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MGD

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Oscar Martinez-Salgado,

Plaintiff, 

v. 

Rico Suffle, et al.,

Defendants.

No. CV 17-04312-PHX-DGC (CDB)

ORDER

Plaintiff Oscar Martinez-Salgado, who was formerly confined in the La Paz County 

Adult Detention Facility (the “Jail”), brought this civil rights action pursuant to 42 U.S.C. 

§ 1983. (Doc. 1.) Defendant Jail Commander Suffle – the only remaining Defendant in 

this case – moves for summary judgment, and Plaintiff opposes.1 (Docs. 34, 35.) The 

Court will grant the Motion and terminate this action. 

I. Background

Count One alleges the following: Plaintiff was in the Jail dayroom when another 

detainee, Garcia, became upset that Defendant Suffle would not speak to him and was 

ordered to lock down several times, but did not do as told. (Doc. 1 at 5.) Defendant then 

entered the dayroom,started firing pepper balls at everyone in sight and yelled for everyone 

to lock down. (Id.) All the detainees tried to calm Defendant down, telling him “there’s 

no need for all that” and that all he had to do was speak to Garcia. (Id.) As Plaintiff was 

 

1 The Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 F.3d 952, 

962 (9th Cir. 1998) (en banc) regarding the requirements of a response. (Doc. 37.)
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closing his cell door, he felt a pepper ball hit his foot. (Id.) The detainees were stuck in 

their cells all night “gagging, coughing, crying, eyes burning, and noses running” and they 

were not allowed to clean their rooms afterward. (Id.) As a result, Plaintiff alleges that he 

suffered PTSD, anxiety, stress, tension, night terrors, anger, frustration, paranoia, 

schizophrenia, depression, suicidal thoughts, fear of further abuse, pain, suffering, and trust 

issues. (Id.) Plaintiff seeks damages. (Id. at 14.) 

On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated 

an excessive force claim in Count One and directed Defendant Suffle to answer. (Doc. 5.) 

The Court dismissed the remaining claims and Defendants. (Id.) Defendant moves for 

summary judgment on the basis that the force used was objectively reasonable and he is 

entitled to qualified immunity.

II. Legal Standards

A. Summary Judgment Standard

A court must grant summary judgment “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 

movant bears the initial responsibility of presenting the basis for its motion and identifying 

those portions of the record, together with affidavits, if any, that it believes demonstrate 

the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

If the movant fails to carry its initial burden of production, the nonmovant need not 

produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 

1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts 

to the nonmovant to demonstrate the existence of a factual dispute and that the fact in 

contention is material, i.e., a fact that might affect the outcome of the suit under the 

governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable 

jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th 

Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its 
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favor, First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, 

it must “come forward with specific facts showing that there is a genuine issue for trial.” 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal 

citation omitted); see Fed. R. Civ. P. 56(c)(1).

At summary judgment, the judge’s function is not to weigh the evidence and 

determine the truth but to determine whether there is a genuine issue for trial. Anderson, 

477 U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence and draw 

all inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited 

materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3). 

B. Excessive Force

A pretrial detainee has a right under the Due Process Clause of the Fourteenth 

Amendment to be free from punishment prior to an adjudication of guilt. Bell v. Wolfish, 

441 U.S. 520, 535 (1979). A pretrial detainee may therefore allege a cause of action under 

the Due Process Clause where conditions of confinement, such as food, clothing, shelter, 

medical care, and personal safety, “amount to punishment.” Bell, 441 U.S. at 535; see 

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). Conditions 

amount to punishment when: (1) the conditions result in a sufficiently serious denial of the 

minimum standard of care, and (2) the official’s actions or omissions with respect to the 

conditions are objectively unreasonable, such that it can be inferred that those conditions 

are imposed for the purpose of punishment. Kingsley v. Hendrickson, ___ U.S. ___, 135 

S.Ct. 2466, 2473 (2015); Bell, 441 U.S. at 538; Castro v. Cnty. of Los Angeles, 833 F.3d 

1060, 1070-71 (9th Cir. 2016). 

Whether an officer’s actions were objectively unreasonable is determined “from the 

perspective of a reasonable officer on the scene, including what the officer knew at the 

time, not with the 20/20 vision of hindsight.” Kingsley, 135 S.Ct. at 2473. Whether the 

conditions and conduct rise to the level of a constitutional violation is an objective 

assessment that turns on the “facts and circumstances of each particular case.” Id. (quoting 

Graham v. Connor, 490 U.S. 386, 396 (1989)). In determining whether the use of force 
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was reasonable, a court should consider factors including, but not limited to, “the 

relationship between the need for the use of force and the amount of force used; the extent 

of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of 

force; the severity of the security problem at issue; the threat reasonably perceived by the 

officer; and whether the plaintiff was actively resisting.” Id. at 2473.

III. Facts

On August 22, 2017, Plaintiff was incarcerated in a maximum-security pod at the 

Jail where he was awaiting trial. (Doc. 35 (Def.’s Statement of Facts) ¶¶ 1-2.) That day, 

Plaintiff was exercising outside his cell when detainee Garcia was told to lockdown. (Id.

¶ 4.) The Jail’s lockdown procedure requires that detainees who are out in the pod return 

to their cells and close the doors, which automatically lock. (Id. ¶ 5.) Video footage shows 

that for at least 15 to 20 minutes Garcia had been climbing on the door and repeatedly 

struck the glass with his fist, foot and head and made aggressive gestures through the 

window. (Id. ¶¶ 7, 10.) The control tower gave multiple commands for Garcia to lockdown 

and Garcia refused to comply. (Id. ¶¶ 11-12.) 

The control tower then used the intercom to order the entire pod into lockdown. The 

order was given multiple times and included use-of-force warnings if detainees failed to 

comply with the lockdown commands. (Id. ¶ 13.) The lockdown commands are given 

before officers enter a pod because it is safer for everyone if detainees comply and return 

to their cells to de-escalate a potentially violent disturbance, especially since the number 

of detainees usually outnumbers the Jail staff. (Id. ¶ 14.) On the day of the incident, the 

detainee-to-officer ratio in Plaintiff’s pod was 15 to 1. (Id. ¶ 3.) Although Plaintiff claims 

he did not hear the general lockdown order until Defendant entered the pod, video footage 

shows that all detainees in Plaintiff’s pod, including Plaintiff, were heading toward their 

cells before Defendant entered the pod. (Id ¶¶ 15-16.) 

Before entering the pod, Defendant perceived that Garcia’s behavior was disruptive 

to the pod, was escalating in violence, and was a threat to security within the maximumsecurity pod. (Id. ¶ 18.) The fact that other detainees, including Plaintiff, had not locked 
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down as commanded, was further evidence that the disturbance was escalating beyond 

Garcia. (Id.) About 15 minutes after Garcia’s “aggressive and disruptive behavior” started, 

Defendant, along with Detention Officer McIntosh and Corporal Fleming, entered the pod 

and repeated the lockdown command. (Id.) Defendant clearly displayed a PepperBall 

launcher when he entered the pod and warned detainees to lock down, but several detainees

still refused and remained unsecured, and Defendant “reasonably perceived these acts of 

defiance as an escalating threat.”2 (Id.) Defendant entered the pod to attempt to restore 

order and to de-escalate the threat of violence. (Id. ¶ 19.) 

Many of the detainees complied with the lockdown order and locked themselves in 

their cells. (Id. ¶ 24.) Plaintiff knew he was supposed to lock down, that he was supposed 

to follow Jail staff orders, and that maintaining security is important for Jail officials. (Id.

¶¶ 23, 25.) Plaintiff refused to close his cell door and chose to stand in the doorway of his 

cell. (Id. ¶ 26.) 

After giving multiple verbal warnings, Defendant saw that Plaintiff and 4 other 

detainees had not locked down—two detainees were on the upper balcony (Fuentes and 

Ping), and Plaintiff and Garcia were on the floor level with their cell doors fully open. (Id.

¶ 27.) Another detainee, Carter, was also outside of his cell, but he was showering on the 

main level of the pod near Plaintiff’s cell when the incident unfolded. (Id.) Garcia handed 

something to Plaintiff, which Defendant perceived as a threat to the safety of himself and 

other officers. (Id.) As he gave verbal warnings, Defendant displayed the PepperBall 

launcher. (Id.) Fuentes eventually complied with the lockdown orders, but the other 

detainees still refused to lockdown and remained unsecured, and Defendant “perceived 

 

2 A PepperBall launcher “discharges frangible rounds (projectiles) that open and 

release powdered chemicals upon impact.” (Doc. 35 ¶ 20.) According to Defendant, 

PepperBall rounds are less potent than being directly sprayed with liquid pepper spray and 

that the most intense effects of direct exposure to pepper spray resolve in about 20 minutes 

and residual effects can last an hour or two at most. (Id. ¶ 21.) The advantage of a 

PepperBall launcher is that Jail staff can launch the rounds from a safe distance without 

being within inches of disruptive detainees. (Id. ¶ 22.)
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these acts of defiance as an escalating threat to not only the officers inside the pod but also 

to the other [detainees] within the pod.” (Id.) Because Plaintiff, Garcia and Ping continued 

to disobey the lockdown orders, Defendant determined that the use of PepperBall warning 

rounds were necessary to get the detainees to comply with the orders. (Id.) 

Defendant first launched PepperBall rounds at the upper balcony area, where Ping 

was outside of his cell, but Defendant did not aim the PepperBall rounds at any of the 

detainees. (Id.) The frangible rounds disintegrated upon impact and released the powdered 

pepper chemical. (Id.) Defendant then learned that Ping’s cell door was locked, preventing 

Ping from locking down, and Ping was ordered to get on the ground. (Id.) During this 

time, Plaintiff’s and Garcia’s cell doors were still fully open “and Plaintiff continued 

talking back to Commander Suffle and the other officers ordering him to lockdown.” (Id.) 

Defendant then aimed the PepperBall launcher in Plaintiff’s direction, and Plaintiff and 

Garcia “feigned locking down,” but Plaintiff left his door halfway open and Garcia stuck 

his head out of his cell. (Id.) Because Defendant believed that Plaintiff and Garcia were 

in the process of locking down, he returned his attention to Ping, who had not yet complied 

with orders to get on the ground. Ping ultimately complied after Defendant again displayed 

the PepperBall launcher and ordered him to lie on the ground. (Id.) 

Plaintiff continued to refuse to lockdown as commanded and stood inside his halfclosed cell door “in what appeared to Commander Suffle to be a purposeful act of 

disobedience,” and Garcia’s cell door, which was next to Plaintiff’s, slowly began opening. 

(Id. ¶ 28.) Defendant then launched two warning PepperBall rounds 3 to 5 feet away from 

Plaintiff’s and Garcia’s cell doors, after which Garcia closed his door to lockdown and 

Carter, who had been showering, went upstairs to his cell. (Id.) Plaintiff, though, did not 

lock down and instead began to protest, saying, “Hey, man, stop. You don’t have to do 

that.” (Id.) Plaintiff left the cell door ajar as he continued his protest, but then finally 

locked down. (Id.) 

The PepperBalls did not strike Plaintiff’s body or inside his cell, but hit the ground 

3 to 5 feet in front of Plaintiff’s cell. (Id. ¶ 29.) The PepperBalls hit the ground and the 
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powdered chemical released several feet away from Plaintiff, who was behind his cell door 

and in the process of closing it. (Id.) Video footage shows that Plaintiff was not hit in the 

foot by the PepperBall launcher. (Id. ¶ 31.) Even if Plaintiff had been hit on the foot, he 

admitted there was no bruising or swelling or persistent rash or irritation afterward, and he 

did not seek any medical treatment for his foot or anything related to deployment of the 

PepperBall. (Id. ¶¶ 32-34.) Although Plaintiff claims he suffered a burning sensation from 

the PepperBall chemicals for two days, symptoms from “direct exposure to pepper spray 

can last for only two hours at most,” and Plaintiff did not come into direct contact with 

pepper spray. (Id. ¶ 35.) Despite Plaintiff’s claim that he suffered PTSD, paranoia, and 

schizophrenia, he has not received such diagnoses from a doctor. (Id. ¶¶ 36-37.) 

The Jail has a ventilation system that is used to remove any lingering PepperBall 

chemicals so that they do not continue to permeate the pod, and the ventilation system was 

used that day after the PepperBalls were launched. (Id. ¶ 38.) Officers turned the vents on 

to remove any lingering pepper spray from the pod after the incident, and Corporal Ruiz 

directed detainee workers to get the cleaning carts and clean up any remaining chemical 

residue, which they did. (Id. ¶¶ 39-40.) Plaintiff had access to running water in his cell if 

he needed to rinse off. (Id. ¶ 41.) 

Plaintiff disputes there was any threat of danger necessitating the use of 

PepperBalls, asserting that Jail staff were used to Garcia’s behavior and did not consider 

him a threat and that Defendant provoked the incident with Garcia. (Doc. 39 at 2, citing 

Docs. 34-35, 38 and Exhibits 4, 6.)3 Plaintiff also claims that Defendants never turned on 

the ventilation system in the pod and no clean up of the “hazmat” material took place for 

24 hours, but Plaintiff does not cite any evidence in support of this claim. (See id.)

 

3 Doc. 34 is Defendant’s Motion for Summary Judgment, Doc. 35 is Defendant’s 

Statement of Facts, and Doc. 38 is the Defendant’s Notice of Filing and Service of NonElectronic Exhibits, i.e., a CD containing the Jail’s video footage of the incident. Plaintiff 

did not submit any exhibits with his Response and Defendant’s Exhibits 4 and 6 are cover 

pages to the video CD. Thus, it is unclear what in Docs 34, 35, and 38 supports Plaintiff’s 

position or how Defendant’s Exhibits 4 and 6 support Plaintiff’s position.
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At Plaintiff’s deposition, Plaintiff and counsel reviewed the Jail’s video footage of 

the incident. At timestamp 22:33 on the video, Plaintiff is seen standing in the doorway of 

his cell, and counsel asked Plaintiff the following about that moment:

Q [by counsel]: Okay. And this is the point for sure—at 

this point you’re hearing that you—everyone needs to lock 

down?

A [Plaintiff]: Yes.

Q: You know at this point that you need to be in your cell 

with the door closed and locked; correct?

A: Yes.

Q: Okay. At 22:36 [on the video recording], a couple 

seconds later, few seconds later, up until this point have you 

been impacted by the pepper ball?

A: No.

Q: No. Okay. Up until this point your door—you are 

inside of your cell, but the door is still open; correct?

A: Correct.

. . . .

Q: Okay. And so the only people at this point who aren’t 

locked down are Ping, you, and Garcia and [Carter]? . . . . Is 

that right?

A: Yes.

. . . .

Q: Okay. And at this point, 22:41, you are facing 

Commander Suffle; correct?

A: Yes.

Q: At this point you—you—well, you said you had already 

heard him tell you to lock down, but had you seen the pepper 

ball launcher in his hand as well?

A. Yes.

Q: Was he also yelling or was anybody, yelling that force 

was going to be used if did you didn’t lock down?
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A: I don’t recall it. I just remember him coming in and start 

saying “lock down.”

. . . .

Q: . . . . So I guess my question is then that you’re in the 

point of where you’re closing your door because you were 

absolutely aware of the fact that if you don’t lock down, there’s 

a chance that there’s going to be use of force taken against you?

A: Well, see, from what I believe, I thought that the use of 

force was if there was a potentially violent situation or, you 

know, a threat to the safety of anybody, you know . . . . Clearly, 

there’s no threat to nobody’s safety right there. We’re 

wondering what Commander is up to, you know. Would he 

have used it on me? I didn’t think so. I didn’t think so.

Q: Okay. So in your mind at that point in time you knew 

that you were being commanded to lock down though; right?

A: Yes.

Q: Okay. And you knew that there had been a disturbance 

in your pod; correct?

A: Yes.

Q: Okay. And you knew that Commander Suffle came into 

the cell and he was carrying some sort of a weapon of some 

sort?

A: Correct.

(Doc. 35-1 at 23-23 (Pl. Dep. taken at 77:21 through 81:1).)4

Plaintiff stated at his deposition that he saw the first PepperBall discharged to the 

upper deck sometime before timestamp 22:39 and, at that time, Plaintiff’s cell door was 

still open. (Id. at 24 (Pl. Dep. at 81: 12-18; 82:10-11).) Plaintiff then agrees that the next 

PepperBall was launched at timestamp 22:47 and that is the first time a projectile was 

launched towards him, but he does not believe he was hit by it. (Id. (Pl. Dep. at 83:11-

23).) Plaintiff testified:

A: So at this point we’re telling commander, that’s 

not necessary. I mean, clearly we could hear Ping yelling that 

 

4 The video footage does not contain any audio.
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his door was locked, and then we see Commander raise the gun 

at him, you know, so we’re trying to calm him down at this 

point. “You don’t need to do that. Talk to Garcia, that’s it.” 

That’s what we were trying to tell him.

Q: So instead of quickly locking the door and 

securing yourself in, you’re saying you took the opportunity to 

tell Commander Suffle that he didn’t need to be doing what he 

was doing instead of locking down.

A: We were pointing it out that he didn’t—force 

wasn’t necessary, as there was no threat, you know.

Q: Instead of locking down, that’s what you did; 

right?

A: Yeah.

Q: Okay. Did you see another discharge there?

A: Yes, I did.

Q: Okay. That was at 22:48?

A: Yes.

. . . .

Q: Okay. That’s the point where you feel that that’s 

where the impact occurred?

A: Yes.

Q: Okay. And you said it was your left foot?

A: Yes.

Q: Okay. So tell me what—so even after being told 

to lockdown, even after seeing Commander Suffle with the 

pepper ball launcher, and even after at least three rounds had 

been launched, you still had not locked yourself inside the cell, 

had you?

A: I was inside my cell, you know.

Q: But you hadn’t locked down in your cell, had 

you?

A: Was the door secured? No, the door was not 

secured.
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(Id. at 24-26 (Pl. Dep. at 83:25-84:18; 90:14-91:9).) 

IV. Discussion

A. Evidentiary Issues

Because Plaintiff failed to file a proper controverting statement of facts or produce 

any supporting evidence, Defendant asks that the Court deem his facts as admitted. 

(Doc. 41 at 2.) The Court declines to do so and will instead construe Plaintiff’s verified 

Complaint as an affidavit in opposition to the summary judgment motion to the extent that 

statements are based on Plaintiff’s personal knowledge. See Jones v. Blanas, 393 F.3d 918, 

923 (9th Cir. 2004) (allegations in a pro se plaintiff’s verified pleadings must be considered 

as evidence in opposition to summary judgment); Schroeder v. McDonald, 55 F.3d 454, 

460 (9th Cir. 1995) (verified complaint may be used as an affidavit opposing summary 

judgment if it is based on personal knowledge and sets forth specific facts admissible in 

evidence). To the extent Plaintiff failed to controvert Defendant’s facts in his Complaint, 

the Court will assume those facts are uncontroverted for the purposes of this Order. 

Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013) (If a summary judgment 

motion is unopposed, Rule 56 “authorizes the court to consider a fact as undisputed.”).

Ordinarily, where the parties’ versions of events differ, the Court takes the nonmoving party’s facts as true. See Anderson, 477 U.S. at 255. The Supreme Court has held, 

however, that when opposing parties tell two 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” in ruling on summary judgment. Scott v. Harris, 550 U.S. 

372, 380-81 (2007) (a court may properly consider video evidence in ruling on a motion 

for summary judgment and should view the facts “in the light depicted by the videotape”).

Although Plaintiff alleges in his Complaint that Defendant entered the dayroom, 

started firing PepperBalls at everyone, and then gave the order to lock down, the video 

evidence, which Plaintiff confirmed at his deposition, shows different events. In the first 

of two videos, which shows the area at the front of the pod and the day room door, Garcia 

is seen at the window next to the door pacing, gesticulating, stamping his foot, and hitting 
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the windows with his fists and head, and at times he appears to be talking to someone. This 

all takes places over an approximate 16-minute period. Defendant enters the day room 

around timestamp 22:26. On the second video, which shows part of the dayroom and the 

cell fronts, detainees are seen heading to their cells around timestamp 22:00, before 

Defendant enters the dayroom. At 22:29, Garcia and Plaintiff’s cell doors are open and 

Garcia hands something to Plaintiff. At 22:33, Defendant and an officer come into view 

and Plaintiff and Garcia’s cell doors are still open. At 22:33, Defendant aims the 

PepperBall launcher at the upper tier and appears to shoot a PepperBall. Plaintiff’s and 

Garcia’s cell doors are still open and they are standing in the doorways looking in the 

direction of Defendant. Between 22:33 and 22:42, Defendant and the other officer are 

walking toward Plaintiff’s cell with the launcher in plain view and occasionally raised. 

Plaintiff’s cell door is still not closed, and at 22:46 Defendant appears to fire two more 

PepperBalls at the floor outside Plaintiff’s door. Plaintiff’s cell door appears to close 

completely at 22:52. 

B. Kingsley Factors

1. Relationship Between Need for Force and Amount of Force Used

The evidence shows that Garcia was creating a disturbance for over 15 minutes, that 

Garcia and the rest of the detainees were ordered to lockdown, and that most of the 

detainees locked down as ordered. When Defendant entered the dayroom with the 

PepperBall launcher, however, neither Garcia nor Plaintiff complied with the orders to 

lockdown. Plaintiff admits as much in his deposition testimony. Thus, a finder of fact 

could reasonably infer that force was needed to restore discipline in the pod. Courts have 

found that the use of pepper spray is justified in such situations. See, e.g., Uerling v. 

Piccinini, No. C 98-3790 CRB (PR), 1999 WL 225981, at *2 (N.D. Cal. April 12, 1999) 

(granting summary judgment to defendants where pretrial detainee alleged Fourteenth 

Amendment violation because officers used pepper spray and other force after detainee did 

not comply with handcuffing orders), affirmed in Uerling v. Piccinini, 238 F.3d 433 (9th 

Cir. 2000) (unpublished); Farmer v. Plummer, No. C-94-0958 CAL, 1995 WL 271261, at 
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*2 (N.D. Cal. May 1, 1995) (granting summary judgment to defendants where defendants 

used pepper spray on pretrial detainee after detainee threatened to strike defendants with 

his crutch, finding that defendants only used as much force as necessary to subdue the 

detainee); Spain v. Procunier, 600 F.2d 189, 195 (9th Cir. 1979) (finding in the Eighth 

Amendment context that the use of tear gas in small amounts “may be a necessary prison 

technique if a prisoner refuses after adequate warning to move from a cell or upon other 

provocation presenting a reasonable possibility that slight force will be required. In these 

circumstances the substance may be a legitimate means for preventing small disturbances 

from becoming dangerous to other inmates or the prison personnel.”); Carr v. Beth, 465 F. 

App’x, 567, 571 (7th Cir. 2012) (finding that guards’ use of pepper was necessary to restore 

discipline when pre-trial detainee refused orders to relinquish a pen or return to his cell and 

subsequently refused to open his cell door); Sanchez v. McCray, 349 F. App’x 479, 483 

(11th Cir. 2009) (use of pepper spray to subdue pre-trial detainee who refused to comply 

with orders was not excessive force).

This factor weighs in favor of Defendant.

2. Extent of Plaintiff’s Injury

Defendant argues that the extent of Plaintiff’s injury is de minimis and that the video 

footage shows that Plaintiff was never struck on the foot by a PepperBall. (Doc. 34 at 10.) 

Given the distance of the camera from Plaintiff, it is not possible for the Court to determine 

whether a PepperBall struck Plaintiff or the floor in front of Plaintiff’s cell. Nevertheless, 

it appears that Plaintiff is not complaining that he suffered an injury from the PepperBall 

striking his foot, but that his injury was from the chemicals used in the PepperBalls. 

Plaintiff does not submit any evidence of his injuries, that he requested any medical 

attention for his alleged injuries, or that he requested assistance in decontaminating himself 

or his cell after the PepperBalls were fired in his direction. Plaintiff’s Complaint 

allegations that he suffered PTSD, anxiety, stress, tension, night terrors, anger, frustration, 

paranoia, schizophrenia, depression, suicidal thoughts, fear of further abuse, pain, 

suffering, and trust issues are unsupported by any medical evidence. While Plaintiff may 
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attest to such problems as anxiety, tension, anger, and frustration, he has not presented any 

specific evidence of how these problems were manifested. Nor has he presented any 

evidence showing that he is competent to diagnose conditions such as PTSD, depression, 

or schizophrenia. As such, Plaintiff’s Complaint allegations of his injuries are too vague 

and conclusory to defeat summary judgment. See Taylor v. List, 880 F.2d 1040, 1045 (9th 

Cir. 1989); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) 

(“[c]onclusory, speculative testimony in affidavits and moving papers is insufficient to 

raise genuine issues of fact and defeat summary judgment”).

This factor weighs in favor of Defendant.

3. Effort Made to Temper or Limit the Amount of Force

Although Plaintiff alleges in his Complaint that Defendant entered the pod and 

immediately started shooting PepperBalls before issuing any lockdown orders, the video 

shows that Defendant entered the pod at timestamp 22:26, discharged the first PepperBall 

to the upper level at 22:33, and then fired two PepperBall rounds toward Plaintiff at 22:46. 

Plaintiff admitted at his deposition that he saw Defendant with the PepperBall launcher, 

saw Defendant fire the first round toward the upper level, and that he heard the order for 

everyone to lockdown, but instead argued with Defendant about the need for force. 

This evidence shows that Defendant made an effort to temper or limit the amount 

of force.

4. Severity of Security Problem and Threat Reasonably Perceived

Defendant has presented evidence, and Plaintiff admits, that Garcia was causing a 

disturbance in the pod for at least 15 minutes. The evidence further supports that Jail staff 

ordered the entire pod to lock down, but four detainees, including Plaintiff, did not do so. 

Even after Defendant fired a PepperBall at the upper tier, Plaintiff did not comply with the 

lockdown order and argued with Defendant about the necessity of using force. Thus, a 

reasonable officer would view the situation as escalating, and a reasonable officer in 

Defendant’s position could view Plaintiff’s obstinance as a threat to the safety of Jail staff 

and other detainees.
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5. Whether Plaintiff was Actively Resisting

Plaintiff admits that he knew he was supposed to lockdown and saw the PepperBall 

launcher, but still did not comply with the lockdown order and argued with Defendant 

about the need for force. Plaintiff was actively resisting Defendant’s efforts to restore order 

in the pod. This factor supports Defendant.

The totality of the Kingsley factors supports that the use of force was objectively 

reasonable in this case. The Court will grant summary judgment to Defendant.5 

IT IS ORDERED:

(1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion 

for Summary Judgment (Doc. 34). 

(2) Defendants’ Motion for Summary Judgment (Doc. 34) is granted, and the 

action is terminated with prejudice. The Clerk of Court will enter judgment accordingly.

Dated this 1st day of August, 2019.

 

5 Because the Court is granting summary judgment to Defendant on the merits of 

Plaintiff’s claim, the Court need not reach Defendant’s alternative argument that he is 

entitled to qualified immunity.