Martinez-Salgado v. Suffle

          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 ...