Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1989)

Michael HERNANDEZ, Plaintiff-Appellant,v.Daniel McCARTHY, Director of Corrections in his officialcapacity and individual capacity; Edward Ylst,Superintendent in his official and individual capacity andMr. Dadisman, Correctional Counselor in official andindividual capacity, Defendants-Appellees.

No. 88-15366.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 9, 1989.Decided June 22, 1989.

Before FARRIS, DAVID R. THOMPSON and TROTT, Circuit Judges.


Michael Hernandez, a California state prisoner, appeals pro se the district court's grant of appellees' motion for summary judgment and dismissal of his 28 U.S.C. § 1983 claim. We affirm.


The district court's decision to grant summary judgment is reviewed de novo, "in the light most favorable to the nonmoving party, to determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). "The party opposing the summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial." Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986) (citing Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978)).


On November 16, 1983, Hernandez was found in possession of contraband (chewing gum), in violation of Title 15, Cal.Admin.Code Sec. 3006(c), as he was being processed upon completion of a family visit. A hearing was conducted at which time Hernandez pleaded guilty and was assessed five days disciplinary detention. In addition, family visitation privileges scheduled for February 6-8, 1984, were cancelled due to administrative segregation placement. On December 20, 1983, Hernandez's family visitation privileges scheduled for February 27-29, 1984, were cancelled by his program administrator.

Hernandez filed a complaint under 42 U.S.C. § 1983 against correctional officers and prison officials. He claimed his federal constitutional rights had been infringed by the denial of family visits, the condition of family visiting facilities, sexual abuse during family visits, and discrimination as a result of racial slurs and abusive language directed toward him. Following discovery, the district court granted the defendants'-appellees' motion for summary judgment and dismissed Hernandez's complaint. Hernandez appeals.


On appeal, Hernandez contends he had a state created liberty interest in family visitation which the defendants deprived him of without due process of law; that he was denied equal protection of the law because he was verbally abused and discriminated against based upon his Hispanic origin;1  and that correctional officers and prison officials violated his rights to due process and equal protection by failing to investigate allegations that he, as well as his wife, were drugged and sexually assaulted during two family visits.

Hernandez contends that Title 15 Cal.Admin.Code Sec. 3174(e) creates a state liberty interest in family visits by requiring California prison officials to provide specific reasons for denying an inmate family visitation privileges. See Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (state creates a protected liberty right by placing substantial limitations on official discretion). As the Supreme Court stated in Olim, however, if the decisionmaker is not required to base its decisions on objective and defined criteria but instead can deny the requested relief for any constitutionally permissible reason or for no reason at all, the state has not created a protected liberty interest. Olim, 461 U.S. at 249. An inmate must show that "particularized standards or criteria guide the State's decisionmakers," thereby creating a protected liberty interest. Id. See also Kentucky Department of Corrections v. Thompson, 57 L.W. 4531 (May 15, 1989) (reformatory procedures regarding visitation policy did not establish a liberty interest in the absence of mandatory language in the regulations).

California's Administrative Code, Title 15, Sec. 3174(f) states that " [f]amily visiting is a privilege." California law does not require prison officials to follow any particularized standard in denying an inmate family visitation privileges. See Title 15 Cal.Admin.Code Sec. 3174. Hernandez has failed to show that he has a protected state liberty interest in family visitation. Hence, the district court properly granted summary judgment in favor of the defendants on this claim.

Hernandez also argues that certain correctional officers subjected him to verbal abuse and racial discrimination while other correctional officers and prison officials failed to protect him from such verbal abuse and racial discrimination, thereby violating his equal protection rights. In order for Hernandez to prevail on this claim under 42 U.S.C. § 1983, he must show an actual connection between the action of the defendants and the deprivation of a constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). If state law imposes liability on officials for the acts of their subordinates, vicarious liability may be imposed under section 1983. Id. at 744. However, vague and conclusory allegations concerning civil rights violations by official personnel are insufficient to withstand a motion to dismiss. Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

Hernandez's claims are vague and conclusory. In the first instance, Hernandez fails to allege facts sufficient to state a claim of racial discrimination against the correctional officers who he claims verbally abused him and discriminated against him. Verbal abuse is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Second, Hernandez fails to allege any direct involvement in racial discrimination by those supervisory correctional officers and prison officials who he claims failed to protect him from verbal abuse. The causal link between a supervisor's acts and the constitutional deprivation must be specifically alleged. Johnson, 588 F.2d at 743. Furthermore, "supervisory personnel whose personal involvement is not alleged may not be held responsible for the acts of their subordinates under California law." Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 1976). See Cal.Gov't Code Sec. 820.8 (1980).

The defendants were entitled to summary judgment on Hernandez's racial discrimination/verbal abuse claims.

Hernandez next contends that, as he and his wife slept during two family visits, they were drugged and sexually abused by unnamed individuals, and that certain correctional officers and prison officials violated Hernandez's right to due process by failing to investigate these two incidents. A prisoner may state a claim under 42 U.S.C. § 1983 by alleging that prison officials acted with deliberate indifference to the threat of serious harm or injury. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Allegations that prison guards raped or allowed other prisoners to rape a prisoner, if construed liberally, indicate deliberate indifference. Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir. 1988). Furthermore, allegations that prison guards raped a prisoner state a claim for violation of substantive due process rights. Id.

Hernandez neither alleges that any of the named defendants actually drugged and sexually abused him nor does he claim that they allowed the drugging and abuse to occur. Rather, Hernandez claims that his report of the drugging and physical abuse was not investigated. A review of the record, however, indicates that in response to Hernandez's report, he was directed by a correctional officer to a staff psychiatrist, Dr. Ghandi, the day after the first alleged attack. Dr. Ghandi stated in a memo dated December 23, 1983, that the marks Hernandez believed to be needle marks were so minute that they were difficult to see. In addition, there was no discoloration of tissue to substantiate an injection. Dr. Ghandi also indicated that Hernandez had been diagnosed a schizophrenic paranoid by the chief psychiatrist at Folsom who had recommended that Hernandez be transferred to the California Medical Facility, and that he was suffering from delusions. After the second family visit, Hernandez was interviewed again on the day following the alleged attack, this time by Dr. Elikofer. Hernandez acknowledges these interviews by Drs. Ghandi and Elikofer in his pleadings. In sum, the record reflects that the prison officials were not deliberately indifferent to Hernandez's complaints, but responded appropriately to them. Summary judgment on this claim was properly granted in favor of the defendants.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Hernandez named Sergeant Fred Beaird and Officer Patricia Glawson as the correctional officers who verbally abused and racially discriminated against him