Tommy Phillips v. Robert Ayers , 530 F. App'x 620 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOMMY PHILLIPS, No. 11-56632
Plaintiff - Appellant, D.C. No. 2:07-cv-02897-DDP-SH
v.
MEMORANDUM *
ROBERT L. AYERS, Jr., Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted June 18, 2013 **
Before: TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.
California state prisoner Tommy Phillips appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging, among other
things, excessive force and a violation of the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004). We affirm.
The district court properly granted summary judgment on Phillips’s
excessive force claim because Phillips failed to raise a genuine dispute of material
fact as to whether the force defendants used in response to other inmates’ violent
and non-compliant behavior was unreasonable or meant to maliciously or
sadistically harm him. See Whitley v. Albers, 475 U.S. 312, 320-21, 324-26 (1986)
(setting forth elements of excessive force claim, and concluding that officer’s use
of force in a good-faith effort to restore discipline during a prison riot was not
unconstitutional despite the officer’s failure to give a verbal warning before
shooting inmate). To the extent that Phillips alleges the use of excessive force
against him after order was restored to the prison yard, the district court properly
granted summary judgment in light of Phillips’s acknowledgment that the two
escorting prison officials who allegedly injured him were not named defendants in
this action. See Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012)
(en banc) (liability for violation of a constitutional right requires defendants’
personal participation in the violation).
The district court properly granted summary judgment on Phillips’s
RLUIPA claim because Phillips did not raise a triable dispute as to whether the
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supervision restrictions imposed upon group worship failed to further “a
compelling governmental interest” or were not “the least restrictive means” of
preventing threats to prison security. 42 U.S.C. § 2000cc-1(a); see also Cutter v.
Wilkinson, 544 U.S. 709, 725 n.13 (2005) (“[P]rison security is a compelling state
interest, and . . . deference is due to institutional officials’ expertise in this area.”).
The district court did not abuse its discretion in denying Phillips’s motion
for appointment of counsel because Phillips failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting
forth standard of review and “exceptional circumstances” requirement for
appointment of counsel).
The district court did not abuse its discretion in rejecting for filing Phillips’s
motion to compel because the motion was untimely and Phillips has not
established good cause to excuse his late filing. See Laub v. U.S. Dep’t of Interior,
342 F.3d 1080, 1084, 1093 (9th Cir. 2003) (setting forth standard of review).
Phillips’s contentions concerning the magistrate judge’s alleged
demonstrations of judicial bias and filing of an amended report and
recommendation are unpersuasive.
AFFIRMED.
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