NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WILLIAM JACKSON KITCHENS, No. 10-15737
Plaintiff - Appellant, D.C. No. 1:05-cv-01567-DCB
Eastern District of California,
v. Fresno
RICHARD PIERCE, Sheriff;
MARGARET MIMS, Asst. Sheriff; ORDER
GARY JOHNSON, Lieutenant, AMENDING MEMORANDUM
Classification; MONICA MUELLER
GARCIA; DERRICK WATKINS; NORA
VARELA,
Defendants - Appellees.
Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.*
The memorandum disposition filed June 14, 2013 is hereby amended. An
amended disposition is filed concurrently with this order.
With these amendments, Judge Bea and Judge Restani have voted to deny
the petition for panel rehearing. Judge Wallace’s dissent from the denial of panel
rehearing is attached hereto. Judge Bea has voted to deny the petition for rehearing
*
The Honorable Jane A. Restani, Judge for the U.S. Court of International
Trade, sitting by designation.
en banc, and Judge Restani has so recommended. Judge Wallace recommends en
banc rehearing.
2
FILED
Kitchens v. Pierce, et al., No. 10-15737 JAN 14 2014
MOLLY C. DWYER, CLERK
WALLACE, Circuit Judge, dissenting from the denial of the petition for rehearing:OF APPEALS
U.S. COURT
In the amended memorandum disposition, the majority asserts that
“[b]ecause no policy from ‘higher authority’ specified how SVPs housed in
Isolation or the Hole must be treated, a question of material fact exists as to Mims’
authority to affect the conditions afforded to SVPs in those locations.” In reaching
this conclusion, the majority errs both procedurally and substantively. As to the
first, there is no “question of material fact,” because Kitchens presented no
evidence before the district court as to Mims’s putative “authority” over these
conditions. Consequently, the district court was correct to grant summary
judgment to Mims on this issue. As to the second, the panel errs by holding, in
effect, that Mims may be held liable under a theory of respondeat superior for the
actions of jail employees under her supervision. This runs contrary to Ashcroft v.
Iqbal, in which the Supreme Court held that “[g]overnment officials may not be
held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.” 556 U.S. 662, 676 (2009). For both of these reasons, I
dissent from the denial of the petition for rehearing.
I.
1
Before the district court, Kitchens made the unsupported assertion that
Mims, as Assistant Sheriff, was “empowered with the authority to effectuate
policies and procedures within the [jail] facility.” The district court rejected this
argument on the ground that Kitchens had “offered no evidence that Sheriff Mims
effectuated any policies or procedures related to inmate classification when she
was Assistant Sheriff.”
In its discussion of this issue, the district court considered a pro se pleading
filed by Kitchens. In that pleading, which Kitchens made in support of his motion
for summary judgment, Kitchens asserted that Mims “was empowered with the
authority to effectuate policies and procedures within the [jail] facility.” This was
a verified pleading, insofar as Kitchens signed it and declared that it was true
“under the penalty of perjury.” Mims did not herself present any evidence as to
this issue. Instead, she argued that Kitchens had failed to present any evidence to
raise a triable issue of fact as to this claim, and therefore that summary judgment in
her favor was appropriate.
Because Kitchens did not allege any facts to substantiate his assertion
regarding Mims’s authority, the district court’s summary judgment in favor of
Mims as to this issue could have been affirmed on that ground alone. See, e.g.,
Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 713–14 (9th Cir. 2010) (explaining
2
that the district court “did not err in granting summary judgment” against a
plaintiff who had “failed to allege any facts supporting [his] claim” that the
defendant had a “policy, practice, or custom that was violative of his rights”).
Under our precedents, a party cannot establish a disputed question of material fact,
and thereby avoid summary judgment, by making a “bare assertion” that is devoid
of “any legal or factual support.” DeNieva v. Reyes, 966 F.2d 480, 486 (9th Cir.
1992).
This rule applies to pro se litigants, like Kitchens, just as much as it applies
to any other party. Our decision in Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004),
is not to the contrary. In Jones, we held that when a litigant appears pro se, the
court “must consider as evidence . . . all of [his] contentions offered in motions and
pleadings, where such contentions are based on personal knowledge and set forth
facts that would be admissible in evidence, and where [he] attested under penalty
of perjury that the contents of the motions or pleadings are true and correct.” Id. at
922–23 (emphasis added). It is important to recognize that this is a narrow
exception to the general rule that a nonmoving party may survive summary
judgment only if he presents evidence of “sufficient caliber and quantity” to create
a genuine issue of material fact. See United Steelworkers of Am. v. Phelps Dodge
Corp., 865 F.2d 1539, 1542 (9th Cir. 1989), citing Anderson v. Liberty Lobby, Inc.,
3
477 U.S. 242, 254 (1986).
In particular, this exception solely applies if the pro se litigant’s contentions
are based on “personal knowledge.” In Jones, we considered a free exercise claim
brought by a pro se litigant. The district court had granted summary judgment to
the defendants, on the ground that the plaintiff had failed to explain how a “general
denial of access to religious services” denied him the “ability to practice his own
religion.” Jones, 393 F.3d at 935. We reversed summary judgment as to this
claim, on the ground that the plaintiff “was pro se and concluded [a pleading] with
a signed statement attesting under penalty of perjury to [its] truth,” which meant
that his “explanation of his religious beliefs qualifie[d] as evidence for the purpose
of opposing a summary judgment motion.” Id.
Jones cited three cases on behalf of the proposition that a pro se litigant’s
verified pleadings may constitute evidence at summary judgment, if they are
“based on personal knowledge.” Id. at 923. First, in McElyea v. Babbitt, we
likewise considered a pro se litigant’s free exercise claims regarding practice of his
religion in prison. 833 F.2d 196, 197 (9th Cir. 1987). There, the evidence
considered by the court consisted of the prisoner’s allegations that “regular
Sabbath services” were not held in his prison, that he did not receive a kosher diet
in prison, that the religious library did not “contain Jewish reading material,” and
4
that he was “refused permission to attend a special High Holy Day service.” Id. at
198–99. Second, in Johnson v. Meltzer, we considered a litigant’s assertions
regarding statements that had been made to him personally by a deputy. 134 F.3d
1393, 1399–1400 (9th Cir. 1998). Finally, in Schroeder v. McDonald, we also
considered a litigant’s assertions regarding two statements that had been made to
him personally by “correctional staff members at [his] minimum security facility.”
55 F.3d 454, 460 (9th Cir. 1995).
Thus, in all four of these cases, the assertions “consider[ed] as evidence” by
us were things that were truly within the pro se litigant’s “personal knowledge,”
either because (1) they were statements about his own religious beliefs; (2) they
were statements about facts of his daily life in prison; or (3) they were statements
of what he had been told by another person. This makes sense. It is unclear, for
instance, what evidence a pro se litigant could offer regarding his own religious
beliefs other than a statement, signed under penalty of perjury, of what those
beliefs are.
Our cases addressing this “personal knowledge” exception for pro se
litigants derive from earlier cases interpreting Fed. R. Civ. P. 56(e), which–in a
previous version–stated that a party opposing a motion for summary judgment
must “set forth specific facts showing that there is a genuine issue for trial” in the
5
form of “affidavits or as otherwise provided in this rule.”1 See Lew v. Kona Hosp.,
754 F.2d 1420, 1423 (9th Cir. 1985). As we explained in Lew, a litigant’s verified
complaint may be “treated as an affidavit” for purposes of opposing a motion for
summary judgment, so long as “the complaint is based on personal knowledge and
sets forth facts admissible in evidence and to which the affiant is competent to
testify.” Lew, 754 F.2d at 1423 (citation omitted) (emphasis added). Again, this
makes sense. If, for instance, the plaintiff in Jones had been called to testify at trial
as to his own religious beliefs, he surely would have been competent to do so.
By contrast, if Kitchens were called to testify at trial as to Mims’s “authority
to effectuate policies and procedures” at the Fresno County Jail, what could he
possibly say that would be admissible in court? It is clear that Kitchens would not
be competent to testify as to Mims’s authority within the jail, because he has no
“personal knowledge” of what Mims was “empowered with the authority to
effectuate” there.
A pro se litigant may assert any number of things in his pleadings, “verified”
or not. He may assert that Freemasons run the country, that the moon is made of
1
In 2010, Rule 56 was reorganized: some aspects of what was formerly
Rule 56(e) were transferred to Rule 56(c), while others were “relocated or
omitted.” See, e.g., Jajeh v. Cnty. of Cook, 678 F.3d 560, 567–68 (7th Cir. 2012)
(discussing the revisions). This reorganization does not affect the issues under
consideration here.
6
green cheese, or that all Cretans are liars. But, because he would lack “personal
knowledge” of the truth of any of those assertions, we would not treat them as
evidence sufficient to defeat a summary judgment motion. In the same way,
Kitchens, as a detainee who was briefly held in the Fresno County Jail, lacks any
personal knowledge of that jail’s bureaucratic hierarchy or the “authority” invested
in its various officials. Therefore, his assertions as to this matter cannot be
regarded as evidence of sufficient “caliber and quantity” to create a genuine issue
of material fact.
II.
But even if Kitchens had presented admissible evidence of Mims’s authority
within the jail, which he has not, he would still not be able to establish liability. In
essence, Kitchens’s claim against Mims is based on respondeat superior, because
the claim is not based on any action undertaken by Mims, but instead is based on
what was done by jail employees under her supervision. Such a claim is
necessarily predicated on the theory of respondeat superior.
However, the Supreme Court, in Ashcroft v. Iqbal, has made clear that
“[g]overnment officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.” 556 U.S. 662, 676
(2009). As the Supreme Court explained in Iqbal, “vicarious liability is
7
inapplicable” to suits–like Kitchens’s–that are brought under section 1983. Id.
Instead, a plaintiff bringing a section 1983 action “must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Id. (emphasis added).
Our court has been reluctant to apprehend Iqbal’s clear teaching that
government officials may not be held liable under a theory of respondeat superior.
See, e.g., Maxwell v. Cnty. of San Diego, 697 F.3d 941, 962–63 (9th Cir. 2012)
(Ikuta, J., dissenting) (explaining that, under Iqbal, the defendants could not be
held liable for the “allegedly unconstitutional acts of their subordinates”); OSU
Student Alliance v. Ray, 699 F.3d 1053, 1079–80 (9th Cir. 2012) (Ikuta, J.,
dissenting) (explaining that “to state a claim under § 1983 against a government
official, a plaintiff must allege that the official’s ‘own misconduct’ violated the
plaintiff’s constitutional rights”) (citation omitted); Williams v. Cnty. of San Mateo,
487 F. App’x 344, 346–47 (9th Cir. 2012) (Ikuta, J., dissenting) (explaining that
the “Supreme Court has made it clear that government officials are not liable for
the misdeeds of their subordinates”); Starr v. Cnty. of Los Angeles, 659 F.3d 850,
854–55 (9th Cir. 2011) (O’Scannlain, J., dissenting from the order denying
rehearing en banc) (explaining, in a dissent joined by seven other judges, that the
majority had erred by effectively “inserting respondeat superior liability into
8
section 1983 despite the Supreme Court’s admonition” to the contrary in Iqbal). I
join my voice to this chorus.
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FILED
NOT FOR PUBLICATION JAN 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM JACKSON KITCHENS, No. 10-15737
Plaintiff - Appellant, D.C. No. 1:05-cv-01567-DCB
v.
AMENDED
RICHARD PIERCE, Sheriff; MEMORANDUM*
MARGARET MIMS, Asst. Sheriff;
GARY JOHNSON, Lieutenant,
Classification; MONICA MUELLER
GARCIA; DERRICK WATKINS; NORA
VARELA,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
David C. Bury, District Judge, Presiding
Argued and Submitted October 16, 2012
San Francisco, California
Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.**
William Kitchens appeals the district court’s summary judgment in favor of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
Appellees, Margaret Mims and Gary Johnson (“County Defendants”) and Derrick
Watkins, Monica Garcia, and Nora Varela (“Transportation Defendants”). In this
42 U.S.C. § 1983 action, Kitchens claims his constitutional rights were violated
when he was transported and detained pending adjudication of his civil
commitment as a sexually violent predator (“SVP”). We affirm the district court’s
summary judgment in favor of Johnson and the Transportation Defendants but
reverse the district court’s summary judgment in favor of Mims.
Detainees awaiting civil commitment proceedings are entitled to conditions
at least as favorable as those provided to individuals civilly committed and to all
criminal detainees. Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). A
rebuttable presumption of punitive treatment arises when an SVP is detained in
“conditions identical to, similar to, or more restrictive than, those in which his
criminal counterparts are held.” Id. To rebut that presumption, the government
may not rely on generalized assertions of the need to separate SVPs from the
general population, as required by California law. Id. at 934. California Penal
Code sections 1610 and 4002(b) also require SVPs be administratively segregated
and not deprived of privileges.
Kitchens’ detention in Isolation reveals conditions that are substantially
worse than those of the criminal detainees in administrative segregation
2
(“MSEG”), giving rise to a presumption of punishment. The County Defendants
failed to rebut this presumption because they have proffered only generalized jail
management concerns for support, a position rejected in Jones. See 393 F.3d at
934. Kitchens’ conditions in Isolation were actually worse than the
unconstitutional ones clearly described in Jones.1 Kitchens continued to
experience worse treatment than criminal detainees while in the Hole. Because the
County Defendants failed to proffer evidence to rebut the presumption of
punishment, summary judgment in their favor was improper. They may produce
additional evidence to rebut the presumption on remand.
Although Kitchens may have a cognizable claim that his constitutional rights
were violated with respect to privileges, he chose to sue some defendants who do
not bear responsibility for the deprivation. In section 1983 actions, employers and
supervisors are not automatically liable for constitutional torts committed by their
employees. Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007), vacated on
other grounds, 556 U.S. 1256 (2009). Instead, a plaintiff must prove that the
supervisor personally committed the tort, set in motion events which he knew or
reasonably should have known would cause the alleged constitutional harm, or
1
In view of the conditions described in Jones, the County Defendants’
assertion of qualified immunity here is without merit.
3
acquiesced in a constitutional deprivation by subordinates. See id.; see also Moss
v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th Cir. 2012).
The affidavits submitted by the County Defendants support Kitchens’
argument that his housing in both Isolation and the Hole were pursuant to official
jail policies.2 Although the County Defendants argued in their briefs that these
policies were set by higher authorities, who they were bound to follow, counsel for
County Defendants conceded at oral argument that these policies related only to
the locations to which SVPs were assigned, not to the privileges afforded to
prisoners in those locations. Because no policy from “higher authority” specified
how SVPs housed in Isolation or the Hole must be treated, a question of material
fact exists as to Mims’ authority to affect the conditions afforded to SVPs in those
locations. In particular, the issue is whether, in the absence of a policy, Mims, as
the person who “oversaw jail operations” and “in charge of the Fresno County
Jail,” had the authority to ensure that SVPs would be afforded better conditions
than others housed in Isolation or the Hole. A reasonable trier of fact could
conclude that she controlled Kitchens’ circumstances of confinement and is thus
potentially liable under a supervisor theory of liability. There is no reason to
2
Kitchens’ housing in MSEG admittedly was not based on any jail policy,
and therefore, he has failed to support this part of his § 1983 claim.
4
conclude, however, that Johnson, as a classification officer, had any policy-making
authority in terms of the privileges afforded to particular prisoners, and therefore
no question of fact exists as to his involvement in the jail policy. Accordingly,
Johnson is not liable for Kitchens’ conditions as a matter of law.
Kitchens also argues that County Defendants violated his Fourth
Amendment rights when they subjected him to a “strip search” upon entering the
jail. Strip searches are constitutionally permissible, even if not based on
reasonable suspicion, when routinely conducted by prison officials on inmates as
they enter the prison’s general population. Florence v. Bd. of Chosen Freeholders,
132 S. Ct. 1510, 1523 (2012). Because Kitchens was not subjected to a full strip
search, as the petitioner in Florence was, and because Kitchens was housed, at least
at some point, in an area with other prisoners, his rights were not violated.
Kitchens also argues that the Transportation Defendants violated his substantive
and procedural due process rights when they transported him handcuffed to the
Fresno County Jail in the same compartment as criminal detainees. In Bagent v.
Pierce, we stated that California Penal Code sections 1610 and 4002 were
inapplicable to the brief time an SVP spends inside a bus because those statutes
only address confinement in a “room,” “housing,” or “facility.” 463 F. App’x 636,
637 (9th Cir. 2011) (unpublished). Our decision in Bagent, while non-
5
precedential, is consistent with the legislative history of sections 1610 and 4002.
Accordingly, Kitchens’ procedural due process rights were not violated. Similarly,
Kitchens was not deprived of his substantive due process rights because the Jones
presumption of punishment has been overcome by the Transportation Defendants’
asserted justification of segregating juveniles and women within the vehicle,
combined with obvious space limitations.
For the foregoing reasons, we REVERSE the district court’s summary
judgment with respect to Defendant Mims. Additionally, we AFFIRM the district
court’s summary judgment in favor of Defendant Johnson and the Transportation
Defendants. The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
6