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Ninth Circuit: No Summary Judgment on Claim of Excessive Use of Pepper Spray

On January 17, 2013, the Ninth Circuit Court of Appeals reversed a grant of summary judgment in favor of California prison officials, concluding that the district court had failed to consider the evidence in the light most favorable to the prisoner plaintiff. Given the facts alleged, the appellate court held a rational jury could find that the use of pepper spray to subdue a prisoner who was in a locked cell behind a metal door constituted excessive use of force in violation of the Eighth Amendment.

While confined to a cell at Salinas Valley State Prison where meals were delivered through a 12” x 6” food port, California state prisoner Edward T. Furnace, a practitioner of the Shetaut Neter religion, was authorized to receive vegetarian meals. One morning, when his request for a vegetarian breakfast was denied (and he was given the option of accepting a regular meal instead), Furnace tried to question the guards delivering the breakfast trays. According to his § 1983 complaint, he put his fingertips on the bottom part of the open food port for balance; without a verbal warning, two guards then pepper-sprayed him for “maybe a minute.”

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 defendant guards moved for summary judgment on grounds of qualified immunity, presenting a different version of events. They claimed that Furnace was told he had ten seconds to remove his hands from the food port; that he was “aggressive” in his refusal to do so; and that he was given only two short blasts of pepper spray. The district court credited the guards’ version over Furnace’s and granted their motion for summary judgment.

On appeal, the Ninth Circuit concluded that the discrepancy between the two versions of events was too great to be capable of resolution on summary judgment, as there were genuine issues of material fact in dispute. Turning to the question of whether the force used by the guards was “wanton and unnecessary,” the appellate court applied the five-factor analysis set forth in Hudson v. McMillian, 503 U.S. 1 (1992) [PLN, May 1992, p.3].

The Court of Appeals concluded that it was unclear, based on Furnace’s version of events, that an application of force was even required; or, if it was, that the amount of pepper spray employed was not excessive. Thus, summary judgment was inappropriate.

The Ninth Circuit also noted that based on Hudson’s version, the guards had failed to follow a prison policy (Operation Procedure 29) that requires a verbal warning prior to the discharge of pepper spray. “OP 29 bears directly on the situation that the officers confronted, and is therefore relevant to determining whether the officers could have thought their conduct was reasonable and lawful.” However, the appellate court cautioned “that we do not mean to suggest that any and every deviation from prison policy automatically jeopardizes a correctional officer’s entitlement to qualified immunity.”

The Court of Appeals upheld the district court’s grant of summary judgment on Furnace’s separate equal protection claim, related to the guards’ failure to provide him with a vegetarian breakfast. Accordingly, the lower court’s judgment was reversed in part and affirmed in part. See: Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013).

Following remand, the case settled in June 2013 for $8,000.

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