Vasquez v. New Mexico Corrections Department et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT VASQUEZ,
Plaintiff,
v. 	No. Civ. 1:22-cv-00462 JCH-KK
CORRECTION OFFICER GERARDO PEREZ,
in his individual and official capacity,
Defendant.
MEMORANDUM OPINION AND ORDER
This case arises from an incident in which Plaintiff Robert Vasquez, an inmate at the North
Penitentiary of New Mexico, was pepper sprayed and slammed to the ground by Defendant
Gerardo Perez, a New Mexico Corrections Department Correctional Officer. Plaintiff asserts a
claim for excessive force in violation of the Eighth Amendment. Third Am. Comp. ¶ 18, Dkt. No.
74. Defendant Perez filed a Motion for Summary Judgment (Dkt. No. 104). Having considered the
motion, response, reply, and evidence, the Court concludes that the motion for summary judgment
should be granted and that this case should be dismissed.
I. 	SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “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). A fact is “material” if it could affect the outcome of the lawsuit and a dispute is “genuine”
if the evidence presented could allow a rational jury to find in favor of the non-moving party.
Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014) (citation omitted). Summary
judgment “is proper when ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any material
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fact and that the moving party is entitled to a judgment as a matter of law.’” Shero v. City of Grove,
510 F.3d 1196, 1200 (10th Cir. 2007). In considering a summary judgment motion, the court views
the facts in the light most favorable to the non-moving party and draws all reasonable inferences
in his favor. Id.; Lance v. Morris, 985 F.3d 787, 793 (10th Cir. 2021).
When a defendant asserts qualified immunity on summary judgment, the plaintiff bears the
burden of demonstrating both that (1) the defendant violated a federal constitutional or statutory
right; and (2) the right violated was clearly established at the time of the defendant’s conduct.
Redmond v. Crowther, 882 F.3d 927, 935 (10th Cir. 2018). Only if the plaintiff meets this two-
part test does the defendant bear the traditional movant’s burden on summary judgment. Id. The
Tenth Circuit has described this test as a “heavy two-part burden,” established to protect “all but
the plainly incompetent or those who knowingly violate the law.” A.M. v. Holmes, 830 F.3d 1123,
1134-35 (10th Cir. 2016) (internal quotations and citations omitted). “To qualify as clearly
established, a constitutional right must be ‘sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.’” Redmond, 882 F.3d at 935 (quoting
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). Existing precedent, through either an on-point
Supreme Court or Tenth Circuit case, or the clearly established weight of authority from other
circuits, must have placed the constitutional issue beyond debate. Id.
The incident in this case was captured on video. Where there is a video recording capturing
the events in question, a court should view the facts in the light depicted by the video recording.
See Scott v. Harris, 550 U.S. 372, 380-81 (2007). “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 for purposes of ruling on a motion for summary
judgment.” Id. at 380. Consequently, the facts set forth in the next section are drawn from the
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undisputed evidence; the video recording; and, for the facts not conclusively established in the
video recording, those facts that are supported by admissible evidence and construed in the light
most favorable to Plaintiff, the non-moving party.
II. 	FACTUAL BACKGROUND
A. Plaintiff and his role as a porter
Plaintiff Vasquez has been incarcerated since 2010 and is an inmate of the New Mexico
Corrections Department (“NMCD”). See Def.’s Mot. for Summ. J., Undisputed Fact (“Def.’s UF”)
¶ 2, Dkt. No. 104.1 On January 6, 2022, Mr. Vasquez was incarcerated at the North Penitentiary
of New Mexico and housed in the G-Pod. Def.’s UF ¶¶ 3-4, Dkt. No. 104. At approximately 6:20
p.m., Mr. Vasquez was working as a porter out of his cell and cleaning in an area marked “Diner.”
See Def.’s UF ¶¶ 4, 16, Dkt. No. 104. As a porter, he had the responsibility of cleaning, including
trash and staff restrooms. See id.; Vasquez Decl. ¶ 5, Dkt. No. 117 at 36 of 59. While working, his
legs were chained, but his hands and wrists were not restrained. See Def.’s Ex. K at 6:22:54-
6:22:58 p.m, Dkt. No. 106.
B. North Penitentiary of New Mexico’s layout and staff
The North Facility consisted of three buildings that house inmates, including six housing
units (“HU”) (1A, 1B, 2A, 2B, 3A, and 3B). Lindsey Supp. Decl. ¶ 2, Dkt. No. 120-1. Each housing
unit has four pods. Id. The HU 1B unit has E, F, G, and H Pods. Def.’s UF ¶ 16, Dkt. No. 104.
Each pod has an entry door with individual cells inside the pod. Perez Decl. ¶ 3, Dkt. No. 104-5.
The G-Pod shared the HU 1B corridor with F-Pod. Id. ¶ 4.
On the evening of January 6, 2022, Lieutenant Charles Lindsey was working as the shift
supervisor for the entire North Facility. Lindsey Decl. ¶ 7, Dkt. No. 104-7; Lindsey Supp. Decl. ¶
1 Defendant’s Undisputed Facts refer to those facts to which Plaintiff admits in the corresponding enumerated
paragraphs in his response (Dkt. No. 117).
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2, Dkt. No. 120-1. He worked the Morning Watch Shift (also called the Night Shift), which is from
6:00 p.m. to 6:00 a.m. Def.’s UF ¶ 6, Dkt. No. 104; Lindsey Decl. ¶ 7, Dkt. No. 104-7.
Defendant Gerardo Perez, an NMCD Correctional Officer (“CO”), was working the
Morning Watch Shift as the North Penitentiary HU 2A Rover. Def.’s UF ¶ 5, Dkt. No. 104. Officer
Perez had some knowledge that Mr. Vasquez had a disciplinary history. See Def.’s Ex. E ¶ 14,
Dkt. No. 104-5; Pl.’s Resp. 1, Dkt. No. 117. Officer Perez had threatened Mr. Vasquez in a prior
incident on the way to rec. See Vasquez Decl. 11, ¶ 24, Dkt. No. 117 at 45 of 59.
Officer Perez also served as an “A-Team Responder.” Def.’s UF ¶ 5, Dkt. No. 104. A-
Team Responders have the responsibility of immediately responding to emergencies, such as when
an inmate overdoses or has a medical or other emergency. Def.’s UF ¶ 7, Dkt. No. 104. That
evening, Correctional Officers Bill Till, Irvin Toya, and Perez were working as first responders.
See Def.’s Ex. M, Dkt. No. 104-9; Lindsey Supp. Decl. ¶¶ 3, 9-11.
C. Medical emergency of Inmate AC
At around 6:20 p.m. that evening, Correctional Officer Arthur Geoffroin advised North
Facility Control that first responders were needed in the HU 1B F-Pod. Def.’s UF ¶ 11, Dkt. No.
104. Officer Geoffroin reported that an inmate (herein, “Inmate AC”) was possibly seizing on the
floor of his cell in F-Pod. Lindsey Decl. ¶ 9, Dkt. No. 104-7; Perez Supp. Decl. ¶ 3, Dkt. No. 120-
2. Medical staff and A-Team Responders were dispatched to secure Inmate AC and provide
necessary medical attention. Lindsay Decl. ¶ 9, Dkt. No. 104-7. Officers Perez, Toya, and Till
responded to HU 1B. Def.’s UF ¶¶ 8, 12, Dkt. No. 104.
D. Timing of response team’s arrival at Inmate AC’s cell
The parties dispute when the officers arrived at Inmate AC’s cell and assisted in the medical
emergency. Plaintiff asserts that the “officers appeared to assist [Inmate AC] in F-Pod within
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seconds after first called on the emergency at 6:20.” Pl.’s Resp. 3, ¶ 12, Dkt. No. 117. In support
of this assertion, Plaintiff relies on the initial declarations of Lt. Lindsey, Officer Perez, and Officer
Toya. See id. at 3-4. Officers Perez and Toya stated in their respective declarations that they
“responded” to the emergency at approximately 6:20 p.m. See Perez Decl. ¶ 3, Dkt. No. 104-5;
Toya Decl. ¶ 2, Dkt. No. 104-5. Plaintiff also cites Lt. Lindsey’s Declaration wherein he avers that,
after Officer Geoffrion reported Inmate AC’s medical situation at around 6:20 p.m., Lt. Lindsey
made his way from his office to assist with the incident. Lindsey Decl. ¶ 9, Dkt. No. 104-7. After
inferring a response time of “seconds,” Plaintiff further infers that Officers Toya and Perez
encountered Plaintiff Vasquez after the medical emergency resolved.
Plaintiff’s timeframe of “seconds” is not supported by evidence in the record, even when
construing inferences in his favor. Officer Toya stated that he “responded” at approximately 6:20
p.m. Toya Decl. ¶ 2, Dkt. No. 104-6. But he also said that he moved through the diner corridor
towards the unresponsive inmate when he noticed Mr. Vasquez cleaning the floor and master
control calling out that all inmates were to be locked down. Id. ¶¶ 2-4. He explained that Officer
Perez joined them at that point. Id. ¶ 3. Officer Toya’s Declaration does not support Plaintiff’s
assertion that Officer Toya arrived at Inmate AC’s cell within seconds of Officer Geoffrion’s call
for assistance or that his encounter with Mr. Vasquez occurred after he assisted with the medical
emergency. See id. ¶¶ 2-8.
Officer Perez’s Declaration likewise does not support Plaintiff’s timeframe. Although
Officer Perez stated that he “responded” to the emergency at around 6:20 p.m., he also said that
he was assigned to the HU 2A unit, and that on arrival at the HU 1B unit, he was advised by control
that Mr. Vasquez needed to be locked down “due to the ongoing emergency in F-Pod.” Perez Decl.
¶¶ 2-4, Dkt. No. 104-5. The inference that Officer Perez arrived at Inmate AC’s cell within seconds
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of hearing of the emergency and encountered Mr. Vasquez after the medical emergency was over
is not plausible based on the complete contents of Officer Perez’s Declaration. Furthermore,
Officer Perez clarified the timeframe in his Supplemental Declaration. See Perez Supp. Decl. ¶¶
2-18, Dkt. No. 120-2. Officer Perez avers that he was in Housing Unit 2A when the emergency
radio announcement was made, so he immediately left HU 2A and ran toward HU 1B. Perez Supp.
Decl. ¶ 4, Dkt. No. 120-2. He entered the exterior door of HU 1B at 6:22:09 p.m., which is shown
in the video evidence. Id. ¶ 5; Ex. K at 6:22:09, Dkt. No. 106. Consequently, Plaintiff cannot
support his assertion that Officer Perez assisted Inmate AC within seconds based on Officer
Perez’s Declaration.
Plaintiff also relies on paragraph 9 of Lt. Lindsey’s Declaration wherein he says that
Officer Geoffrion informed master control at around 6:20 p.m. that Inmate AC was possibly
seizing, that officers were dispatched, and that Lt. Lindsey made his way from his office to assist
with the incident. Lindsey Decl. ¶ 9, Dkt. No. 104-7. He then explained that, because of the medical
emergency, the call went out to lockdown at 6:21 p.m. Id. ¶ 10. Lt. Lindsey’s Declaration thus
does not support Plaintiff’s assertion that all the responders arrived at Inmate AC’s cell within
seconds and resolved the medical emergency before Officer Perez encountered Mr. Vasquez. See
id. ¶¶ 9-10. Moreover, to clarify the timeframe, Defendants submitted Lt. Lindsey’s Supplemental
Declaration wherein he explained that it took several minutes for him to arrive at Inmate AC’s
cell. Lindsey Supp. Decl. ¶¶ 5-10, Dkt. No. 120-1. Lt. Lindsey’s office is in another building
separate from the F-Pod. Id. ¶ 5. He left his office, exited the building, went towards F-Pod, and
had to wait for doors and a gate to be unlocked. See id. At approximately 6:21 p.m., Lt. Lindsey
ordered that inmates lock down. Id. ¶ 4. It took Lt. Lindsey several minutes to reach the F-Pod. Id.
¶ 6. Lt. Lindsey further averred that medical staff likewise would have traveled through locked
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doors and gates to reach the F-Pod, so it would generally take several minutes to get to the F-Pod.
Id. ¶ 7. Finally, he clarified that Officers Perez and Toya did not enter the cell to assist Inmate AC
until approximately 6:28 p.m. Id. ¶ 10. Accordingly, Lt. Lindsey’s Declaration also does not
support Plaintiff’s contention that the first responders arrived at Inmate AC’s cell within seconds.
Finally, in support of his version of the timing, Plaintiff relies on his own deposition
testimony wherein he testified that Officer Toya, when he initially encountered Plaintiff, had come
from the emergency situation and told him to lock down because something was going on. See
Pl.’s Resp. 5-6, ¶ 17, Dkt. No. 117; Vasquez Dep. 52:8-16, Dkt. No. 104-11 (stating that Officer
Toya “had c[o]me from the emergency situation and – and told me to finish it – to wrap it up, lock
it down, that there was something going on”). First, Mr. Vasquez’s testimony does not suggest that
the medical emergency was over; rather it indicates it was ongoing. Second, there is nothing in the
record to suggest that Plaintiff had personal knowledge that Officer Toya had already responded
to the incident or that there was no longer a medical emergency.
For all these reasons, the Court finds that Plaintiff failed to dispute the timeframe as to
when the officers responded to Inmate AC’s cell or when the medical emergency resolved with
admissible evidence based on personal knowledge, as required by Federal Rule of Civil Procedure
56. See Fed. R. Civ. P. 56(c)(4). Because Plaintiff failed to create a genuine issue of material fact
with respect to when the officers were able to respond to the medical emergency, the Court finds
for purposes of ruling on this motion that Officers Toya and Perez did not reach Inmate AC’s cell
within seconds, but rather around 6:28 p.m., and that the medical emergency was ongoing at the
time Officers Toya and Perez encountered Mr. Vasquez.
E. Use of force encounter between Plaintiff and Defendants Perez and Toya
Officer Toya moved through the diner corridor towards where Inmate AC was located.
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Toya Decl. ¶ 2, Dkt. No. 104-6. In the diner corridor, Officer Toya encountered Mr. Vasquez and
told him that he needed to wrap it up because there was “some type of incident in F pod.” Vasquez
Dep. 40:20-25, Dkt. No. 104-11. See also Toya Decl. ¶ 2, Dkt. No. 104-6; Vasquez Decl. ¶ 6, Dkt.
No. 117 at 36 of 59. Mr. Vasquez asked if he could take a shower, and Officer Toya replied, “Yeah,
finish cleaning and go ahead and jump in the shower.” Vasquez Dep. 41:3-6, Dkt. No. 104-11. Mr.
Vasquez responded that he was finished and gathered the cleaning supplies. See Vasquez Decl. ¶
7, Dkt. No. 117 at 36 of 59; Vasquez Dep. 41:13-21, Dkt. No. 104-11. At 6:21:17 to 6:22:30 p.m.,
Officer Toya attempted to open the door from the area marked “Diner” to the corridor, but he had
to wait for the HU IB control officer to open the door for him. See Pl.’s Resp. ¶ 15, Dkt. No. 117;
Ex. K at 6:21:17-6:22:32 p.m., Dkt. No. 106.
Meanwhile, Officer Perez arrived at HU 1B at 6:22:09 p.m. and saw Mr. Vasquez in the
diner area. Perez Supp. Decl. ¶¶ 5-6, 8, Dkt. No. 120-2. Mr. Vasquez understood from overhearing
Officers Toya and Perez that somebody was having a seizure. See Vasquez Dep. 49:1-4, Dkt. No.
104-11; Pl.’s Resp. 6, ¶ 19, Dkt. No. 117. He also knew that usually during the nightshift the
facility is short-staffed, so if something happens, they usually lock down the whole facility.
Vasquez Dep. 52:22-25, Dkt. No. 104-11.
At approximately 6:22:51, Mr. Vasquez took the supplies to the mop closet. See Vasquez
Decl. ¶ 8, Dkt. No. 117 at 37 of 59; Ex. K at 6:22:51-6:23:17 p.m., Dkt. No. 106.2 Officer Perez
stood behind Mr. Vasquez and looked at his watch. See Ex. K at 6:23:02-6:23:03 p.m., Dkt. No.
106. Mr. Vasquez went to remove a garbage bag that was tied to the fire extinguisher to the left of
the G Pod door. See Def.’s UF ¶¶ 16, 24, Dkt. No. 104; Ex. K at 6:23:18-6:23:23 p.m., Dkt. No.
2 As shown in the video, Exhibit K, the door to F Pod is off-screen to the lower right, and the door to G Pod is off-
screen to the lower left, just to the right of the visible fire extinguisher. Def.’s UF ¶ 16, Dkt. No. 104. See also Def.’s
Ex. L, Dkt. No. 106.
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106. As Mr. Vasquez retrieved the trash bag, Officer Toya stood a few feet behind him with Officer
Perez standing a few feet to Mr. Vasquez’s left between him and the door to the F-Pod. See Def.’s
UF ¶ 16; Ex. K at 6:23:19-6:23:23 p.m., Dkt. No. 106. Around this time, Mr. Vasquez told Officer
Toya that he was headed to the shower. See Vasquez Decl. ¶ 8, Dkt. No. 117 at 37 of 59; Vasquez
Dep. 42:4-6, Dkt. No. 104-11. Officer Perez told Mr. Vasquez that there was a situation going on
in F pod and that he had to lock down. See Vasquez Dep. 42:2-8, Dkt. No. 104-11. With the bag
in hand, Mr. Vasquez turned, faced Officer Perez with Officer Toya to Mr. Vasquez’s left, and
took a step back with his left foot. See Ex. K at 6:23:23-6:23:26 p.m., Dkt. No. 106.3
Mr. Vasquez asked him to call a supervisor. Vasquez Dep. 42:10-11, Dkt. No. 104-11.
After cleaning the restrooms and toilets, he wanted a shower and believed he was entitled to one.
See id. at 42:14-18; Toya Decl. ¶ 5, Dkt. No. 104-6; Def.’s UF ¶ 51, Dkt. No. 104. Mr. Vasquez
believed Officer Perez was messing with him because of the prior rec incident. See Vasquez Dep.
44:4-18, Dkt. No. 104-11.
Officer Perez responded, “Are you refusing to lockdown?” Vasquez Dep. 42:11-12.
Shaking his head, Mr. Vasquez said, “No, it’s not that. Just call a supervisor.” Id. at 42:13-14. See
also Ex. K at 6:23:27-6:23:30 p.m., Dkt. No. 106. Mr. Vasquez admits that he asked Officer Perez
to call a supervisor three separate times. Def.’s UF ¶ 33, Dkt. No. 104. Officer Perez again asked,
“Are you refusing to lockdown?” Vasquez Dep. 42:19-20, Dkt. No. 104-1. Mr. Vasquez replied,
“No.” Id. at 42:21. Officer Perez then pulled out his mace and started shaking the can. Id. at 42:21-
3 Based on his training, Officer Perez viewed Plaintiff’s step back as taking an aggressive and fighting stance. See
Def.’s Mot 6, ¶ 34, Dkt. No. 104; Perez Decl. ¶ 8, Dkt. No. 104-5. Plaintiff disputes that he was taking an “aggressive
and fighting stance,” relying on the video. See Pl.’s Resp. 8-9, ¶ 34, Dkt. No. 117. Construing the video with inferences
in favor of Plaintiff, a reasonable jury could find that Plaintiff did not take a fighting stance, and that although Plaintiff
stepped toward Officer Perez, the move was not aggressive. Accordingly, when considering this motion for summary
judgment, the Court will construe this fact in favor of Plaintiff and not consider that Plaintiff was standing in an
aggressive, fighting manner.
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23; Ex. K at 6:23:37-6:23:40 p.m., Dkt. No. 106. Mr. Vasquez told him, “That don’t – that don’t
fucking scare me.” Vasquez Dep. 42:22-23, Dkt. No. 104-11. As an A-Team Responder, Officer
Perez needed to attend Inmate AC and could not do so until Mr. Vasquez locked down. Perez Decl.
¶ 9, Dkt. No. 104-5.4
Mr. Vasquez, with his hands down at his sides, started leaning on his right foot with his
right shoulder turning slightly to the right while he began taking a step with his left foot towards
Officer Perez. See Ex. K at 6:23:38-6:23:41 p.m., Dkt. No. 106. 5 Officer Perez sprayed him in the
face with the mace as he was taking the step for 1-2 seconds. See Ex. K at 6:23:40-6:23:42 p.m.,
Dkt. No. 106; Vasquez Decl. ¶ 10, Dkt. No. 117 at 37 of 59. Officer Perez said, “not scared” as he
maced Mr. Vasquez. Vasquez Decl. ¶ 15, Dkt. No. 117 at 39 of 59. Officer Perez then grabbed
Mr. Vasquez’s shoulders and forced him to the ground. See Ex. K at 6:23:41-6:23:44 p.m., Dkt.
No. 106. Mr. Vasquez quickly gave up his right hand and put it behind his back. Vasquez Decl. ¶
13, Dkt. No. 117 at 39 of 59. He did not resist being handcuffed. Id. Officer Perez handcuffed him
with his arms behind his back while Officer Toya assisted him. See Ex. K at 6:23:42-6:23:59 p.m.,
Dkt. No. 106. Afterwards, Officers Perez, Toya, and Till escorted Mr. Vasquez to the strip
enclosure in the G-Pod. See Def.’s UF ¶ 54, Dkt. No. 104; Def.’s Ex. L at 6:24:43–6:24:58 p.m.,
Dkt. No. 106.
4 Plaintiff disputes this factual allegation but without citation to admissible evidence based on personal knowledge.
See Pl.’s Resp. 7, ¶ 23, Dkt. No. 117. He asserts that only one responder was needed, citing to Lt. Lindsey’s Declaration
in support. See id. Lt. Lindsey’s Declaration does not state that only he and medical staff could handle the medical
emergency; rather, he says that the team of first responders, including Officer Perez, had the duty to respond to the
medical emergency. See Lindsey Decl. ¶¶ 6-12, Dkt. No. 104-7. Plaintiff also cites the aforementioned declarations
to contend that the emergency was already over. Id. But as discussed supra, Plaintiff failed to create a genuine dispute
of fact as to the timing issue.
5 Plaintiff denies that he took a step toward Officer Perez. Pl.’s Resp. 15, ¶ 52, Dkt. No. 117. It is clear from the video,
however, that Plaintiff started to move his left foot forward in the direction Officer Perez was standing. See Ex. K at
6:23:38-6:23:41 p.m., Dkt. No. 106. While Mr. Vasquez may have intended to swing his left foot forward and around
back to the G-Pod, at the time he was sprayed, his foot was moving in Officer Perez’s direction. See id.
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F. 	A Team response for Inmate AC
Officers Perez, Toya, and Till then reported to Inmate AC’s cell. See Lindsey Supp. Decl.
¶ 10, Dkt. No. 120-1. For safety reasons, NMCD personnel generally only enter a cell for a
potential medical emergency after a team is assembled to ensure the safety of staff and the inmate.
See id. ¶ 9. At approximately 6:28 p.m., the security personnel entered the cell. See id. ¶ 10. The
security team restrained the inmate with belly chains and leg irons before medical personnel
entered the cell to prevent assaults or injuries to medical personnel. Id. ¶¶ 11-12. After medical
staff administered Narcan, security personnel carried Inmate AC from his cell and placed him in a
wheelchair. Id. ¶ 13. Staff took him to the medical unit for treatment at about 6:31 p.m. Id.
G. Plaintiff’s medical reports and grievances arising from the incident
Later that night, Mr. Vasquez reported that his back was injured and that he could barely
move his stiff neck. See Def.’s Ex. P at 7 of 7, Dkt. No. 105-2. On January 11, 2022, he reported
to his medical provider that he was experiencing stiff neck muscle pain. See Pl.’s Ex. 6, Dkt. No.
117 at 54 of 59. 6
On January 13, 2022, Mr. Vasquez submitted an Inmate Informal Complaint regarding the
incident. See Pl.’s Ex. 2, Dkt. No. 117 at 47 of 59. He asserted that officials used excessive force
against him when using pepper spray; he was not allowed a reasonable opportunity for
decontamination or medical treatment; and they kept him in the strip cage for 45 minutes while he
had mace in his eyes. Id. Mr. Vasquez subsequently submitted an Inmate Grievance in which he
alleged that Officer Perez used excessive force against him “when he deployed OC pepper spray
6 Plaintiff asserts that he “still has medical issues involving his back and neck” and that “the incident caused his
emotional distress and psychological issues to be aggravated,” citing Exhibit 7 in support. Pl.’s Resp. 22, Dkt. No.
117. Plaintiff does not, however, cite to admissible evidence in support of the allegation that he continues to have back
and/or neck pain caused by the incident. Nor does Exhibit 7 support his assertion that the incident caused an
aggravation of his mental health injuries. The medical records indicate he received mental health treatment but do not
suggest that the incident exacerbated his symptoms. See Pl.’s Ex. 7, Dkt. No. 117 at 55-59 of 59. Nevertheless, even
if the Court construed these facts in his favor, it would not alter the Court’s analysis of the claim.
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in [his] face, in violation of use of Force policy, after I requested to talk to a supervisor.” Def.’s
UF ¶ 68; Pl.’s Ex. 3, Dkt. No. 117 at 48 of 59. The grievance officer denied his grievance after
concluding “there were no findings of excessive force.” Pl.’s Ex. 4, Dkt. No. 117 at 50 of 59. Mr.
Vasquez did not file a separate grievance regarding the alleged denial of the opportunity to
decontaminate or the alleged denial of medical treatment. See Def.’s UF ¶ 70, Dkt. No. 104; Pl.’s
Resp. 17, ¶ 70, Dkt. No. 117. Plaintiff appealed the denial of the grievance and received a decision
on his appeal, exhausting his administrative remedies. See Def.’s UF ¶ 71, Dkt. No. 104. On appeal,
the decisionmaker concluded that Officer Perez took “no wrongful action” and that Mr. Vasquez
refused the medical attention offered by Lt. Lindsey and a nurse. Def.’s Ex. J, Dkt. No. 104-8 at 3
of 4. 7
III. 	PROCEDURAL HISTORY
Plaintiff’s Third Amended Complaint asserts one claim for violation of his Eighth
Amendment right to be free from excessive use of force. Third Am. Compl. ¶¶ 17-18, Dkt. No. 74.
According to his complaint, Officer Perez violated the Eighth Amendment when he sprayed
Plaintiff in the face with pepper spray and slammed him to the floor. See id. ¶ 18. Defendant moved
for summary judgment on this claim. See Def.’s Mot., Dkt. No. 104. 8
IV. 	ANALYSIS
The Eighth Amendment prohibits the infliction of “cruel and unusual” punishment. U.S.
7 Although Plaintiff admits the result of the appeal, he denies that the result or the reasoning was correct. The Court
has included this fact to explain the procedures that occurred, but it will conduct its own independent analysis of the
excessive force claim.
8 In his response, Plaintiff reiterates that he “abandoned his claim to his allegation that he was not allowed to
decontaminate or that he was not provided medical attention in his Third Amend[ed] Complaint, wherein he claimed
only that he had been the subject of excessive force.” Pl.’s Resp. 15, ¶ 57, Dkt. No. 117. The Court therefore does not
need to address Defendant’s argument in his motion for summary judgment that Plaintiff failed to exhaust his
administrative remedies on claims that he was denied the chance to decontaminate and denied medical attention. See
Def.’s Mot. 28-30, Dkt. No. 104. Nor will the Court address the merits of those abandoned claims.
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Const. amend. VIII. The “unnecessary and wanton infliction of pain” constitutes cruel and unusual
punishment. See Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430
U.S. 651, 670 (1977)). “Among unnecessary and wanton inflictions of pain are those that are
totally without penological justification.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal
quotations omitted). The Tenth Circuit requires a plaintiff to satisfy a two-prong test to prevail on
an Eighth Amendment excessive force claim: (1) the wrong was objectively harmful enough to
establish a constitutional violation and (2) the prison official acted with a sufficiently culpable
state of mind. Ullery v. Bradley, 949 F.3d 1282, 1290 (10th Cir. 2020) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994), and Smith v. Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003)).
Determining what is necessary to meet this standard varies according to the nature of the
constitutional violation that is alleged. Hudson v. McMillian, 503 U.S. 1, 5 (1992). In the context
of the use of force to keep or restore order, the state-of-mind question “turns on whether force was
applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.” Id. at 6 (quoting Whitley, 475 U.S. at 320-21); Giron v.
Corrections Corp. of America, 191 F.3d 1281, 1289 (10th Cir. 1999). Factors relevant to the
inquiry include the need for the application of force, the relationship between the need and the
amount of force used, the threat reasonably perceived by the officer, any efforts made to temper
the severity of a forceful response, and the extent of the injury inflicted. Hudson, 503 U.S. at 7
(quoting Whitley, 475 U.S. at 321). As for the objective component, de minimis uses of physical
force do not amount to a constitutional violation under the Eighth Amendment, “provided that the
use of force is not of a sort repugnant to the conscience of mankind.” Ullery, 949 F.3d at 1290
(quoting Hudson, 503 U.S. at 9-10).
Prison officials are accorded wide-ranging deference when responding to situations
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involving the need to preserve internal order and discipline and maintain institutional security.
Whitley, 475 U.S. at 321-22. Decisions needed to maintain or restore discipline often must be made
“in haste, under pressure, and frequently without the luxury of a second chance.” Hudson, 503
U.S. at 6 (quoting Whitley, 475 U.S. at 320). “To be cruel and unusual punishment, conduct that
does not purport to be punishment at all must involve more than ordinary lack of due care for the
prisoner's interests or safety.” Whitley, 475 U.S. at 319. The case should not go to a jury unless the
evidence, viewed in the light most favorable to the plaintiff, supports “a reliable inference of
wantonness in the infliction of pain” under the Eighth Amendment standard. Id. at 322.
Here, the Court’s resolution of this case focuses on the subjective prong. The record shows
that Officer Perez was attempting to respond to a medical emergency involving another inmate,
which required locking down the facility. Plaintiff suggests that, because Officer Perez had no
medical training, he was not needed at the medical emergency. It is undisputed, however, that
Officer Perez was an A-Team Responder. As such, he had the duty to go to the location of the
medical emergency. Delays in his responding presented a potential medical threat to the other
inmate. Mr. Vasquez understood somebody was having a seizure, and he knew the lockdown was
typical in this situation during the night shift. He also admits that, despite that knowledge, he
repeatedly requested that Officer Perez call a supervisor. Plaintiff also admits that, when Officer
Perez removed his can of pepper spray, Plaintiff said, “that don’t fucking scare me,” an expression
indicating non-compliance.
According to Plaintiff, he complied with the order but wanted to be sure a supervisor would
allow him to take a shower later. See Pl.’s Resp. 13-14, Dkt. No. 117. The Court, however,
disagrees that the evidence, even construed with inferences in Plaintiff’s favor, shows compliance.
Although Plaintiff said he was not refusing to lockdown, he did not through his words or actions
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indicate a willingness to lockdown as directed. Instead of agreeing to lockdown or moving towards
the G Pod, he instead asked Officer Perez to call a supervisor repeatedly. See Vasquez Dep. 56:1-
5, Dkt. No. 104-11 (admitting that three separate times he asked to call a supervisor). Although he
began to take a step forward at the same time Officer Perez sprayed him, it is not apparent from
the video that his step or other body language showed that he intended to comply. Rather, the
evidence shows he failed to comply with directives to lockdown during an emergency that he
understood was occurring. Inmates “cannot be permitted to decide which orders they will obey,
and when they will obey them.” Redmond, 882 F.3d at 938. Defendant has therefore shown a need
to use force to gain Plaintiff’s compliance with the lockdown measures.
As for the level of force employed, Officer Perez sprayed the mace in Plaintiff’s face for
only 1-2 seconds, forcibly took him down to the ground, and immediately handcuffed him and
took him to a secure area. No other force was used, demonstrating a close relationship between the
need and the amount of force applied to quickly restrain Plaintiff. While Plaintiff sustained pain
and reddened eyes from the pepper spray, a sore back, and a stiff neck, he suffered no other injuries
from the take down. The extent of his injuries was not so great as to show sadistic intent. Although
even minor injuries can sustain an Eighth Amendment claim, this is not a case where an officer
applied force without any justification and merely to cause harm. Cf. Wilkins v. Gaddy, 559 U.S.
34, 37-38 (2010) (explaining that, while the extent of injury suffered is one factor in analysis,
inmate gratuitously beaten by guards does not lose ability to pursue excessive force claim merely
because he escaped without serious injury). Rather, the use of pepper spray here was to maintain
discipline and to quickly secure Plaintiff so that Officer Perez could respond to the medical
emergency.9
9 The cases cited by Plaintiff do not warrant a different result. Cases relied upon by Plaintiff where prison guards
applied force without any justification are inapposite, as they did not involve the emergency situation Officer Perez
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Accordingly, even viewing the evidence in the light most favorable to Plaintiff, the record
does not support a reasonable inference of wantonness in the infliction of pain to meet the Eighth
Amendment standard. Defendant is therefore entitled to summary judgment on this claim. Cf.
Redmond, 882 F.3d at 933, 937-38 (concluding that officials needed to use force and that it was
not disproportionate to use tear gas to subdue agitated, unarmed inmate who locked himself inside
recreation yard and refused to comply with prison officials’ orders, even though gas inadvertently
filtered into prison and affected other prisoners); Grissom v. Roberts, 435 F. App’x 717, 718-19,
721 (10th Cir. June 9, 2011) (affirming district court’s dismissal of plaintiff’s Eighth Amendment
excessive force claim where prison official used pepper spray against plaintiff and forcibly
removed him from cell after inmate resisted order to be restrained, responded obscenely, and threw
water at officer); Green v. Corrections Corp. of America, 401 F. App’x. 371, 376 (10th Cir. 2010)
(concluding that use of pepper spray was not excessive where plaintiff admitted to physically
restraining another prisoner immediately before prison official sprayed him with pepper spray, so
force was reasonable to maintain or restore discipline); Gargan v. Gabriel, 50 F. App’x. 920, 923
(10th Cir. Nov. 5, 2002) (unpublished) (holding that plaintiff failed to state Eighth Amendment
faced here. See, e.g., Mitchell v. Maynard, 80 F.3d 1433, 1440-41 (10th Cir. 1996) (concluding that plaintiff did not
need to allege significant physical injury to state cause of action where facts show that, after plaintiff, who was naked
and shackled, tripped and fell, guards beat him with night sticks while shouting racial epithets at him, even though he
had not acted inappropriately or posed any disciplinary problem or threat); Treats v. Morgan, 308 F.3d 868, 872-75
(8th Cir. 2002) (concluding plaintiff satisfied burden on summary judgment to show excessive force based on guard’s
use of pepper spray without warning where inmate questioned action but otherwise was not recalcitrant or threatening;
no emergency situation existed). The Fourth and Fourteenth Amendment cases relied upon by Plaintiff are likewise
distinguishable because they utilize a different standard than cases brought under the Eighth Amendment and/or
involved very different facts. See, e.g., Estate of Booker v. Gomez, 745 F.3d 405, 409, 418-29 (10th Cir. 2014)
(concluding Plaintiff met burden to show violation of Fourth and Fourteenth Amendments after restrained, non-
resisting pretrial detainee died following pressure on his back, use of Taser, and use chokehold for over two and a half
minutes); Martinez v. New Mexico Dep’t of Pub. Safety, 47 F. App’x 513, 515-17 (10th Cir. July 29, 2002) (finding
excessive use of force under Fourth Amendment where officer maced driver during traffic stop even though she was
not actively resisting arrest or attempting to evade arrest by flight); Headwaters Forest Defense v. County of Humboldt,
240 F.3d 1185, 1190-91 (9th Cir. 2000) (Fourth Amendment excessive force case involving use of pepper spray on
protesters).
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excessive force claim where officers sprayed unarmed prisoner secured in his segregation cell with
pepper spray four times to aid his extraction from cell where plaintiff alleged no facts to support
reliable inference that pepper spray was used unnecessarily, excessively, or wantonly).
Plaintiff cites NMCD Policy CD-130601 A.2 ¶ 21, which states that staff should only use
force as a last resort. See Pl.’s Resp. 9, Dkt. No. 117. He argues that, instead of using pepper spray,
Officer Perez could have called a supervisor or directed that he turn around to get handcuffed.
Violation of a policy, however, does not amount to a constitutional violation. See, e.g., Davis v.
Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for constitutional violations do not lose their
qualified immunity merely because their conduct violates some statutory or administrative
provision.”); Porro v. Barnes, 624 F.3d 1322, 1329 (10th Cir. 2010) (“violation of a prison
regulation does not give rise to an Eighth Amendment violation absent evidence the prison
official’s conduct failed to conform to the constitutional standard”) (quoting Jolivet v. Cook, 48
F.3d 1232 (10th Cir. 1995)); Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir. 1993) (“a
failure to adhere to administrative regulations does not equate to a constitutional violation”). While
other more minimal uses of force may have been available, that is not the standard under the Eighth
Amendment. Officer Perez believed that he needed to use force to gain compliance to get to the
emergency quickly. A court should not second-guess instantaneous, on-the-spot decisions, so long
as they do not constitute the unnecessary and wanton infliction of pain. See Winter v. Mansfield,
No. 21-3171, 2022 WL 3652464, at *10 (10th Cir. Aug. 25, 2022) (quoting Sampley v. Ruettgers,
704 F.2d 491, 496 (10th Cir. 1983)). For all the foregoing reasons, Defendant is entitled to
summary judgment on Plaintiff’s Eighth Amendment excessive force claim.
Alternatively, in light of the aforementioned law permitting the use of pepper spray to gain
control of a resistant inmate, Defendant is entitled to qualified immunity. Cf. Grissom v. Palm, No.
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21-3194, 2022 WL 3571410, at *6 (10th Cir. Aug. 19, 2022) (concluding that qualified immunity
applied because officer's use of handcuffs and pepper spray in attempting to subdue inmate failed
to qualify as malicious and sadistic uses of force, rather than good faith efforts to maintain or
restore discipline, given circuit decisions rejecting excessive-force claims where one or more
corrections officers used force to gain control of resistant prisoner).10
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment (Dkt.
No. 104) is GRANTED. This case is therefore DISMISSED with prejudice.
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
10 Defendant argues that Plaintiff did not administratively exhaust the excessive force claim based on forcing him to
the ground before handcuffing him. See Def.’s Mot. 15, ¶ 76, Dkt. No. 104; Reply 8, Dkt. No. 120. Neither Plaintiff’s
informal complaint nor his formal grievance alleged that slamming him to the ground constituted excessive use of
force; instead he asserted that he was subjected to excessive use of force when Officer Perez used pepper spray against
him. See Pl.’s Ex. 2 & Ex. 3, Dkt. No. 117 at 47-48 of 59. In his Step 5 Departmental Appeal, however, Plaintiff raised
the issue of Officer Perez “going hands on in violation of use of force policy.” Def.’s Ex. J, Dkt. No. 104-8 at 4 of 4.
The Court declines to consider this exhaustion argument, given that it has already determined that the claim does not
survive summary judgment or qualified immunity on the merits.
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