# Clarence Howard v. J. Nunley

> Court of Appeals for the Ninth Circuit · January 9, 2012 · 465 F. App'x 669

URL: https://www.frixlaw.com/law-library/cases/620550

## Case

- **Full name:** Clarence Eugene HOWARD, Plaintiff-Appellant, v. J. NUNLEY, C.O.; W.J. Sullivan, Warden, Defendants-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** January 9, 2012
- **Citations:** 465 F. App'x 669
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Goodwin, Wallace, McKeown
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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NOT FOR PUBLICATION JAN 09 2012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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/620550. Public record. Not legal advice.