Is pepper spray a serious medical need in violation of the Eighth Amendment?

Defendants argue that at least one district court has held that exposure to "pepper spray does not create a serious medical need because it causes only temporary discomfort." Heilman v. Fry, 2009 WL 3287734, *5 (E.D. Cal. Oct. 6, 2009). Plaintiff argues that because he is vision-impaired, and because he was wearing his vest indicating his vision impairment at the time of the incident, defendants should have known plaintiff was at risk of substantial harm.

The court is not persuaded by defendants' argument. First, the defendants' position is that they can disperse any amount of pepper spray in order to obtain an inmate's compliance. Here, viewing the evidence in the light most favorable to plaintiff, the officers used eight or nine canisters of spray and only stopped spraying once plaintiff appeared to discharge mucous or begin coughing. This begs the question whether defendants would have continued to pepper spray plaintiff without limit, using ten canisters? Twenty? A reasonable officer could not believe that the alleged unfettered use of pepper spray was appropriate. Second, the question here is whether defendants were required to intervene where other officers were using force while the inmate was on the ground and arguably not resisting, not whether suffering exposure to pepper spray constitutes a serious medical need in violation of the Eighth Amendment. Third, while it may be true that routine applications of small amounts of pepper spray do not pose a substantial risk of harm because the effects are temporary, there have been incidents of more serious injuries where inmates have preexisting medical conditions and pepper spray is involved. See, e.g., Parsons v. Ryan, 754 F.3d 657, 667 n.9 (9th Cir. 2014) (two inmates with asthma suffered asthma attacks

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