Campbell v. Nevada Department of Corrections

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2026
• Docket: 23-2705
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAMON L. CAMPBELL, No. 23-2705 D.C. No. Plaintiff - Appellant, 2:20-cv-00634-CDS-VCF v. MEMORANDUM* NEVADA DEPARTMENT OF CORRECTIONS; HIGH DESERT STATE PRISON; BRIAN WILLIAMS, Warden; Lt NASH; Sgt. GEORGE; Sgt. RICHARD ASHCRAFT, Corrections Officer; LAURENETTE, Corrections Officer; General DEL PORTO, Investigator; MCKEEKAN,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding

Submitted April 22, 2026**

Before: LEE, DESAI, and JOHNSTONE, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Nevada state prisoner Damon L. Campbell appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging Eighth

Amendment violations arising out of the treatment he received after being pepper

sprayed. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Long

v. Sugai, 91 F.4th 1331, 1336 (9th Cir. 2024). We affirm in part, vacate in part,

and remand.

The district court properly granted summary judgment for Williams, Nash,

George, and McKeehan because Campbell failed to raise a genuine dispute of

material fact as to whether these defendants were aware of a substantial risk of

serious harm. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (setting forth

elements of an Eighth Amendment claim). Moreover, Campbell has not identified

any error in the district court’s sua sponte entry of summary judgment for George.

See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (explaining that district

courts may sua sponte enter summary judgment if the parties are given notice of

the district court’s intention to do so and an opportunity to develop a factual

record).

The district court granted summary judgment for Ashcraft because Campbell

failed to raise a genuine dispute of material fact as to whether Ashcraft acted with

deliberate indifference to a substantial risk of serious harm. However, Campbell

provided evidence that he asked Ashcraft for his towel, soap, and shower shoes

2 23-2705 because Campbell was experiencing ongoing burning as a result of being pepper

sprayed. See Farmer, 511 U.S. at 835 (explaining that to prevail on an Eighth

Amendment claim, a plaintiff must show that defendants acted with deliberate

indifference to a substantial risk of serious harm); Clement v. Gomez, 298 F.3d

898, 904 (9th Cir. 2002) (explaining that “officials . . . may have been deliberately

indifferent to the prisoners’ serious medical needs if, in fact, they were aware of

the harmful effects of the pepper spray . . . and yet purposefully refused to provide

showers [or] medical care”). Because there is no indication from the record that

the district court considered this evidence, we vacate summary judgment for

Ashcraft and remand for the district court to consider this evidence in the first

instance.

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Campbell’s Motion for Commencement of Appellate Review (Docket Entry

No. 27) is denied as unnecessary.

AFFIRMED in part, VACATED in part, and REMANDED.

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