United States District Court, D. Oregon
Edward Humphers Snake River Correctional Institution Pro Se
Rosenblum Attorney General Michael R. Washington Senior
Assistant Attorney General OREGON DEPARTMENT OF JUSTICE
Attorneys for Defendants
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...