Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Willie Lee JEFFERSON, Plaintiff-Appellant,v.George SUMNER, Warden, Kenneth Street, K.J. Sumida, TonyBrewer, Defendants-Appellees.

No. 88-2760.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 15, 1989.* Decided Feb. 5, 1990.

Before POOLE, DAVID A. NELSON, and WIGGINS, Circuit Judges.


MEMORANDUM** 

Appellant Willie Lee Jefferson, an inmate of the Nevada State Prison, appeals summary judgment dismissing his claims under 28 U.S.C. § 1983 (1982) against various officers of that prison for their conduct in connection with an incident in which a fellow inmate stabbed him. This court has jurisdiction pursuant to 28 U.S.C. § 1291 (1982). We affirm.

We review the grant of summary judgment de novo. Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988). Viewing the evidence in the light most favorable to the appellant, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. The party opposing summary judgment must set forth specific facts showing the genuine issue for trial; he may not rest on conclusory allegations. Fed. R. Civ. P. 56(e).

A prisoner may state a section 1983 claim under the eighth and fourteenth amendments against prison officials when those officials acted with "deliberate indifference" or "reckless disregard" to the threat of serious harm caused by another prisoner. See, e.g., Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). A prison official's mere negligence is not actionable under section 1983. Davidson v. Cannon, 474 U.S. 344 (1986).

Officer Brewer's affidavit suggests that he properly dealt with the stabbing incident and did not act with deliberate indifference to the threat of serious harm to appellant. Jefferson does not refute Officer Brewer's affidavit. The affidavits of Jefferson's fellow inmates, which Jefferson submitted with his opposition to appellees' summary judgment motion, do not controvert Officer Brewer's version of the events. The district court, therefore, correctly granted summary judgment in favor of Officer Brewer.

The affidavits submitted by appellees indicate that Sergeant Street also properly dealt with the stabbing incident. Jefferson submitted to the district court no evidence concerning Sergeant Street's role in the incident, let alone evidence suggesting that Sergeant Street acted with deliberate indifference to the threat of serious harm to appellant. Under these circumstances, the district court correctly granted summary judgment in favor of Sergeant Street.

Jefferson argued in the district court that Warden Sumner was liable under section 1983 because, Jefferson alleged, Sumner failed properly to train his prison staff to confront an armed inmate. Other circuits have indicated that such conduct is actionable under section 1983. See, e.g., McClelland v. Facteau, 610 F.2d 693, 696 (10th Cir. 1979). Defendant Sumner submitted an affidavit detailing the training that he required of his officers as well as the security procedures that were in force at the time of the incident. Jefferson did not produce any evidence to the district court to controvert this affidavit. Nor did Jefferson produce any evidence to the district court which suggested specific additional training that Warden Sumner should have required of his officers or additional security procedures that Warden Sumner should have implemented. As such, the district court properly granted summary judgment in favor of Warden Sumner.

Jefferson did not serve his complaint on Officer Sumida within the one hundred twenty days required by Fed. R. Civ. P. 4(j). The district court, therefore, properly dismissed without prejudice Jefferson's complaint against Officer Sumida.

The judgment of the district court is AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 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