Jacob Anthony v. Kenneth Stepp

FILED
NOT FOR PUBLICATION OCT 29 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JACOB ANTHONY, No. 09-35431
Plaintiff - Appellant, D.C. No. 3:07-cv-00698-HU
v.
MEMORANDUM *
CORPORAL ESTHER SCHACKMANN,
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Oregon state prisoner Jacob Anthony appeals pro se from the district court’s
summary judgment in his 42 U.S.C. § 1983 action alleging retaliation, excessive
force, and due process claims under the First, Eighth, and Fourteenth Amendments.
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Galen v.
County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007), and may affirm on any
grounds supported by the record, Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d
924, 926 (9th Cir. 2003) (per curiam). We affirm in part, vacate in part, and
remand.
Summary judgment on qualified immunity grounds was proper as to
Anthony’s excessive force claim because, even construing the facts in his favor,
defendant Schackmann’s unprovoked, single slap constituted only de minimis
force, and defendant Stepp did not personally use any force against Anthony. See
Hudson v. McMillian, 503 U.S. 1, 6-7, 9-10 (1992) (de minimis use of force does
not violate Eighth Amendment unless it is of a sort repugnant to the conscience);
see also Rodriguez v. Maricopa County Cmty. Coll. Dist., 605 F.3d 703, 711 (9th
Cir. 2010) (qualified immunity proper if there is no constitutional violation);
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (defendant must
be personally involved in alleged constitutional deprivation under § 1983).
Defendants were also entitled to summary judgment on qualified immunity
grounds as to Anthony’s due process claim because his placement in segregation
did not impose an “atypical and significant hardship on [him] in relation to the
ordinary incidents of prison life” to give rise to a protected liberty interest, Sandin
2 09-35431
v. Conner, 515 U.S. 472, 485 (1995), and regardless, he received a meaningful, due
process hearing, see Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974).
The district court erred, however, in granting summary judgment as to
Anthony’s retaliation claim on the ground that defendants did not personally
decide to transfer Anthony to segregation after he complained about their conduct.
The evidence that defendants’ falsified a misconduct report and that the facts in
this report caused their supervisor to place Anthony in segregation, construed in
the light most favorable to Anthony, raised a triable issue that defendants might be
liable for causing Anthony’s confinement in segregation. See Wong v. United
States, 373 F.3d 952, 966 (9th Cir. 2004) (defendant who sets in motion acts that
result in constitutional injury can be held liable); see also Barren, 152 F.3d at 1194(causal connection between wrongful conduct and resulting deprivation is
sufficient under § 1983). We therefore vacate the grant of summary judgment as to
Anthony’s retaliation claim and remand for further proceedings. See Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (discussing elements of inmate’s
retaliation claim).
Anthony’s remaining contentions are unpersuasive.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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