Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

MEMORANDUM^** 

Kerry Joseph Smith, a state prison inmate, appeals pro se the summary judgment on his civil rights claims, brought under 42 U.S.C. § 1983, after he was wounded by stray pellets of bird shot fired by prison guards in the course of suppressing an incident in the prison yard.

Smith was an inmate of the Correctional Training Facility in Soledad, California at the time of his injury. He was confined in "O-Wing," a segregated housing unit reserved for the most violent inmates. Defendant Fred S. Taylor, supervisor of "O-Wing," approved the assignment of Smith, who is Black, to an exercise yard used exclusively by Hispanic inmates, many of whom Smith says were gang members.

On May 16, 1984, defendants Cruz Gonzalez and Daniel Mejia, both guards stationed in O-Wing and supervising the exercise yard, observed inmates handling self-made knives. They warned the inmates to "freeze," but the inmates ignored their warnings and began to stab fellow inmates. As an additional warning, Gonzalez and Mejia each fired a blank shot from a .12 gauge shotgun. When the warning shots failed to stop the attack, Gonzalez ricocheted birdshot off the yard walls. Then, each guard fired ten live rounds of birdshot in the direction of the attackers. Smith, a bystander during the disturbance, was hit with three of the pellets and sustained injuries.

Smith later appeared before a classification committee on which defendants Rudolph Rutherford and Annie Alexander sat. The committee recommended that Smith be transferred to a Level IV (maximum security) institution, because of his alleged gang affiliation. Smith contends that, following the recommendation, Rutherford and Alexander informed him they would not consider any of his administrative appeals on the matter. Both Rutherford, whose responsibilities included reviewing inmate appeals of claims against members of his staff, and Alexander, a Program Administrator and Associate Superintendent, deny Smith's allegation.

Smith then sued all the defendants in district court for monetary and declaratory relief for alleged violations of his constitutional rights, pursuant to 42 U.S.C. § 1983. The court dismissed most of his claims, with leave to amend, for failure to identify specific defendants. Smith's amended complaint, the district court subsequently held, presented three cognizable claims: wrongful assignment to the exercise yard, excessive use of force to end the stabbings, and wrongful refusal to hear the administrative appeal. The district court then reviewed the record and granted summary judgment for defendants on each issue.

DISCUSSION

The party opposing summary judgment may not rest on conclusory allegations, but must set forth specific facts showing that there is a genuine issue for trial. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978). When faced with pro se civil rights litigants, this court has applied these rules with special sensitivity and flexibility. See, e.g., Berg v. Kincheloe, 794 F.2d 457, 460-61 (9th Cir. 1986) (refusing to dismiss a pro se litigant's complaint, after construing it liberally, because it was uncertain that the claimant could prove no set of facts entitling him to relief).

Section 1983 requires a claimant to prove (1) that a person acting under color of state law (2) committed an act that deprived the claimant of some right, privilege or immunity protected by the Constitution or laws of the United States. Leer v. Murphy, 844 F.2d 628, 632-33 (9th Cir. 1988). It is not disputed that the defendants were acting under color of state law. The sole issues concern whether constitutional deprivations occurred.

I. PLACEMENT IN EXERCISE YARD: In Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978), this court held that a person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which the plaintiff complains. In Leer v. Murphy, this court held that when an inmate seeks to hold an individual defendant personally liable for damages under Sec. 1983, the causation inquiry must be focused on whether the individual defendant was in a position to take steps to avert the incident giving rise to the deprivation but failed to do so intentionally or with deliberate indifference. See 844 F.2d at 633.

The violence that precipitated the guards' use of force did not grow out of racial animus towards Smith. Nor does anything in the record connect tension among Black and Hispanic inmates with the outbreak of violence. For these reasons, even if Taylor believed that Smith's placement among alleged Hispanic gang members would place his safety at risk, the events giving rise to Smith's injuries were simply unrelated to that belief and there was, therefore, no causation. Under Johnson and Leer, this lack of causation is dispositive. Even liberally construed, Smith's claim that the placement violated his constitutional rights does not survive summary judgment.

Having offered no proof of a causal link between Taylor's actions and Smith's injuries, Smith nevertheless contends that his placement in the exercise yard violated his constitutional rights. Smith first asserts that he has a liberty interest in being assigned to the exercise yard of his choice. This argument is untenable. Under well established Supreme Court precedent, the due process clause of the fourteenth amendment does not afford a prisoner freedom of choice with respect to the location of his incarceration. See Meachum v. Fano, 427 U.S. 215 (1976) (holding that a prisoner has no constitutionally derived liberty interest in being imprisoned in any particular prison within a state prison system); Olim v. Wakinekona, 461 U.S. 238 (1982) (extending Meachum to deny any justifiable expectation that a prisoner will be incarcerated in any particular state).¹ 

Smith also contends that Taylor's action deprived him of his constitutional right to personal security. Smith's argument is this: by placing him, a Black man, among Hispanic gang members, when Taylor knew of severe unrest at the prison between Black and Hispanic gangs, Taylor wrongfully increased his risk of harm. Whether Smith alleges an infringement under the eighth amendment or the due process clause of the fourteenth amendment, the level of protection afforded is identical with regard to his personal security claim. Redman v. San Diego, 896 F.2d 362, 365 (9th Cir. 1990), reh'g en banc granted, 906 F.2d 1384 (July 11, 1990). Taylor's decision does not offend Smith's constitutional rights unless it was made with "deliberate indifference" to Smith's safety. See id. at 365; see also Davidson v. Cannon, 474 U.S. 344, 347-48 (1985).

Because the record is barren of evidence that, at the time of Smith's placement, O-Wing was plagued by tension between Black and Hispanic gangs, the court correctly held that no jury question existed on deliberate indifference.

II. SHOOTING: The District Court correctly cited Whitley v. Albers, 475 U.S. 312 (1986), as the controlling case on this issue. In Whitley, a prison guard intentionally shot an inmate when prison authorities acted to quell a prison riot in which a guard had been taken hostage. The guard mistakenly believed that the inmate was acting to thwart the rescue attempt. The Supreme Court stated that the claimant in this context must allege and prove the unnecessary and wanton infliction of pain. Id. at 320. In denying the inmate relief under Sec. 1983, the Court wrote,

[w]here a prison security measure is undertaken to resolve a disturbance ... that indisputably poses significant risks to the safety of inmates and prison staff ... the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "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 (2d Cir.), cert. denied, 414 U.S. 1033 (1973).

The Whitley Court remarked that courts should accord " 'wide-ranging deference' " to prison officials when they respond to "an actual confrontation with riotous inmates" or when they use "prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline." Id. at 321-22.

Although Smith claims that Gonzalez and Mejia fired shots in his general direction, he concedes that he has no proof that they were attempting to injure him. If Smith, himself finds no concrete basis for his allegation of unnecessary and wanton infliction of pain, there could be no reversible error when the district court so found. Smith sustained his unfortunate injuries, as the district court held, "because he was in the midst [of] a prison yard gone amok." Summary judgment on this claim was properly entered in favor of appellees.

III. REFUSAL TO HEAR ADMINISTRATIVE APPEAL: To support this claim, Smith first argues that the refusal of defendants Alexander and Rutherford to hear his administrative appeal of the transfer decision violated his state-created liberty interest in the procedures themselves. In Hewitt v. Helms, the Supreme Court stated that the mere fact that a state has created a careful procedural structure to regulate the use of administrative segregation does not indicate the existence of a protected liberty interest. 459 U.S. at 471. Helms disposes of Smith's first argument.

Alternatively, Smith asserts that the refusal to consider his administrative appeal of the transfer decision violated his state-created liberty interest in not being transferred to a Level IV institution. A state may create a constitutionally protected liberty interest by establishing regulatory measures that impose substantive limitations on the exercise of official discretion. Id. at 470-71. To establish a protected interest, a prisoner must show " 'that particularized standards or criteria guide the State's decisionmakers.' " Olim, 461 U.S. at 249 (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 467 (1981) (Brennan, J., concurring)). There must be " 'objective and defined criteria' " which the ultimate decisionmaker is required to respect. Id.; see also Trice v. Kerr, 578 F. Supp. 149, 151 (W.D. Wisconsin 1983) ("inmate has no liberty interest in avoiding transfer if the person responsible for the ultimate decision can transfer the inmate for any reason or for no reason whatsoever"). The underlying rationale for these rules is that laws limiting official discretion give rise to legitimate expectations on the part of the prisoners regarding their rights and interests. Hayward v. Procunier, 629 F.2d 599, 601 (9th Cir. 1980).

California's regulations regarding inmate classifications and transfers provide procedural safeguards against official abuse of discretion, as well as guidelines to structure the exercise of official discretion. For example, the regulations state that no inmate may be transferred to another prison without an endorsement from the transferring prison's classification committee, Cal. Code of Regulations, tit. 15, Sec. 3379(a) (1) (1990); sending institutions must determine the safety risks involved in medical or psychiatric transfers, id. at Sec. 3379(d) (1); specific reasons for an inmate's particular classification must be stated in writing and kept on file, id. at Sec. 3375(a) (2) (C); and an inmates' assignment to an institution must comport with his classification score, id. at Sec. 3375(d). The regulations also, in some rare instances, place objective substantive limitations on the exercise of official discretion. See, e.g., id. at Sec. 3375(e) (7) (stating that inmates servicing a long-term determinate sentence may not be placed in a Level III institution if certain factors exist). Cf. id. at Sec. 3375(b) (classifications must adhere to a standardized scoring system). However, no provision from the latter category prohibits the transfer of inmates to a higher level institution absent the existence of certain objective criteria. The provision that comes the closest is probably Sec. 3375(f), which states that " [i]nmates shall be housed in a facility with the lowest security level consistent with case factors and public safety." This provision fails to provide specific criteria with which to decide whether "case factors" or "public safety" mandates a particular course of action; it does not, therefore, give Smith a due process claim.

Accordingly, the district court's summary judgment is AFFIRMED.