Unpublished Disposition, 872 F.2d 428 (9th Cir. 1989)

MEMORANDUM^** 

Charles MacDonald, an inmate at Arizona State Prison Complex in Florence, Arizona, proceeding pro se and in forma pauperis, filed this action alleging violations of his constitutional rights under 42 U.S.C. § 1983 and the Fourteenth Amendment due process clause against correctional officer Brian Schitter and two prison administrators, Sam Lewis and John Avenenti. Defendants responded with a motion to dismiss. MacDonald was promptly notified by the magistrate that the motion to dismiss would be treated as one for summary judgment. MacDonald appeals the district court order of summary judgment in favor of the defendants. We affirm the district court decision and find the altercation between Schitter and MacDonald does not support constitutional claims of cruel and unusual punishment and deprivation of liberty without due process.¹ 

* Both parties agree that the altercation between MacDonald and Schitter began when MacDonald refused to let Schitter inspect a cup he was holding after Schitter pat searched him for contraband. When Schitter attempted to take the cup from MacDonald, MacDonald grabbed Schitter's hand. Schitter then took hold of MacDonald's restraint belt and tried to place MacDonald against the wall. MacDonald managed to turn around toward Schitter and a physical altercation ensued where both men fell to the ground. Medical treatment was immediately provided to MacDonald for a head cut that resulted from the fall.

II

We review the district court's grant of summary judgment de novo, Salgado v. Atlantic Richfield Co., 823 F.2d 1322, 1324 (9th Cir. 1987). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there is a genuine issue as to any material fact and, if not, whether the moving party was entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

The plain language of Rule 56(c) mandates that the moving party is entitled to judgment as a matter of law when the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985), 108 S. Ct. 1028 (1988); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The responding party "may not rest upon the mere allegations or denials of [his] pleading, but ... by affidavits ... must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). MacDonald does not dispute the facts; he only contends that, by asking for the cup, Schitter provoked him.

After reviewing all briefs, motions, documents and affidavits filed in this action, we conclude that the plaintiff has not presented, via affidavit or otherwise, specific facts sufficient to create a genuine issue of material fact in this action. We conclude that the district court's grant of summary judgment was proper.

III

A prison guard's unjustified striking, beating, or infliction of bodily harm on an inmate violates the Eighth Amendment when it "evince [s] such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)). Evidence, however, must go beyond a mere dispute over reasonableness of a particular use of force. Whitley, 475 U.S. at 322.

The Ninth Circuit follows the Second Circuit test established to determine whether a prison guard's conduct amounts to brutality. McRorie, 795 F.2d at 785. A court must look to such factors as (1) the need for the application of force, (2) the relationship between the need and the amount of force that was used, (3) the extent of injury inflicted, and (4) 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. Meredith v. State of Arizona, 523 F.2d 481, 483 (9th Cir. 1975) (following the standard set out in Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)).² 

We apply the Johnson standard to the facts in this case: (1) MacDonald claims that the force used was unnecessary because he was restrained. Although he may have been partially restrained, he did pose a risk to prison security. This was exhibited by his resisting Schitter's search for contraband and his turning around toward Schitter when he was pinned to the wall. (2) Under these circumstances, the guard's use of force was not excessive. "Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security." Whitley, 475 U.S. at 320. (3) The injury inflicted to MacDonald was a result of an accidental fall to the ground. In fact, MacDonald does not claim that his head injury, due to the fall, was intentional.³  Additionally, after the injury, he was immediately taken for medical treatment. (4) Because of MacDonald's resistance to Schitter's contraband search, it is obvious to the court that Schitter was applying force in a good faith attempt to maintain prison security.

We conclude that there are insufficient facts to support a claim of cruel and unusual punishment against Schitter.

MacDonald additionally claims that defendants Lewis and Avenenti are guilty for failing to keep correctional officers, like Schitter, in compliance with prison use of force policies and for allowing prison staff to instigate hostile situations and then rely on incident reports to justify their actions. We find the affidavits submitted by MacDonald to be conclusory and to offer no specific facts in support of his claim. Of the three affidavits submitted by MacDonald, only one was signed. The signed affidavit, however, provided no specific instances of misconduct or details of such abuse. Defendants Lewis and Avenenti can be vicariously liable only if Schitter is found liable in the first instance. As Schitter did not violate MacDonald's Eighth Amendment rights, the claims against Lewis and Avenenti likewise fail.

We therefore conclude that MacDonald has failed to meet his Celotex burden and the district court properly entered summary judgment on this claim.

IV

The Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. Whitley, 475 U.S. at 327. Nonetheless, MacDonald alleges a claim of deprivation of protected liberty interest without due process of law.

It would indeed be surprising if, in the context of forceful prison security measures, 'conduct that shocks the conscience' or 'afford [s] brutality the cloak of law,' and so violates the Fourteenth Amendment were not also punishment 'inconsistent with contemporary standards of decency' and 'repugnancy to the conscience of mankind in violation of the Eighth.'

Id. The Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishment Clause. Id.

V

Defendants-Appellees seek attorney fees in the amount of $100.00 based on plaintiff's alleged failure to raise a sufficient factual or legal basis for his claim, rendering the appeal frivolous. The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that, in actions such as this one to enforce 42 U.S.C. § 1983, a court has the discretionary power to award a prevailing party reasonable attorney fees. This statute applies at both the trial and appellate levels. Molina v. Richardson, 578 F.2d 846, 854 (9th Cir.), cert. denied, 439 U.S. 1048 (1978).

A prevailing civil rights defendant is entitled to attorney fees only where the action brought is found to be "unreasonable, frivolous, meritless, or vexacious." Patton v. County of Kings, 857 F.2d 1379, 1381 (9th Cir. 1988). We do not find MacDonald's allegations to be so frivolous, meritless, or vexacious as to warrant a sanction through the award to defendants of attorney fees.

AFFIRMED.