Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 857 F.2d 1479 (9th Cir. 1988)

James E. THOMAS, Plaintiff-Appellant,v.Officer GLOVER, Defendant-Appellee.

No. 87-3925.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 13, 1988.Decided Sept. 2, 1988.

Before POOLE, CANBY, and LEAVY, Circuit Judges.


MEMORANDUM* 

James Thomas appeals the district court's grant of summary judgment in favor of Officer Glover in his action pursuant to 42 U.S.C. § 1983. Thomas contends that Glover, a jail guard, manifested deliberate indifference to a threat of serious harm by informing Thomas' co-prisoners that Thomas was a child molester, thereby violating Thomas' constitutional rights under the eighth and fourteenth amendments. We affirm.

FACTS

Thomas was incarcerated in the Pierce County Jail in Washington State after he admitted to three counts of statutory rape. Thomas alleges that on April 17, 1986, Glover told other prison inmates that Thomas was incarcerated for child molestation. He alleges this information spread throughout the jail and that general knowledge of his crime "would make other inmates hostile of plaintiff and may result in physical harm or injury by other hostile inmates.... Defendant has exposed plaintiff to hatred, contempt, ridicule, and hostile acts by other inmates that may result an [sic] injury by other hostile inmates." Thomas' briefs filed here and in the district court describe instances of oral harassment and threats after Glover's disclosure.

Glover's answer to the complaint admits he discussed with others the subject matter of Thomas' court case. Thomas, who suffers from epilepsy, alleges the broadcasting of his crime caused him to develop serious medical problems and extreme mental agony. He sued Officer Glover for slander and for violation of his rights under the eighth and fourteenth amendments.1 

The district court found that defamation is not actionable under section 1983, pursuant to our decision in Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir. 1986) (damage to reputation, standing alone, cannot state a claim for relief under section 1983 because reputation is neither "liberty" nor "property" guaranteed against state deprivation without due process of law). It also found that the law on the issue of whether Glover had violated Thomas' constitutional rights was unclear, which entitled Glover to qualified immunity. Glover's motion for summary judgment was granted. Thomas timely appeals on all issues except his defamation claim.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Viewing the evidence in the light most favorable to the non-moving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant law. Ashton v. Cory, 780 F.2d 816, 818 (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), cert. denied, 442 U.S. 941 (1979). We may affirm the dismissal "on any basis supported by the record even if the district court did not rely on that basis." Shaw v. California Dep't of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986).

DISCUSSION

The eighth and fourteenth amendments prohibit the infliction of "cruel and unusual punishment." Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). 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 such punishment. Id. (citations omitted). In this context, the court will impose liability only where an official acts with "deliberate indifference" to the prisoner's plight. Klingele v. Eikenberry, No. 86-3767, slip op. at 9502-04 (9th Cir., amended Aug. 4, 1988).

We have held that while alleged beatings by prison guards state a cause of action under section 1983, mere threats of beatings do not. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) ("A mere threat ... trivializes a constitutional wrong").

Thomas' complaint, filed on June 19, 1986, does not allege a physical injury. Instead, it speculates that he might be physically harmed or injured by Glover's revelation of his crime (" [other inmates' knowledge of Thomas' crime] may result in physical harm or injury.... Defendant has exposed plaintiff to ... hostile acts by other inmates that may result an [sic] injury ..."). (Emphasis added.) Moreover, Glover's interrogatory requested that Thomas " [l]ist all physical ... injuries, if any, which you claim you suffered as a result of this incident." Thomas responded that he had "severe seizures each day" and "heart-related pain," but he listed no physical injuries inflicted by other inmates.

However, on October 14, 1986, Thomas submitted an affidavit stating that in approximately April 1985 he was subjected to death threats and, as a consequence, he suffered grand mal epileptic seizures and was placed under medical observation in solitary confinement for eighteen days. He states that about the same time, he was out of his cell looking at a telephone book, when he

lost consciousness and awoke later with a knot on my head that measured 3 to 5 centimeters. My own doctor, Dr. Charles Anderson of Tacoma, examined me and said that the only way I could have gotten a knot like that on my head would be either to fall head first straight down or else to be kicked in the head.

This affidavit fails to raise a genuine issue of material fact. It states Thomas received threats and a physical injury one year before the date given in his complaint as the date Glover released information to other inmates. Even assuming Thomas made a mistake as to the year in his affidavit, the affidavit is hearsay and is therefore inadmissible as evidence in opposition to a motion for summary judgment. Federal Rule of Civil Procedure 56(e); Rossi v. Trans World Airlines, Inc., 507 F.2d 404, 406 (9th Cir. 1974). Further, there is no evidence in the record to show Officer Glover was deliberately indifferent when he discussed Thomas' crime with other inmates, aside from the conclusory allegations in Thomas' complaint.

A cause of action under section 1983 must assert (1) that the defendants acted under state law; and (2) that the conduct of the defendants violated or caused the violation of the plaintiff's constitutional rights. Williams v. Gorton, 529 F.2d 668, 670 (9th Cir. 1976). Because there is no genuine issue of material fact surrounding a violation of Thomas' constitutional rights, summary judgment in favor of Officer Glover was proper. With this disposition, we do not reach the issue of qualified immunity.

The order is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Thomas has since been transferred to the Twin Rivers Correctional Center

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.