Opinion
Argued and Submitted September 14, 2000.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prison inmate who was shot by guard during prison disturbance brought civil rights action to recover for alleged violations of his constitutional rights. The United States District Court for the Eastern District of California, John F. Moulds, United States Magistrate Judge, denied defendant's motion for summary judgment on qualified immunity grounds, and defendant appealed. The Court of Appeals held that guard was qualifiedly immune from liability.
Reversed and remanded.
Appeal from the United States District Court for the Eastern District of California, John F. Moulds, Magistrate Judge, Presiding.
Before ALDISERT, KOZINSKI, and GRABER, Circuit Judges.
Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation.
Following oral argument before Judges Graber and Aldisert, Judge Kosinski was drawn to replace Judge Fisher.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided for by Ninth Cir. R. 36-3.
To determine whether the rights assured Butler by the Eighth Amendment were violated, we must examine " '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.' " Whitley v. Albers, 475 U.S. 312, 320-321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)).
In Jeffers v. Gomez, 240 F.3d 845 (9th Cir.2001), filed this date, we described, in detail, the disturbance that occurred on September 27, 1996 at California State Prison-Sacramento. We rejected the claims of Jeffers, another inmate who was wounded by rifle fire from a different correctional officer. Like Butler, Jeffers alleged Eighth and Fourteenth Amendment violations under circumstances substantially
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similar to those alleged by Butler here. We held that, accepting Jeffers' version of the facts presented in the summary judgment proceedings, the district court erred in denying the correctional officers' motions for summary judgment based on qualified immunity.
Applying the same reasoning to the case at bar, we hold that Butler failed to prove that Officer Plexico acted "maliciously and sadistically for the very purpose of causing harm" when he fired the shot that wounded him. Whitley, 475 U.S. at 320-321, 106 S.Ct. 1078. Accordingly, we reverse the judgment of the district court and remand with a direction to enter judgment in favor of Appellant.
REVERSED AND REMANDED.