Hart v. Celaya

548 F. Supp. 2d 789, 2008 U.S. Dist. LEXIS 30061, 2008 WL 1734845

• Court: District Court, N.D. California
• Decided: April 11, 2008
• Docket: C 06-02519 CW (PR)
• Status: Published

Opinion

ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docket nos. 34, 81)

CLAUDIA WILKEN, District Judge.

Plaintiff Andre L. Hart is a state prisoner, incarcerated at Salmas Valley State Prison (SVSP) when he filed this pro se civil rights action under 42 U.S.C. § 1983. He alleges that, on March 10, 2005, Defendants Alfred Aguirre, Frank Colburn, Joseph Celaya, Ernie Camarena and Christopher Salopek were involved in an incident in which they (1) used excessive force against Plaintiff and (2) were deliberately indifferent to his serious medical needs. The incident entailed Plaintiffs placement in a holding cell, exposure to pepper spray, and subsequent decontamination.

All Defendants move for summary judgment. Plaintiff opposes Defendants’ motions. For the reasons discussed below, the Court GRANTS Defendants’ motions.

PROCEDURAL BACKGROUND

On April 11, 2006, Plaintiff filed his complaint against Defendants Aguirre, Col-burn, Celaya, Camarena, Salopek, E. Puli-do and Does. On November 1, 2006, the Court issued a screening order finding that Plaintiff had alleged a cognizable claim of excessive force against Defendants Celaya, Colburn, Camarena, Salopek and Aguirre; and that he had alleged a cognizable claim of deliberate indifference to his medical needs against Defendants Colburn, Camarena, Salopek and Aguirre. The Court dismissed without prejudice Plaintiffs claims against Defendants Puli-do and Does, and dismissed his official capacity claims. The Court ordered the complaint served on Defendants.

Defendants Celaya, Camarena and Salo-pek moved for summary judgment (docket no. 34). Later, Defendants Aguirre and Colburn moved for summary judgment (docket no. 81). Plaintiff opposed both motions. Defendants Celaya, Camarena and Salopek replied.

On July 12, 2007, the Court referred the case to a magistrate judge for discovery purposes. The magistrate judge ordered Defendants to produce Plaintiffs medical and central file for Plaintiffs review. The magistrate judge also ordered Defendants to produce several documents for in camera review, as follows: (1) any complaints claiming any Defendant used improper or excessive force from January 1, 2001 to January 1, 2006; (2) SVSP policies and operational procedures related to the use of force; (3) Use of Force Critique for the incident, number SVP-FC7-05-03-0136; and (4) Modification Order, corresponding memorandum, and Confidential Supplement for the inmate appeal, log number SVSP-D-05-01465. Because the magistrate judge determined that the submitted documents would qualify for an “attorneys’ eyes only” protective order, and because Plaintiff is proceeding pro se, the Court has reviewed the documents and has taken into consideration any information supporting Plaintiffs claims.

FACTUAL BACKGROUND

I. SVSP Policies

According to SVSP policy, “if an inmate is accused of exposing himself or masturbating in the presence of a prison official or medical professional, then he is promptly rehoused to Administrative Segregation [ad seg] and will be issued a Rules Violation Report for sexual harassment.” 1 (Ce-laya Decl. ¶ 8; Mensing Decl. ¶ 3.)

Prior to being placed in ad seg, inmates are placed in holding cells. In order to check for contraband items in their body cavities and clothing, inmates must submit to an unclothed body search. (Camarena Decl. ¶ 5.) An unclothed body search entails “stripping out of all your clothes, run[ning] your fingers through your hair, through your mouth, lifting your genitals, turning around, coughing, lifting up the heel [sic] of your feet, totally naked, while [prison officials] stand there and observe you and shine a flashlight.” (Pl.’s Depo. 127.) Once an inmate is secured in a holding cell, prison officials must complete a holding cell log where they document the inmate’s welfare every thirty minutes. (Camarena Decl. ¶ 5.) Even if an inmate’s hands have been exposed to Oleoresin Capsicum (OC) pepper spray, he must still submit to an unclothed body search for contraband. (Salopek Decl. ¶ 6.)

The OC solution used at SVSP is called MK-9 Magnum Aerosol Pepper Projector. (Gifford Decl. ¶2.) The decontamination procedure listed on the label reads as follows:

Remove subject from contaminated area and position subject in an area of fresh air.... [C]ontinue to monitor subject throughout the decontamination process. When available, allow the subject to flush their eyes with copious amounts of fresh running water.

(Id. ¶ 3.)

II. Plaintiffs March 10, 2005 Placement in Administrative Segregation and Related Incidents

While at SVSP, Plaintiff received at least three Rules Violation Reports related to sexual misconduct. On July 24, 2004, Plaintiff was found guilty of indecent exposure for masturbating naked in front of an SVSP Medical Technical Assistant (MTA) on June 24, 2004. On April 26, 2005, Plaintiff was found guilty of sexual harassment, related to indecent exposure, for exposing himself to an SVSP nurse on March 10, 2005. On November 28, 2005, Plaintiff received a Rules Violation Report for masturbating in front of an SVSP medical technician. Plaintiffs March 10, 2005 violation gave rise to the alleged incidents for which he asserts this claim.

On March 10, 2005, at about 10:00 am, Plaintiff exposed himself to a nurse, 2 while she was distributing medications to inmates. The nurse informed Sergeant Joshua Mensing, the supervising officer for the facility in which Plaintiff was housed. (Ugaz Decl. Ex. D, Rules Violation Report SVP-FC7-05-03-0136.) At about 11:00 am, Sgt. Mensing ordered Defendant Camarena to escort Plaintiff from his cell to the Program Office, in preparation for placing Plaintiff in ad seg. (Mens-ing Decl. ¶ 3.) Defendant Camarena told Plaintiff that he was escorting him to the Program Office. Plaintiff complied with the instructions from Defendant Camare-na, who placed him in a holding cell in the health services annex. (Camarena Decl. ¶ 6.) At 11:30 am, once Plaintiff was secured in a holding cell, MTA Pulido completed a preliminary medical evaluation; she found that he had no injuries and told him that he was to be placed in administrative segregation. (Pl.’s Depo. 97; Lee Decl. Ex. A.) Shortly thereafter, Defendant Camarena ordered Plaintiff to submit to an unclothed body search, and Plaintiff refused. (Pl.’s Depo. 99-101.) Defendant Camarena explained that all inmates in holding cells must submit to an unclothed body search, and Plaintiff again refused, demanding to speak to a superior officer. (Id.)

Defendant Camarena then left the holding area to inform Sgt. Mensing that Plaintiff was secured in a holding cell, but that he refused to submit to the body search. Defendant Camarena and Sgt. Mensing returned to the holding cell area, and Sgt. Mensing ordered Plaintiff to comply with the search. (Mensing Decl. ¶ 5.) Plaintiff became “progressively more defiant, agitated, and loud.” (Id.) He refused to comply until he could speak with Defendant Celaya. (Pl.’s Depo. 104.) Sgt. Mensing then left the holding area to inform Defendant Celaya, the supervising facility lieutenant, that Plaintiff refused to submit to the search. (Mensing Decl. ¶ 5.)

At approximately 1:00 pm, Defendants Celaya and Salopek and Sgt. Mensing joined Defendant Camarena in the holding cell area. (Celaya Decl. ¶ 4; Salopek Deck ¶ 3.) Defendant Celaya ordered Plaintiff to submit to the unclothed body search, and Plaintiff refused. (PL’s Depo. 116.) Plaintiff and Defendant Celaya were yelling back and forth with Plaintiff demanding to see the facility captain, while pushing up against and shaking the door of his cell. (PL’s Depo. 115; Celaya Decl. ¶ 4.) Plaintiff testifies that he was “irate,” and “yelling” at Defendant Celaya. (PL’s Depo. 100-13.) Defendant Celaya refused to retrieve the facility captain, and Plaintiff continued to rattle the door of his holding cell. (Ugaz Decl. Ex. F, Incident Report.) Defendants demanded that he stop. Plaintiff testifies that Defendant Celaya yelled, “I’m giving you a direct order to strip out, if you don’t I’ll spray you with a chemical agent and strip you out.” (PL’s Depo. 112.) Plaintiff shouted, “I don’t give a fuck about your program. Spray me, because I am not going to strip out.” (Id. at 115.) Defendants believed that Plaintiff might “seriously hurt himself.” (Camare-na Decl. ¶ 8; Celaya Decl. ¶ 4; Salopek Deck ¶ 4.) Sgt. Mensing was also concerned that Plaintiff might break the cell door and pose a danger to others. (Mens-ing Decl. ¶ 6.)

Plaintiff testifies that Defendant Celaya ordered that Plaintiff be pepper sprayed. (Pl.’s Depo. 113.) Shortly thereafter, for thirty to sixty seconds, Sgt. Mensing sprayed Plaintiff with a canister 3 of OC, through the top of Plaintiffs cell door. (Pl.’s Depo. 118; Mensing Decl. ¶ 6.) Plaintiff admits that neither Defendant Salopek nor Defendant Celaya sprayed him with OC. (Pl.’s Depo. 122.) At the time he was sprayed, Plaintiff was wearing jeans, a “state blue” shirt, a t-shirt, tennis shoes, socks and a head covering, and he was standing in the corner of his cell with his back to the spray. (Id. at 119.) Plaintiff was sprayed at approximately 12:45 pm. (Pl.’s Decl. Ex. N.)

Plaintiff testifies that, after he was sprayed, Sgt. Mensing and Defendants Ce-laya, Camarena and Salopek left the holding cell area and closed the door. (Id. at 125.) Before they left, Defendant Celaya said, “[L]et me know when you are ready to strip out.” (Id.) Plaintiff testifies that he was trying to be “macho” by not coughing, but “eventually it got the better of’ him and he started to cough and choke. (Id.) He states that he yelled that he was ready to strip out, but that Defendant Celaya tormented him by twice asking him to yell louder. (Id. at 125-26.) Plaintiff testifies that three times he had to yell that he would strip out before Defendant Celaya said, “Okay do it.” (Id. at 126.) Then, Defendants Camarena and Salopek re-entered the holding cell room to conduct the strip search. (Id.) Plaintiff testifies that approximately five minutes elapsed between the time he was sprayed with OC and the time Defendants Camare-na and Salopek opened the door of his cell. 4 (Id. at 125.)

Plaintiff then submitted to an unclothed body search in compliance with orders from Defendants Camarena and Salopek. In his complaint, Plaintiff alleges that, because his hands were saturated with chemical spray, his genitals burned when he lifted them for the body search. The entire body search lasted two to three minutes. (Id. at 127.)

After the body search, Plaintiff complied with instructions from Defendant Salopek, who placed him in handcuffs, opened the cell door and ordered him to kneel. Plaintiff testifies that, before he was able to kneel, Defendant Camarena twisted his right wrist unnecessarily and attempted to trip him, after which he went down on his knees. (Id. at 128-31.) Plaintiff also testifies that, once he was kneeling, Defendant Camarena pushed him into the corner of a holding cell for ten to fifteen seconds, causing him to injure his shoulder. (Id. at 131-34.) While Plaintiff was down, Defendants Camarena and Salopek placed leg restraints on him. 5 Plaintiff testifies that, as Defendants Camarena and Salopek escorted him to an outdoor area for decontamination, Defendant Camarena continued to subject him to “rough handling” by twisting his wrist and jerking his arm. 6 (Id. at 138.) Plaintiff admits that Defendant Salopek, who was holding his left arm, did not subject him to rough handling. (Id. at 139.) According to the holding cell log, Plaintiff spent a total of one and a half hours in the holding cell. (Pl.'s Decl. Ex. I.)

Once outside, Defendants Camarena and Salopek ordered Plaintiff to kneel in a corner area about three feet from the wall of the health services annex. (Id. at 138, 144.) Plaintiff was wearing boxer shorts. Plaintiff recalls that it was close to ninety degrees outside, and that he was forced to kneel on a hot surface 7 with his back exposed to the heat of the sun. (Pl.’s Depo. 142^15.) Defendants state that they asked Plaintiff to kneel, rather than stand, because he had been agitated earlier and they felt they needed more control over him. (Salopek Decl. ¶ 8; Camarena Decl. ¶ 11.) Further, they did not take Plaintiff to a shower, because there was not one in the building, and because decontamination is achieved with “copious amounts of air,” whereas water provides only temporary relief. (Id.) Also, Plaintiff might have refused to exit a locked shower stall. (Mens-ing Decl. ¶ 8.)

Plaintiff testifies that his knees began to blister, but Defendants refused his request for something to put under his knees. 8 (Pl.’s Depo. 145.) He testifies that he felt like he was going to “pass out,” but that Defendants Salopek, Colburn, Camarena and two other prison officials, who were standing in a group making “snide remarks,” refused his request to see an MTA, 9 telling him that it was just the effects of the spray. (Id. at 148.) Plaintiff also claims that Defendant Colburn told a story about trapping and cooking lobster and that he compared Plaintiff to a lobster. 10 (Id. at 150-51.) Defendant Ca-marena recalled Plaintiff stating that he was “burning,” but he believed Plaintiff was referring to the effects of the pepper spray. (Camarena Decl. ¶ 11.) Defendant Salopek also recalled that Plaintiff complained that he was “burning,” but that he did not indicate that he was in severe pain. (Salopek Deck ¶ 8.)

At approximately 1:00 pm, Defendant Celaya asked Defendant Colburn to retrieve a five-gallon bucket from the Work Crew Office. (Colburn Decl. ¶ 3.) Defendant Colburn filled the bucket with water and brought it outside to Plaintiff, who was kneeling between Defendants Camarena and Salopek and did not exhibit signs of distress. (Id. ¶ 4.) Defendant Colburn advised Plaintiff that fresh air is the best way to decontaminate and that water provides only temporary relief from OC and might not stop the burning, but Plaintiff insisted that he wanted the water poured over his body. (Id.) Plaintiff testifies that he had been kneeling for about forty minutes when Defendant Colburn brought a bucket of water outside and slowly poured three gallons over his head in order to “bring [him] back into consciousness.” (Pl.’s Depo. 148-49, 153.) Defendant Col-burn then went back inside and came out with another bucket of water, but Plaintiff told him not to pour it over his head because he thought it was just reactivating the chemicals. 11 (Id. at 150.) Plaintiff requested some water to drink, so Defendant Colburn “poured a little in [his] mouth and he left it at that.” (Id.) Defendant Colburn declares that he decontaminated Plaintiff with water for about ten minutes, until Plaintiff indicated that he did not need any more water. (Id. ¶ 5.) Plaintiff recalls being outside for between forty-five minutes and one hour. 12 (Pl.’s Depo. 153.)

Plaintiff testifies that, for the duration of his decontamination, Defendant Aguirre was standing by the rear exit door, observing. 13 (Pl.’s Depo. 142, 147.) Plaintiff admits that Defendants Colburn, Salopek, and Aguirre did not use any physical force against him on March 10, 2005. (Id. at 186-87.)

After decontamination, Plaintiff was escorted inside the health services annex and placed into a holding cell for about fifteen more minutes. (Pl.’s Depo. 159.) At approximately 1:00 pm, MTA Pulido completed another medical evaluation of Plaintiff, in order to clear him for release to ad seg; MTA Pulido found no injuries, and documented his exposure to and decontamination from OC. 14 (Pl.’s Deck Ex. N; Salopek Deck ¶ 9; Camarena Deck ¶ 12.) Plaintiff was then taken to ad seg by Defendants Salopek and Camarena. (PL’s Depo. 159.) In ad seg, Plaintiffs cell mate was Otis Moran. (Id. 160.)

A processing report, which was updated “at or near the time of the event,” indicates that Plaintiff was placed in ad seg at 2:05 pm on March 10, 2005. (Pl.’s Deck Ex. J.) At approximately 2:20, Plaintiff received a notice informing him that his ad seg placement was due to sexual harassment. (Id. at 162.) Later that day, in ad seg, Plaintiff was observed hitting the door of the cell and hitting himself on the shoulders. (Parin Decl. ¶ 5.)

On March 11, 2005, Plaintiff complained of shoulder pain, skin damage and blistered knees, and he was evaluated by MTA Garcia who found a scratch on Plaintiffs left shoulder, but no redness or swelling and no other injuries. (Lee Decl. Ex. C; PL’s Decl. Ex. C-D.) MTA Garcia notified an SVSP nurse about Plaintiffs scratch. On March 16, 2005, Plaintiff was examined by Dr. Bowman who found that his skin, back and shoulder looked normal. (Pl.’s Decl. Ex. D.) Plaintiff also received an X-ray of his left shoulder, and on March 18, 2005, he received the results, which indicated “[njormal bone and joint structures.” (Lee Decl. Ex. D.) Plaintiff testifies that the pain in his knees subsided within two days and he was never diagnosed with skin cancer. (Pl.’s Depo. 176.)

On June 15, 2007, SVSP Chief Medical Officer Charles Lee, M.D., conducted a physical examination of Plaintiff. (Lee Decl. ¶ 4.) Dr. Lee found no medical evidence of any significant, residual or permanent injury to Plaintiffs shoulder, knees, skin or genitals. (Id.) Dr. Lee observed that Plaintiff was able to move his shoulders normally and had no damage or scarring, and that he did not indicate that he was experiencing pain. (Id. ¶ 4a.) Plaintiff was also able to move his knees normally without pain, and Dr. Lee did not observe any scarring or abnormal coloration on Plaintiffs knees. (Id. ¶ 4b.) Dr. Lee found no evidence of skin damage or skin cancer related to sunburn, nor did he find any residual injury to Plaintiffs genitals from the pepper spray. (Id. ¶¶ 4c-4d.) Dr. Lee also reviewed Plaintiffs medical records and found that the “most serious injury that [Plaintiff] suffered as a result of the March 10, 2005 incident was exposure to the fleeting effects of pepper spray.” (Id. ¶ 5.)

LEGAL STANDARD

Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party’s evidence, if supported by affidavits or other evidentiary material. Id. at 324, 106 S.Ct. 2548. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir.1991). Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of production by either of two methods. Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir.2000). The moving party may produce evidence negating an essential element of the non-moving party’s case, or, after suitable discovery, the moving party may show that the non-moving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. Id. If the moving party discharges its burden by showing an absence of evidence to support an essential element of a claim or defense, it is not required to produce evidence showing the absence of a material fact on such issues, or to support its motion with evidence negating the non-moving party’s claim. Id. If the moving party shows an absence of evidence to support the non-moving party’s case, the burden then shifts to the non-moving party to produce “specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir.1991).

If the moving party discharges its burden by negating an essential element of the non-moving party’s claim or defense, it must produce affirmative evidence of such negation. Nissan, 210 F.3d at 1105. If the moving party produces such evidence, the burden then shifts to the non-moving party to produce specific evidence to show that a dispute of material fact exists. Id.

If the moving party does not meet its initial burden of production by either method, the non-moving party is under no obligation to offer any evidence in support of its opposition. Id. This is true even though the non-moving party bears the ultimate burden of persuasion at trial. Id. at 1107.

DISCUSSION

I. Defendant Celaya, Camarena and Sal-opek’s Motion for Summary Judgment

Defendants Celaya, Camarena and Salo-pek move for summary judgment (docket no. 34) on the grounds that there is no genuine issue of material fact regarding Plaintiffs claims of excessive force and deliberate indifference, and that they are entitled to qualified immunity.

A. Excessive Force Claim

The following allegations form the basis of Plaintiffs excessive force claim against Defendants Celaya, Camarena and Salo-pek: (1) Defendants dispersed chemical agents into the holding cell where Plaintiff was located, unprovoked; (2) Defendants Camarena and Salopek forced him to touch his genitals with his OC saturated hands during an unclothed body search; (3) Defendant Camarena twisted Plaintiffs wrist and pushed him into a holding cell; and (4) Defendants Camarena and Salopek forced Plaintiff to kneel on asphalt for an hour under the extreme heat of the sun.

In order to state a claim for the use of excessive force in violation of the Eighth Amendment, Plaintiff must allege facts that, if proven, would establish that prison officials applied force “maliciously and sadistically to cause harm,” rather than in a good-faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). The extent of injury suffered by an inmate is one of the factors to be considered in determining whether the use of force is wanton and unnecessary. Id. Not every malevolent touch by a prison guard gives rise to a federal cause of action; the Eighth Amendment’s prohibition of cruel and unusual punishment necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10, 112 S.Ct. 995. Guards may use force only in proportion to the need in each situation. Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979).

In determining whether the use of force was for the purpose of maintaining or restoring discipline or, rather, for the malicious and sadistic purpose of causing harm, a court may evaluate the need for application of force, the relationship between that need and the amount of force used, the extent of any injury inflicted, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7, 112 S.Ct. 995. However, courts must accord prison administrators wide-ranging deference in the adoption and execution of polices and practices to further institutional order and security. Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Jeffers v. Gomez, 267 F.3d 895, 917 (9th Cir.2001).

Plaintiffs complaint alleges that he did not provoke the use of OC. However, he testifies that he refused to obey orders from three different prison officials and that he was rattling his cell door, “irate,” and “yelling” at Defendant Celaya prior to being sprayed with OC. Defendant Camarena ordered Plaintiff to submit to an unclothed body search and Plaintiff refused. Defendant Camarena repeated the order with an explanation that all inmates are required to submit to an unclothed body search. Plaintiff refused again, demanding to speak to a superior officer. When this officer, Sgt. Mensing, arrived and repeated the order, Plaintiff refused and demanded to speak to Defendant Celaya. Sgt. Mensing retrieved Defendant Celaya, who repeated the order to submit to an unclothed body search. At this point, Plaintiff began yelling and pushing up against his cell door, causing it to shake and rattle. Defendants were concerned that Plaintiff would either harm himself or break out of his cell and endanger others. Plaintiff provides no evidence that Defendants applied force maliciously, for the purpose of causing harm.

In the context of Plaintiffs refusal to comply with the direct orders of three SVSP officials, his disorderly behavior, and the warning that he received, Defendants have demonstrated that Sgt. Mensing released OC into Plaintiffs cell for the purpose of maintaining order and discipline. Regardless of Defendants’ role in Sgt. Mensing’s action, they were complying with SVSP policy, which required them to use pepper spray, the lowest level of force, to keep Plaintiff from hurting himself or others. See Spain v. Procunier, 600 F.2d 189, 195 (9th Cir.1979) (where, “after adequate warning,” a prisoner acts in such a way to present “a reasonable possibility that slight force will be required,” use of chemical spray “may be a legitimate means for preventing small disturbances from becoming dangerous”).

In his opposition, Plaintiff no longer contends that the use of pepper spray was unprovoked, but rather, that it was unwarranted because he was not allowed to speak to a prison official of higher authority. Aside from the fact that Plaintiff was warned that he would be sprayed with OC, to which he replied, “Spray me, because I am not going to strip out,” Sgt. Mensing only resorted to use of force— the release the OC chemical spray into Plaintiffs cell — after Plaintiff refused to comply with the direct orders of three different SVSP officials. Plaintiff refused an order from Defendant Camarena, a correctional officer, then from Sgt. Mens-ing, the facility supervisor, then from Defendant Celaya, the supervising facility lieutenant. Plaintiff specifically requested to speak to Defendant Celaya, but when he did not get what he wanted from Defendant Celaya, he became belligerent and requested an audience with a higher prison official. Although prison officials are not required to negotiate with inmates who refuse to comply with direct orders, Plaintiff was afforded the opportunity to speak with two officials of higher authority. Thus, his argument is unavailing.

Plaintiff alleges that Defendants’ order to touch his genitals during the un clothed body search, after his hands were “saturated in chemical agents,” amounted to cruel and unusual punishment. At his deposition, Plaintiff did not testify to this fact, and he explained that the standard procedure for an unclothed body search entails lifting ones genitals. Defendant Salopek stated that, because of the danger posed by contraband hidden in body cavities, inmates must submit to such a search, even if they have been exposed to OC. The entire search, which included a search of Plaintiffs hair, mouth and feet, took approximately two to three minutes. Plaintiff does not allege that he informed Defendants that he was in pain. Further, he fails to show that Defendants intended to cause him harm by ordering him to submit to an unclothed body search. Defendants ordered the search in compliance with SVSP policy, in order to maintain institutional security.

Plaintiff alleges that, after he was handcuffed and complying with orders, Defendant Camarena used excessive force by attempting to trip him, pushing him into the frame of a holding cell door, and twisting and pulling his wrists. Plaintiff testifies that, after being ordered to kneel, he went down on his knees before being tripped and that Defendant Camarena pushed him into the cell door for no more than fifteen seconds while he was putting on Plaintiffs leg restraints. He also testifies that he was escorted outside by Defendants Camarena and Salopek, but that only Defendant Camarena, who was holding Plaintiffs right arm, twisted his wrist and jerked his arm. Plaintiff admits that Defendant Salopek did not apply any force that day. Plaintiffs medical evaluations, prior to, and after the incident indicate the Plaintiff did not sustain any injuries, such as cuts, abrasions, swelling or bruises. Construing Plaintiffs allegations as true, that Defendant Camarena subjected him to “rough handling,” the Eighth Amendment does not protect against such de minimis use of physical force.

Plaintiff claims that Defendants Camarena and Salopek subjected him to torture by forcing him to kneel, for forty-five minutes, on hot asphalt, under the “extreme heat” of the sun. Plaintiff claims that Defendants refused his requests for a cloth to put under his knees, resulting in blisters. The photographic evidence indicates that Plaintiff was kneeling on light colored cement, 15 not asphalt, and Plaintiff testifies that he was kneeling for approximately forty-five minutes. Defendants declare that they asked Plaintiff to kneel as a safety precaution, based on his previous behavior. SVSP policy states that forty-five minutes is the amount of time necessary for dissipation of all effects of OC exposure. Both SVSP policy and the instructions on the canister of OC specify that decontamination is best achieved by exposing the individual to fresh air. Defendants decontaminated Plaintiff in the manner that they did for the purpose of safely alleviating the effects of the OC spray, in compliance with SVSP policy, and not for the malicious or sadistic purpose of causing harm.

As with his previous allegations, Plaintiff presents no evidence that he sustained anything more than de minimis injury to his skin or knees as a result of either the “extreme heat” of the sun or the heat of the surface on which he was kneeling. MTA Pulido’s post-decontamination assessment found no injury to Plaintiffs knees or skin. MTA Garcia, who examined Plaintiff the next day, found no blisters, swelling or redness on his knees, back or shoulder. Dr. Lee’s subsequent physical examination and review of Plaintiffs medical records revealed no lasting injury. Plaintiffs only evidence of injury arising from hot weather is a declaration from Mr. Moran, another inmate, who looked at Plaintiffs back on March 10, 2005, and saw some discoloration of the skin and evidence of sunburn. (Moran Decl. at 2.) Further, Plaintiff testified that the pain in his knees subsided after two days and that he was never diagnosed with skin cancer or other skin problems.

Plaintiff fails to establish that Defendants Celaya, Camarena or Salopek applied force in a malicious or sadistic manner or that he suffered more than de minimis injury. Accordingly, these Defendants are entitled to summary judgment on the excessive force claims as a matter of law.

B. Deliberate Indifference Claim

Plaintiffs deliberate indifference claim against Defendants Camarena and Salopek stems from the following allegations: (1) they were deliberately indifferent to his needs by not promptly releasing him from the holding cell area to decontaminate him from the effects of OC and by not allowing him to shower after being sprayed with OC; (2) they refused medical treatment for his shoulder, which was bruised after he was pushed into the side of a holding cell; and (3) they refused medical treatment for his knees, which blistered when he was forced to kneel during the outdoor decontamination process.

The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993).

Deliberate indifference to serious medical needs violates the Eighth Amendment’s proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992), overruled on other grounds, WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir.1997) (en banc). A determination of “deliberate indifference” involves an examination of two elements: the seriousness of the prisoner’s medical need and the nature of the defendant’s response to that need. Id.

A “serious” medical need exists if the failure to treat a prisoner’s condition could result in further significant injury or the “unnecessary and wanton infliction of pain.” Id. (citing Estelle, 429 U.S. at 104, 97 S.Ct. 285). The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a “serious” need for medical treatment. Id. at 1059-60 (citing Wood v. House- wright, 900 F.2d 1332, 1337-41 (9th Cir.1990)).

A prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. The prison official must not only “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,” but “must also draw the inference.” Id. If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. County of Washoe, 290 F.3d 1175, 1188 (9th Cir.2002).

In order for deliberate indifference to be established, therefore, there must be a purposeful act or failure to act on the part of the defendant and resulting harm. McGuckin, 974 F.2d at 1060; Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir.1985). A finding that the defendant’s activities resulted in “substantial” harm to the prisoner is not necessary, however. Neither a finding that a defendant’s actions are egregious nor that they resulted in significant injury to a prisoner is required to establish a violation of the prisoner’s federal constitutional rights, McGuckin, 974 F.2d at 1060, 1061, but the existence of serious harm tends to support an inmate’s deliberate indifference claims, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006).

Once the prerequisites are met, it is up to the fact-finder to determine whether the defendant exhibited deliberate indifference. Such indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown in the way in which prison officials provide medical care. McGuckin, 974 F.2d at 1062 (delay of seven months in providing medical care during which medical condition was left virtually untreated and plaintiff was forced to endure “unnecessary pain” sufficient to present colorable § 1983 claim).

Plaintiff asserts that the effects of exposure to OC, a bruised shoulder, and blistered knees amounted to serious medical needs. After Plaintiff was decontaminated, he was examined by MTA Pulido, who listed no evidence of injury, and who documented Plaintiffs decontamination from OC spray. Dr. Lee’s 2007 physical examination found no long-term or lasting skin, knee, shoulder or OC related injuries. The only medical evidence of an injury is a March 11, 2005 report of a scratch on Plaintiffs shoulder, unaccompanied by bruising or swelling. An X-ray of Plaintiffs shoulder, taken on March 12, 2005, two days after the incident, revealed no bone or joint injury. Therefore, Plaintiff has failed to show that he suffered from a serious medical need within the meaning of the Eighth Amendment. However, had Plaintiffs medical needs been serious, he would need to show that Defendants were deliberately indifferent.

Plaintiff argues that he was subjected to a period of deliberate delay in addressing his medical needs after he was exposed to OC, because Defendants Salopek and Camarena did not immediately release him from his holding cell. Five minutes elapsed between the time Plaintiff was sprayed and the time Defendants opened his cell door to perform a strip search. Plaintiff claims that, while coughing and choking, he had to twice repeat the affirmation that he was ready to comply with the unclothed body search, before he was released. However, he also testifies that he was trying to be “macho” so purposely did not indicate that he would comply, until he succumbed to coughing. Im mediately after the search, Defendants Salopek and Camarena took Plaintiff outside to be decontaminated from the effects of the OC spray. Viewing the evidence in the light most favorable to Plaintiff, and assuming that it took five minutes to release him from the cell, Defendants’ delay does not amount to deliberate indifference to his medical need.

Plaintiff claims that Defendants Salopek and Camarena were deliberately indifferent to his need to be decontaminated from the effects of the OC spray by taking him outside, rather than allowing him to shower. Defendants placed Plaintiff outside to decontaminate from the effects of the spray based on both SVSP policy and the OC manufacturer’s instructions for decontamination that prescribe exposure to fresh air as the best method for decontamination. Plaintiff complained that he was “burning” and admits that he received a gentle dousing with water. He admits that he then refused a second dousing because the water only reactivated the “chemical agents” in the OC spray. Plaintiff does not say that he requested a shower. The holding cell facility did not have a shower, and Defendants were concerned that placing Plaintiff in a locked shower would only re-instigate his previous disruptive behavior. The evidence indicates that Defendants were not deliberately indifferent by decontaminating Plaintiff by exposing him to fresh air in an outdoor area.

Plaintiff asserts that Defendants were deliberately indifferent by denying access to medical care for his bruised shoulder. Accepting, for the purposes of this motion, that Plaintiff asked to see an MTA, and Defendants did not retrieve one while Plaintiff was undergoing decontamination in the outdoor area, he received a follow up examination after decontamination. MTA Pulido conducted a medical evaluation of Plaintiff at approximately 1:00 pm, medically clearing him to enter ad seg. Another MTA examined Plaintiff on March 11, 2005, noting a “small abrasion” on Plaintiffs right shoulder, but no redness or swelling. As a precaution, however, Plaintiff received an X-ray on March 16, 2005, which found nothing wrong with his shoulder. The undisputed evidence indicates that Plaintiff was provided ample access to medical care for his shoulder.

Plaintiff argues that Defendants were deliberately indifferent to his blistered knees by not providing him a cloth to kneel on. MTA Pulado, who conducted a medical evaluation after Plaintiffs decontamination, did not document any blisters. Plaintiff does not claim that he requested, or was denied, medical assistance regarding his knees. He also testifies that any pain in his knees subsided after two days. That he was not given a cloth to kneel on, and as a result may have experienced some discomfort, does not rise to the level of deliberate indifference.

Consequently, Defendants Salopek and Camarena are entitled to summary judgment on Plaintiffs deliberate indifference claim.

C. Qualified Immunity Defense

In the alternative, Defendants Celaya, Salopek and Camarena assert that they are entitled to summary judgment based on qualified immunity.

The defense of qualified immunity protects “government officials ... from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The rule of qualified immunity protects “ ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). A defendant may have a reasonable, but mistaken, belief about the facts or about what the law requires in any given situation. Id. “Therefore, regardless of whether the constitutional violation occurred, the [official] should prevail if the right asserted by the plaintiff was not ‘clearly established’ or the [official] could have reasonably believed that his particular conduct was lawful.” Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991).

To determine whether a defendant is entitled to qualified immunity, the court must engage in the following inquiries. At the outset, the court must determine whether the plaintiff has alleged the deprivation of an actual constitutional right. Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). In other words, the court must ask, “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004); Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If this inquiry yields a positive answer, then the court proceeds to determine if the right was “clearly established.” Id.

The inquiry as to whether the right at issue was clearly established must be made in light of the specific context of the case, not as a broad general proposition. Saucier, 533 U.S. at 202, 121 S.Ct. 2151. “Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). As the Supreme Court has explained, “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id. at 753, 122 S.Ct. 2508. The plaintiff bears the burden of proving the existence of a clearly established right at the time of the allegedly impermissible conduct. Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir.1992).

If the law is determined to be clearly established, the next question is whether, under that law, a reasonable official could have believed his or her conduct was lawful in the situation confronted. Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th Cir.1993). If the law did not put the officer on notice that his or her conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Saucier, 533 U.S. at 202, 121 S.Ct. 2151. Therefore, qualified immunity shields an officer from suit when he or she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances he or she confronted. Id. at 206, 121 S.Ct. 2151. The defendant bears the burden of establishing that his or her actions were reasonable, even though he or she violated the plaintiffs constitutional rights. Doe v. Petaluma City School Dist., 54 F.3d 1447, 1450 (9th Cir.1995).

Construing the evidence in Plaintiffs favor, the Court has found that Defendants’ actions did not amount to cruel and unusual punishment. Even if Defendants had violated Plaintiffs Eighth Amendment rights, though, they are entitled to qualified immunity because they have produced sufficient evidence to show that they could have believed that their actions were reasonable under the circumstances of each claim as outlined below.

Defendants Celaya, Salopek and Ca-marena did not act unreasonably in condoning Sgt. Mensing’s act of spraying Plaintiff with a canister of OC. Plaintiff has a history of sexual misconduct at SVSP, and on the morning of the incident, he sexually harassed an SVSP nurse. In accord with SVSP policy, Sgt. Mensing ordered Defendant Camarena to escort Plaintiff from his cell to the Program Office, in preparation for placing Plaintiff in ad seg, pending a review of the incident. Defendant Camarena also followed SVSP policy by placing Plaintiff in a holding cell, in order to process him into the ad seg facility. Defendants Celaya and Camare-na and Sgt. Mensing then followed procedure by ordering Plaintiff to submit to an unclothed body search. Based on Plaintiffs ensuing disruptive and physically harmful behavior, reasonable prison officials could have believed that the decision to release OC spray was warranted.

Defendant Camarena did not act unreasonably during the process of shackling Plaintiff and moving him from the holding cell to the outside area for decontamination. Even if Defendant Camarena subjected Plaintiff to rough handling, the circumstances were such that a reasonably prudent officer could have acted similarly. Just minutes before, Plaintiff had been yelling and throwing himself against his cell wall while refusing to comply with orders. Defendant Camarena’s possible de minimis application of force, in placing Plaintiff in leg restraints and escorting him outside, was not clearly unlawful. Plaintiff provides no evidence that he sustained any injury to his wrist or more than a minor scratch on his shoulder.

Lastly, Defendants Camarena and Salo-pek acted reasonably by bringing Plaintiff to an outdoor area to decontaminate from the effects of OC spray and by having him kneel. Defendants followed SVSP’s decontamination policy by exposing Plaintiff to fresh air. The holding cell area did not have a shower and it was contaminated with OC. Reasonable officers in Defendants’ position would have decided to take Plaintiff outside to decontaminate. Defendants’ decision to have Plaintiff kneel was not unreasonable, based on his previous combative behavior. Both Defendants also acted reasonably in construing Plaintiffs complaints of “burning” as stemming from the effects of the OC. Even if a constitutional violation had occurred, it would not have been clear to a reasonable officer in Defendants’ position that the conduct violated the prohibition against excessive force or deliberate indifference to a serious medical need.

Consequently, Defendants Celaya, Ca-marena and Salopek are entitled to qualified immunity. For this and the foregoing reasons, the Court GRANTS Defendants’ motion for summary judgment.

II. Defendant Colburn and Aguirre’s Motion for Summary Judgment

Defendants Colburn and Aguirre move for summary judgment (docket no. 81) on the grounds that there is no genuine issue of material fact and they are entitled to qualified immunity.

Plaintiffs sole allegation against Defendant Aguirre is that he was standing by a rear exit door in the outdoor area where Plaintiff was decontaminated. Plaintiff does not allege that Defendant Aguirre engaged in unlawful conduct, and thus, he fails to state a claim against him.

Plaintiffs only allegation against Defendant Colburn is that he offered him water during the decontamination process. Plaintiff complained that he was “burning,” so Defendant Colburn slowly poured' approximately three gallons of water over Plaintiffs head. After the first bucket was empty, he retrieved another and offered to pour it over Plaintiffs head. Plaintiff refused, asking instead for a drink of water, and Defendant Colburn gave him one.

Plaintiff admits that neither Defendant Colburn nor Aguirre applied force against him on March 10, 2005. Thus, Defendants Aguirre and Colburn are entitled to summary judgment on Plaintiffs excessive force claim.

Plaintiff does not allege any purposeful act or failure to act by Defendant Aguirre and thus, he fails to state a deliberate indifference claim against him. Plaintiff argues that Defendant Colburn was deliberately indifferent because he poured some water on his head, in order to prolong his pain by reactivating the “chemical agents” in the OC spray.

As explained above, Plaintiff suffered no lasting injury from the effects of OC spray. The effects of OC spray are fully alleviated in forty-five minutes. Forty-five minutes is the amount of time that Plaintiff testifies he was placed outside for the decontamination process. Plaintiff states that he asked for water. Even if the water that Defendant Colburn subsequently poured over Plaintiffs head did renew the burning sensation caused by the OC spray, Plaintiff has failed to show that Defendant Colburn acted with the intent of causing pain. Plaintiff does not allege that he requested medical assistance from Defendant Col-burn. Further, the fact that Defendant Colburn did not continue to pour water over Plaintiffs head, after Plaintiff informed him to stop, indicates that he did not intend to purposefully prolong Plaintiffs pain.

Accordingly, Defendants Aguirre and Colburn are entitled to summary judgment on Plaintiffs deliberate indifference claim.

Plaintiff fails to state a claim against Defendant Aguirre, and he has not established that Defendant Colburn’s conduct amounted to a violation of the constitutional prohibition on cruel and unusual punishment. Even if an Eighth Amendment violation had occurred, Defendant Colburn acted reasonably under the circumstances, as discussed above.

Accordingly, Defendants Colburn and Aguirre are entitled to qualified immunity. For the reasons discussed above, the Court GRANTS Defendants’ motion for summary judgment.

CONCLUSION

For the foregoing reasons, the Court orders as follows:

1. The motion for summary judgment brought by Defendants Celaya, Camarena and Salopek (docket no. 34) is GRANTED.

2. The motion for summary judgment brought by Defendants Colburn and Aguirre (docket no. 81) is GRANTED.

3. This Order terminates Docket nos. 34 and 81.

4. The Court shall enter judgment and close the file. Each party shall bear his own costs.

IT IS SO ORDERED.

1 . Indecent exposure, while in prison, constitutes a misdemeanor offense under the California Code of Regulations and is subject to possible criminal prosecution. (Celaya Decl. ¶ 8.) See 15 Cal.Code Regs. § 3007 ("Inmates may not participate in illegal sexual acts”).

2 . One day prior, on March 9, 2005, Plaintiff had pressed a note to the window of his cell door and told the nurse that if she did not read it, he would "be acting like [he] did on B-Yard.” (SVPFC7-05-03-0136 Incident Report at 2.) While housed in Facility B, Plaintiff had masturbated in the nurse's presence. (Id.)

3 . The record refers to two canisters of OC. Plaintiff testifies that Defendant Celaya sprayed him for about three seconds through the cuff port in the cell door, but that his body was blocking it; whereas Sgt. Mensing declares that he first attempted to use one canister of OC that was too depleted. However, both sides agree that Sgt. Mensing sprayed the effective canister of OC through the top of Plaintiff’s cell door.

4 . Defendants declare that, after Plaintiff was sprayed, they stepped into an annex outside of the holding cell area for a minute or two, until they heard Plaintiff cough and say that he was ready to comply with an unclothed body search; then, they immediately re-entered the holding cell area. (Camarena Decl. ¶¶ 9-10; Celaya Decl. ¶ 6; Salopek Decl. ¶1¶ 5-6.)

5 .In his complaint, Plaintiff alleges that Defendant Celaya directed Defendants Camare-na and Salopek to put leg restraints on Plaintiff. In his deposition, Plaintiff states, instead, that Defendant Salopek directed Defendant Camarena to "grab the leg irons.” (Pl.'s Depo. 133.)

6 . Sgt. Mensing observed Defendants Camare-na and Salopek while they placed Plaintiff in handcuffs and leg irons, and he followed them as they escorted Plaintiff outside, but he did not assist in the decontamination process. (Mensing Decl. ¶ 7.) He declares that Defendant Camarena did not attempt to trip Plaintiff, push him into the side of a cell, twist his arms, or taunt him. (Id.)

7 . Plaintiff testifies that the surface was "asphalt." (Pl.’s Depo. 145.) Defendant Ca-marena declares that it was "light colored” cement. (Camarena Decl. ¶ 11.) Photographs of the outdoor area indicate that at least three feet of light colored cement abut the wall of the health services annex. (Salao Decl. Exs. H-I.)

8 . Defendants declare that they do not recall Plaintiff requesting something to put under his knees. (Camarena Decl. ¶ 11; Salopek Decl. ¶ 8.)

9 . Defendants Camarena and Salopek declare that, "at no point during the decontamination process did [Plaintiff] complain of any injury or need for medical attention.” (Camarena Decl. ¶ 11; Salopek Decl. ¶ 8.) Defendant Col-burn. also declares that Plaintiff did not request medical attention. (Colburn Decl. ¶ 4.)

10 . Other than providing Plaintiff with water, Defendant Colburn declares that he was not involved in, nor did he observe, any other portion of the incident. (Colburn Decl. ¶ 6.) He also declares that he has never trapped or cooked lobsters and he did not joke about or compare Plaintiff to a lobster. (Id. ¶ 7.)

11 . Defendant Colburn declares that, at Plaintiff’s request, he refilled the five-gallon bucket twice and poured an estimated fifteen gallons of water over his body. (Colburn Decl. ¶ 5.)

12 . Defendant Salopek and Sgt. Mensing declare that Plaintiff was on his knees for decontamination for ten to fifteen minutes. (Salopek Deck ¶ 8; Mensing Decl. ¶ 8.) Defendant Camarena declares that Plaintiff was decontaminated for twenty to thirty minutes. (Camarena Decl. ¶ 11.)

13 . Defendants Camarena and Salopek do not remember Defendant Aguirre being present during the spraying of OC or subsequent decontamination. (Camarena Deck ¶ 11; Salo-pek Deck ¶ 8.) Defendant Aguirre declares that he was neither involved in, nor did he witness, the incident on March 10, 2005. (Aguirre Decl. ¶ 7.) Furthermore, if he had been involved, or witnessed the release of OC, he would have been required to fill out a Rules Violation Report or an Incident Report. (Id. ¶ 8.) He declares that he did not draft or assist in drafting any such report. (Id.) He declares that he never interacted with Plaintiff. (Id. ¶ 5.)

14 .Plaintiff alleges that this document was falsified. The Court dismissed Plaintiff's original claim of fraud against MTA Pulido. Plaintiff provides no evidence that the document is false.

15 . Defendants cite Scott v. Harris, - U.S. -,-, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007), for the proposition that, "[wjhen opposing parties tell different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” In Scott, the Court held that a police officer was entitled to summary judgment, based on qualified immunity, in light of video evidence that utterly discredited the plaintiff’s claim. Id. The photographs in the instant case provide such uncontrover-tible evidence about the surface on which Plaintiff was asked to kneel.