Berg v. Kincheloe, s. 84-4310

• Decision Date: 07 April 1986
• Docket Number: Nos. 84-4310,85-3963,s. 84-4310
• Citation: 794 F.2d 457
• Parties: Keith A. BERG, Plaintiff-Appellant, v. Larry KINCHELOE, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 457

794 F.2d 457

Keith A. BERG, Plaintiff-Appellant, v. Larry KINCHELOE, et al., Defendants-Appellees.

Nos. 84-4310, 85-3963.

United States Court of Appeals Ninth Circuit.

Submitted April 7, 1986 ^*.

Decided July 14, 1986.

Keith A. Berg, in pro per.

Paul A. Silver, Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington.

Before GOODWIN, HALL and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge:

Keith A. Berg, appearing pro se, appeals from the district court's grant of summary judgment in favor of the defendants in this action under 42 U.S.C. Sec. 1983. Berg contends that summary judgment was improper because triable issues of material fact exist. We affirm in part, reverse in part and remand.

I FACTS

In August 1983 Berg, a prisoner at the Washington State Penitentiary (the "prison"), filed a pro se civil rights complaint under 42 U.S.C. Sec. 1983. He named as defendants five employees of the prison: Kincheloe, Marsh, Steinbeck, Fleming and Iverson. Berg alleged that prison officials placed him in the prison's protective custody unit because his life was in danger; that while in that unit, Sergeant Marsh, an officer at the prison, ordered him to report to a "tier porter job" in the protective custody unit; that he told Marsh his life would be in danger if he reported to the job, but Marsh threatened him with disciplinary action if he refused to report to the site; that he complied, and about one hour later he was beaten and raped at the site by his cell partner; that he was then taken to the prison hospital but Iverson destroyed the physical evidence (stool sample) to "cover-up" the incident. Berg requested monetary damages for the defendants' "[callous] disregard" of his "right to be free from cruel and unusual punishment," and for their "criminal negligence" in the operation of the protective custody unit.

The defendants answered and moved for dismissal or summary judgment. In support of their motion, the defendants presented internal memoranda from officials at the prison and investigators of the Walla Walla Police Department, and a sworn affidavit from Fleming, a custodial unit supervisor in the prison admissions unit. The memoranda revealed that prison officials reported the incident to police after the assault, and that both prison and police officials conducted investigations. Berg refused to identify his assailant to the police, and the police disposed of the physical evidence of the rape because it could be preserved only for a short period of time.

Fleming stated he had personally investigated the incident and had forwarded his findings to a prison hearing committee. According to Fleming, Berg initially had maintained that he did not know who committed the rape, because he had been hit from behind and had blacked out. Fleming also stated that "the local police department closed the case because Berg refused to prosecute and the evidence was destroyed."

Berg filed two responses to the defendants' motions. In these he stated, under oath, that he rested on the "averments to his pleadings ...;" that prison officer Marsh's order to report to the tier porter job "assisted the rape and assault ...;" and that "other prisoners ... can enlarge to prison discipline, assault and rapes, [and] are relevant to determine the peril ... to the plaintiff ... [of] said rapes and assaults- The district court granted the defendants' summary judgment motion, ruling that Berg had failed to present any genuine issue of material fact or demonstrate that the defendants' actions proximately caused the rape and beating. Berg appeals.

                --and such witnesses will be called by the plaintiff."    In subsequent papers, Berg stated he was twenty-six years old, weighed one hundred thirty pounds and was five feet seven.  He also sought to introduce affidavits from other prisoners who had allegedly suffered rapes and beatings
                

II STANDARD OF REVIEW AND APPLICABLE LEGAL STANDARD

We review de novo the district court's grant of summary judgment, and apply the same standard as applied by the district court under Fed.R.Civ.P. 56(c). Hope v. International Brotherhood of Electrical Workers, 785 F.2d 826, 828-29 (9th Cir.1986). Summary judgment is appropriate if, viewing the evidence in the light most favorable to the party opposing the motion, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Swayze v. United States, 785 F.2d 715, 717 (9th Cir.1986). The party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir.1978) (involving a pro se litigant), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979).

A prisoner may state a section 1983 claim under the eighth and fourteenth amendments against prison officials where the officials acted with "deliberate indifference" to the threat of serious harm or injury by another prisoner. See e.g., Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir.1982); Franklin v. Oregon, 662 F.2d 1337, 1347 (9th Cir.1981) (and cases cited infra). The "deliberate indifference" standard requires a finding of some degree of "individual culpability," but does not require an express intent to punish. Haygood v. Younger, 769 F.2d 1350, 1354-55 (9th Cir.1985) (en banc), petition for cert. filed sub nom, Crake v. Haygood, 54 U.S.L.W. 3489 (U.S. Jan. 21, 1986) (No. 85-908). The standard does not require that the guard or official " 'believe to a moral certainty that one inmate intends to attack another at a given place at a time certain before that officer is obligated to take steps to prevent such an assault. But, on the other hand, he must have more than a mere suspicion that an attack will occur.' " State Bank of St. Charles v. Camic, 712 F.2d 1140, 1146 (7th Cir.) (quoting Vun Cannon v. Breed, 391 F.Supp. 1371, 1374-75 (N.D. Cal.1975) ), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983).

III ANALYSIS

The eighth and fourteenth amendments of the United States Constitution prohibit the infliction of "cruel and unusual" punishment. See, e.g., Ingraham v. Wright, 430 U.S. 651, 664-68, 97 S.Ct. 1401, 1408-11, 51 L.Ed.2d 711 (1977); Haygood, 769 F.2d at 1354. We have recognized that a prisoner may assert a valid cause of action under section 1983 against state prison officials where the prisoner has suffered "cruel and unusual" punishment. See, e.g., id. at 1354-55. See also Whitley v. Albers, --- U.S. ----, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986). To violate this constitutional proscription, the "punishment must be incompatible with 'the evolving standards of decency that mark the progress of a maturing society,' " Haygood, 769 F.2d at 1354 (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958)), "or must involve unnecessary or wanton pain disproportionate to the severity of the crime." Id. (citing Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 3008, 77 L.Ed.2d 637 (1983) ).

A prison authority need not brandish a gun or employ a billy club to transgress the evolving standards of decency. History and precedent teach that the cruel and unusual punishments clause reaches other contexts, as well. Ingraham, 430 U.S. at 664-68, 97 S.Ct. at 1408-11. A prisoner may state a valid section 1983 claim (under the eighth and fourteenth amendments) against a prison official who was aware that the prisoner was seriously ill but ignored his request for assistance. See, e.g., Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976); Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980). In these circumstances, the court will impose liability where the official acted with "deliberate indifference" to the prisoner's plight. Estelle, 429 U.S. at 104-06, 97 S.Ct. at 291-92; May v. Enomoto, 633 F.2d 164, 167 (9th Cir.1980). Although prison officials are ordinarily accorded "wide-ranging deference" in the administration of prisons, Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979), " 'deliberate indifference to a prisoner's serious illness or injury,' ... can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff or other inmates." Whitley, 106 S.Ct. at 1084 (citation omitted).

But a prisoner will not always obtain recovery solely upon a showing of "deliberate indifference." Protecting the safety of prisoners and staff involves difficult choices and evades easy solutions. Bell, 441 U.S. at 547, 99 S.Ct. at 1878. Courts often lack competence to evaluate fully prison administrative decisions. Id. at 547-48, 99 S.Ct. at 1878-79. See generally Hudson v. Palmer, 468 U.S. 517, ----, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). In certain situations--as when prison officials respond to an outbreak of violence--the "deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance." Whitley, 106 S.Ct. at 1085. In these cases, liability involves a balancing of a number of factors, and turns upon " 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.' " Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) ). The Supreme Court has stated that deference to the decisions of prison officials also extends to "prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline." Id.

Turning to Berg's allegations, we consider separately his claims...