Smith v. Stagner
| Decision Date | 04 October 1990 |
| Docket Number | No. 88-15375,88-15375 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Kerry Joseph SMITH, Plaintiff-Appellant, v. Allan A. STAGNER, Daniel McCarthy, V. Smith, Annie Alexander, Rudolph Rutherford, Fred S. Taylor, Lt. Ortega, Daniel Mejia, Cruz-Gonzalez, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.
Kerry Joseph Smith, a state prison inmate, appeals pro se the summary judgment on his civil rights claims, brought under 42 U.S.C. Sec. 1983, after he was wounded by stray pellets of bird shot fired by prison guards in the course of suppressing an incident in the prison yard.
Smith was an inmate of the Correctional Training Facility in Soledad, California at the time of his injury. He was confined in "O-Wing," a segregated housing unit reserved for the most violent inmates. Defendant Fred S. Taylor, supervisor of "O-Wing," approved the assignment of Smith, who is Black, to an exercise yard used exclusively by Hispanic inmates, many of whom Smith says were gang members.
On May 16, 1984, defendants Cruz Gonzalez and Daniel Mejia, both guards stationed in O-Wing and supervising the exercise yard, observed inmates handling self-made knives. They warned the inmates to "freeze," but the inmates ignored their warnings and began to stab fellow inmates. As an additional warning, Gonzalez and Mejia each fired a blank shot from a .12 gauge shotgun. When the warning shots failed to stop the attack, Gonzalez ricocheted birdshot off the yard walls. Then, each guard fired ten live rounds of birdshot in the direction of the attackers. Smith, a bystander during the disturbance, was hit with three of the pellets and sustained injuries.
Smith later appeared before a classification committee on which defendants Rudolph Rutherford and Annie Alexander sat. The committee recommended that Smith be transferred to a Level IV (maximum security) institution, because of his alleged gang affiliation. Smith contends that, following the recommendation, Rutherford and Alexander informed him they would not consider any of his administrative appeals on the matter. Both Rutherford, whose responsibilities included reviewing inmate appeals of claims against members of his staff, and Alexander, a Program Administrator and Associate Superintendent, deny Smith's allegation.
Smith then sued all the defendants in district court for monetary and declaratory relief for alleged violations of his constitutional rights, pursuant to 42 U.S.C. Sec. 1983. The court dismissed most of his claims, with leave to amend, for failure to identify specific defendants. Smith's amended complaint, the district court subsequently held, presented three cognizable claims: wrongful assignment to the exercise yard, excessive use of force to end the stabbings, and wrongful refusal to hear the administrative appeal. The district court then reviewed the record and granted summary judgment for defendants on each issue.
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). When faced with pro se civil rights litigants, this court has applied these rules with special sensitivity and flexibility. See, e.g., Berg v. Kincheloe, 794 F.2d 457, 460-61 (9th Cir.1986) ().
Section 1983 requires a claimant to prove (1) that a person acting under color of state law (2) committed an act that deprived the claimant of some right, privilege or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir.1988). It is not disputed that the defendants were acting under color of state law. The sole issues concern whether constitutional deprivations occurred.
I. PLACEMENT IN EXERCISE YARD: In Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978), this court held that a person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which the plaintiff complains. In Leer v. Murphy, this court held that when an inmate seeks to hold an individual defendant personally liable for damages under Sec. 1983, the causation inquiry must be focused on whether the individual defendant was in a position to take steps to avert the incident giving rise to the deprivation but failed to do so intentionally or with deliberate indifference. See 844 F.2d at 633.
The violence that precipitated the guards' use of force did not grow out of racial animus towards Smith. Nor does anything in the record connect tension among Black and Hispanic inmates with the outbreak of violence. For these reasons, even if Taylor believed that Smith's placement among alleged Hispanic gang members would place his safety at risk, the events giving rise to Smith's injuries were simply unrelated to that belief and there was, therefore, no causation. Under Johnson and Leer, this lack of causation is dispositive. Even liberally construed, Smith's claim that the placement violated his constitutional rights does not survive summary judgment.
Having offered no proof of a causal link between Taylor's actions and Smith's injuries, Smith nevertheless contends that his placement in the exercise yard violated his constitutional rights. Smith first asserts that he has a liberty interest in being assigned to the exercise yard of his choice. This argument is untenable. Under well established Supreme Court precedent, the due process clause of the fourteenth amendment does not afford a prisoner freedom of choice with respect to the location of his incarceration. See Meachum v. Fano, 427 U.S. 215 (1976) (); Olim v. Wakinekona, 461 U.S. 238 (1982) (). 1
Smith also contends that Taylor's action deprived him of his constitutional right to personal security. Smith's argument is this: by placing him, a Black man, among Hispanic gang members, when Taylor knew of severe unrest at the prison between Black and Hispanic gangs, Taylor wrongfully increased his risk of harm. Whether Smith alleges an infringement under the eighth amendment or the due process clause of the fourteenth amendment, the level of protection afforded is identical with regard to his personal security claim. Redman v. San Diego, 896 F.2d 362, 365 (9th Cir.1990), reh'g en banc granted, 906 F.2d 1384 (July 11, 1990). Taylor's decision does not offend Smith's constitutional rights unless it was made with "deliberate indifference" to Smith's safety. See id. at 365; see also Davidson v. Cannon, 474 U.S. 344, 347-48 (1985).
Because the record is barren of evidence that, at the time of Smith's placement, O-Wing was plagued by tension between Black and Hispanic gangs, the court correctly held that no jury question existed on deliberate indifference.
II. SHOOTING: The District Court correctly cited Whitley v. Albers, 475 U.S. 312 (1986), as the controlling case on this issue. In Whitley, a prison guard intentionally shot an inmate when prison authorities acted to quell a prison riot in which a guard had been taken hostage. The guard mistakenly believed that the inmate was acting to thwart the rescue attempt. The Supreme Court stated that the claimant in this context must allege and prove the unnecessary and wanton infliction of pain. Id. at 320. In denying the inmate relief under Sec. 1983, the Court wrote,
[w]here a prison security measure is undertaken to resolve a disturbance ... that indisputably poses significant risks to the safety of inmates and prison staff ... the question whether the...
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