James F. Pifer, Plaintiff-appellant, v. D. Ruegsegger, Defendant-appellee, 124 F.3d 212 (9th Cir. 1997)

MEMORANDUM^* 

California state prisoner James F. Pifer appeals pro se the district court's summary judgment for David Ruegsegger in Pifer's 42 U.S.C. § 1983 action alleging Ruegsegger was deliberately indifferent to his safety when he was confined in Pelican Bay State Prison's Security Housing Unit ("SHU"). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, see Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995), and we affirm.

Pifer first contends that the district court erred by finding Ruegsegger was not deliberately indifferent to Pifer's safety when he allowed another inmate, Maela, to enter Pifer's cell and physically assault him. This contention is meritless.

Prison officials must take reasonable measures to protect inmates from attacks by other inmates. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). A prisoner alleging an Eighth Amendment violation based on a prison official's failure to prevent harm must demonstrate that the harm was "objectively, 'sufficiently serious,' " and that the official had a culpable state of mind described as " 'deliberate indifference.' " See id. at 834 (citation omitted). A prison official is deliberately indifferent when the official has actual, subjective knowledge of an excessive risk of harm to the prisoner's safety and fails to prevent it. See id. at 837-39.

Here, in support of his motion for summary judgment, Ruegsegger declared that upon returning from the yard, Maela stopped in front of Pifer's cell; that he assumed Maela was in front of the correct cell; that he opened Pifer's cell because he believed Maela was assigned to it; that he did not intend, deliberately or otherwise, to allow Maela into Pifer's cell; and that he closed the door after Maela entered Pifer's cell and heard no sounds of disturbance. Pifer, in opposition, presented no evidence that Ruegsegger deliberately opened his cell, knowing that Pifer was in there and that Maela would enter and injure him. See id. at 837. Instead, Pifer offered only a conclusory allegation that Ruegsegger intentionally opened the wrong cell, which is not sufficient to withstand summary judgment. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (stating that nonmoving party cannot avoid summary judgment by presenting only conclusory allegations unsupported by factual data); cf. Lindsey v. Shalmy, 29 F.3d 1382, 1385 (9th Cir. 1994) (stating that simple conclusory assertion of intent is not sufficient to avert summary judgment).¹  Accordingly, the district court did not err by granting Ruegsegger summary judgment. See Farmer, 511 U.S. at 837.² 

Pifer also contends that the district court erred by granting the summary judgment motion before he completed discovery. Pifer, however, did not seek a continuance to conduct discovery, nor did he file an affidavit showing the particular facts he expected to find through discovery. See Fed. R. Civ. P. 56(f). Accordingly, the district court did not abuse its discretion by granting summary judgment before Pifer completed discovery. See Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).

AFFIRMED.