Clement v. Gomez

• Decision Date: 06 August 2002
• Docket Number: No. 01-16088.,01-16088.
• Citation: 298 F.3d 898
• Parties: Frank S. CLEMENT; Arturo Chavez; Larry Caballero, Plaintiffs-Appellees, v. James H. GOMEZ, Director, Department of Corrections; Steven Cambra; M. Pitts-Campbell; G. Perry; T. Frager; G.R. Dunham; L.A. Smith; T. Norton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

298 F.3d 898

Frank S. CLEMENT; Arturo Chavez; Larry Caballero, Plaintiffs-Appellees, v. James H. GOMEZ, Director, Department of Corrections; Steven Cambra; M. Pitts-Campbell; G. Perry; T. Frager; G.R. Dunham; L.A. Smith; T. Norton, Defendants-Appellants.

No. 01-16088.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2002.

Filed August 6, 2002.

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J. Bryce Kenny, Russell J. Clanton and Associates, Arcata, CA, for the plaintiffs-appellees.

Linda Pancho, Deputy Attorney General, San Francisco, CA, for the defendants-appellants.

Appeal from the United States District Court for the Northern District of California, Martin J. Jenkins, District Judge, Presiding. D.C. No. CV 98-01007-MJJ.

Before SNEED, HUG, and BERZON, Circuit Judges.

OPINION

SNEED, Circuit Judge.

California state prison warden James Gomez and other prison officials appeal the district court's denial of their motion for summary judgment. Inmates Frank Clement, Arturo Chavez and Larry Caballero sued the officials for violating their Eighth Amendment rights, pursuant to 42 U.S.C. § 1983. The inmates asserted two claims of cruel and unusual punishment arising out of an incident in 1995 when the officials used pepper spray to quell a fight between two other prisoners, and the pepper spray vapors drifted into the plaintiff inmates' cells. These claims alleged that the officials (1) used excessive force in applying the pepper spray, even after the fight had allegedly subsided; and (2) were deliberately indifferent to the medical needs of the neighboring inmates who allegedly suffered harmful effects from migrating pepper spray vapors.

We have jurisdiction over the officials' interlocutory appeal from the denial of qualified immunity, see Billington v. Smith, 292 F.3d 1177, 1183 (9th Cir.2002), and review de novo. We affirm in part and reverse in part. The district court properly denied summary judgment on the deliberate indifference claim. The prison officials are shielded from liability, however, on the excessive force claim, and the denial of summary judgment on this claim must be reversed.

BACKGROUND

A violent fight erupted inside of a prison cell at Pelican Bay State Prison. When correctional officers Norton and Smith arrived at the cell, they saw that one of the prisoners had the other in a headlock and was punching him in the face and slamming his head against the wall. The beaten prisoner's face was covered with blood. The prisoners did not respond to the officers' orders to stop and to get down on the floor. Other officers were instructed to activate an alarm and to get the pepper spray cannister. After repeated commands to "break it up" and after one of the prisoners threatened to kill the other, Officer Norton administered a 2-5 second burst of pepper spray into the cell via a thin rubber hose through the foodport. Officer Norton claims that the first application was blocked by the bodies of the fighting prisoners, necessitating another 2-5 second application of spray. Some of the neighboring inmates claim that the fighting sounds were replaced by sounds of coughing and gagging¹ after the initial burst of spray and that there was another 2-5 second application immediately thereafter.² The fighting prisoners were escorted out of the cell and attended to shortly after the final spray.

Inmates in neighboring cells claim that pepper spray vapors drifted into their cells. These cells had a plexiglass wall separating them from the hallway, with one-inch openings at the top and bottom of these walls. Each cell contained a circulation vent and a sink with running water and soap. There were no cell windows.

Some of the bystander inmates began reacting to the vapors with stinging sensations in the eyes and on the skin. At least two of them suffered asthma attacks or difficulty in breathing. Several inmates began calling out to prison officials for medical attention and to be taken from their cells and allowed to shower. One attempted to alleviate his irritation by splashing water onto his face, but such effort only aggravated his condition because the vapors in the air mixed with the water. Some of the inmates began coughing and gagging.

In addition, the parties' recollections differ with respect to the duration of each application. The inmates' estimates vary from 2-3 seconds up to 3-5 seconds for each burst. The officers consistently report that each blast lasted 3 seconds.

For summary judgment purposes, we will assume that there were two bursts, each lasting up to five seconds, and that the second application was administered after the inmates had begun coughing and gagging but before they had cuffed up.

The prison officials opened the yard door that separated the housing unit from the prison yard and placed a fan in the doorway to address the lingering effects of the spray. The ventilation system was also left on both during and after the incident. While such action may have cleared some of the vapors from the hallway, there is evidence that it was insufficient to clear the spray from the cells. In fact, the plaintiff inmates believe that the fan and circulation made matters worse because it blew the fumes into their cells, where the vapors became trapped by the plexiglass. A medical staffperson visited the pod sometime after the incident, but there is no evidence that any of the inmates talked with this staffperson or requested his attention.

Four hours after the incident, officials finally escorted the bystander inmates out of their cells for showers. The officials claim that they occupied these four hours with writing reports, finding alternative housing for the fighting inmates, collecting evidence, cleaning the blood off the floors, and looking for weapons. The officials also served dinner in the unit before escorting the inmates out of their cells for showers.

DISCUSSION

In this case, we must examine whether qualified immunity protects prison officials from a suit charging violations of the Eighth Amendment's proscription against "cruel and unusual punishment." Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). It shields government officials performing discretionary functions from liability for civil damages unless their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. In this way, it protects government officials from liability for good faith misjudgments and mistakes. See Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although a defendant's subjective intent is usually not relevant to the qualified immunity defense, his mental state is relevant when, as here, it is an element of the alleged constitutional violation. See Jeffers v. Gomez, 267 F.3d 895, 911 (9th Cir.2001).

Resolving the issue of qualified immunity involves a two-step inquiry. First, we must ask whether "[t]aken in the light most favorable to the party asserting the injury, ... the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). A negative answer ends the analysis, with qualified immunity protecting the defendants from liability. Id. If a constitutional violation occurred, a court must further inquire "whether the right was clearly established." Id. "If the law did not put the [officials] on notice that [their] conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Saucier, 533 U.S. at 202, 121 S.Ct. 2151.

I. Excessive Force

Our excessive force analysis begins with identification of the specific constitutional right allegedly infringed by the officers' use of force. Graham v. Connor, 490 U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). When prison officials use excessive force against prisoners, they violate the inmates' Eighth Amendment right to be free from cruel and unusual punishment.³ Force does not amount to a constitutional violation in this respect if it is applied in a good faith effort to restore discipline and order and not "maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). This standard necessarily involves a more culpable mental state than that required for excessive force claims arising under the Fourth Amendment's unreasonable seizures restriction. Graham, 490 U.S. at 398, 109 S.Ct. 1865. For this reason, under the Eighth Amendment, we look for malicious and sadistic force, not merely objectively unreasonable force. Under this heightened standard, the officials' liability for excessive force in this case is much more doubtful.

Even under the lower Fourth Amendment excessive force standard, the Supreme Court has admonished that officials "can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution." Saucier, 533 U.S. at 206, 121 S.Ct. 2151. Under this analysis, the inmates have failed to establish that the officials applied the pepper spray maliciously and sadistically for the very purpose of causing harm. The prison officials administering the spray claim that the second application was dispensed because the bodies of the fighting inmates had blocked the initial spray. In fact, the defendants claim that some of the pepper spray ricocheted back onto them after the first shot. The final spray was administered immediately thereafter. Even if the allegation of the neighboring inmates is true, viz, that the final spray was dispensed after the sounds of coughing and gagging were heard from the cell, this allegation alone does not lead...