Espinosa v. Gittere
9th Cir. No. 25-1623
Benjamin Espinosa was held in protective custody at Ely State Prison in Nevada, where his food and the food of others in protective custody was repeatedly contaminated with feces and an undetectable cleaning detergent, causing vomiting, acid reflux, severe heartburn, and tongue numbness. Prison officials investigated but took no meaningful action to stop the tampering. After Mr. Espinosa complained—including reporting a piece of metal wire in his meal—Warden William Gittere had him forcibly removed from his cell and confined to the infirmary for thirteen days.
Proceeding pro se, Mr. Espinosa sued under 42 U.S.C. § 1983, raising an Eighth Amendment deliberate-indifference claim for the failure to protect him from the poisoned food and a First Amendment retaliation claim against Warden Gittere. After initially recommending summary judgment for the defendants, the district court reversed course on reconsideration and denied the defendants qualified immunity, finding genuine factual disputes over whether officials disregarded a known risk to Mr. Espinosa's health and whether his transfer to the infirmary was retaliatory. The defendants filed an interlocutory appeal, and Rights Behind Bars, alongside Public Justice, took on Mr. Espinosa's representation.
The Ninth Circuit dismissed the appeal for lack of jurisdiction. As we argued, an interlocutory appeal from the denial of qualified immunity permits review of pure legal questions only—not a defendant's disagreement with the district court's factual findings. The court held that the defendants' challenges on both claims were exactly that: fact-based attacks on whether Mr. Espinosa could prove his case at trial, including their argument that no clearly established law applied, which rested on factual disputes dressed up as legal ones. With the appeal dismissed, Mr. Espinosa's case returns to the district court to proceed toward trial.
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