White v. Roper

• Decision Date: 11 January 1990
• Docket Number: No. 89-15243,89-15243
• Citation: 901 F.2d 1501
• Parties: William M. WHITE, Plaintiff-Appellant, v. Sergeant ROPER, Deputies Devin, Miller, O'Dowd, De La Pena, Willock, as day-shift employees at San Francisco County Jail no. 2, 7th Floor, 850 Bryant Street, San Francisco, California, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1501

901 F.2d 1501

William M. WHITE, Plaintiff-Appellant, v. Sergeant ROPER, Deputies Devin, Miller, O'Dowd, De La Pena Willock, as day-shift employees at San Francisco County Jail no. 2, 7th Floor, 850 Bryant Street, San Francisco California, Defendants-Appellees.

No. 89-15243.

United States Court of Appeals Ninth Circuit.

Submitted Jan. 11, 1990 ^*.

Decided May 1, 1990.

Michael N. Burt, Deputy Public Defender, City and County of San Francisco, San Francisco, Cal., for plaintiff-appellant.

Geoffrey Spellberg, Deputy City Atty., San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WIGGINS, THOMPSON and TROTT, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

William M. White appeals the district court's grant of summary judgment in his 42 U.S.C. Sec. 1983 action in favor of Sergeant Roper and Deputies Devin, Miller, O'Dowd, De La Pena, and Willock (collectively, "the deputies") of the San Francisco County Jail. White contends genuine issues of material fact exist as to his claims that Sergeant Roper was deliberately indifferent to White's personal safety while he was confined in jail, and that Sergeant Roper and the jail deputy defendants used excessive force in subduing White when he resisted being put into another inmate's cell. We affirm as to the excessive force claim, but reverse as to the deliberate indifference claim.

FACTS

On February 13, 1986, White, a pretrial detainee at the San Francisco County Jail, was reassigned from his cell to a cell occupied by inmate David Shaw. Sergeant Roper took White to Shaw's cell and ordered White to go inside. Shaw blocked the entrance to his cell, stating that he did not want anyone else in his cell. White then refused to enter Shaw's cell and backed away from the entrance, moving down the cell block corridor. After securing the entrance to Shaw's cell, Sergeant Roper and some of the deputies followed White, forcibly subdued him and, according to White, in subduing him caused him to suffer a cut wrist and "bruises all over his body." ¹ Once White was subdued and placed in a nearby cell, Sergeant Roper returned to Shaw's cell and went inside. Shaw attacked Sergeant Roper and stabbed him with a homemade shank. Sergeant Roper had to be hospitalized for two weeks.

DISCUSSION

We review de novo the district court's grant of summary judgment to Sergeant Roper and the deputies, viewing the evidence in the manner most favorable to White. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984). Summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Entry of summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

To avoid a grant of summary judgment to Sergeant Roper and the deputies, White cannot rely solely on the allegations in his pleadings. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir.1978) (per curiam), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). Rather, White must present some "significant probative evidence tending to support the complaint." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968).

Section 1983 ² 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 whether Sergeant Roper and the deputies were acting under color of state law. The issue here is whether their conduct deprived White of a federally protected right; in this case, a right protected by the Constitution.

A. Deliberate Indifference to Safety

The Supreme Court "has noted that the right to personal security constitutes a 'historic liberty interest' protected substantively by the Due Process Clause ...

[, a]nd that right is not extinguished by lawful confinement, even for penal purposes." Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28 (1982) (citation omitted). We have stated that the "insufficient protection of a prisoner resulting in harm inflicted by other inmates may also violate the prisoner's due process rights." Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir.1988), vacated on other grounds, --- U.S. ----, 110 S.Ct. 37, 107 L.Ed.2d 7 (1989).

White contends that Sergeant Roper was deliberately indifferent to White's physical safety in trying to force him inside Shaw's cell. ³ White contends that Sergeant Roper had reason to know that Shaw was a threat to White. White alleges the following set of facts: Sergeant Roper led White to the entrance of Shaw's cell. Shaw blocked the entrance, telling Sergeant Roper that no one was coming into his cell. White saw Shaw brandish a long pen or pen-like weapon. White warned Sergeant Roper about the weapon, stating that it looked like Shaw would attack White with it. However, Sergeant Roper ignored the warnings and tried to force White into the cell.

White's version of the facts is corroborated by statements of other prisoners who witnessed the scene. One prisoner claims that he saw Shaw's weapon at the time of the incident, and that he had seen Shaw brandishing the weapon on previous occasions. (As we noted earlier, Shaw did in fact have a homemade shank, which he used in his attack on Sergeant Roper.) Another prisoner says he heard Shaw threaten to kill anyone put in his cell. Despite this threat, and White's protests, Sergeant Roper tried to force White into the cell.

White also contends that Shaw's jail classification card and file indicate that Shaw had a history of violent behavior. The card reveals that, prior to the incident with White and Sergeant Roper, Shaw had assaulted at least one other prisoner, had threatened several deputies, and had attempted suicide. Shaw's file includes a report that less than one month before the incident with White and Roper, Shaw threatened to stab a sergeant at the jail with a "black ink pen." Shaw's file further reveals that he had formally requested to be left in a cell by himself, writing, "[P]lease, I ask for your understanding [and] thought on this matter. I AM AN CAPITAL CASE!"

Sergeant Roper claims that he did not know Shaw had a weapon. He reasons that, had he known Shaw was armed, he would not have entered Shaw's cell alone once White had been subdued. The district court accepted this reasoning, and used it as a basis for the grant of summary judgment on this claim in Sergeant Roper's favor. However, it is also reasonable to infer from these facts that Sergeant Roper knew Shaw was armed but failed to follow proper procedures to disarm him. Alternatively, it would be reasonable to infer that, even if Sergeant Roper did not know Shaw was armed, he was deliberately indifferent as to whether Shaw would attack White once White was inside Shaw's cell.

Our analysis would be similar under an "intent to punish" framework. The Supreme Court has held that, "under the Due Process Clause, a [pretrial jail] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979). Absent a showing of an express intent to punish, whether a particular action taken by jail officials amounts to punishment "generally will turn on 'whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it].' " Id. at 538, 99 S.Ct. at 1874 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963) (footnote omitted)) (brackets in original).

A challenged action which is reasonably related to a legitimate government objective will not, without more, constitute punishment. Bell, 441 U.S. at 539, 99 S.Ct. at 1874. Conversely, a court may infer an intent to punish when there is no such reasonable relation. Id. Legitimate government goals include effective management of the jail and maintenance of internal jail security and order. Id. at 540, 99 S.Ct. at 1874. "Retribution and deterrence are not legitimate nonpunitive governmental objectives." Id. at 539 n. 20, 99 S.Ct. at 1874 n. 20.

White contends that Sergeant Roper transferred him to Shaw's cell to punish him. White asserts that, on the day of the transfer, the following occurred: one of White's cell mates swore at Sergeant Roper behind his back. Sergeant Roper mistakenly believed it was White who had sworn at him. In retaliation, Sergeant Roper harassed White by taking White's sweatshirt from him, and Sergeant Roper also threatened him by saying: "You're going to get yours." Soon thereafter, Sergeant Roper tried to put White into Shaw's cell.

In response to White's allegations, Sergeant Roper claims that he reassigned White to Shaw's cell to maintain jail discipline. Sergeant Roper alleges that White had become uncooperative and abusive, and that White was trying to become "cell boss" over his fellow inmates. Because both White and Shaw were being detained on multiple murder charges, Sergeant Roper contends that he believed neither one could intimidate the other.

On its face, the challenged transfer is reasonably related to the legitimate goal of maintaining order in the jail. Yet, according to the evidence put forward by White, the transfer may have been punishment for the swear words Sergeant Roper thought White used against him. Whether Sergeant Roper tried to punish White, or...