FILED
NOT FOR PUBLICATION MAY 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MILES O. BONTY, No. 12-15075
Plaintiff - Appellant, D.C. No. 5:10-cv-05360-LHK
v.
MEMORANDUM *
J. RAMSEY, Correctional Officer; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Submitted May 14, 2013 **
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
California state prisoner Miles O. Bonty appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate
indifference, excessive force, and retaliation. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
Cir. 2004), and we affirm.
The district court properly granted summary judgment on Bonty’s deliberate
indifference claim because, even though defendants likely knew of a substantial
risk of serious harm to Bonty’s safety as a result of another inmate’s threats, Bonty
failed to raise a genuine dispute of material fact as to whether they consciously
disregarded such a risk. See Farmer v. Brennan, 511 U.S. 825, 833-35, 844 (1994)
(setting forth elements of deliberate indifference and noting that prison officials are
not liable if they knew of an objectively substantial risk to inmate safety but
responded reasonably to the risk, even if the harm ultimately was not averted).
The district court properly granted summary judgment on Bonty’s excessive
force claim because, even though defendants likely used force prematurely to
prevent an inmate assault from escalating, Bonty failed to raise a triable dispute as
to whether the force they used was objectively unreasonable or meant to
maliciously or sadistically harm him. See Whitley v. Albers, 475 U.S. 312, 320-21,
324-26 (1986) (setting forth elements of excessive force claim, and concluding that
officer’s use of force in a good-faith effort to restore discipline during a prison riot
was not unconstitutional despite the officer’s failure to give a verbal warning
before shooting inmate).
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The district court properly granted summary judgment on Bonty’s retaliation
claim because Bonty failed to raise a triable dispute as to whether defendants’
conduct was motivated by retaliatory animus or failed to advance valid penological
interests. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (setting forth
elements of retaliation); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)
(preserving internal order and security is a valid correctional goal).
The district court did not abuse its discretion in denying Bonty’s motion for
reconsideration because Bonty failed to establish that the erroneous exclusion of
certain properly-subscribed declarations in opposition to summary judgment was
prejudicial or satisfied one of the grounds for reconsideration. See Sch. Dist. No.
1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)
(setting forth standard of review and listing grounds warranting reconsideration
under Fed. R. Civ. P. 60(b)); see also Orr v. Bank of Am., NT&SA, 285 F.3d 764,
773 (9th Cir. 2002) (exclusion of evidence on summary judgment only constitutes
an abuse of discretion if it is “manifestly erroneous and prejudicial” (emphasis in
original; citations omitted)).
Bonty’s contentions regarding the allegedly erroneous exclusion of his
opposition and sur-reply briefs on summary judgment are unpersuasive.
AFFIRMED.
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