Metropolitan News-Enterprise


Friday, January 18, 2013


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Court Revives Prisoner’s Suit Over Pepper Spraying




The Ninth U.S. Circuit Court of Appeals yesterday reinstated a prison inmate’s suit against three corrections officers he claims used two canisters of pepper spray on him after he protested being served a non-vegetarian meal in violation of his religious beliefs.

Judge Milan D. Smith Jr. said that the facts of the officers’ encounter with Edward Terran Furnace were disputed and the case should not have been resolved on summary judgment.

 Furnace, an inmate at Salinas Valley State Prison at the time, alleged in his complaint that he is a practitioner of the Shetaut Neter religion, which has roots in ancient Egypt, and that he was entitled to receive vegetarian meals as a result.

He received those meals for more than a year, without incident, after arriving at the prison. But on the day in question, he had an argument with the officers delivering breakfast to his cell.

Two of the officers, identified as D.R. Morales and Paul Sullivan, did not normally work in Furnace’s cell block and did not know him. Furnace alleged that when he requested vegetarian meals for himself and his cellmate—who was also entitled to them—Morales said “you guys ain’t vegetarian,” and then went to speak to another officer, J. Soto.

When he returned, Morales allegedly told Furnace that Soto said he was not entitled to a vegetarian meal. Furnace claims that when he attempted to call to Soto through the food port—a 12 inch by six inch opening that can be locked and unlocked from the outside—Morales pepper sprayed him without warning.

He also alleges that Sullivan came over and began pepper spraying him as well, that the spraying lasted nearly a full minute, and that it was his impression that each of the officers used an entire canister of the spray.

Morales claimed that when he returned to the cell area after talking to Soto, Furnace abruptly forced the food port open and screamed an expletive.

Morales said he then ordered Furnace to remove his hands from the food port, in accordance with prison regulations that require food ports to be secured and authorize the use of chemical agents against inmates who refuse to move away from the ports after being ordered to do so.

Morales and Sullivan each claim to have discharged only a single, brief blast of spray.

Furnace alleged that the officers violated his Eighth Amendment right to be free of excessive force and that the denial of a vegetarian meal violated his right to equal protection under the Fourteenth Amendment.

Senior U.S. District Judge Maxine M. Chesney of the Northern District of California ruled that there was no triable issue as to the amount of pepper spray that was used. She further ruled that while it was reasonably disputed whether Furnace actually threatened the officers, their perception that they were threatened rendered the brief use of pepper spray reasonable and thus entitled them to qualified immunity.

Chesney also rejected the Fourteenth Amendment claim, saying there was no evidence the officers knew that Furnace was entitled to vegetarian meals.

Smith, writing for the appellate panel, disagreed with the district judge’s analysis as to the quantity of pepper spray used.

He wrote:

“Furnace may have lacked a foundation to determine precisely how many canisters of pepper spray, if any, the officers depleted, but it does not follow that the court should therefore automatically adopt the officers’ version of how much pepper spray they used,” he said. The discrepancy between the plaintiff’s testimony and the defendants’ he said, “is too great to be capable of resolution on summary judgment.”

Smith also noted that the judge’s determination that the officers could have reasonably perceived Furnace’s behavior as threatening was based on her conclusion that Furnace “held open the food port” despite being ordered to let go of it. Furnace’s claim that he was merely resting his fingers on the already-open port to balance himself so that he could call to Soto through the port, while a “subtle” characterization, should have been credited for summary judgment purposes, the appellate jurist said.

Applying Furnace’s version of the facts, the judge went on to say, the motion for summary judgment based on qualified immunity should have been denied. The officers, he reasoned, were aware that Furnace had a right to be free of excessive force, and if Furnace’s testimony is believed, there was no order that he move away from the port and no justification for the use of pepper spray according to the prison’s own policies.

The appellate panel did, however, uphold Chesney’s ruling on the Fourteenth Amendment claim.

The case is Furnace v. Sullivan, 10-15961.


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