Unpublished Disposition, 900 F.2d 263 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 900 F.2d 263 (9th Cir. 1989)

Howard WHITE and Ernest Moore, Plaintiff-Appellants,v.Richard BRYAN, et al., Defendant-Appellant.

No. 88-1871.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 1, 1989.* Decided Dec. 14, 1989.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding.

D. Nev.


Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.


Ernest Moore and Howard White, inmates of Nevada State Prison, appeal pro se the district court's dismissal as frivolous of their section 1983 action alleging violations of their eighth and fourteenth amendment rights when prison guards pointed loaded shotguns at them and threatened to shoot them if they failed to do as they were told.1 

A complaint is "frivolous" under 28 U.S.C. § 1915(d) only if it lacks an arguable basis in law and fact. Jackson v. State of Arizona, No. 88-1550 slip op. 11609, 11612 (9th Cir. Sept. 18, 1989). This court reviews such a determination de novo. Id.

When reviewing prison security measures, courts accord great deference to prison administrators. Whitley v. Albers, 475 U.S. 312, 321-22 (1985). An eighth amendment claim based on excessive use of force is recognized where the force applied is "inconsistent with contemporary standards of decency." Id. at 327. A threat to use force, without more, does not constitute a violation of the eighth amendment. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). In the context of challenges to prison security, the fourteenth amendment provides no greater protection than does the eighth. Whitley, 475 U.S. at 327. The conduct complained of was essentially a threat of force, without more. The district court afforded appellants an opportunity to amend their complaint, but they declined to do so.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


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


A first amendment claim based on alleged threats of transfer for engaging in protected litigation-related activity has not been pursued on appeal