“Supreme Court and published Ninth 10 Circuit precedent have little to say about the appropriate use of pepper spray or similar agents to 11 enforce prison discipline.”
How later courts described this case
- “Supreme Court and published Ninth 10 Circuit precedent have little to say about the appropriate use of pepper spray or similar agents to 11 enforce prison discipline.”
- “Supreme Court and published Ninth Circuit precedent have little to say about the 3 appropriate use of pepper spray or similar agents to enforce prison discipline.”
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION JAN 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLARENCE EUGENE HOWARD, No. 10-17493
Plaintiff - Appellant, D.C. No. 1:06-cv-00191-NVW
v.
MEMORANDUM *
J. NUNLEY, C.O.; W. J. SULLIVAN,
Warden,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Neil V. Wake, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Clarence Eugene Howard, a California state prisoner, appeals pro se from
the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
violations of his constitutional rights. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003) (exhaustion of administrative remedies); Clement v. Gomez, 298 F.3d 898,
901 (9th Cir. 2002) (qualified immunity). We affirm.
The district court properly granted summary judgment to defendant Nunley
on Howard’s Eighth Amendment claim regarding the use of pepper spray on the
basis of qualified immunity, because it is uncontested that Howard disobeyed an
order to stop pounding on his cell door after he also received a warning that failure
to comply would result in the use of pepper spray. See Pearson v. Callahan, 555
U.S. 223, 232 (2009) (“Qualified immunity is applicable unless the official’s
conduct violated a clearly established constitutional right.”); see also Whitley v.
Albers, 475 U.S. 312, 320 (1986) (no constitutional violation if force is applied in a
“‘good faith effort to maintain or restore discipline’” (citation omitted)).
The district court properly concluded that Howard failed to exhaust his
administrative remedies on his claim regarding the conditions of his confinement
in a “management status” cell. See Booth v. Churner, 532 U.S. 731, 741 n. 6
(2001) (inmate must exhaust administrative remedies “irrespective of the forms of
relief sought and offered through administrative avenues”).
Howard’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-17493