917 F.2d 382 (9th Cir. 1990), 88-15644, Walker v. Sumner

Docket Nº:88-15644.
Citation:917 F.2d 382
Party Name:Andrew John WALKER, Plaintiff-Appellant, v. George W. SUMNER, Defendant-Appellee.
Case Date:October 22, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 382

917 F.2d 382 (9th Cir. 1990)

Andrew John WALKER, Plaintiff-Appellant,


George W. SUMNER, Defendant-Appellee.

No. 88-15644.

United States Court of Appeals, Ninth Circuit

October 22, 1990

Submitted Dec. 13, 1989[*]

Page 383

Andrew John Walker, Marion, Ill., in pro per.

J. Marty Howard, Nevada Atty. General's Office, Carson City, Nev., for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before REINHARDT, BEEZER and KOZINSKI, Circuit Judges.

REINHARDT, Circuit Judge:

Andrew Walker, a former inmate of Nevada State Prison, brought an action against the director of the Nevada Department of Prisons and various prison officers and administrators under 42 U.S.C. Sec. 1983 (1982) alleging that his fourth, eighth, and fourteenth amendment rights were violated. He contends the violation occurred when prison guards forced him to submit to a blood test--purportedly in connection with an AIDS testing program being administered in the state prisons--by threatening to shoot him with "taser" guns. 1 The district court, adopting the Report and Recommendation of a magistrate, granted defendants' motion for summary judgment and Walker appealed. A review of the record reveals that defendants offered no evidence that the AIDS test, if such was the purpose of the blood sampling, was "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987). Moreover, the record reveals that a material issue of fact exists regarding the prison officials' purpose in drawing Walker's blood. Accordingly, summary judgment in favor of the prison officials was inappropriate. We reverse.

Page 384


Pursuant to a Department of Prisons directive to obtain blood samples from all inmates, a prison nurse and security personnel approached Walker's cell with the intent of extracting blood from him. When the nurse asked Walker to put his arm through the food slot in his cell door so that she could draw his blood, he refused. She therefore directed that he be "red-tagged;" as a result, Walker was not allowed to shower or engage in recreational activities.

The following day, a security squad and two nurses returned to Walker's cell. When asked to put out his arm, he again refused, stating that he did not want to give blood. Sergeant P.C. Johnstone, a defendant in this case, told Walker that the warden had authorized him to use force if necessary to obtain the blood sample. Johnstone then told the nurses to leave, and he and the other security guards present drew their clubs and at least one turned on his taser gun. Walker tried to render any use of the taser gun ineffective by blocking part of his cell. However, Johnstone was ultimately able to aim his gun at Walker; he then ordered him to submit to the blood test, and Walker ended his physical resistance. The nurses then returned, and one of them reached through the cell door, took Walker's arm, and drew his blood. Walker alleges that the nurse was in "civilian" rather than "medical" clothing and that the needle she used was carried in an open cardboard box.

Walker admits that prior to the forced withdrawal of his blood he saw a memorandum addressed to prison staff explaining that blood tests would be conducted, but he asserts, correctly, that the memorandum did not state either that the tests were mandatory or that their purpose was to screen for AIDS. The prison officials, on the other hand, contend that the blood tests were in fact administered in order to determine if any prisoners were carriers of the AIDS virus; they also allege that they delivered a letter to Walker explaining that such was the reason for the tests and that the tests were mandatory. Walker asserts that he never received any such letter. 2 He also asserts that the blood samples were collected in order to help train medical personnel in the administering of tests for the AIDS virus. He alleges that each inmate was screened for AIDS upon entering the prison, and that the prison officials knew that no prisoners had AIDS at the time the disputed samples were taken. Defendants do not contest the latter two allegations.

Walker brought this section 1983 action in propria persona. Alleging violations of his fourth, eighth, and fourteenth amendment rights, he sought money damages for the involuntary withdrawal of his blood. Defendants moved for summary judgment. Walker did not respond within the allotted time, but rather filed a motion to compel the prison officials to comply with the discovery requests he had served on them several months earlier. He also asked the court to "vacate" the motion for summary judgment on the ground that defendants had not produced requested documents or answered written interrogatories. The magistrate denied the discovery requests, in part because Walker did not state that the material was necessary to oppose the motion for summary judgment. The magistrate did, however, permit Walker to file an opposition to defendants' motion.

The magistrate recommended that the motion for summary judgment be granted. She concluded that the prison officials...

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