Michael Martinez v. Max Williams ( 2012 )

FILED
NOT FOR PUBLICATION JUL 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL M. MARTINEZ, No. 11-35115
Plaintiff - Appellant, D.C. No. 3:09-cv-00580-ST
v.
MEMORANDUM *
MAX WILLIAMS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted July 17, 2012 **
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Former Oregon state prisoner Michael M. Martinez appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
constitutional violations in connection with a prison guard’s shooting of Martinez
during a prison yard riot. We have jurisdiction under 28 U.S.C. § 1291. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo, Day v. Apoliona, 616 F.3d 918, 924 (9th Cir. 2010), and we may
affirm on any ground supported by the record, Thompson v. Paul, 547 F.3d 1055,
1058-59 (9th Cir. 2008). We affirm.
The district court properly granted summary judgment as to Williams and
Nooth because Martinez failed to raise a genuine dispute of material fact as to
whether either was “personally involved in the deprivation of his civil rights.”
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order).
To the extent that Martinez alleges that Williams and Nooth are liable based
on their promulgation or implementation of an unconstitutional use-of-force
policy, summary judgment was proper because Martinez has failed to raise a
genuine dispute of material fact as to whether the Oregon Department of
Corrections’ policy is “so deficient that the policy itself is a repudiation of
constitutional rights and is the moving force of the constitutional violation.”
Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc)
(citations and internal quotation marks omitted); Jeffers v. Gomez, 267 F.3d 895,
915 (9th Cir. 2001) (finding a similar policy to be constitutional).
The district court also properly granted Fletcher qualified immunity because
a “reasonable official standing where [Fletcher] was standing” could believe that
shooting an inmate to “stop an assault that could have seriously injured or killed
2 11-35115
another inmate was a good faith effort to restore order, and thus lawful.” Marquez
v. Gutierrez, 322 F.3d 689, 693 (9th Cir. 2003).
Martinez’s remaining contentions, including those concerning the alleged
deficiencies of his court-appointed counsel, are unpersuasive.
AFFIRMED.
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