NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA PETERSON, No. 20-35203
Plaintiff-Appellant, D.C. No. 3:17-cv-01702-IM
v.
MEMORANDUM*
MARSHA MCCORKHILL; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Karin J. Immergut, District Judge, Presiding
Submitted June 9, 2021**
Portland, Oregon
Before: WARDLAW, TALLMAN, and HURWITZ, Circuit Judges.
Jessica Peterson, an Oregon state prisoner, asserted claims under 42 U.S.C.
§ 1983 against several officials of the Coffee Creek Correctional Facility after
Correctional Officer Edgar Mickles sexually abused her. Peterson obtained a default
judgment against Mickles, but the district court entered summary judgment in favor
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of the remaining defendants. We affirm.
1. The district court did not abuse its discretion by declining to take
judicial notice of three civil cases alleging abuse at Coffee Creek. Because the civil
cases were either dismissed or settled, there were no adjudicative facts either
“generally known within the trial court’s territorial jurisdiction” or possessing
accuracy that could not “reasonably be questioned.” Fed. R. Evid. 201(b); see also
Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001).
2. The district court did not abuse its discretion by declining to take
judicial notice of various criminal prosecutions and news articles. Judicial notice is
required only “if a party requests it and the court is supplied with the necessary
information.” Fed. R. Evid. 201(c)(2). Peterson supplied no evidence of the
judgments for which she sought judicial notice, nor did she make any request for
judicial notice of specific adjudicative facts in those cases. She also identified no
articles for which judicial notice was sought.
3. The district court did not abuse its discretion in declining to consider a
deposition transcript excerpt lacking the reporter’s certification. See Orr v. Bank of
Am., NT & SA, 285 F.3d 764, 774 (9th Cir. 2002); Canada v. Blain’s Helicopters,
Inc., 831 F.2d 920, 925 (9th Cir. 1987). In any event, the exclusion of the deposition
transcript excerpt did not prejudice Peterson. She asserts the transcript was
“corroborating evidence” of the absence of cameras in the Programs Building, where
the abuse occurred. But, the district court found that Peterson had already
established that through her own declaration.
4. Peterson’s challenge to the summary judgment on her Eighth
Amendment failure-to-supervise claim fails. Peterson first contends that
Correctional Corporal Robert Nelson, who walked in on Mickles and Peterson on
one occasion, was liable for failing to report the sexual activity he witnessed. But
Peterson provided no evidence that Nelson had official supervisory authority over
Mickles; nor did she provide evidence that Nelson induced Mickles to violate her
constitutional rights. See Lacey v. Maricopa Cnty., 693 F.3d 896, 916 (9th Cir. 2012)
(en banc).1
5. Peterson also claims that some of the defendants were liable for failing
to place surveillance cameras in the Programs Building. But Peterson failed to
provide evidence that these defendants either were personally involved in or were
responsible for any action or omission that led to the assault. See Lemire v. Cal.
Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013). The mere fact
that some defendants had responsibility for facility security did not preclude
summary judgment. See Hansen v. Black, 885 F.2d 642, 645–46 (9th Cir. 1989);
1
We decline to reach Peterson’s argument, raised for the first time on appeal,
that Nelson could be liable for failing to intercede when a fellow officer violates the
constitutional rights of a suspect or other citizen. See Tibble v. Edison Int’l, 843
F.3d 1187, 1193 (9th Cir. 2016) (en banc).
Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir. 2018).
6. Peterson argues that the district court ignored evidence supporting
supervisory liability of Lieutenant Lester Kiser, Mickles’ direct supervisor. But
Peterson offered no evidence that Kiser was “personally involved in the
constitutional deprivation” or that there was “a sufficient causal connection”
between his actions or omissions and Mickles’ conduct. Lemire, 726 F.3d at 1074–
75 (quoting Lolli v. Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003)).
AFFIRMED.