1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAYSHON LAMONT MOODY, Case No. 2:22-cv-1342-DC-JDP (P) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. GONZALEZ, et al., 15 Defendants. 16
17 18 Plaintiff Kayshon Lamont Moody is a state prisoner proceeding without counsel in this 19 civil rights action brought under 42 U.S.C. § 1983. In his complaint, he alleges that defendants 20 D. Gonzalez, C. Tuyen, R. Valine, J. Ortega, T. Drake, A. Reilly, A. Humphers, and Jensen, all 21 correctional officers, violated his Eighth Amendment rights by using excessive force against him. 22 ECF No. 1. Defendant Tuyen moves for summary judgment on the claim against him, arguing 23 that he did not use excessive force and that he is entitled to qualified immunity. ECF No. 34. 24 Plaintiff opposes the motion. ECF No. 46. Following review of the record and applicable law, I 25 recommend that Tuyen’s motion for summary judgment be granted because he is entitled to 26 qualified immunity. 27
28 1 Motion for Summary Judgment 2 I. Background 3 In his complaint, plaintiff alleges that the named defendants used excessive force against 4 him. See generally ECF No. 1 at 5-6. Specific to Tuyen, plaintiff alleges that Tuyen excessively 5 sprayed him with a chemical agent. Id. at 5. 6 Plaintiff expanded on his allegations during his deposition, where he testified that the 7 incident occurred on the morning of July 27, 2021. ECF No. 35-1 at 20. Specific to his 8 allegations against Tuyen, he explained that around 7:50 a.m., Tuyen came by plaintiff’s cell, 9 which had a glass window on the door. Id. at 20-23. He admitted to breaking the glass window 10 due to his ongoing mental health issues, and stated that he did not see Tuyen near the window 11 when he broke it. Id. at 25-26. However, as soon as he broke the window, Tuyen sprayed the 12 chemical agent into his cell. Id. at 26. He asserted that he did not lunge toward Tuyen when 13 Tuyen walked by his cell that morning. Id. at 49, 56. He also denied reaching his arm out of his 14 cell window to grab Tuyen. Id. at 50-51, 56-57. He explained that the chemical agent caused his 15 eyes to burn. Id. at 52. 16 Through a declaration, Tuyen explained that on the morning of the incident, he assisted 17 Building 4 staff with cell feedings. ECF No. 34-5 at 2. When he approached plaintiff’s cell, he 18 witnessed plaintiff lunge from the toilet seat with an unknown object in his hand, and plaintiff 19 proceeded to break the cell window with the object. Id. Tuyen stated that he felt something hit 20 his left eye, and he could no longer open or see out of it. Id. Concerned for his safety and unsure 21 about the threat plaintiff potentially posed, Tuyen unholstered his MK-9 Oleoresin Capsicum 22 spray (“OC spray”). Id. He believed plaintiff was attempting to reach through the broken 23 window, and the floor was slippery due to the broken glass. Id. Tuyen believed he could not 24 safely retreat at the moment due to his eye injury and the slippery floor, so he sprayed plaintiff 25 with a three-second burst of OC spray to subdue plaintiff and protect himself. Id. After spraying 26 plaintiff with OC spray, he announced over his radio that he had glass stuck in his eye and needed 27 assistance. Id. He was taken to the prison medical clinic and then sent to an outside hospital for 28 further medical care for his eye injury. Id. He asserted that he did not spray plaintiff to cause 1 him harm or discomfort, and instead sprayed him out of fear for his own safety. Id. He asserted 2 that he reacted to what he believed to be an imminent physical threat to his safety and used the 3 OC spray to stop plaintiff from further escalating the incident. Id. at 2-3. This outline of events 4 mirrors the events Tuyen initially reported in his incident report written on the day of the incident. 5 See ECF No. 46 at 9. 6 II. Legal Standard 7 A. Summary Judgment 8 Summary judgment is appropriate where there is “no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 10 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 11 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 12 while a fact is material if it “might affect the outcome of the suit under the governing law.” 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818 14 F.2d 1422, 1436 (9th Cir. 1987). 15 Rule 56 allows a court to grant summary adjudication, also known as partial summary 16 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 17 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 18 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 19 single claim . . . .”) (internal quotation marks and citation omitted). The same standards apply to 20 both a motion for summary judgment and a motion for summary adjudication. See Fed. R. Civ. 21 P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 22 Each party’s position must be supported by (1) citations to particular portions of materials 23 in the record, including but not limited to depositions, documents, declarations, or discovery; or 24 (2) argument showing either that the materials cited do not establish the presence or absence of a 25 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 26 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 27 materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 28 1 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see 2 also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 3 “The moving party initially bears the burden of proving the absence of a genuine issue of 4 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 5 moving party must either produce evidence negating an essential element of the nonmoving 6 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 7 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 8 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 9 initial burden, the burden then shifts to the non-moving party “to designate specific facts 10 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 11 376, 387 (citing Celotex Corp., 477 U.S. at 323).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KAYSHON LAMONT MOODY, Case No. 2:22-cv-1342-DC-JDP (P) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 D. GONZALEZ, et al., 15 Defendants. 16
17 18 Plaintiff Kayshon Lamont Moody is a state prisoner proceeding without counsel in this 19 civil rights action brought under 42 U.S.C. § 1983. In his complaint, he alleges that defendants 20 D. Gonzalez, C. Tuyen, R. Valine, J. Ortega, T. Drake, A. Reilly, A. Humphers, and Jensen, all 21 correctional officers, violated his Eighth Amendment rights by using excessive force against him. 22 ECF No. 1. Defendant Tuyen moves for summary judgment on the claim against him, arguing 23 that he did not use excessive force and that he is entitled to qualified immunity. ECF No. 34. 24 Plaintiff opposes the motion. ECF No. 46. Following review of the record and applicable law, I 25 recommend that Tuyen’s motion for summary judgment be granted because he is entitled to 26 qualified immunity. 27
28 1 Motion for Summary Judgment 2 I. Background 3 In his complaint, plaintiff alleges that the named defendants used excessive force against 4 him. See generally ECF No. 1 at 5-6. Specific to Tuyen, plaintiff alleges that Tuyen excessively 5 sprayed him with a chemical agent. Id. at 5. 6 Plaintiff expanded on his allegations during his deposition, where he testified that the 7 incident occurred on the morning of July 27, 2021. ECF No. 35-1 at 20. Specific to his 8 allegations against Tuyen, he explained that around 7:50 a.m., Tuyen came by plaintiff’s cell, 9 which had a glass window on the door. Id. at 20-23. He admitted to breaking the glass window 10 due to his ongoing mental health issues, and stated that he did not see Tuyen near the window 11 when he broke it. Id. at 25-26. However, as soon as he broke the window, Tuyen sprayed the 12 chemical agent into his cell. Id. at 26. He asserted that he did not lunge toward Tuyen when 13 Tuyen walked by his cell that morning. Id. at 49, 56. He also denied reaching his arm out of his 14 cell window to grab Tuyen. Id. at 50-51, 56-57. He explained that the chemical agent caused his 15 eyes to burn. Id. at 52. 16 Through a declaration, Tuyen explained that on the morning of the incident, he assisted 17 Building 4 staff with cell feedings. ECF No. 34-5 at 2. When he approached plaintiff’s cell, he 18 witnessed plaintiff lunge from the toilet seat with an unknown object in his hand, and plaintiff 19 proceeded to break the cell window with the object. Id. Tuyen stated that he felt something hit 20 his left eye, and he could no longer open or see out of it. Id. Concerned for his safety and unsure 21 about the threat plaintiff potentially posed, Tuyen unholstered his MK-9 Oleoresin Capsicum 22 spray (“OC spray”). Id. He believed plaintiff was attempting to reach through the broken 23 window, and the floor was slippery due to the broken glass. Id. Tuyen believed he could not 24 safely retreat at the moment due to his eye injury and the slippery floor, so he sprayed plaintiff 25 with a three-second burst of OC spray to subdue plaintiff and protect himself. Id. After spraying 26 plaintiff with OC spray, he announced over his radio that he had glass stuck in his eye and needed 27 assistance. Id. He was taken to the prison medical clinic and then sent to an outside hospital for 28 further medical care for his eye injury. Id. He asserted that he did not spray plaintiff to cause 1 him harm or discomfort, and instead sprayed him out of fear for his own safety. Id. He asserted 2 that he reacted to what he believed to be an imminent physical threat to his safety and used the 3 OC spray to stop plaintiff from further escalating the incident. Id. at 2-3. This outline of events 4 mirrors the events Tuyen initially reported in his incident report written on the day of the incident. 5 See ECF No. 46 at 9. 6 II. Legal Standard 7 A. Summary Judgment 8 Summary judgment is appropriate where there is “no genuine dispute as to any material 9 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 10 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 11 only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, 12 while a fact is material if it “might affect the outcome of the suit under the governing law.” 13 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computs., Inc., 818 14 F.2d 1422, 1436 (9th Cir. 1987). 15 Rule 56 allows a court to grant summary adjudication, also known as partial summary 16 judgment, when there is no genuine issue of material fact as to a claim or a portion of that claim. 17 See Fed. R. Civ. P. 56(a); Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 18 56 authorizes a summary adjudication that will often fall short of a final determination, even of a 19 single claim . . . .”) (internal quotation marks and citation omitted). The same standards apply to 20 both a motion for summary judgment and a motion for summary adjudication. See Fed. R. Civ. 21 P. 56(a), (c); Mora v. Chem-Tronics, 16 F. Supp. 2d 1192, 1200 (S.D. Cal. 1998). 22 Each party’s position must be supported by (1) citations to particular portions of materials 23 in the record, including but not limited to depositions, documents, declarations, or discovery; or 24 (2) argument showing either that the materials cited do not establish the presence or absence of a 25 genuine factual dispute or that the opposing party cannot produce admissible evidence to support 26 its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The court may consider 27 materials in the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 28 1 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); see 2 also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010). 3 “The moving party initially bears the burden of proving the absence of a genuine issue of 4 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 5 moving party must either produce evidence negating an essential element of the nonmoving 6 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 7 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 8 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 9 initial burden, the burden then shifts to the non-moving party “to designate specific facts 10 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 11 376, 387 (citing Celotex Corp., 477 U.S. at 323). The non-moving party must “show more than 12 the mere existence of a scintilla of evidence.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 13 U.S. 242, 252 (1986)). However, the non-moving party is not required to establish a material 14 issue of fact conclusively in its favor; it is sufficient that “the claimed factual dispute be shown to 15 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. 16 Serv., Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). 17 The court must apply standards consistent with Rule 56 to determine whether the moving 18 party has demonstrated there to be no genuine issue of material fact and that judgment is 19 appropriate as a matter of law. See Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). 20 “[A] court ruling on a motion for summary judgment may not engage in credibility 21 determinations or the weighing of evidence.” Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 22 2017) (citation omitted). The evidence must be viewed “in the light most favorable to the 23 nonmoving party” and “all justifiable inferences” must be drawn in favor of the nonmoving party. 24 Orr v. Bank of America, NT & SA, 285 F.3d 764, 772 (9th Cir. 2002); Addisu v. Fred Meyer, Inc., 25 198 F.3d 1130, 1134 (9th Cir. 2000). 26 B. Qualified Immunity & Excessive Force 27 The qualified immunity analysis involves the consideration of two issues: “(1) whether 28 there has been a violation of a constitutional right; and (2) whether that right was clearly 1 established at the time of the officer’s alleged misconduct.” Hughes v. Rodriguez, 31 F.4th 1211, 2 1220 (9th Cir. 2022) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). The Eighth 3 Amendment applies to an inmate’s excessive force claim. Id. Under this framework, “the 4 relevant inquiry is ‘whether force was applied in a good-faith effort to maintain or restore 5 discipline, or maliciously and sadistically to cause harm.’” Id. at 1221 (quoting Hudson v. 6 McMillian, 503 U.S. 1, 7 (1992)). “The contrast is clear: an officer who harms an inmate as part 7 of a good-faith effort to maintain security has acted constitutionally, but an officer who harms an 8 inmate for the very purpose of causing harm, has engaged in excessive force, provided that the 9 other elements of excessive force have been met.” Hoard v. Hartman, 904 F.3d 780, 788 (9th 10 Cir. 2018) (internal quotation marks and citation omitted). 11 After determining whether a constitutional violation occurred, the qualified immunity 12 analysis asks whether the constitutional right identified was clearly established at the time of the 13 alleged misconduct, which means “existing precedent must have placed the . . . constitutional 14 question beyond debate.” Id. (quoting Kisela v. Hughes, 584 U.S. 100, 104 (2018)). While case 15 law need not be directly on point for a right to be clearly established, clearly established laws 16 cannot be defined at a high level of generality. Kisela, 584 U.S. at 104. Plaintiff bears the burden 17 of proving that the right was clearly established at the time of the alleged misconduct. Clairmont 18 v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011). 19 “[V]ery few” Ninth Circuit cases analyze the constitutional limits on the use of pepper 20 spray. Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013). The “law is unclear regarding 21 the parameters of the permissible use of pepper spray to address inmates who disobey or interfere 22 with officers in the performance of their duties.” Xavier v. Tanori, No. 19-cv-05587-JSW, 2022 23 WL 1240863, at *4 (N.D. Cal. Apr. 27, 2022) (internal quotation marks omitted) (quoting 24 Jennings v. Hayes, No. CV-10-8004-PCT-JAT, 2011 WL 1480038, at *9 (D. Ariz. Apr. 19, 25 2011); see also Brown v. Williams, No. 09-cv-00792, 2011 WL 386852, at *5 (E.D. Cal. Apr. 8, 26 2011) (“There is little Supreme Court and Ninth Circuit published precedent that addresses the 27 use of chemical agents to maintain prison discipline, let alone the use of chemical agents to 28 establish compliance with a lawful order.”) (citations omitted); Howard v. Nunley, No. 06-cv- 1 00191-NVW, 2010 WL 3785536, at *4 (E.D. Cal. Sept. 24, 2010), aff’d, 465 F. App’x 669 (9th 2 Cir. 2012) (“Supreme Court and published Ninth Circuit precedent have little to say about the 3 appropriate use of pepper spray or similar agents to enforce prison discipline.”). 4 In 1979, the Ninth Circuit ruled that the use of tear gas in small amounts may be 5 appropriately employed when subduing inmates. Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 6 1979) (holding that the use of tear gas can be a “legitimate means for preventing small 7 disturbances from becoming dangerous to other inmates or the prison personnel”). Additionally, 8 the Ninth Circuit has found no constitutional violation occurred when officers applied two bursts 9 of pepper spray lasting five seconds each into a cell when the officers witnessed inmates fighting 10 within. See Clement v. Gomez, 298 F.3d 898, 903-04 (9th Cir. 2002), but see Furnace, 705 F.3d 11 at 1029-30 (holding that officers discharging bursts of pepper spray at plaintiff for a minute, 12 resulting in defendant needing to employ a second canister, when plaintiff merely failed to move 13 his hands from the food port, violated the Eighth Amendment). 14 Many cases involving the use of pepper spray on inmates have been decided based on 15 qualified immunity, reflecting the lack of clearly established law. See Cotton v. Medina, No. 22- 16 cv-00568-JLT-EPG, 2025 WL 953268, at *7 (E.D. Cal. Mar. 21, 2025) (granting defendants 17 qualified immunity because it was not clearly established that they could not deploy 18 approximately four tear gas grenade devices into a group of fighting inmates who were 19 surrounded by more than a dozen non-fighting inmates); Xavier, 2022 WL 1240863, at *4 20 (granting defendants qualified immunity because it was not clearly established that defendant 21 could not use pepper spray against an allegedly rowdy inmate); Jennings, 2011 WL 1480038, at 22 *9 (granting qualified immunity to defendants who pepper sprayed plaintiff following a 23 disagreement about removing poems from plaintiff’s cell). 24 Notably, however, it does appear clearly established that using “small amounts” of pepper 25 spray is permissible, and quantities “greater than necessary” could violate the Eighth 26 Amendment. Furnace, 705 F.3d at 1029-30. 27 28 1 III. Analysis 2 Defendant Tuyen argues that he is entitled to summary judgment because he did not use 3 excessive force and because he is entitled to qualified immunity. ECF No. 34-1 at 4-9. First, he 4 contends that his actions in using the OC spray against plaintiff do not qualify as excessive force 5 because the OC spray was not used to cause plaintiff harm but was instead meant to protect 6 himself and to prevent plaintiff from escalating the situation. Id. at 4-7. He also argues that he is 7 entitled to qualified immunity because his use of the OC spray in this circumstance is not clearly 8 unlawful. Id. at 7-9. 9 Plaintiff opposes Tuyen’s motion for summary judgment. ECF No. 46. He argues that 10 the use of the OC spray was excessive and states that he does not agree with Tuyen’s allegation 11 that he lunged toward Tuyen or put his arm out of the broken window to attack Tuyen. See 12 generally id. 13 Defendant Tuyen’s motion for summary judgment should be granted because he is 14 entitled to qualified immunity. Even assuming Tuyen’s use of pepper spray violated the Eighth 15 Amendment, plaintiff has not demonstrated that the right was clearly established at the time of the 16 incident. Kisela, 584 U.S. at 104. Viewing the record evidence in the light most favorable to 17 plaintiff, on the morning of the incident, plaintiff purposefully busted out the glass window of his 18 cell. See ECF No. 35-1 at 20-26. Tuyen, who was near to plaintiff’s cell and delivering food, 19 was injured by the broken glass and believed plaintiff was attempting to attack him.1 See ECF 20 No. 34-5 at 2. Glass lodged in Tuyen’s eye, causing him to lose sight in that eye, and the floor 21 became unsteady due to the broken glass. See id. In an attempt to protect himself, he sprayed 22 three seconds’ worth of OC spray into the cell and then called for other officers to assist. See id. 23 As the law stands, it is not clearly established that Tuyen could not use a three-second blast of OC 24 spray toward plaintiff when Tuyen believed he was under an imminent threat of harm. Spain, 600 25 F.2d at 195; compare Clement, 298 F.3d at 903-04, with Furnace, 705 F.3d at 1029-30. Because 26
27 1 Plaintiff insists he was not attempting to attack Tuyen, see ECF No. 35-1 at 49-51 & 56- 57, but the fact remains that Tuyen believed that was what was occurring in that moment, see 28 ECF No. 34-5 at 2-3. 1 | the right was not clearly established at the time of the incident, Tuyen is entitled to qualified 2 | immunity, and his motion for summary judgment should be granted. 3 Accordingly, it is RECOMMENDED that: 4 1. Defendant Tuyen’s motion for summary judgment, ECF No. 34, be GRANTED. 5 2. The Clerk of Court should be directed to enter judgment for defendant Tuyen and 6 | administratively terminate him from the docket. 7 3. The case should proceed on plaintiff's Eighth Amendment excessive force claim 8 | against defendants Gonzalez, Valine, Ortega, Drake, Reilly, Humphers, and Jensen. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 | objections shall be served and filed within fourteen days after service of the objections. The 15 | parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 17 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 ( q oy — Dated: _ June 17, 2025 Q——— 21 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE
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