Furnace v. Paul Sullivan, Co., No. 10–15961.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: M. SMITH
• Citation: 705 F.3d 1021
• Parties: Edward Terran FURNACE, Plaintiff–Appellant, v. Paul SULLIVAN, CO; D. Morales, CO; J. Soto, CO, sued in their official and individual capacities, Defendants–Appellees.
• Docket Number: No. 10–15961.
• Decision Date: 17 January 2013

705 F.3d 1021

Edward Terran FURNACE, Plaintiff–Appellant,
v.
Paul SULLIVAN, CO; D. Morales, CO; J. Soto, CO, sued in their official and individual capacities, Defendants–Appellees.

No. 10–15961.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Nov. 6, 2012.
Filed Jan. 17, 2013.

[705 F.3d 1023]

Victoria L. Weatherford (argued) and Daniel H. Bookin, O'Melveny & Myers LLP, San Francisco, CA, for Plaintiff–Appellant.

Jose Zelidon–Zepeda (argued), Deputy Attorney General, State of California, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, Senior District Judge, Presiding. D.C. No. 3:07–cv–04441–MMC.
Before: ROBERT D. SACK,^*RONALD M. GOULD, and MILAN D. SMITH, JR., Circuit Judges.

OPINION
M. SMITH, Circuit Judge:

Plaintiff–Appellant Edward Terran Furnace appeals from the district court's grant of summary judgment in Defendants–Appellees' favor. Furnace alleges that the Defendants–Appellees, who are correctional officers at the prison where Furnace was incarcerated at the time of the alleged occurrence, violated his Eighth Amendment rights by spraying him with an excessive quantity of pepper spray. Furnace also alleges that his Fourteenth Amendment rights were disregarded when the officers denied him a vegetarian breakfast.

We reverse and remand on Furnace's Eighth Amendment claim, because the district court failed to draw all inferences in Furnace's favor when resolving the issue of qualified immunity in a summary judgment, but we affirm the district court's grant of summary judgment with respect to Furnace's Equal Protection challenge.

[705 F.3d 1024]

FACTS AND PROCEDURAL BACKGROUND

During the time period relevant to this case, Furnace was an inmate at Salinas Valley State Prison (SVSP). He practices the Shetaut Neter religion, which requires its advanced practitioners to be vegetarians. As a result, Furnace was entitled to receive vegetarian meals, and he had received them without incident at SVSP for over a year.

Meals in Furnace's cell block were delivered through a food/handcuff port (food port), a rectangular slot in each jail cell door covered by a metal flap that can be opened from the outside by removing a padlock. The food port is about twelve inches wide and six inches tall.¹

Operation Procedure 29 (OP 29) describes SVSP's policies regarding inmates and the food port, as follows:

Inmates who take control of food/cuff ports create a serious immediate safety concern for staff and other inmates and mandates suspension of the programming of the other inmates housed in the unit.... It is imperative that the food/cuff port be secured in short order to enable inmates to continue to receive services.

OP 29 also prescribes how officers are to react when inmates interfere with a food port:

If during routine duties, correctional officers encounter an inmate who refuses to allow staff to close and lock his food/cuff port, the officers will verbally order the inmate to relinquish control of the food port and allow staff to secure it. The officer shall issue a warning that chemical agents will be used if he does not comply.

If the inmate refuses to relinquish control of the food port, despite the warning, the officer is authorized to administer chemical agents against the inmate to secure the food port.

OP 29 also directs that if chemical agents are employed against an inmate, health care staff at SVSP are to allow the prisoner to decontaminate.

Defendants–Appellees, D.R. Morales, P. Sullivan, and J. Soto (collectively, the officers,) were on duty the morning of the events giving rise to this litigation, and were responsible for delivering breakfast to the inmates in Furnace's cell block. Neither of the officers was regularly assigned to work in Furnace's cell block, nor was either of them familiar with Furnace. Morales was assigned to distribute breakfast trays to Furnace and his cell mate on the relevant morning, and he approached Furnace's cell carrying a large platter with two or three meal trays on it.

Accounts of what happened next diverge dramatically. We begin with Furnace's account. Furnace claims he heard Morales say something derogatory, which he contends was something to the effect of, “What's up with all these fuckin' Muslims over here?” ² As Morales approached Furnace's cell, he held the food tray with one hand, and opened the food port with the other. Correctional staff rely on signs posted on the doors of prison cells to ascertain whether an inmate has been approved to receive a vegetarian meal. Morales claims that he did not see such a sign

[705 F.3d 1025]

on Furnace's cell door. Inmates also keep a form called a “chrono” that lists their authorization to receive a vegetarian meal. Furnace concedes that he did not show the officers his chrono, though he had it in his cell at the time of the incident.

When Morales opened the food port on Furnace's cell, Furnace requested two vegetarian meals. Morales said, “You guys ain't vegetarian,” closed the food port, and stepped out of view to speak with Soto. Morales then returned to the cell, opened the food port, and told Furnace that Soto had advised him that Furnace and his cell mate were not entitled to vegetarian trays. Morales next told Furnace to either accept the trays, or he would mark both Furnace and his cell mate down as having refused them.

Furnace then attempted to ask Soto to come to the cell door. He states that he attempted to do so by squatting down and putting his fingertips on the bottom portion of the open food port to balance himself, from which position he intended to call to Soto through the food port. He did not extend his hand or arm outside the food port. Without warning, Morales sprayed Furnace with pepper spray. Furnace put his hand up to block the pepper spray, and grabbed the food port in the process. Sullivan saw that Morales was pepper spraying Furnace, came over, and also began pepper spraying him. Morales discharged his can of pepper spray at Furnace until it was empty. Furnace testified that he was pepper sprayed for “maybe a minute,” and it was his perception that the officers unloaded the contents of two canisters of pepper spray on him.

Furnace was struck by pepper spray in the lower part of his face, on his chest, on his stomach, and on his groin area. The pepper spray caused his skin to blister and burn. He experienced a burning sensation for three or four days following the incident. After the incident, he also developed a rash in his groin area that he believes may have been caused by the pepper spray.

The officers' version of the events differs markedly from Furnace's. Morales claims that when he returned from conferring with Soto about whether Furnace was entitled to receive a vegetarian meal, Furnace abruptly forced the food port open and yelled, “fuck you!” Morales claims that he instructed Furnace to remove his hands from the food port, and that he told Furnace he had ten seconds to comply with his direct order. He avers that Furnace again said, “fuck you,” and exhibited “an aggressive determination not to let go of the food port.” Morales says that he discharged a one-second blast of pepper spray at Furnace in order to gain his compliance, and then ceased spraying because his canister was empty. Seeing Morales pepper spraying Furnace, Sullivan ran over to Furnace's cell, and began discharging pepper spray on Furnace from his own canister. Sullivan claims he discharged one blast of pepper spray on Furnace, and that Furnace eventually withdrew his hands from the food port after Sullivan sprayed him.

It is undisputed that after Morales and Sullivan stopped spraying Furnace, Furnace was allowed to decontaminate in his cell. He did not receive a vegetarian breakfast that morning.

Furnace brought several claims against the officers, two of which are at issue on appeal. First, he claimed that Morales and Sullivan used excessive force in the way they used the pepper spray against him, in violation of the Eighth Amendment. Second, he claimed that the officers violated his equal protection rights by not providing him with a vegetarian breakfast, even though they provided vegetarian meals to other similarly situated inmates.

The officers moved for summary judgment on both claims, which the district

[705 F.3d 1026]

court granted. Furnace appeals that order, claiming that the district court improperly resolved disputed issues of material fact in the officers' favor.

STANDARD OF REVIEW

We review the district court's grant of summary judgment and its qualified immunity determinations de novo. See Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir.2011). “Summary judgment is appropriate only if, taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id. If, as to any given material fact, evidence produced by the moving party (the officers, in this case) conflicts with evidence produced by the nonmoving party (Furnace, in this case), we must assume the truth of the evidence set forth by the nonmoving party with respect to that material fact. See Leslie v. Grupo ICA, 198 F.3d 1152, 1157–58 (9th Cir.1999). With respect to qualified immunity determinations on summary judgment, we assess whether the contours of Furnace's Eighth Amendment right were clearly established with respect to the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201–02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).³ If the right was clearly established, we then ask: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?” Id.

DISCUSSION A. Disputed Facts

The district court correctly determined that there were triable issues of material fact concerning whether Morales warned Furnace to remove his...