Edward Furnace v. Paul Sullivan, 2013 U.S. App. LEXIS 1110

Furnace, a prisoner at Salinas Valley State Prison, was entitled to vegetarian meals due to his Shetaut Neter religion and had received them without incident for over a year.
OP 29 governs food port procedures and mandates warning before chemical agents are used to secure a port, with decontamination allowed afterward.
Officers Morales and Sullivan delivered breakfast to Furnace’s block; Morales opened the food port, and Furnace sought vegetarian meals; Morales allegedly told Furnace he was not vegetarian and warned of consequences.
Furnace alleges Morales pepper-sprayed him without a warning, then Sullivan sprayed as Furnace withheld his hands from the port; Furnace contends pepper spray caused injuries.
District court granted summary judgment to the officers on both Eighth Amendment excessive force and Fourteenth Amendment equal protection claims; the district court credited the officers’ version of events for the pepper spray quantity.
On appeal, the Ninth Circuit reversed in part, holding the record should have drawn all inferences in Furnace’s favor on the amount of pepper spray and remanded for reconsideration of qualified immunity; the equal protection claim was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the pepper spray used violated the Eighth Amendment as excessive force	Furnace contends repeated, lengthy pepper spray was excessive and not justified.	Morales and Sullivan acted under a reasonable, possibly mistaken belief of exigent circumstances per OP 29.	Remanded on qualified immunity; district court erred by not constraining in Furnace's favor on fact issues.
Whether the amount of pepper spray was a genuine triable fact precluding summary judgment	Furnace testified to prolonged spraying; officer accounts conflict; jury should resolve the amount.	Evidence supports only brief bursts; summary judgment appropriate under conflicting testimony.	Reversed in part; issue remanded to determine proper inferences for qualified immunity analysis.
Whether Furnace was denied a vegetarian breakfast under an Equal Protection violation	Officers treated Furnace differently from other inmates not known to be vegetarian.	No evidence officers knew Furnace was entitled to vegetarian meals; not similarly situated.	Affirmed summary judgment on equal protection claim.

Hudson v. McMillian, 503 U.S. 1 (Supreme Court 1992) (cruel and unusual punishment; five-factor Hudson test for excessive force)
Saucier v. Katz, 533 U.S. 194 (Supreme Court 2001) (two-step qualified immunity analysis)
Pearson v. Callahan, 555 U.S. 223 (Supreme Court 2009) (modifies sequence of qualified immunity inquiry)
Clement v. Gomez, 298 F.3d 898 (9th Cir. 2002) (disputes about quantity of pepper spray may be resolved in plaintiff's favor on summary judgment)
Treats v. Morgan, 308 F.3d 868 (8th Cir. 2002) (prison regulations relevant to notice of constitutional limits)
Hope v. Pelzer, 536 U.S. 730 (Supreme Court 2002) (use of prison regulations to aid constitutional notice; tempering future conduct)
Williams v. Benjamin, 77 F.3d 756 (4th Cir. 1996) (prohibition on using mace/tear gas to inflict unnecessary pain)
Soto v. Dickey, 744 F.2d 1260 (7th Cir. 1984) (tear gas may be permissible in some provocation contexts; warning emphasis)
Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979) (nonlethal force may be necessary; warnings reduce force)
Johnson v. Caudill, 475 F.3d 645 (4th Cir. 2007) (limitation on reliance on hindsight for qualified immunity)
Martinez v. Stanford, 323 F.3d 1178 (9th Cir. 2003) (Hudson factors applied to determine reasonableness of force)
Estate of Amos ex rel. Amos v. City of Page, 257 F.3d 1086 (9th Cir. 2001) (equal protection discrimination based on mistaken assumptions considered)