FILED
NOT FOR PUBLICATION
DEC 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HELEN JANE ROMERO, as Special No. 14-17204
Administrator of the Estate of Anthony
Gilbert Beltran, deceased; ANTHONY G. D.C. No.
BELTRAN, Jr., a minor child, as heir to 2:08-cv-00808-JAD-VCF
Anthony Gilbert Beltran; BRITNIE
NICOLE BELTRAN, a minor child, as
heir to Anthony Gilbert Beltran; MEMORANDUM*
CHRISTIAN LEO CLIFFORD
BELTRAN, a minor child, as heir to
Anthony Gilbert Beltran,
Plaintiffs-Appellants,
v.
NEVADA DEPARTMENT OF
CORRECTIONS, a political subdivision
of the State of Nevada; E. K. MCDANIEL,
individually and in his official capacity;
GLEN WHORTON, Individually and in
his official capacity; TRENT HOWES,
individually and in his official capacity;
JASON STOLK, individually and in his
official capacity; THERESA LANDON,
individually and in his official capacity;
OTERO, OFC, individually and in his
official capacity; DRAIN, “Caseworker”,
individually and in his official capacity; R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
CANDLISS, “Counselor”, individually
and in his official capacity; DOES, I-X,
inclusive; ROES, I-X, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted October 19, 2016
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
On December 28, 2006, Anthony Beltran, an inmate at Ely State Prison in
Nevada, was fatally stabbed by his cellmate, Douglas Potter. Beltran’s mother, Helen
Romero, brought this lawsuit against Nevada, the Nevada Department of Corrections
(“NDOC”), and various NDOC employees (collectively, the “Defendants”), alleging
that they failed to protect Beltran from Potter. Romero asserted violations of Beltran’s
Eighth and Fourteenth Amendment rights under 42 U.S.C. § 1983, as well as state-law
claims for wrongful death, negligent supervision, and vicarious liability. She also
asserted these claims on behalf of Beltran’s minor children.
After years of litigation delays, the district court granted the Defendants’
motion for summary judgment as to Romero’s § 1983 claims, and remanded the
2
remaining state-law claims to state court. Romero appeals only the district court’s
grant of summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
I.
Romero first argues that the district court abused its discretion by refusing to
consider her evidence on summary judgment. Orr v. Bank of America, 285 F.3d 764,
773 (9th Cir. 2002) (evidentiary rulings are reviewed for abuse of discretion). At the
hearing on the Defendants’ summary judgment motion, the district court repeatedly
pointed out that much of Romero’s documentary evidence was unauthenticated.
Despite these warnings, Romero did not attempt to authenticate her evidence during
the two-month period between the hearing and the date of the district court’s order.
On appeal, Romero argues only that the district court’s evidentiary ruling was
an abuse of discretion because it was made sua sponte. We find this argument
unpersuasive. See Fed. R. Civ. P. 56(f)(2) (explicitly providing that a district court
may grant summary judgment sua sponte after giving the losing party “notice and a
reasonable time to respond”). Although Rule 56 was amended in 2010 to eliminate the
unequivocal requirement that evidence submitted at summary judgment must be
authenticated, the amended Rule still requires that such evidence “would be
admissible in evidence” at trial. Fed. R. Civ. P. 56(c)(4). Romero does not argue that
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she would have been able to proffer her evidence in admissible form at trial. Nor does
she argue that her evidence was authenticated because it was produced by the
Defendants in discovery. These arguments are therefore waived, and we need not
consider whether they would sustain Romero’s challenge to the district court’s
evidentiary rulings. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (arguments
not made before the district court or in the appellant’s opening brief are waived).
II.
Even if the district court did err by refusing to consider Romero’s evidence
submitted in opposition to the Defendants’ motion for summary judgment, that error
was harmless, because Romero’s evidence did not raise a genuine issue of material
fact as to the liability of any Defendant for Beltran’s death. Orr, 285 F.3d at 773
(“[We] must affirm the district court unless its evidentiary ruling was manifestly
erroneous and prejudicial.”). Indeed, the Defendants’ answers to Romero’s
interrogatories and some of Romero’s documentary evidence suggest that other
NDOC employees may have been responsible for assigning Beltran to live with Potter,
and that these employees may have known that the assignment placed Beltran at an
increased risk of harm. Despite the fact that Romero knew the identity of these
individuals as early as August 2009, none of them were named as defendants in this
4
action in the time between August 2009 and the hearing on the Defendants’ motion
for summary judgment in October 2013.
A.
None of Romero’s evidence raises a genuine issue of material fact that either
Glen Whorton, the director of NDOC, or E.K. McDaniel, the warden of Ely State
Prison, were “deliberately indifferent” to Beltran’s safety. Farmer v. Brennan, 511
U.S. 825, 834 (1994). Nothing in the record tends to prove that either of these two
Defendants was involved with the decision to house Beltran with Potter. Romero
argues that these Defendants were responsible for implementing flawed policies that
led to Beltran’s death, but she has failed to demonstrate that any challenged policy
was “so deficient that the policy itself [was] a repudiation of constitutional rights.”
Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Thus, the district court’s grant of
summary judgment as to Romero’s claims against Director Whorton and Warden
McDaniel was not error.
B.
Nor does Romero’s evidence raise a genuine issue of material fact that any of
the correctional officers sued in this action—Officers Trent Howes, Jason Stolk,
Robert Otero, and Theresa Landon—were “deliberately indifferent” to Beltran’s
safety. Again, none of Romero’s evidence tends to prove that any of these Defendants
5
were involved with the decision to house Beltran with Potter. Indeed, Romero has
failed to adduce any evidence that Officers Stolk or Otero were involved in the events
leading up to Beltran’s death. Officer Landon was one of the correctional officers who
responded to the stabbing after it occurred, but Romero does not explain how Officer
Landon’s conduct was “deliberately indifferent” to Beltran’s health or safety.
Romero has also failed to adduce evidence demonstrating that Officer Howes,
who handcuffed Beltran immediately prior to his being stabbed by Potter, was
“deliberately indifferent” to Beltran’s safety. Nothing in the record suggests that
Officer Howes was aware of Potter’s intention to attack Beltran, or even that Potter
was likely to do so. Moreover, even if it were a constitutional violation for Officer
Howes to handcuff Beltran in his cell while leaving Potter unrestrained, as Romero
argues, this fact was not “clearly established” at the time of the incident. Pearson v.
Callahan, 555 U.S. 223, 224 (2009). Officer Howes is therefore entitled to qualified
immunity, and the district court’s grant of summary judgment in his favor was not
error.
C.
Romero has also failed to demonstrate that Michael Drain and Robert
Chambliss, two NDOC caseworkers, were “deliberately indifferent” to Beltran’s
safety. Romero proffered three notes that Potter sent to Drain and Chambliss in 2005,
6
in which Potter told the caseworkers that he did not want a cellmate and that if they
placed one with him, he would assault that inmate. This, Romero argues, should have
put Chambliss and Drain on notice that housing Beltran with Potter would be
dangerous to Beltran.
But nothing in the record suggests that either caseworker was involved in the
decision to house Beltran with Potter. In any case, the notes were sent a full year
before Potter attacked Beltran, and in the interim, Potter had lived with two other
cellmates without incident. Romero therefore failed to raise a genuine issue of
material fact as to Drain’s and Chambliss’s “deliberate indifference” to Beltran’s
safety, and the district court’s grant of summary judgment in favor of Chambliss and
Drain was not error.
D.
Romero has also failed to adduce evidence that any of the Defendants were
deliberately indifferent to Beltran’s medical needs. Estelle v. Gamble, 429 U.S. 97,
105 (1976). Romero does not dispute that a medical team was on the scene within
minutes of the attack, nor does she explain how a speedier medical response would
have increased Beltran’s chances of survival. The district court’s grant of summary
judgment on this claim was therefore not error.
E.
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Romero also challenges the district court’s decision to dismiss the § 1983
claims she brought on behalf of Beltran’s minor children. Section 1983 adopts as its
law of survivorship the law of the forum state, Robertson v. Wegmann, 436 U.S. 584,
590 (1978), which here is Nevada. Under Nevada law, only the “executor or
administrator” of the deceased’s estate can sue on the deceased’s behalf. Nev. Rev.
Stat. § 41.100(3). Romero has adduced no evidence that Beltran’s children have been
appointed as executors or administrators of Beltran’s estate. Thus, the children may
not assert § 1983 claims on Beltran’s behalf. Moreland v. Las Vegas Metro. Police
Dep’t, 159 F.3d 365, 370 (9th Cir. 1998).
III.
Finally, Romero argues that the district court abused its discretion by denying
her motion to reopen discovery. Romero sought additional discovery so that she could
depose Warden McDaniel, Officer Howes, Officer Landon, and Kay Weiss, whose
depositions were originally scheduled for September 2010 but were cancelled due to
a conflict with defense counsel’s schedule (according to Romero). One of the purposes
of these depositions, Romero explained, was to identify the “doe” defendants—that
is, the NDOC employees who made the decision to house Beltran with Potter but
whose identities were unknown to Romero.
Romero asked for additional discovery three times: once in October 2010 (a
8
month before the November 2010 discovery deadline), once in 2011, and once in
2013. The district court denied the first motion without explanation, it never answered
the second motion, and it denied the third motion in the same order in which it granted
the Defendants’ motion for summary judgment (the order now on appeal).
The Court wishes to emphasize that in the ordinary course, district courts
should not ignore litigants’ motions or deny them without explanation. Nonetheless,
for two reasons, the district court did not abuse its discretion in refusing to allow
additional discovery here. Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th
Cir. 2002) (refusal to reopen discovery is reviewed for abuse of discretion). First, as
the district court correctly noted, Romero failed to conduct the depositions at issue at
any time during the two-year period between 2008, when the litigation was first filed,
and November 2010, when discovery closed. Thus, Romero did not “diligently
pursue[] [her] previous discovery opportunities.” Panatronic, 287 F.3d at 846.
Second, although Romero sought the depositions (at least in part) to identify the
“doe” defendants, she had received a list of NDOC employees who fit the description
of the “does” in August 2009 in the Defendants’ responses to her interrogatories.
Nonetheless, she never sought leave to amend her complaint to add those employees
9
as defendants.1 Thus, Romero has failed to demonstrate “how allowing additional
discovery would have precluded summary judgment,” Panatronic, 287 F.3d at 846,
and the district court did not abuse its discretion in denying Romero’s motion to
reopen discovery.
AFFIRMED.
1
At oral argument, Romero’s counsel maintained that Romero had moved to
amend her complaint to add these defendants. Counsel then filed with the Court a
copy of an opposition brief that was stricken from the district court docket for
being oversized. In the stricken brief, Romero asked the court for leave to amend
her complaint to add the additional defendants. In the brief that she refiled to
comply with the district court’s length requirements, however, she did not make
this request.
Because the oversized brief was stricken from the district-court docket, it is
not part of the record on appeal, and this Court may not consider it. See Fed. R.
App. Proc. 10(a) (defining the record on appeal as consisting of, inter alia, “the
original papers and exhibits filed in the district court”). In any case, the district
court did not abuse its discretion by declining to address Romero’s request for
leave to amend her complaint, because it was not made in a properly filed brief.
10
FILED
Romero v. Nevada Dept. of Corrections, No. 14-17204
DEC 08 2016
THOMAS, Chief Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with much of the majority’s disposition, but respectfully disagree in
part.
I
I agree with the majority that the district court did not err in: (1) granting
Defendants’ motion for summary judgment as to Romero’s claim of deliberate
indifference to Beltran’s medical needs; (2) entering summary judgment on
Beltran’s children’s claims; and (3) denying Romero’s motion to reopen discovery.
II
As to the claims of deliberate indifference to Beltran’s safety and
constitutional rights, it is undisputed that Beltran was murdered by a fellow inmate
who had announced to prison officials his intention to kill his cellmate, and who
had a history of violence. Despite the warnings, Beltran was housed with the
inmate, who then killed him. Those undisputed facts would seem sufficient to
survive a summary judgment motion. But the problems in this case are that (1)
Romero largely named the wrong defendants, and (2) the district court–incorrectly
-1-
in my view–refused to consider evidence tendered by Romero when ruling on the
summary judgment motion.
A
First, to the law. The Eighth Amendment serves to ensure that those of our
citizens who are imprisoned shall not suffer “cruel and unusual punishments.”
U.S. Const. amend. VIII. “Prison officials have a duty to protect prisoners from
violence at the hands of other prisoners.” Hearns v. Terhune, 413 F.3d 1036, 1040
(9th Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)) (internal
quotations and alterations omitted). A prison official’s failure to protect an inmate
in his custody from attack by another inmate is a violation of the Eighth
Amendment if the resulting harm is “objectively, sufficiently serious,” and the
prison official acted with “deliberate indifference.” Id. (quoting Farmer, 511 U.S.
at 834). “Deliberate indifference entails something more than mere negligence but
is satisfied by something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.” Id. (quoting Farmer, 511
U.S. at 835) (internal quotations and alterations omitted). Beltran died in custody;
the parties do not dispute that this is sufficiently serious to trigger Eighth
Amendment scrutiny. Prison officials also were aware of the risk of harm to
Beltran.
-2-
The district court based its summary judgment conclusion in large part on its
sua sponte decision not to consider certain evidence because the evidence was not
authenticated by affidavit. However, a longstanding rule of authentication is that
documents may be authenticated by having been produced in discovery. See e.g.
Orr v. Bank of Am., 285 F.3d 764, 777 (9th Cir. 2002); Maljack Prods., Inc. v.
GoodTimes Home Video Corp., 81 F.3d 881, 889 n.12 (9th Cir. 1996) (concluding
that “[t]he district court did not err in considering the documents as indicators of
MPI’s motivation . . . [because] MPI produced the documents to GoodTimes, many
of the documents were on MPI letterhead and MPI does not contest their
authenticity”); see also 31 Fed. Prac. & Proc. Evid. § 7105 (1st ed.)
(“Authentication can also be accomplished through judicial admissions such as
stipulations, pleadings, and production of items in response to subpoena or other
discovery request.”). The records at issue in this case were produced by the
Defendants in discovery. At no point in the litigation did the Defendants contest
the authenticity of these records. Therefore, in my view, the district court erred in
deciding, sua sponte, not to consider these records.1
1
Although I believe the district court should have considered the records, I
commend the district court for a thorough examination of the record, claims, and
defenses. The district court was faced with a messy record in a difficult case that
had been litigated for over five years.
-3-
The majority asserts that Romero waived any argument about the
admissibility of her evidence by failing to argue that she would be able to admit
this evidence at trial or that it was produced by Defendants in discovery and is
therefore admissible. Such an interpretation of the Federal Rules of Civil
Procedure is untenable. Under Rule 56(c)(1), the party opposing summary
judgment may “assert[] that a fact . . . is genuinely disputed [and] must support the
assertion by: (a) citing to particular parts of materials in the record . . . .” The party
seeking summary judgment may then “object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.”
Fed. R. Civ. P. Rule 56(c)(2). Thus, a party opposing summary judgment need not
preemptively demonstrate that her evidence would be admissible at trial. Rather,
she need only comply with the Rule’s requirements (including that the evidence be
authentic or capable of being authenticated) in order to have her evidence
considered by the district court.
With the benefit of consideration of the documents excluded by the district
court, Romero had tendered sufficient evidence to show, in general, that prison
officials had knowledge of the risk of harm to Beltran, and that there was a genuine
issue of material fact as to whether the prison officials acted in deliberate
indifference to that known risk. The evidence in the record that the district court
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chose not to consider includes evidence that Potter was an “Aryan Warrior,” that
Beltran was convicted of sexual assault, that Potter previously violently assaulted
fellow inmates and cell mates and thrice informed DOC caseworkers of his
intention to assault or murder any cell mate with whom he was housed, that the
caseworkers informed the warden of Potter’s threats, and that Potter in fact
murdered Beltran while both men were in custody. There also was evidence in the
record that Aryan Warriors are known generally to condone and perpetrate violent
assaults on sexual offenders, and, in this instance, members of the Aryan Warriors
were charged in a federal RICO indictment for conspiracy and the murder of
Beltran. This evidence, if considered, would have been sufficient to raise a triable
issue of fact as to the prison officers’ “deliberate indifference” to Beltran’s safety.
See Farmer, 511 U.S. at 842 (“[A]n Eighth Amendment claimant need not show
that a prison official acted or failed to act believing that harm actually would befall
an inmate; it is enough that the official acted or failed to act despite his knowledge
of a substantial risk of serious harm.”). Thus, appropriately considered, the
tendered evidence was sufficient for Romero to create a genuine issue of fact on
the deliberate indifference claim.
-5-
B
The question, then, is whether Romero tendered sufficient evidence of a
causal connection to the named Defendants to survive summary judgment. I agree
with the majority and the district court that as to many of the named Defendants,
the answer is “no.” Indeed, the actual housing decision appears to have been made
by a prison official who was not named as a defendant in this case. There is no
record evidence that Officers Howes, Stolk, Otero, and Landon were involved in
the decision to house Beltran with Potter, nor that these Officers were deliberately
indifferent to any risk perceived at the time of the incident. There is also no
evidence that the caseworkers to whom Potter conveyed the threats had anything to
do with the housing decision or had any authority over housing. Nor is there any
evidence of a causal connection between Director Wharton and the events alleged
in the complaint. Thus, I agree with the district court and the majority that
summary judgment was appropriately entered in favor of these Defendants.
However, I respectfully disagree that Romero has failed to raise a genuine
issue of material fact as to the Warden’s liability. The Warden was informed of the
risk and certainly had the ultimate authority to take action as to housing. Indeed,
the housing policy at issue bears the Warden’s signature. Of course, whether
Romero could prevail at trial on the claim is another question, but at the summary
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judgment stage all she need do is establish the existence of a genuine issue of
material fact.
It is also worth noting that the district court concluded that a question of fact
remains with regard to Romero’s state law wrongful death claim. “With respect to
the duty of prison officials to protect inmates from attacks by other inmates, [ . . .
the Nevada Supreme Court] defines the duty as one of reasonable care to prevent
intentional harm or to avoid an unreasonable risk of harm, when such harm is
foreseeable.” Butler ex rel. Biller v. Bayer, 168 P.3d 1055, 1059 (Nev. 2007). The
Defendants argued they owed no duty to Beltran because Potter’s attack was
unforeseeable. But the district court denied the Defendants’ motion for summary
judgment on this issue, noting that “a question of fact exists as to whether Moving
Defendants were ‘on notice’ that Potter’s gang affiliation, Beltran’s own gang-
related classification, and Beltran’s sexual assault conviction, and Potter’s history
of violence against other inmates—four facts that Moving Defendants do not
contest—made it foreseeable that celling these inmates together put Beltran in
unreasonable risk of harm.” The district court then relinquished supplemental
jurisdiction and remanded the wrongful death claim to Nevada state court.
Although the standards for an Eighth Amendment violation and a state law
wrongful death claim are different—deliberate indifference versus duty to avoid an
-7-
unreasonable risk of harm—the facts offered to support both claims were the same.
Therefore, in sum, I agree with the majority as to almost all issues.
However, I respectfully disagree that Romero did not establish a genuine issue of
material fact as to her claim against the Warden.
Therefore, I concur in part and respectfully dissent in part.
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