 51-52. Spada believes that the use of spray was
excessive because states he dropped the gown just before being sprayed and Houghton
could have given him clearer orders. ECF no. 58, ¶42.
On November 1, 2018, Spada defecated on the floor of his cell; he pleaded guilty to
the misconduct issued to him. ECF no. 54-1 at 52-53. The very next day, November 2,
2018, Wood observed Spada playing with feces in his cell. ECF no. 54, ¶¶ 117-122. Spada
had smeared feces across his cell window and walls but according to Spada not outside of
the cell. ECF no. 58, ¶46. Wood says he ordered Spada to position himself to be placed in
handcuffs, an order that Spada refused. Wood used OC spray and Spada was extracted
from his cell to be decontaminated. Spada said Wood came to the unit, saw what Spada
had been doing, and without any order to be handcuffed simply sprayed him for ten
seconds without any preamble. ECF no. 58, ¶¶46-47; ECF no. 54-1 at 54-55. On this
occasion Spada thought he was going to die, and any admissions of fault he might have
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made were attempts to keep the officers from killing him. Id. He believes that use of spray
was excessive because locked in his cell he was no “severe” threat to anyone else. ECF no.
58, ¶47.
Spada admits that the misconduct reports generated at the Prison were accurate,
except for the ones generated in connection with the incidents which he claims
constituted the use of excessive force. ECF no. 54-1 at 56-57. He does not claim that, much
less explain how, any use of OC spray injured him other than causing him temporary pain
that he claims lasted up to a few days after decontamination. He does not claim to have
had any respiratory conditions contraindicating use of OC spray, and his subjective belief
that on some occasions “it felt like” a corrections officer used a whole can of OC spray on
him (and then walked into that same environment) does not constitute evidence that an
excessive amount was used on those occasions because each time OC spray was used
Spada claims to have suffered the same injuries.
This case is one of the few where recitation of the disputed facts alone should make
it clear that no jury faithfully following the law could ever find the defendants liable. Even
if a jury believed Spada’s claims that every single time just before the OC spray was used
he had stopped the conduct that he believed the corrections officers were trying to stop
(although they had given him no orders), no jury could find the use of bursts of OC spray
followed by decontamination to be exaggerated responses to the almost nonstop threat to
order that Spada presented. A jury would be bound to consider, in assessing the threat
perceived by defendants, that not many pretrial detainees commit new criminal offenses
against corrections officers on day one and day two of pretrial detention. A jury might be
found that would believe Spada’s assertions Wood, Bolt, and Houghton were “trigger-
happy” compared to other corrections officers he had met in his cumulative ten years of
incarceration. ECF no. 58, ¶25. A jury might even resolve credibility disputes in Spada’s
favor about whether a specific order had been given before spray was used. But Spada’s
belief that any use of OC spray when he disputes its necessity is per se excessive, or that
he was no threat on particular occasions, are not issues of fact.
Likewise, Spada’s beliefs that screaming was permitted or part of life in the RHU
or not worthy of an attempt to stop it, or that he could not destroy anything in his cell if
he tried, or that locked in his cell he was not a “severe” danger, or that covering a camera
was no big deal, do not create an issue of fact. A jury could not find the conduct of
defendants improper based on Spada’s claim, even if true, that the DOC has different
policies. As Spada recognizes, he was in a large (he estimated 700 inmates) county prison,
not a DOC facility ECF no. 58, ¶31. The policies useful for managing a population
combining pretrial detainees (some of them in prison for the first time and ultimately to
be found not guilty of anything and some of them mentally ill violent recidivists like
Spada) alongside of short-term sentenced offenders are different in kind from those in a
9
DOC facility, and Spada’s disagreement with those policies is irrelevant.
Even the most credulous jury that could be seated could not draw the inferences
from the facts that Spada needs to avoid summary judgment. As one example, consider
the encounter with Houghton on October 29, 2018. Spada, admittedly having weaponized
his clothing, suggests that Houghton was in the wrong for opening the slot and spraying
him, when Spada simply couldn’t understand Houghton’s order because the cell door was
closed. This is a child’s argument. In Spada’s case it is a malicious child’s argument: no
jury could find Houghton liable even if Houghton sprayed Spada without warning instead
of exposing himself to a urine bomb in order to ensure that Spada could not later claim
not to have heard Houghton clearly. The same thing goes for September 4, 2018 and other
instances when a jury could believe Spada’s claim that he did not hear a command or had
heard it and had just complied with it: no officer need sit by Spada’s cell round the clock
to ensure that Spada did not resume his disruptive conduct. Use of OC gas in such a
situation, assuming a jury believed Spada, would be as a temporary incapacitant, not a
punishment.
As for Spada’s suggestion that any use of OC spray when was locked in his cell was
excessive, no jury would be allowed to accept Spada’s underlying legal principle that the
only threat to order permitting the use of OC spray is an ongoing physical attack such as
Spada’s biting of a corrections officer. It is beyond dispute that Spada was a direct physical
threat even locked in his cell. In his first week, Spada was defecating outside his toilet or
stuffing things in his toilet. The need to check the cell (or clean it) as a result of Spada’s
conduct would have made Spada’s temporary removal from the cell necessary: flooding
cells and weaponizing bodily wastes are direct physical threats. Given Spada’s assault on
a corrections officer on day one, any use of OC spray to manage the ongoing threat posed
by Spada’s potential use of bodily waste as a weapon could never be characterized as
excessive. Use of OC gas in such a situation, even assuming a jury believed Spada, would
be as an incapacitant, not as punishment.
Further, defendants could reasonably use OC spray to stop behaviors that
endangered only Spada, with or without giving him a verbal command first. The Court
has, just as I have had, numerous cases where the legal claim is based on the inmate’s
assertion that corrections officers failed to protect the inmate from deliberately harming
himself. Every use of OC spray during an incident when a corrections officer might
reasonably have believed Spada could be endangering himself, whether by climbing on
desks, tampering with lights, defecating outside a toilet, covering a camera, or stuffing a
gown in a toilet, is justified by the need to get Spada to stop that behavior. Given Spada’s
express threat that he would cause an incident every day to get his own way, a jury, even
if it believed Spada’s claim to “only” be screaming, would be compelled to accept that the
defendants had a situation that justified or even required them to intervene to interrupt
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Spada’s self-harming or potentially self-harming behavior.
Finally, no jury could find in Spada’s favor on Spada’s claims that OC spray was
excessive for the episodes involving “only” screaming. A jury would be instructed that the
Prison and not Spada sets Prison policy. Excessive noise, which Spada himself admits is
intended as and used as a weapon, harms other inmates. Defendants have a duty to
protect them too. Not only that, but defendants have an interest in interrupting escalation
from “screaming” to “banging” to “shitting” which Spada himself explained as threats that
are endemic in the RHU.
There is no need to discuss qualified immunity here because defendants were at
no time even close to the sometimes hazy line separating excessive from reasonable uses
of force.
I do not address the additional defense that on some occasions Spada allegedly
failed to exhaust his administrative remedies. For one thing, precedent involving Spada
himself would require that on this record I should hold an evidentiary hearing. See Spada
v. Martinez, 579 Fed.Appx. 82 (3d Cir. 2014), opinion after remand, 663 Fed.Appx. 112
(3d Cir. 2016). That is just a waste of time.
I also will not belabor Spada’s tag-along claim that the use of OC spray (but only
on those occasion when it was also was an excessive use of force) was retaliation for his
filing of grievances and therefore in violation of the First Amendment. No reasonable jury
could believe it because it is simply preposterous. Spada himself acknowledges every
single disruptive incident took place, even when he disputes the details and the bona fides
of the defendants’ response to each incident. Spada also acknowledges other uses of OC
spray that Spada does not claim were retaliatory. The claim that in the midst of
responding to one of these six incidents (that sometimes took place on the same day as
nonretaliatory uses of OC spray) any corrections officer was “really” thinking about
Spada’s grievances (and not Spada’s assaults on corrections officers or one of the other
incidents where the use of OC spray was justified) and motivated to make the decision to
use OC spray by the grievance and not the incident itself cannot be taken seriously even
as a bad case of post hoc ergo propter hoc reasoning.

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Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written
objections to this Report and Recommendation. In the absence of timely and specific
objections, any appeal would be severely hampered or entirely defaulted. See EEOC v.
City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate
review when no timely and specific objections are filed as limited to review for plain
error).
DATE:_ July 22, 2022
Keith A. Pesto,
United States Magistrate Judge
Notice by ECF to counsel of record and by U.S. Mail to:
Zachary Spada NX-7892
S.C.I. Houtzdale
P.O. Box 1000
209 Institution Drive
Houtzdale, PA 16698-1000

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11342296. Public record. Not legal advice.