United States District Court, D. Arizona
ORDER
David
G. Campbell Senior United States District Judge.
Plaintiff
Oscar Martinez-Salgado, who was formerly confined in the La
Paz County Adult Detention Facility (the “Jail”),
brought this civil rights action pursuant to 42 U.S.C. §
1983. (Doc. 1.) Defendant Jail Commander Suffle - the only
remaining Defendant in this case - moves for summary
judgment, and Plaintiff opposes.[1] (Docs. 34, 35.) The Court
will grant the Motion and terminate this action.
I.
Background
Count
One alleges the following: Plaintiff was in the Jail dayroom
when another detainee, Garcia, became upset that Defendant
Suffle would not speak to him and was ordered to lock down
several times, but did not do as told. (Doc. 1 at 5.)
Defendant then entered the dayroom, started firing pepper
balls at everyone in sight and yelled for everyone to lock
down. (Id.) All the detainees tried to calm
Defendant down, telling him “there's no need for
all that” and that all he had to do was speak to
Garcia. (Id.) As Plaintiff was closing his cell
door, he felt a pepper ball hit his foot. (Id.) The
detainees were stuck in their cells all night “gagging,
coughing, crying, eyes burning, and noses running” and
they were not allowed to clean their rooms afterward.
(Id.) As a result, Plaintiff alleges that he
suffered PTSD, anxiety, stress, tension, night terrors,
anger, frustration, paranoia, schizophrenia, depression,
suicidal thoughts, fear of further abuse, pain, suffering,
and trust issues. (Id.) Plaintiff seeks damages.
(Id. at 14.)
On
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated an excessive force claim in
Count One and directed Defendant Suffle to answer. (Doc. 5.)
The Court dismissed the remaining claims and Defendants.
(Id.) Defendant moves for summary judgment on the
basis that the force used was objectively reasonable and he
is entitled to qualified immunity.
II.
Legal Standards
A.
Summary Judgment Standard
A court
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying those portions of the record, together
with affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
If the
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if
the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, and that the dispute is genuine, i.e., the
evidence is such that a reasonable jury could return a
verdict for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 250 (1986);
see Triton Energy Corp. v. Square D. Co., 68 F.3d
1216, 1221 (9th Cir. 1995). The nonmovant need not establish
a material issue of fact conclusively in its favor, First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968); however, it must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); see Fed. R. Civ. P.
56(c)(1).
At
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court need
consider only the cited materials, but it may consider any
other materials in the record. Fed.R.Civ.P. 56(c)(3).
B.
Excessive Force
A
pretrial detainee has a right under the Due Process Clause of
the Fourteenth Amendment to be free from punishment prior to
an adjudication of guilt. Bell v. Wolfish, 441 U.S.
520, 535 (1979). A pretrial detainee may therefore allege a
cause of action under the Due Process Clause where conditions
of confinement, such as food, clothing, shelter, medical
care, and personal safety, “amount to
punishment.” Bell, 441 U.S. at 535; see
DeShaney v. Winnebago Cnty. Dep't of Soc. Servs.,
489 U.S. 189, 200 (1989). Conditions amount to punishment
when: (1) the conditions result in a sufficiently serious
denial of the minimum standard of care, and (2) the
official's actions or omissions with respect to the
conditions are objectively unreasonable, such that it can be
inferred that those conditions are imposed for the purpose of
punishment. Kingsley v. Hendrickson, __U.S.__, 135
S.Ct. 2466, 2473 (2015); Bell, 441 U.S. at 538;
Castro v. Cnty. of Los Angeles, 833 F.3d 1060,
1070-71 (9th Cir. 2016).
Whether
an officer's actions were objectively unreasonable is
determined “from the perspective of a reasonable
officer on the scene, including what the officer knew at the
time, not with the 20/20 vision of hindsight.”
Kingsley, 135 S.Ct. at 2473. Whether the conditions
and conduct rise to the level of a constitutional violation
is an objective assessment that turns on the “facts and
circumstances of each particular case.” Id.
(quoting Graham v. Connor, 490 U.S. 386, 396
(1989)). In determining whether the use of force was
reasonable, a court should consider factors including, but
not limited to, “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.” Id. at 2473.
III.
Facts
On
August 22, 2017, Plaintiff was incarcerated in a
maximum-security pod at the Jail where he was awaiting trial.
(Doc. 35 (Def.'s Statement of Facts) ¶¶ 1-2.)
That day, Plaintiff was exercising outside his cell when
detainee Garcia was told to lockdown. (Id. ¶
4.) The Jail's lockdown procedure requires that detainees
who are out in the pod return to their cells and close the
doors, which automatically lock. (Id. ¶ 5.)
Video footage shows that for at least 15 to 20 minutes Garcia
had been climbing on the door and repeatedly struck the glass
with his fist, foot and head and made aggressive gestures
through the window. (Id. ¶¶ 7, 10.) The
control tower gave multiple commands for Garcia to lockdown
and Garcia refused to comply. (Id. ¶¶
11-12.)
The
control tower then used the intercom to order the entire pod
into lockdown. The order was given multiple times and
included use-of-force warnings if detainees failed to comply
with the lockdown commands. (Id. ¶ 13.) The
lockdown commands are given before officers enter a pod
because it is safer for everyone if detainees comply and
return to their cells to de-escalate a potentially violent
disturbance, especially since the number of detainees usually
outnumbers the Jail staff. (Id. ¶ 14.) On the
day of the incident, the detainee-to-officer ratio in
Plaintiff's pod was 15 to 1. (Id. ¶ 3.)
Although Plaintiff claims he did not hear the general
lockdown order until Defendant entered the pod, video footage
shows that all detainees in Plaintiff's pod, including
Plaintiff, were heading toward their cells before Defendant
entered the pod. (Id. ¶¶ 15-16.)
Before
entering the pod, Defendant perceived that Garcia's
behavior was disruptive to the pod, was escalating in
violence, and was a threat to security within the
maximum-security pod. (Id. ¶ 18.) The fact that
other detainees, including Plaintiff, had not locked down as
commanded, was further evidence that the disturbance was
escalating beyond Garcia. (Id.) About 15 minutes
after Garcia's “aggressive and disruptive
behavior” started, Defendant, along with Detention
Officer McIntosh and Corporal Fleming, entered the pod and
repeated the lockdown command. (Id.) Defendant
clearly displayed a PepperBall launcher when he entered the
pod and warned detainees to lock down, but several detainees
still refused and remained unsecured, and Defendant
“reasonably perceived these acts of defiance as an
escalating threat.”[2] (Id.) Defendant entered the
pod to attempt to restore order and to de-escalate the threat
of violence. (Id. ¶ 19.)
Many of
the detainees complied with the lockdown order and locked
themselves in their cells. (Id. ¶ 24.)
Plaintiff knew he was supposed to lock down, that he was
supposed to follow Jail staff orders, and that maintaining
security is important for Jail officials. (Id.
¶¶ 23, 25.) Plaintiff refused to close his cell
door and chose to stand in the doorway of his cell.
(Id. ¶ 26.)
After
giving multiple verbal warnings, Defendant saw that Plaintiff
and 4 other detainees had not locked down-two detainees were
on the upper balcony (Fuentes and Ping), and Plaintiff and
Garcia were on the floor level with their cell doors fully
open. (Id. ¶ 27.) Another detainee, Carter, was
also outside of his cell, but he was showering on the main
level of the pod near Plaintiff's cell when the incident
unfolded. (Id.) Garcia handed something to
Plaintiff, which Defendant perceived as a threat to the
safety of himself and other officers. (Id.) As he
gave verbal warnings, Defendant displayed the PepperBall
launcher. (Id.) Fuentes eventually complied with the
lockdown orders, but the other detainees still refused to
lockdown and remained unsecured, and Defendant
“perceived these acts of defiance as an escalating
threat to not only the officers inside the pod but also to
the other [detainees] within the pod.” (Id.)
Because Plaintiff, Garcia and Ping continued to disobey the
lockdown orders, Defendant determined that the use of
PepperBall warning rounds were necessary to get the detainees
to comply with the orders. (Id.)
Defendant
first launched PepperBall rounds at the upper balcony area,
where Ping was outside of his cell, but Defendant did not aim
the PepperBall rounds at any of the detainees. (Id.)
The frangible rounds disintegrated upon impact and released
the powdered pepper chemical. (Id.) Defendant then
learned that Ping's cell door was locked, preventing Ping
from locking down, and Ping was ordered to get on the ground.
(Id.) During this time, Plaintiff's and
Garcia's cell doors were still fully open “and
Plaintiff continued talking back to Commander Suffle and the
other officers ordering him to lockdown.”
(Id.) Defendant then aimed the PepperBall launcher
in Plaintiff's direction, and Plaintiff and Garcia
“feigned locking down, ” but Plaintiff left his
door halfway open and Garcia stuck his head out of his cell.
(Id.) Because Defendant believed that Plaintiff and
Garcia were in the process of locking down, he returned his
attention to Ping, who had not yet complied with orders to
get on the ground. Ping ultimately complied after Defendant
again displayed the PepperBall launcher and ordered him to
lie on the ground. (Id.)
Plaintiff
continued to refuse to lockdown as commanded and stood inside
his half-closed cell door “in what appeared to
Commander Suffle to be a purposeful act of disobedience,
” and Garcia's cell door, which was next to
Plaintiff's, slowly began opening. (Id. ¶
28.) Defendant then launched two warning PepperBall rounds 3
to 5 feet away from Plaintiff's and Garcia's cell
doors, after which Garcia closed his door to lockdown and
Carter, who had been showering, went upstairs to his cell.
(Id.) Plaintiff, though, did not lock down and
instead began to protest, saying, “Hey, man, stop. You
don't have to do that.” (Id.) Plaintiff
left the cell door ajar as he continued his protest, but then
finally locked down. (Id.)
The
PepperBalls did not strike Plaintiff's body or inside his
cell, but hit the ground 3 to 5 feet in front of
Plaintiff's cell. (Id. ¶ 29.) The
PepperBalls hit the ground and the powdered chemical released
several feet away from Plaintiff, who was behind his cell
door and in the process of closing it. (Id.) Video
footage shows that Plaintiff was not hit in the foot by the
PepperBall launcher. (Id. ¶ 31.) Even if
Plaintiff had been hit on the foot, he admitted there was no
bruising or swelling or persistent rash or irritation
afterward, and he did not seek any medical treatment for his
foot or anything related to deployment of the PepperBall.
(Id. ¶¶ 32-34.) Although Plaintiff claims
he suffered a burning sensation from the PepperBall chemicals
for two days, symptoms from “direct exposure to pepper
spray can last for only two hours at most, ” and
Plaintiff did not come into direct contact with pepper spray.
(Id. ¶ 35.) Despite Plaintiff's claim that
he suffered PTSD, paranoia, and schizophrenia, he has not
received such diagnoses from a doctor. (Id.
¶¶ 36-37.)
The
Jail has a ventilation system that is used to remove any
lingering PepperBall chemicals so that they do not continue
to permeate the pod, and the ventilation system was used that
day after the PepperBalls were launched. (Id. ¶
38.) Officers turned the vents on to remove any lingering
pepper spray from the pod after the incident, and Corporal
Ruiz directed detainee workers to get the cleaning carts and
clean up any remaining chemical residue, which they did.
(Id. ¶¶ 39-40.) Plaintiff had access to
running water in his cell if he needed to rinse off.
(Id. ¶ 41.)
Plaintiff
disputes there was any threat of danger necessitating the use
of PepperBalls, asserting that Jail staff were used to
Garcia's behavior and did not consider him a threat and
that Defendant provoked the incident with Garcia. (Doc. 39 at
2, citing Docs. 34-35, 38 and Exhibits 4, 6.)[3] Plaintiff also
claims that Defendants never turned on the ventilation system
in the pod and no clean up of the “hazmat”
material took place for 24 hours, but Plaintiff does not cite
any evidence in support of this claim. (See id.)
At
Plaintiff's deposition, Plaintiff and counsel reviewed
the Jail's video footage of the incident. At timestamp
22:33 on the video, Plaintiff is seen standing in the doorway
of his cell, and counsel asked Plaintiff the following about
that moment:
Q [by counsel]: Okay. And this is the point for sure-at this
point you're hearing that you-everyone needs to lock
down?
A [Plaintiff]: Yes.
Q: You know at this point that you need to be in your cell
with the door closed and locked; correct?
A: Yes.
Q: Okay. At 22:36 [on the video recording], a couple seconds
later, few seconds later, up until this point have you been
...