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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 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.
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 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.
Kerry Joseph Smith, Plaintiff-Appellant, v. Allan A. Stagner, Daniel McCarthy, V. Smith, Annie Alexander, Rudolph Rutherford, Fred S. Taylor, Lt. Ortega, Daniel Mejia, Cruz-Gonzalez, Defendants-Appellees. Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990). US Court of Appeals for the Ninth Circuit – 917 F.2d 28 (9th Cir. 1990). No. 88-15375. Submitted October 4, 1990. Decided October 29, 1990
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