Unpublished Disposition, 934 F.2d 324 (9th Cir. 1991)

No. 90-15536.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and FARRIS, Circuit Judges, and DUMBAULD,^**  District Judge.

MEMORANDUM^*** 

Appellants Rebecca and Francisco Miranda appeal the district court's entry of summary judgment against them in their 42 U.S.C. § 1983 action. The Mirandas claim their civil rights were violated when a prison guard shot and killed their son, an inmate at Tehachapi Prison, during an altercation with another prisoner. Appellants assert that the district court erred (1) in holding that the guard enjoyed qualified immunity; and (2) in dismissing the victim's siblings from the action for lack of standing. We affirm.

The immunity question is dispositive. The district court found that Gould's conduct did not violate clearly established constitutional rights of which a reasonable person would have known, and that therefore, qualified immunity was appropriate. Appellants first claim that the district court applied the wrong standard in evaluating Gould's conduct. They assert that a "deliberate indifference" standard is applicable here, rather than the higher standard outlined by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986). This argument must be rejected.

To violate the eighth amendment's prohibition of cruel and unusual punishment, a prisoner must show that the punishment is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society,' " or involves unnecessary or wanton pain that is disproportionate to the severity of the crime. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

This court has stressed that the deliberate indifference standard is not appropriate when an outbreak of violence or other security threat is present. Berg, 794 F.2d at 460; see also Albers, 475 U.S. at 320-22. Here, two maximum security prisoners were fighting. There was the possibility that one or both possessed a concealed weapon; a search of the yard after the fight revealed a weapon. State corrections policy stated that if a verbal command failed to stop a fight, guards should assume weapons are involved. There was a possibility that the fight could be a diversion or that a general outbreak of violence would occur. Given these circumstances, the district court properly found that the deliberate indifference standard was not appropriate.

Under Whitley v. Albers, the use of force against a prison inmate violates the eighth amendment if "the measure taken inflicted unnecessary and wanton pain and suffering." 475 U.S. at 320. The relevant inquiry is "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." Id. at 320-21 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033 (1973)).

Here, the district court properly found that a reasonable person in Gould's position would not believe that such conduct violated the Whitley v. Albers standard.

AFFIRMED.