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Humphers v. Peters

United States District Court, D. Oregon

August 29, 2019


          Blake Edward Humphers Snake River Correctional Institution Pro Se Plaintiff

          Ellen Rosenblum Attorney General Michael R. Washington Senior Assistant Attorney General OREGON DEPARTMENT OF JUSTICE Attorneys for Defendants

          OPINION & ORDER


         Pro Se Plaintiff Blake Edward Humphers brings this action under 42 U.S.C. § 1983 against Defendants Collette Peters, Michael Gower, Judy Gilmore, Jason Bell, Jonathan Lo, Mike McElroy, Darrell Saxton, Robert Jones, Albert Nasby, Jim Moore, Wendy Blevins, and David Platt. Plaintiff alleges violations of his Eighth Amendment right to be free from cruel and unusual punishment stemming from Defendants' failure to decontaminate him after exposure to OC spray. Plaintiff and Defendants now move for summary judgment. For the reasons below, the Court denies Plaintiff's motion and grants in part and denies in part Defendants' motion.


         Plaintiff entered the custody of the Oregon Department of Corrections (“ODOC”) on March 21, 2013, and has been housed at Snake River Correctional Institution (“SRCI”) since November 25, 2015. Curtis Decl. ¶ 3, Attach. 1, ECF 42. At the time of the events at issue in this case, Defendants Nasby, Saxton, Jones, Platt, Moore, Blevins, and McElroy were all correctional officers employed at SRCI. Am. Compl. 2-3, ECF 20. Defendant Lo was a correctional sergeant in charge of supervising the special housing unit at SRCI. Id. at 3. Defendants Bell and Gilmore were assistant superintendents at SRCI, and Defendant Cain was the superintendent of SCRI. Id. Defendant Gower and Peters were, respectively, the assistant director of operations and director of ODOC. Id. at 4.

         On July 26, 2016, at approximately 12:30 PM, a fight involving Plaintiff and 34 other inmates occurred in a dining room at SRCI. Curtis Decl. ¶ 4, Attach. 2; First Humphers Decl. Ex. 1 at 1, ECF 25. To try to stop the fight, officers used Oleoresin Capsicum (“OC” or “pepper”) spray against Plaintiff and the other inmates. Curtis Decl. Attach. 3; First Humphers Decl. Ex. 1 at 2. Plaintiff alleges in his Amended Verified Civil Complaint that the spray was “all over Plaintiff's head, face, in eyes, nose, ears, mouth and all over Plaintiff's hands and arms.” Am. Compl. 4, ECF 20.

         Once the officers gained control over the fight, Plaintiff and others were escorted to the Disciplinary Segregation Unit (“DSU”) for processing. Curtis Decl. ¶ 4, Attach. 2; First Humphers Decl. Ex. 1 at 2. Plaintiff was handcuffed to a wall while being evaluated and processed into the DSU. First Humphers Decl. Ex. 1 at 2. While handcuffed, Plaintiff alleges that he was “suffering horrific burning and was complaining of pain to staff.” Am. Compl. 4. Plaintiff alleges that “unknown CO's pretty much laughed, stating ‘yeah that spray is horrible and very hot.'” Id. They are also alleged to have assured Plaintiff he would get a shower soon. Id. He was given a damp towel and instructions to hold the towel against his eyes to relieve the burning. Id.; First Humphers Decl. Ex. 1 at 4. Plaintiff claims that this made it worse. Am. Compl. 5. At the time of the incident, it was SRCI's procedure to provide inmates who had been sprayed or contaminated by OC spray with a damp towel to hold against their eyes along with a clean cell and clean clothing. First Humphers Decl. Ex. 1 at 4; Id. at Ex. 2 at 3.

         While Plaintiff was being processed into the DSU, Plaintiff was examined by a registered nurse. DiGiulio Decl. ¶ 5, ECF 41. In Plaintiff's medical records, the nurse noted: “Plaintiff denies injury but has several superficial scratches to face. Lower lip split inside. Patient denies any loose teeth. No active bleeding.” Id. at ¶ 5, Attach. 1 at 3. Plaintiff alleges that he told the nurse that he was “burning alive from the spray” and that his hand was broken. Am. Compl. 5. He further alleges that the nurse told him he would get a shower later and that she would schedule an appointment regarding his hand. Id. Plaintiff was also observed for 30 minutes by officers, who did not indicate that Plaintiff was having any medical issues as a result of the OC spray. DiGiulio Decl. ¶ 6.

         Plaintiff was provided clean clothing upon entering DSU. First Humphers Decl. Ex 1 at 3. He requested a shower from the CO who was transporting him and was told “we're busy, you'll get one later and as soon as possible.” Am. Compl. 5. He was then placed in a cell with a sink in unit B of the DSU (“DSB”) and immediately tried to wash his face and eyes. Id. Plaintiff alleges that the water pressure from the sink was poor. Id. He tried to cup the water and splash it onto his face but doing so spread the water into his eyes and made matters worse. Id.

         Plaintiff alleges that he complained to Defendant McElroy about the burning and asked for a shower, new clothes, and a towel. Id. His request was denied. Id. At this point, Plaintiff says he was “suffering the most horrific burning of his life” and “it felt like [his] eyeballs were melting and . . . plaintiff had lava on his face and head.” Id. He asserts that the OC spray was reactivating all night long, preventing him from sleeping. Id. at 5-6. At times, he “felt like his brain was cooking.” Id. at 6.

         The next day, on July 27, 2016, Plaintiff was moved to a cell in unit C of the DSU (“DSC”). First Humphers Decl. Ex. 1 at 4. He complained to Defendants Nasby and Saxton that he was “burning alive and had yet to get a shower.” Am. Compl. 6. Plaintiff alleges that he was told it was not his day and he would get one the following day. Id. When he continued to complain, Defendant Nasby responded that “the spray sucks man.” Id. Plaintiff asked to speak to a sergeant several times but was told they were busy. Id. No sergeant spoke to Plaintiff. Id. That day, showers were conducted for cells on the opposite side of DSC. First Humphers Decl. Ex. 1 at 4-5.

         Plaintiff also asked Defendants Moore, Platt, and Blevins-the swing shift officers on July 27-for a shower, clean clothes, towels, and bedding. Am Compl. 6. He was denied. Id. He was told that he would get a shower and new clothes the following day and new bedding in a few days along with everyone else. Id. Plaintiff alleges that he suffered another night of constant burning. Id. at 6-7. His eyes also stuck shut such that they would “tear up” when he opened them and reactivate the spray. Id. at 7. Plaintiff alleges that the spray was in his open wounds, which caused them to hurt more. Id.

         The next morning, Defendants Nasby, Jones, and Saxton began giving showers to the top tier on his side of DSC. Id. Plaintiff was on the bottom tier. Id. Plaintiff alleges that he told Defendants “I've been burning alive for 2 days now can I get a shower?” Id. One of the COs told him that he had “to wait until swing shift gets here in the afternoon.” Id. When the swing shift officers arrived at 3:00 PM, Plaintiff was finally given a shower fifty hours after being sprayed. Id. Plaintiff alleges that the shower reactivated the spray and Plaintiff “burned all over again for a few hours.” Id. Plaintiff was also provided new clothes. First Humphers Decl. Ex. 1 at 5. Defendants assert that they were unable to provide Plaintiff with a shower and ...

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