Summary
finding that the defendant's "affirmative refusal to leave the tripod "maintained" the structure under the plain meaning of that word."
Summary of this case from United States v. HinksonOpinion
The panel finds this case appropriate for submission without argument pursuant to Fed. R.App. P. 34(a) and 9th Cir. R. 34-4.
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California Thelton E. Henderson, District Judge, Presiding.
Before CHOY, SNEED, and WIGGINS, Circuit Judges.
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.
Plaintiff Roderick Washington, a prisoner in California's Pelican Bay State Prison, appeals the district court's grant of summary judgment in favor of Defendants, all of whom are California officials. Washington argues that the district court wrongly granted summary judgment in spite of the existence of genuine issues of material fact and, therefore, he requests that the case be remanded to the district court for trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
DISCUSSION
Washington asserts that Defendants violated his civil rights by: (1) administering an involuntary tuberculosis ("TB") test that constituted both an unreasonable search and seizure under the Fourth and Fourteenth Amendments and a violation of his liberty interests under the Fourteenth Amendment, (2) using excessive force in violation of the Eighth Amendment, (3) exhibiting deliberate indifference to his medical needs in violation of the Eighth Amendment, and (4) retaliating against him for engaging in constitutionally protected activity. We review de novo the district court's grant of summary judgment on these claims. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998).
A. TB Testing
Washington claims that the involuntary TB test administered by Defendants, the second such test in a twelve-week period, violated his rights under the Fourth and Fourteenth Amendments. In Walker v.. Sumner, 917 F.2d 382 (9th Cir.1990), we held that involuntary AIDS testing may violate a prisoner's constitutional rights absent a showing that the testing is reasonably related to a legitimate penological goal. Walker, 917 F.2d at 385. We apply this standard to the involuntary TB testing at issue here. Washington does not dispute that TB is a highly contagious, highly dangerous disease; detection and containment of TB is undeniably a legitimate penological goal. In addition, he does not challenge the Defendants' evidence that the prison's policy of conducting two TB tests on each prisoner--one when the prisoner is admitted to the facility and a second after twelve weeks--frequently allows the prison to detect newly acquired cases of TB that the initial test failed to detect. Therefore, the district court correctly found that this dual testing policy is reasonably related to the legitimate penological goal of detecting and containing TB.
B. Excessive Force
To prevail on his claim that Defendants used excessive force, Washington must demonstrate that the prison officials applied force maliciously and sadistically for the very purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6 (1992). Washington claims that Defendants utilized excessive force by forcibly extracting him from his cell with pepper spray and by beating him once he had exited his cell.
Turning first to the use of pepper spray, Washington offers no evidence that Defendants used dangerous amounts of pepper spray, and he offers no evidence to contradict Defendants' evidence that the amount of pepper spray used is deemed appropriate and safe according to the manufacturer's guidelines. As this Court held in Spain v. Procunier, 600 F.2d 189, 196 (9th Cir.1979), the "use of nondangerous quantities of the substance in order to prevent a perceived future danger does not violate 'evolving standards of decency' or constitute an 'unnecessary and wanton infliction of pain ." ' In fact, the "use of the substance in small amounts may be a necessary prison technique if a prisoner refuses after adequate warning to move from a cell." Spain, 600 F.2d at 195. In light of Washington's admission that he refused the Defendants' requests to submit to handcuffs and exit his cell, we affirm the district court's finding that Washington has failed to offer any evidence that Defendants' use of pepper spray was inconsistent with the standards set forth in Spain.
Washington also argues that Defendants used excessive force after he had exited his cell by forcing him to the ground and physically restraining him while they administered the TB test. Accepting Washington's factual allegations as true, we still affirm the district court's grant of summary judgment on this claim. We agree with the district court's ruling that the factors set forth in Whitley v. Albers, 475 U.S. 312, 321 (1986), militate against a finding that Defendant used excessive force against Washington, because the force was used to maintain discipline in the face of Washington's repeated refusals to cooperate and was not used "for the very purpose of causing harm." Id.
C. Denial of Medical Care
To prevail on this claim, Washington must show that the Defendants exhibited deliberate indifference to his medical needs. Farmer v. Brennan, 511 U.S. 825 (1993). Washington must prove that Defendants had a subjective awareness of the existence of a substantial risk of serious harm and that Defendants chose not to act. Id. at 837. Washington offers no evidence to show he faced serious harm, nor does he show that Defendants were made aware of any such harm. Without such evidence, the district court was obligated to grant summary judgment to the Defendants.
D. Retaliation
To prevail on his retaliation claim, Washington must prove that Defendants retaliated against him for engaging in constitutionally protected activity, and that the retaliatory action did not advance legitimate penological objectives. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.1994). Washington fails to meet even the first element. He offers no evidence as to what, if any, constitutionally protected activities led to the alleged retaliation. Without such evidence, the district court correctly granted summary judgment to the Defendants.
The district court's grant of summary judgment in favor of Defendants is
AFFIRMED.