UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNELL JEFFERS,
Plaintiff-Appellee,
v.
Nos. 99-15867
JAMES GOMEZ, Director, California
99-15868
Department of Corrections; THEO
99-15869
WHITE, Warden, California State
99-15870
Prison at Sacramento; SAM BESS,
D.C. No.
Correctional Officer at California CV-97-01335-JFM
State Prison at Sacramento;
MARGARET YERBY, Correctional OPINION
Officer at California State Prison
at Sacramento,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
John F. Moulds, Magistrate Judge, Presiding
Argued and Submitted
September 14, 2000--San Francisco, California
Filed February 20, 2001
Before: Ruggero J. Aldisert,* Alex Kozinski** and
Susan P. Graber, Circuit Judges.
Opinion by Judge Aldisert
_________________________________________________________________
*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
Kozinski was drawn to replace Judge Fisher.
2211
COUNSEL
Jesse M. Rivera, Esq., Deputy Attorney General, Sacramento,
California, for defendant-appellant Sam Bess.
Douglas P. Adams, Esq., Sacramento, California, for
defendant-appellant Margaret Yerby.
John D. Adkission, Esq., Sacramento, California, for
defendant-appellant James Gomez.
Jennifer Weck, Esq., Deputy Attorney General, San Diego,
California, for defendant-appellant Theo White.
John H. Scott, Esq., San Francisco, California, for the
plaintiff-appellee.
_________________________________________________________________
OPINION
ALDISERT, Circuit Judge:
These appeals by California correctional officers, a former
prison warden and the former state Director of the Depart-
ment of Corrections from the denial by the district court of
their motions for summary judgment on the ground of quali-
fied immunity require us to decide whether emergency
responses and prison security measures, undertaken to control
a large-scale disturbance in a prison yard, constituted Eighth
Amendment violations under circumstances in which Appel-
lee Donnell Jeffers, an inmate, was wounded by a rifle shot
fired by a correctional officer.
2218
To determine whether the rights assured Jeffers 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 (1986) (quoting Johnson v. Glick , 481 F.2d
1028, 1033 (2d Cir. 1973) (Friendly, J.)).
Jeffers was shot in the neck during a major prison distur-
bance at California State Prison-Sacramento ("CSP-Sac") on
September 27, 1996. He sued correctional officers at CSP-
Sac, the former warden at CSP-Sac and the former director of
the California Department of Corrections ("CDC") under 42
U.S.C. S 1983 for Eighth and Fourteenth Amendment viola-
tions and under various California constitutional and statutory
provisions. Appellants, who unsuccessfully moved for sum-
mary judgment on the basis of qualified immunity, bring
interlocutory appeals of the district court's partial denials of
their motions.
Sam Bess and Margaret Yerby, correctional officers at
CSP-Sac, are Appellants at Nos. 15869 and 15870; Theo
White, former warden at CSP-Sac, appeals at No. 99-15868;
and James Gomez, former director of the CDC, appeals at No.
99-15867. These appeals, which have been consolidated,
require us to decide whether the district court erred in failing
to grant the motions for summary judgment based on quali-
fied immunity brought by the Appellants.
I.
Jeffers' original complaint, filed on July 22, 1997, contains
18 claims for relief. He alleges that: (1) all defendants vio-
lated protections assured by the Eighth Amendment; (2)
Gomez and White violated the Eighth and Fourteenth Amend-
ments by knowingly using customs, policies or practices
which authorized and encouraged the use of excessive force;
(3) all defendants deprived him of liberty without due process
2219
of law; (4) all defendants demonstrated deliberate indifference
to his personal security in violation of the Fourteenth Amend-
ment; (5) all defendants violated the Eighth and Fourteenth
Amendments by inflicting upon him unnecessary and wanton
pain; (6) Gomez and White violated the Eighth and Four-
teenth Amendments by failing to properly train and supervise
custodial staff with respect to the use of deadly force; and (7)
the actions of Bess and Yerby were racially motivated in vio-
lation of his right to equal protection. Claims (8) through (18)
were various state constitutional and statutory claims against
Bess and Yerby.
Appellants moved for summary judgment on all claims.
The district court granted summary judgment on some claims,
but it denied relief on motions brought by Gomez and White
on Jeffers' Eighth and Fourteenth Amendment claims and vir-
tually all motions brought by Yerby and Bess. The court con-
cluded that there were disputed issues of material fact as to
the intent of Yerby and Bess when they fired their rifles and
that a jury should determine whether they fired in a good-faith
effort to maintain or restore discipline or whether they acted
maliciously and sadistically with the intent to cause harm. The
court also decided that the evidence presented by Jeffers gave
rise to triable issues of fact as to (1) whether Gomez and
White were aware of an excessive number of inmate shoot-
ings by prison guards in California prisons prior to the distur-
bance during which Jeffers was shot, (2) whether California
prison guards were shooting inmates at an unusually high rate
in comparison to guards in the rest of the country, and (3)
whether correctional officers were properly trained and super-
vised in the use of force and in procedures to notify superiors
of a potentially dangerous incident.
The court held that none of the defendants were entitled to
summary judgment on the basis of qualified immunity. 1 We
_________________________________________________________________
1 Jeffers abandoned claims 8 through 18 against Gomez and White and,
in his amended complaint, he alleges that only Bess' actions were racially
motivated in violation of the Equal Protection Clause. He does not appeal
the denial of summary judgment of the state constitutional and statutory
claims.
2220
disagree. We hold that the material facts in this case are not
in dispute and that Appellants are entitled to qualified immu-
nity. Accordingly, we reverse the denial of the motions for
summary judgment.
II.
On September 27, 1996, a "major racial disturbance"
occurred when groups of Hispanic inmates attacked Black
inmates in the main yard at B facility at CSP-Sac. The distur-
bance involved between 150 and 200 inmates and lasted
approximately thirty minutes, and is regarded as one of the
largest disturbances in the history of the Department of Cor-
rections. The guards used side-handled batons, pepper spray,
.37 mm launchers and mini-14 rifles to quell the disturbance.
In the process, seven guards fired twenty-one rounds from the
mini-14 rifles. The rifle fire injured four inmates, including
Jeffers, and killed a fifth inmate.
A.
Appellant Bess testified that, before the inmates were
released into the prison yard, another correctional officer told
Bess that he had heard from an inmate that "the Hispanics
were planning to hit the Blacks that morning." After investi-
gating the matter and determining that, "at most, the Hispanic
inmates were going to do a `housecleaning' (i.e., assault one
of their own group)," Bess' superiors, Captain Walker and
Sergeant Baughman, decided to send the inmates into the
yard. Shortly after the inmates were released, Bess noticed
that the Hispanic inmates did not commence their regular yard
activities, but instead walked toward an area of the yard rou-
tinely occupied by Black inmates. Because of this unusual
behavior, Bess called Yerby to come to the window in the
tower where they were stationed. After witnessing five His-
panic inmates "running and attacking [other ] inmates," both
Bess and Yerby yelled "yard down!" Bess then saw an His-
panic inmate with a weapon in his hand chasing a group of
2221
Black inmates. He put down his .37-mm launcher, grabbed his
mini-14 rifle and fired a warning shot.2
Approximately ten seconds after firing this warning shot,
Bess attempted to "sight" an Hispanic inmate who was trying
to stab other inmates with a weapon. Bess attested that, while
he intended to shoot this Hispanic inmate, he decided that
there were too many obstructions preventing a clear shot, so
he fired a second warning shot into the wall. After the second
shot, Bess saw a Black inmate come up from a "down" posi-
tion with an unidentified weapon in his hand. Bess fired to
disable the Black inmate when he saw him raise his weapon
in an apparent stabbing motion. Bess aimed for the inmate's
upper left arm, near the shoulder, but he believes that he
missed him. After he fired this third shot, he saw an officer
escort a wounded inmate out of the yard. Bess fired four other
shots during the disturbance, but those shots were fired in
areas of the yard other than where Jeffers was injured.
B.
Appellant Yerby testified that at the outset of the distur-
bance, when she observed Hispanic and Black inmates fight-
ing, both she and Bess yelled "yard down," and she heard
"yard down" coming over the public address system. She then
witnessed an Hispanic inmate, wielding a knife-like weapon
in his right hand, back a Black inmate up against a wall.
When she observed the Hispanic inmate make an under-
handed stabbing motion toward the Black inmate, Yerby fired
her weapon, aiming for the Hispanic inmate's right hand. She
fired this shot at approximately the same time that Bess fired
his third shot. Because she had a clear shot of the Hispanic
inmate's right hand, Yerby did not feel that the Black inmate
was at risk of being shot. However, she admitted in her depo-
sition that it was possible that her shot could have ricocheted
_________________________________________________________________
2 As the magistrate judge noted, the .37-mm launcher is designed to
knock down or disable a person, and is less lethal than the rifle.
2222
off the wall and hit the Black inmate. Additionally, approxi-
mately twenty minutes later, Yerby fired a warning shot into
an unoccupied area when she observed prison staff in immi-
nent danger.
C.
Appellee Jeffers estimated that he was shot during the first
ninety seconds of the disturbance.3 He stated that he was play-
ing chess at a bench when he was attacked by an unidentified
Hispanic inmate who was wielding a weapon consisting of a
five- to six-inch nail with a plastic handle. The attacker
"nicked" Jeffers' cheek. Jeffers was holding his attacker's
arms to fend off any further attack when he was shot. Jeffers
was charged with, but found not guilty of, "participation in a
racial disturbance." He does not know definitively the identity
of the person who shot him, but he alleges that it was either
Bess or Yerby.
D.
Following the disturbance, the Investigative Services Unit
was also unable to determine who shot Jeffers. A Shooting
Review Board ("Board") was convened to determine whether
the shots fired were within the CDC's shooting policy
("Shooting Policy"). The Board was unable to determine who
shot Jeffers, but narrowed it down to Bess or Yerby. Ulti-
mately, the Board concluded that it was more likely that
Yerby shot him, because "Jeffers described the situation in
which he was shot in much the same terms as Officer Yerby
describes the scenario in which she fired for effect." The
report also notes that, "[r]egardless of the officer who fired
the shot, there is a possibility that Jeffers was not the intended
target and was hit by accident." The Board determined that
the shots fired by Bess and Yerby were within the Shooting
Policy.
_________________________________________________________________
3 This was the conclusion of the Shooting Review Board.
2223
The District Attorney's office eventually filed a report,
concluding that there was insufficient evidence to establish
that any of the officers who fired their rifles during the distur-
bance acted criminally and ruling that the shooting of Jeffers
was accidental. The District Attorney's report also states that
Jeffers "does not believe that the staff shot him intentionally."
III.
Although the denial of summary judgment is not ordinarily
an appealable order, we have jurisdiction to consider an inter-
locutory appeal where, as here, the ground for the motion is
qualified immunity. Schwenk v. Hartford, 204 F.3d 1187,
1195 (9th Cir. 2000) (citing Behrens v. Pelletier, 516 U.S.
299, 312 (1996)); see also P.B. v. Koch, 96 F.3d 1298, 1301
(9th Cir. 1996) (holding that, where there was a claim of
excessive force by a school principal, the district court's
denial of qualified immunity on summary judgment was
immediately appealable). Our jurisdiction in these matters is
generally limited to questions of law and does not extend to
claims in which the determination of qualified immunity
depends on disputed issues of material fact. See id. (citing
Johnson v. Jones, 515 U.S. 304, 319 (1995)). Where disputed
facts exist, however, we can determine whether the denial of
qualified immunity was appropriate by assuming that the ver-
sion of the material facts asserted by the non-moving party is
correct. Id. (citing Behrens, 516 U.S. at 312). Consequently,
we evaluate Appellants' claims of qualified immunity by
resolving all factual disputes in Jeffers' favor. See Schwenk,
204 F.3d at 1195.
IV.
[1] Government officials enjoy qualified immunity from
civil damages unless their conduct violates "clearly estab-
lished statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982); see also Behrens, 516 U.S. at 306 (describ-
2224
ing Harlow's standard as one of "objective legal reasonable-
ness"). "A public official is not entitled to qualified immunity
when the contours of the allegedly violated right were suffi-
ciently clear that a reasonable official would understand that
what he [was] doing violate[d] that right." Osolinski v. Kane,
92 F.3d 934, 936 (9th Cir. 1996) (alterations in original) (cita-
tion and internal quotations omitted). Determining whether a
public official is entitled to qualified immunity "requires a
two-part inquiry: (1) Was the law governing the state offi-
cial's conduct clearly established? (2) Under that law could a
reasonable state official have believed his conduct was law-
ful?" Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995)
(citing Act Up!/Portland v. Bagley, 988 F.2d 868, 871-72 (9th
Cir. 1993)). This standard " `gives ample room for mistaken
judgments' by protecting `all but the plainly incompetent or
those who knowingly violate the law.' " Hunter v. Bryant,
502 U.S. 224, 229 (1991) (per curiam) (quoting Malley v.
Briggs, 475 U.S. 335, 343 (1986)).
A.
[2] The district court correctly determined that the first
prong of the qualified immunity inquiry -- whether the law
governing Appellants' conduct was clearly established -- had
been met. The Eighth Amendment protections afforded
inmates during violent prison disturbances have been delin-
eated by the Supreme Court on numerous occasions. See, e.g.,
Hudson v. McMillian, 503 U.S. 1, 8 (1992); Whitley v. Albers,
475 U.S. 312, 319 (1986). The court appropriately applied the
well-settled principle that, "[a]fter incarceration, only the
unnecessary and wanton infliction of pain . . . constitutes
cruel and unusual punishment." Id. 475 U.S. at 319 (citations
and internal quotation marks omitted). Where a prison secur-
ity measure is undertaken ostensibly for the protection of
prison officials and the inmate population, force is deemed
legitimate as long as it is applied "in a good faith effort to
maintain or restore discipline [and not] maliciously and sadis-
tically for the very purpose of causing harm." Id. at 320-321.
2225
B.
Having determined that the law governing the use of force
in prison disturbances is clearly established, the court then
proceeded to evaluate the second prong of the qualified
immunity analysis -- whether Appellants could have reason-
ably believed that their conduct was lawful. It denied quali-
fied immunity based on its determination that there was a jury
question as to the officers' subjective intent. The district court
specifically noted that (1) there were facts from which a jury
could find that either Bess or Yerby fired the shot that hit Jef-
fers; (2) Jeffers submitted sufficient evidence, if it is credited
by a jury, to demonstrate that defendants Gomez and White
were aware that existing procedures created a substantial risk
of serious harm to inmates and that they failed to respond rea-
sonably to that risk; (3) defendants' failures may have con-
tributed to Jeffers' injuries; (4) there were disputed facts
concerning the reasons for Bess' failure to warn anyone about
the rumor of violence in the yard on the day of the altercation;
and (5) Jeffers raised a sufficient inference that Bess' and
Yerby's motives may have been discriminatory.
Although a defendant's subjective intent is not relevant to
the qualified immunity defense, his mental state is relevant
where it is an element of the alleged constitutional violation.
See Crawford-El v. Britton, 523 U.S. 574, 589 & n. 11 (1998).
To prevail on the motion for summary judgment, Jeffers must
" `put forward specific, nonconclusory factual allegations'
that establish improper motive causing cognizable injury." Id.
at 598 (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)
(Kennedy, J., concurring in judgment)). Thus, Jeffers must
allege facts in this case that demonstrate that Appellants shot
at Jeffers, or permitted Jeffers to be shot, because of an
unconstitutional motive or state of mind.
1.
Jeffers makes several allegations that he contends raise an
inference that the force used by Bess and Yerby was mali-
2226
cious or sadistic. For example, he notes that Bess' original
handwritten incident report states that Bess shot at the shoul-
der of a Black inmate, and that a typed version prepared on
September 30, 1996, three days after the disturbance, states
that Bess aimed "at the left side of his body to disable." These
two statements are not necessarily inconsistent; the latter sim-
ply uses the official language "to disable." Nothing about the
change suggests that Jeffers was shot other than in a good-
faith attempt to bring the disturbance under control.
Jeffers also refers to a typewritten report presented by Bess
on November 14, 1996, six weeks after the incident, that
includes a statement that he fired a second warning shot,
although his original September 30, 1996 report does not
mention this. These circumstances are immaterial because the
shot is mentioned in Bess' original handwritten report.
Although the word "warning" used to describe this second
shot was written in handwriting other than Bess', the writing
that is Bess' clearly states that the shot struck the 7 block
mini-yard wall. This is consistent with a warning shot. There
is no suggestion that this round struck Jeffers; nor does any
evidence suggest that the shot was fired in anything other than
a good-faith effort to control the disturbance. As to changes
in Yerby's incident report, her characterization of her second
shot was changed from "for effect" to "warning shot" by
someone she could not identify. That change is immaterial
because the second shot was fired twenty minutes into the dis-
turbance, and Jeffers was shot in the first two minutes.
[3] Neither Yerby nor Bess is able to state definitively that
they fired the shot that injured Jeffers. Jeffers contends that
this failure to "admit" to the shooting is evidence of the shoot-
er's malicious intent. We do not see why Bess' and Yerby's
inability to identify who actually fired the shot suggests that
it was fired for any reason other than to control the distur-
bance. In the context of a major disturbance involving 150-
200 inmates, where two officers fired in Jeffers' direction at
approximately the same time, it is not surprising that neither
2227
can state, with certainty, as to whose shot hit Jeffers. The offi-
cers' uncertainty does not suggest malice or sadism.
[4] The district court also denied summary judgment based
on its determination that there were disputed issues of mate-
rial fact as to Jeffers' claim that Bess and Yerby violated Jef-
fers' Eighth Amendment rights by failing to prevent the other
from firing in a malicious manner. For the purpose of deter-
mining whether either officer's failure to intervene violated
Jeffers' rights, only the officers' conduct during the first
ninety seconds of the disturbance is relevant.4 Yerby testified
that, after the disturbance broke out, she and other guards
yelled "yard down," and she heard gunfire and saw fights
everywhere. Her attention focused on an Hispanic inmate
approaching a Black inmate with a knife, and she watched the
Hispanic inmate for "[a]bout a minute" before pulling the
trigger. She fired at approximately the same time that Bess
fired his shot. Understandably, she was focused on the yard
at this time, and not on the actions of her colleague. She had
no reason to suspect that Bess would fire maliciously. There-
fore, her failure to prevent Bess from firing was not evidence
of malice.
[5] Bess' failure to prevent Yerby from firing her weapon
also was objectively reasonable. The undisputed evidence
shows that he was scanning the yard, yelling "yard down,"
and firing shots of his own during the first ninety seconds of
the disturbance. There is no evidence that he was aware of
any possibility that Yerby was acting in a manner that vio-
lated Jeffers' constitutional rights or that he had any opportu-
nity to prevent her conduct.
[6] According to Jeffers' own account, he was being
attacked by an inmate with a knife-like weapon when he was
_________________________________________________________________
4 Thus, it is immaterial that Yerby "waited an entire 20 minutes before
firing her own second shot" and did not intervene to stop Bess during that
time.
2228
shot. That the bullet struck Jeffers rather than his attacker
amounts to negligence or recklessness, at most. According to
the District Attorney's Report, even Jeffers believed that he
was not shot intentionally. Given the lack of evidence show-
ing that either officer acted purposely to injure Jeffers and the
clearly established law that a prison guard is permitted to use
deadly force "in a good faith effort to maintain or restore dis-
cipline," Whitley, 475 U.S. at 320, both officers' actions in
firing their guns in Jeffers' vicinity were neither malicious nor
sadistic. They are therefore entitled to summary judgment.
The court erred in denying the summary judgment motions
predicated on this defense.
V.
The court denied summary judgment also on Jeffers' claim
that Bess failed to act on the rumors of violence because it
concluded that there were disputed facts relating to this claim.
[7] Because this contention does not target behavior occur-
ring during an ongoing prison security measure, the "deliber-
ate indifference" standard governs. A prison official is
deliberately indifferent to a substantial risk of serious harm to
inmates if that official is subjectively aware of the risk and
does nothing to prevent the resulting harm. Farmer v. Bren-
nan, 511 U.S. 825, 828-829 (1994). Deliberate indifference
requires that an official "both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. " Id. at 837.
We are not convinced that Bess' behavior met the necessary
elements to make out a case of deliberate indifference.
[8] Jeffers has not presented evidence sufficient to establish
that Bess had a "sufficiently culpable state of mind" to be
guilty of deliberate indifference towards the safety of the
inmates. Id. at 834. Prison supervisors were told that Hispanic
inmates were planning to attack Black inmates, and Sergeant
Baughman, Bess' immediate superior, interviewed the heads
2229
of the various inmate factions. Regardless of whether it was
prudent for Sergeant Baughman and Captain Walker to order
the release of the yard after learning that the Hispanics were
planning to attack "one of their own," there is no evidence
that Bess should have done anything differently once this
decision was made. He kept a close eye on the inmates once
they were released and, when trouble began, he immediately
shouted "yard down" and fired warning shots. The court erred
in denying Bess' summary judgment motion on this claim.
VI.
The court denied summary judgment on Bess and Yerby's
motion countering Jeffers' Equal Protection claim, holding
that the plaintiff raised a sufficient inference that their
motives may have been discriminatory. The denial as to
Yerby is moot because Jeffers' amended complaint, filed after
the magistrate judge's ruling, alleges that only Bess' actions
were racially motivated in violation of the Equal Protection
Clause.
The court cited three evidentiary matters which it believed
raise a sufficient inference of Bess' alleged discriminatory
motive: (1) Bess shot at a Black inmate who was making a
stabbing motion and at an unarmed Black inmate who was
kicking an Hispanic inmate, but only fired warning shots or
no shots at all at Hispanic inmates making stabbing motions;
(2) all but one of the inmates who were shot were Black, and
all the inmates who suffered stab wounds serious enough to
require medical attention were Black; and (3) some staff
members and inmates voiced concerns about the possibility of
the racial motives of the officers and the possibility that the
Black inmates were "set up."
[9] These facts fall short of alleging that Bess acted with
any unconstitutional motive. First, the district court's reliance
on the total number of inmates injured is misplaced. Jeffers
does not allege that Bess shot any other inmate besides him.
2230
Accordingly, the fact that more black inmates were injured
than Hispanic ones does not raise an inference that Bess acted
with a discriminatory motive. Likewise, Jeffers' allegations
that unidentified staff members and inmates believed that
some correctional officers acted with discriminatory intent
does not provide the specific evidence of Bess' intent neces-
sary to overcome Bess' immunity defense. The unarmed
Black inmate at whom Jeffers fired was in a mob of eight to
ten inmates who were kicking two inmates who were on the
ground. Jeffers has not alleged the specific, nonconclusory
factual allegations that establish Bess shot at Jeffers with a
discriminatory motive. See Crawford-El, 523 U.S. at 598
(internal quotation marks omitted).
Having decided that the court erred in denying all of the
summary judgment motions presented by Bess and Yerby, we
now turn to the appeals of the former Warden White and the
former California Director of Corrections Gomez.
VII.
[10] The district court denied qualified immunity to Gomez
and White, holding that they might be held liable for their part
in violating Jeffers' constitutional rights. A prison official
violates the Eighth Amendment only when he or she "knows
of and disregards an excessive risk to inmate health or safe-
ty." Farmer, 511 U.S. at 837. This standard requires that the
official be subjectively aware of the risk; it is not enough that
the official objectively should have recognized the danger but
failed to do so. Id. at 838. "[T]he official must both be aware
of facts from which the inference could be drawn that a sub-
stantial risk of harm exists, and he must also draw the infer-
ence." Id. at 837.
A.
[11] Jeffers argues that, as California Director of Correc-
tions, Gomez promulgated and maintained policies regarding
2231
the use of lethal force against prison inmates that violated his
Eighth Amendment right to be free from cruel and unusual
punishment. In order to deny qualified immunity on this basis,
the district court was required to find "a policy so deficient
that the policy itself is a repudiation of constitutional rights
and is the moving force of the constitutional violation." Red-
man v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.
1991) (citations and internal quotation marks omitted). We
cannot agree that CDC's policies were so fundamentally
flawed.
The district court stated that Director Gomez could be lia-
ble under the Eighth Amendment "for enacting a policy which
improperly allows the use of deadly force . . . if[he was]
aware that the policy created a substantial risk of serious harm
to inmates and [he] failed to respond reasonably to it." The
court then found that triable issues of fact existed as to
whether: (1) Director Gomez was aware of an excessive num-
ber of inmate shootings in California prisons prior to Septem-
ber 27, 1996; (2) whether correctional officers in California
were shooting inmates at an unusually high rate in compari-
son to the rest of the country; and (3) whether the use-of-force
policy in place on September 27, 1996, may have contributed
to Plaintiff's injuries. Once the court determined that Gomez
had knowledge of CDC's rate of inmate violence, it placed
virtually no further burden of proof on Jeffers. He was not
required to present one iota of evidence to establish how
Gomez's actions contributed to his injuries. The absence of
even a minimum proof threshold to establish a causal relation-
ship was utterly at odds with the doctrine of qualified immu-
nity.
The undisputed record establishes the constitutional valid-
ity of the use-of-force policy designed and implemented by
Gomez. Prior to the September 27, 1996 riot at CSP-Sac,
Gomez established an internal task force to evaluate the use-
of-force policy then in existence. After concluding its review
of the policy, the task force recommended, among other
2232
things, that less lethal weapons be introduced into the prison
system. On May 19, 1995, in response to Gomez's concern
that the use-of-force policy was resulting in the inappropriate
use of firearms, CDC revised its policy.
The use-of-force policy at the time of the riot stated that
"firearms shall only be used when reasonably necessary to
prevent or stop escapes, the taking of hostages, or other cir-
cumstances which present an immediate danger of escape,
loss of life, great bodily injury, or damage to a substantial
amount of valuable property." The policy also provided that
officers were to "shoot to disable rather than to kill" when a
threat to life or great bodily harm was occurring and that
"[f]irearms shall be used as a last resort and only after other
resources have been considered and are either exhausted or
are determined to be clearly inappropriate." Finally, the
revised policy reiterated that firearms were not to be utilized
to stop mere fist fights between inmates where there was not
danger of death or great bodily harm.
The district court places great weight on the observation
that, at the time of the riot, there had been an excessive num-
ber of inmate shootings by prison guards in California prisons
system-wide, and that CDC correctional officers were shoot-
ing at inmates at unusually high rates as compared to other
jurisdictions. Under the district court's analysis, Gomez could
be condemned for his knowledge of past prison conditions
even where, as is demonstrated by this record, he strove to
correct those problems. Under this reading a CDC Director
would never prevail on qualified immunity on any claim for
an injury in a California prison. The district court's approach
requires no proof of objectively wrongful conduct and permits
a mere dispute over the most effective policy for curbing
inmate injuries to defeat qualified immunity.
[12] The uncontroverted evidence in this case simply does
not support the conclusion that CDC's policy regarding the
use of force in a prison riot context was constitutionally
2233
unsound. Nor did the district court rely on any evidence that
CDC's policies, or Gomez's actions in implementing them,
were the moving force behind any constitutional violation in
this case. Jeffers' own retained expert conceded that the train-
ing on CDC's use of force policy was "legally sound and con-
sistent with good correctional practice and policies throughout
the United States."
B.
[13] Jeffers alleged in his second claim for relief
("supervisory liability") that Gomez's failure to "properly
train, supervise and/or discipline subordinate custodial per-
sonnel with respect to the use of deadly force on inmates at
CSP-Sac" resulted in Jeffers' injuries. Generally, supervisory
officials are not liable for the actions of subordinates on any
theory of vicarious liability under 42 U.S.C. S 1983. Hansen
v. Black, 885 F.2d 642, 645-46 (9th Cir. 1989). A supervisor
may be liable under S 1983 only if there exists either "(1) his
or her personal involvement in the constitutional deprivation,
or (2) a sufficient causal connection between the supervisor's
wrongful conduct and the constitutional violation. " Redman,
942 F.2d at 1446 (quoting Hansen, 885 F.2d at 646) (empha-
sis added); see also MacKinney v. Nielsen, 69 F.3d 1002,
1008 (9th Cir. 1995).
With respect to the training of CDC employees, the district
court assumed the following facts: (1) that correctional offi-
cers are trained to shoot at "center mass" (the torso area) at
stationary targets at distances of fifty to one-hundred yards;
(2) that officers were not taught to practice hitting arms or
legs; (3) that the use of open-sighted rifles and training to
shoot at "center mass" are somehow inconsistent with CDC's
"shoot to disable" policy; and (4) that some CDC staff differ
in their views as to the "exact meaning" of "shoot to disable."
None of these circumstances, however, supports the conclu-
sion that an inadequacy in CDC's training program led to a
2234
deliberate violation by Director Gomez of Jeffers' Eighth
Amendment rights.
Because Director Gomez had no direct involvement or
direct management responsibility for quelling the riot, his
qualified immunity defense should have been examined
within the context of policy-level activities. Instead, the dis-
trict court concluded that he could be liable under the Eighth
Amendment merely for "a failure to appropriately train and
supervise in the use of deadly force." The court stated that
Jeffers had presented evidence sufficient to create an issue of
disputed fact as to "whether correctional officers were prop-
erly trained and supervised in the use-of-force and in proce-
dures to notify superiors of a potentially dangerous incident"
and "whether the failure of defendants to properly train and
supervise correctional officers may have contributed to plain-
tiff's injuries."
[14] The district court failed to impose any burden on Jef-
fers to show that Director Gomez conducted himself in a reck-
less or malicious manner or that his actions were, in fact,
deliberate. It also neglected to determine or even to address
the CDC's use-of-force policy at the time of the riot or the
supervision and training provided to the employees on the
use-of-force policy. Instead, the district court sanctioned a
public policy review by a jury that could result in personal lia-
bility for an official never shown to have acted in violation of
clearly established constitutional law.
[15] Accordingly, we conclude that the court erred in not
granting Director Gomez's motion for summary judgment.
C.
The court made several errors in its analysis of the charges
leveled against Warden White. It failed to analyze whether
federal law clearly established that the warden's reliance on
the CDC's Shooting Policy violated Jeffers' rights. In fact, it
2235
was the warden's duty to implement this policy, as there was
no clearly established law prohibiting its use.
1.
The realities of this incident must not be ignored. This was
one of the largest prison disturbances in the history of the
Department. Numerous varieties of weapons, including many
which were potentially lethal, were utilized by inmates during
the riot. Inmates and staff were physically attacked, and four-
teen people were sent to the hospital for emergency treatment.
Sixty people required medical care at the prison clinic.
[16] The use of firearms during a prison riot is not unlaw-
ful. See Madrid v. Gomez, 889 F. Supp. 1146, 1179 (N.D. Cal.
1995). Jeffers has not provided any authority that, absent con-
crete evidence of potential problems under the existing policy,
the warden had a duty to change either his supervising chain
of command or statewide training requirements or materials.
There is also no indication that, prior to September 1996, Cal-
ifornia courts had grappled with any law prohibiting prison
officials from utilizing statewide training practices required
by their supervisors.
2.
[17] The court also denied qualified immunity as to Jeffers'
claim that Warden White created an unsafe and potentially
volatile situation by housing inmates of various races and
gang affiliations together in a general population yard. White
complied with the statewide housing practice, and he had no
affirmative duty to change the policy.
[18] The undisputed facts show the following safety mea-
sures at CSP-Sac: each inmate is extensively evaluated for
housing placement by the classification committee on a rou-
tine basis prior to and during the housing assignment; gang
members are removed from the general population setting;
2236
inmates of different races or gang histories are assigned to
yards with the goal of maintaining a racial or gang-affiliation
balance; staff constantly conduct random cell searches and
daily walks of the yard looking for weapons; and each inmate
is physically searched prior to his release into the yard. Such
housing arrangements, which are statewide policy, existed
prior to White's becoming the warden. Therefore, qualified
immunity should have been denied only if Jeffers could prove
that it was clearly established that Warden White should have
declined to rely upon this statewide policy. We conclude that
White was not subjectively aware of an obvious danger in
implementing standard prison safety procedures and that the
district court erred, therefore, in denying him qualified immu-
nity.
3.
Jeffers produced evidence allegedly supporting the theory
that the correctional officers received substandard training.
This evidence suggests that the officers were told to "shoot to
disable" (i.e., shoot at extremities) in situations involving a
threat to life or great bodily harm, but they were nevertheless
trained to shoot at center mass. Jeffers also emphasizes that
officers were not shown shooting policy demonstration films,
despite the availability of these aids.
Even if these allegations are taken as true, such deficiencies
in training technique are insufficient to establish, even cir-
cumstantially, that a substantial risk of serious harm to
inmates was known to Defendants Gomez and White. Jeffers'
claims must be viewed in light of the Court's admonition to
accord prison officials " `wide-ranging deference in the adop-
tion and execution of policies and practices' " to further insti-
tutional order and security. Whitley, 475 U.S. at 321-322
(quoting Bell v. Wolfish, 441 U.S. 520, 547 (1979)). This def-
erence applies to conduct during an actual disturbance as well
as prophylactic measures to prevent such a disturbance. See
id. at 322.
2237
4.
In addition, Jeffers asserts that there was (1) an insufficient
store of non-lethal weapons in the guard towers; (2) an inade-
quate emergency action plan at CSP-Sac for dealing with a
major disturbance; and (3) an absence of reporting procedures
to inform Warden White of rumored disturbances, such as the
one that preceded the September 27, 1996 disturbance. As to
the mix between non-lethal and lethal weapons, relating to the
availability or use thereof, this court is not permitted to micro-
manage the selection of weapons to control disturbances of
various magnitudes included in the emergency plans. We sim-
ilarly defer to the CSP-Sac prison officials, who have experi-
ence derived from years of observation and practice, as to the
appropriateness of their emergency action plans. Finally, the
evidence indicates that reporting procedures for informing
prison officials of potential disturbances did exist.5
VIII.
[19] In Whitley, the Court addressed the issue of an offi-
cial's proper conduct during a prison riot. 475 U.S. at 321.
_________________________________________________________________
5 In a sworn declaration, former Warden White described the policy for
responding to rumors of inmate violence:
When information such as rumors regarding inmate violence is
received by staff, this information goes through the chain of com-
mand within the housing units. Depending upon the reliability of
the information, it may be further investigated by housing staff
or by the Investigative Services Unit. Generalized, unverified
rumors are received on a daily basis. I do not expect my Captains
to bring this information to my attention when it is of such a
nature. When the information is verified, depending upon the
extent of the information, as to whether it involves a few inmates
or numerous inmates, it will be brought to the attention of admin-
istrative staff such as the Associate Wardens, the Chief Deputy
Warden and myself. Furthermore, when I would visit the housing
units, I would speak directly to staff who would often inform me
of certain situations and brief me regarding the investigative pro-
cess.
2238
The Court noted that a prison official has a duty to protect
prison employees, visitors, and the inmates themselves, and it
recognized the difficult balance that this duty may entail. Id.
at 320. In light of these complexities, the Court cautioned that
" `[p]rison administrators . . . should be accorded wide-
ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve
internal order and discipline and to maintain institutional
security.' " Id. at 321-22 (quoting Bell 441 U.S. at 547).
[20] Gomez was not present at CSP-Sac during the distur-
bance, and therefore he cannot be found to have been acting
maliciously or sadistically at the time. There is no basis to
describe Warden White's conduct during the disturbance as
malicious or sadistic. Jeffers objects that White failed to take
immediate command of the prison during the disturbance, as
required under CDC policy. Regardless of whether this is a
valid criticism, Jeffers has not alleged, nor has he produced
any evidence supporting the proposition, that any such failure
resulted from malice, sadism, or an intent to cause harm. In
sum, the evidence does not indicate any action by Gomez or
White during the disturbance that constituted a knowing vio-
lation of Jeffers' constitutional rights under Whitley. Absent
any indication that Gomez or White knowingly or intention-
ally violated Jeffers' constitutional rights, the court erred in
denying them summary judgment on this ground.
* * * * *
Accordingly we hold that each of the Appellants was enti-
tled to qualified immunity and the court erred in failing to
grant summary judgment on their motions. We reverse the
judgment of the district court and remand with a direction to
enter judgment in favor of Appellants.
REVERSED AND REMANDED.
2239