Jeffers v. Gomez

Decision Date14 September 2000
Docket Number99-15869,PLAINTIFF-APPELLEE,DEFENDANTS-APPELLANTS,99-15870,99-15868,Nos. 99-15867,s. 99-15867
Citation267 F.3d 895
CourtU.S. Court of Appeals — Ninth Circuit

Counsel Jesse M. Rivera, Michael E. Vinding, Law Offices of Moreno & Rivera, Sacramento, California, for defendant-appellant Sam Bess.

Douglas P. Adams, Adams & Mason, Inc., Sacramento, California, for defendant-appellant Margaret Yerby.

John D. Adkisson, Sacramento, California, for defendant-appellant James Gomez. Jennifer Weck, Deputy Attorney General, San Diego, California, for defendant-appellant Theo White. John H. Scott, San Francisco, California, for the plaintiff-appellee.

Before: Ruggero J. Aldisert,* Alex Kozinski** and Susan P. Graber, Circuit Judges.


The opinion filed on February 20, 2001, and appearing at 240 F.3d 845, is amended in accordance with the attached amended opinion.

With these amendments, the panel has voted to deny the petition for rehearing. Judges Kozinski and Graber have voted to deny the petition for rehearing en banc, and Judge Aldisert has so recommended.

The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(b).

The petition for rehearing and petition for rehearing en banc are DENIED.


Per Curiam.

These appeals by California correctional officers, a former prison warden and the former state Director of the Department of Corrections from the denial by the district court of their motions for summary judgment on the ground of qualified immunity require us to decide whether emergency responses and prison security measures, undertaken to control a large-scale disturbance in a prison yard, constituted Eighth Amendment violations under circumstances in which Appellee Donnell Jeffers, an inmate, was wounded by a rifle shot fired by a correctional officer.

To determine whether the rights assured Jeffers by the Eighth Amendment were violated, we must examine " `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.' " Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.)).

Jeffers was shot in the neck during a major prison disturbance at California State Prison-Sacramento ("CSP-Sac") on September 27, 1996. He sued correctional officers at CSP-Sac, the former warden at CSP-Sac and the former director of the California Department of Corrections ("CDC") under 42 U.S.C. §§ 1983 for Eighth and Fourteenth Amendment violations and under various California constitutional and statutory provisions. Appellants, who unsuccessfully moved for summary judgment on the basis of qualified immunity, bring interlocutory appeals of the district court's partial denials of their motions.

Sam Bess and Margaret Yerby, correctional officers at CSP-Sac, are Appellants at Nos. 15869 and 15870; Theo White, former warden at CSP-Sac, appeals at No. 99-15868; and James Gomez, former director of the CDC, appeals at No. 99-15867. These appeals, which have been consolidated, require us to decide whether the district court erred in failing to grant the motions for summary judgment based on qualified immunity brought by the Appellants.


Jeffers' original complaint, filed on July 22, 1997, contains 18 claims for relief. He alleges that: (1) all defendants violated protections assured by the Eighth Amendment; (2) Gomez and White violated the Eighth and Fourteenth Amendments by knowingly using customs, policies or practices which authorized and encouraged the use of excessive force; (3) all defendants deprived him of liberty without due process of law; (4) all defendants demonstrated deliberate indifference to his personal security in violation of the Fourteenth Amendment; (5) all defendants violated the Eighth and Fourteenth Amendments by inflicting upon him unnecessary and wanton pain; (6) Gomez and White violated the Eighth and Fourteenth Amendments by failing to properly train and supervise custodial staff with respect to the use of deadly force; and (7) the actions of Bess and Yerby were racially motivated in violation of his right to equal protection. Claims (8) through (18) were various state constitutional and statutory claims against Bess and Yerby.

By consent of the parties, the case was assigned to a magistrate judge. Appellants moved for summary judgment on all claims. The district court granted summary judgment on some claims, but it denied relief on motions brought by Gomez and White on Jeffers' Eighth and Fourteenth Amendment claims and virtually all motions brought by Yerby and Bess. The court concluded that there were disputed issues of material fact as to the intent of Yerby and Bess when they fired their rifles and that a jury should determine whether they fired in a good-faith effort to maintain or restore discipline or whether they acted maliciously and sadistically with the intent to cause harm. The court also decided that the evidence presented by Jeffers gave rise to triable issues of fact as to (1) whether Gomez and White were aware of an excessive number of inmate shootings by prison guards in California prisons prior to the disturbance during which Jeffers was shot, (2) whether California prison guards were shooting inmates at an unusually high rate in comparison to guards in the rest of the country, and (3) whether correctional officers were properly trained and supervised in the use of force and in procedures to notify superiors of a potentially dangerous incident.

The court held that none of the defendants were entitled to summary judgment on the basis of qualified immunity.1 We disagree. We hold that the material facts in this case are not in dispute and that Appellants are entitled to qualified immunity. Accordingly, we reverse the denial of the motions for summary judgment.


On September 27, 1996, a "major racial disturbance" occurred when groups of Hispanic inmates attacked Black inmates in the main yard at B facility at CSP-Sac. The disturbance involved between 150 and 200 inmates and lasted approximately thirty minutes, and is regarded as one of the largest disturbances in the history of the Department of Corrections. The guards used side-handled batons, pepper spray, .37 mm launchers and mini-14 rifles to quell the disturbance. In the process, seven guards fired twenty-one rounds from the mini-14 rifles. The rifle fire injured four inmates, including Jeffers, and killed a fifth inmate.


Appellant Bess testified that, before the inmates were released into the prison yard, another correctional officer told Bess that he had heard from an inmate that "the Hispanics were planning to hit the Blacks that morning." After investigating the matter and determining that, "at most, the Hispanic inmates were going to do a `housecleaning' (i.e., assault one of their own group)," Bess' superiors, Captain Walker and Sergeant Baughman, decided to send the inmates into the yard. Shortly after the inmates were released, Bess noticed that the Hispanic inmates did not commence their regular yard activities, but instead walked toward an area of the yard routinely occupied by Black inmates. Because of this unusual behavior, Bess called Yerby to come to the window in the tower where they were stationed. After witnessing five Hispanic inmates "running and attacking [other] inmates," both Bess and Yerby yelled "yard down!" Bess then saw an Hispanic inmate with a weapon in his hand chasing a group of Black inmates. He put down his .37-mm launcher, grabbed his mini-14 rifle and fired a warning shot.2

Approximately ten seconds after firing this warning shot, Bess attempted to "sight" an Hispanic inmate who was trying to stab other inmates with a weapon. Bess attested that, while he intended to shoot this Hispanic inmate, he decided that there were too many obstructions preventing a clear shot, so he fired a second warning shot into the wall. After the second shot, Bess saw a Black inmate come up from a "down" position with an unidentified weapon in his hand. Bess fired to disable the Black inmate when he saw him raise his weapon in an apparent stabbing motion. Bess aimed for the inmate's upper left arm, near the shoulder, but he believes that he missed him. After he fired this third shot, he saw an officer escort a wounded inmate out of the yard. Bess fired four other shots during the disturbance, but those shots were fired in areas of the yard other than where Jeffers was injured.


Appellant Yerby testified that at the outset of the disturbance, when she observed Hispanic and Black inmates fighting, both she and Bess yelled "yard down," and she heard "yard down" coming over the public address system. She then witnessed an Hispanic inmate, wielding a knife-like weapon in his right hand, back a Black inmate up against a wall. When she observed the Hispanic inmate make an underhanded stabbing motion toward the Black inmate, Yerby fired her weapon, aiming for the Hispanic inmate's right hand. She fired this shot at approximately the same time that Bess fired his third...

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