In Simmons v. Arnett, published August 31, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for a prison guard and a prison nurse in a 42 U.S.C. section 1983 lawsuit alleging violation of the 8th Amendment. The plaintiff prisoner was attacked by another inmate. The defendant guard was the only guard in the command center. He could not leave the command center. He had both a semi-automatic rifle loaded with live rounds, and a less-lethal 40 mm. weapon that shot sponge-tipped plastic rounds. He used the less-lethal weapon to shoot at the plaintiff inmate to break up the fight. He shot the plaintiff in the leg, breaking the leg, and then in the thigh and buttocks. Prison staff immediately took the plaintiff to the prison's medical room. The defendant nurse asked the plaintiff how he was injured. He stated he slipped in water. She wrote that down. He then said he had been shot in the backside. She wrote that he had lower leg pain. WIthin minutes, she had him transferred to the prison's emergency room, where his leg and later his thigh and buttocks were treated. The notes she made were not sent with him. He alleged that the guard used excessive force and that the nurse was deliberately indifferent in her medical care.
The appellate panel majority ruled that neither defendant violated the plaintiff's 8th Amendment rights. A use of force violates the 8th Amendment if it is not a good faith effort to maintain or enforce discipline, and the defendant instead acts maliciously and sadistically for the purpose of causing harm. Viewing the facts in the light most favorable to the plaintiff (including the fact that the plaintiff was not fighting back), the guard acted reasonably in acting to stop the fight without leaving the command center, and in using the least use of force available to him. Further, the guard was entitled to qualified immunity, because his conduct did not violate clearly-established law. Case law holding that use of deadly force on an inmate bystander to a fight violated the 8th Amendment did not clearly establish the use of force was excessive, because the case did not involve a guard who could not leave his post and who used less-lethal force. The nurse was entitled to summary judgment because the facts did not show any deliberate indifference on her part in failing to make a complete examination, and in writing the plaintiff's own description of what caused his injury in the notes (which were not used in the inmate's treatment). Instead, the facts showed that the nurse acted properly.
A dissenting judge agreed the nurse was entitled to summary judgment, but opined that qualified immunity should not be found at the summary judgment stage. If the facts were resolved in the inmates favor, the judge wrote, the use of force on an inmate who was not fighting violated clearly established law.