Simmons v. Arnett

47 F.4th 927

Kevin Angelo SIMMONS, Plaintiff-Appellant,

v.G. ARNETT; Romo, Sgt, individual capacity; M. Lopez, Nurse, individual capacity, Defendants-Appellees.

No. 20-55043

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2022 Pasadena, California

Filed August 31, 2022

Michael D. Seplow (argued), Schonbrun Seplow Harris Hoffman & Zeldes LLP, Culver City, California; David Wilson (argued) and Jonathan Widjaja (argued), Certified Law Students, University of California School of Law, Irvine, California; Peter Afrasiabi, One LLP, Newport Beach, California; for Plaintiff-Appellant.

Cassandra J. Shryock (argued) and Kevin Voth, Deputy Attorneys General; Neah Huynh, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.

Before: Consuelo M. Callahan and Lawrence VanDyke, Circuit Judges, and Janet Bond Arterton,^* District Judge.

Opinion by Judge Callahan ;

Partial Concurrence and Partial Dissent by Judge Arterton

CALLAHAN, Circuit Judge:

A prison guard shot inmate Kevin Simmons with three sponge-tipped plastic rounds during a prison fight, breaking Simmons's leg and injuring his butt and thigh. Following the fight, a prison nurse assessed Simmons's injuries and transferred him to an emergency room without fully completing her notes or conducting a full body examination. Simmons later filed this lawsuit against the guard and the nurse, alleging that they had violated his rights under the Eighth Amendment to the U.S. Constitution. The district court entered summary judgment against Simmons, finding that even when viewing all the evidence in the light most favorable to Simmons, the guard and nurse had not violated his constitutional rights. Simmons now appeals.

We affirm the district court. The district court correctly concluded that there was no constitutional violation. We further hold that the guard and nurse are protected by the doctrine of qualified immunity, which protects government officials from civil liability when they are accused of violating constitutional rights that are not clearly established.

BACKGROUND

I. The Prison Fight

Simmons is 57 years old and has spent much of his life in prison. For the past 11 years, he has been serving a life sentence without the possibility of parole at California State Prison, Los Angeles County, a large facility in the Mojave Desert, just north of Los Angeles. During this incarceration—his second at the facility—Simmons found work as a prison barber. Five days a week, he went to each of the prison's five buildings to give haircuts to inmates.

Simmons intended to work on Thanksgiving Day 2013. When he arrived at his assigned building that morning, nothing appeared out of the ordinary. A lone guard sat in a control booth overlooking the two floors of prison cells and the common yard, where sixteen to eighteen inmates gathered. Simmons recognized some of the inmates in the yard as members and associates of a gang known as the Two-Fivers, including an associate named Salvador Murillo.

Simmons asked the guard in the control booth if he could walk around the cells and sign inmates up for haircuts. The guard assented. Simmons then heard several Two-Fivers ask the guard if they could sit together at a table in the common yard. The guard agreed to this as well. Sign-up sheet in hand, Simmons began his rounds on the building's second floor. He had climbed up the stairs and was chatting with another inmate when the yard below went quiet.

A sudden commotion ended the momentary silence. Simmons looked down at the yard, where Two-Fivers were punching and slapping Murillo—not at full force, but hard enough that Murillo had, in Simmons's words, "his nose and his mouth busted." After about twenty-five or thirty seconds, the guard in the control booth told the inmates to stop "horse-playing." The scuffle stopped.

Bloodied, Murillo crossed the yard and climbed stairs to the second floor, where Simmons was speaking with another inmate. Murillo walked past Simmons, then suddenly turned around and struck him in the head, right above his left ear. Murillo continued to hit Simmons, who says he did not fight back.

The guard in the control booth—Garth Arnett—immediately responded to the fight. He activated the building alarm and announced on the prison-wide radio that two inmates were fighting. Typically, prison staff responded to such calls for help within thirty to forty-five seconds. Arnett says he ordered Murillo and Simmons to stop fighting, although Simmons says he heard no such command.

At this point, Arnett's choices were limited. Prison policy forbade him from leaving the control booth because it would then be unmanned. But staying in the booth and doing nothing could result in severe injury or death to Simmons, Murillo, or other inmates who might join the fighting. In the booth, Arnett had two weapons that he could use to try to stop the fight: (1) a Mini-14, a semiautomatic rifle that shot live rounds with deadly force, and (2) a 40mm launcher that shot less-lethal sponge rounds, high-speed projectiles consisting of plastic bodies and foam noses.

Arnett chose to use the 40mm launcher. Because Simmons was between Arnett and Murillo, Arnett could not shoot Murillo. Arnett fired a round at Simmons from about 10 yards away, aiming for Simmons's legs and avoiding his groin, consistent with protocol for use of the launcher. The round hit and broke Simmons's left leg. Arnett says that he kept ordering the two inmates to stop fighting, without any success. Arnett fired two more rounds at Simmons, hitting him in his butt and thigh. After Arnett fired the third round—about thirty to forty-five seconds after he had sounded the alarm—other prison staff arrived and Murillo and Simmons immediately laid prone and stopped fighting.

II. The Fight's Aftermath

Prison staff immediately took Simmons on a gurney to the prison's medical room to receive medical care. There, Simmons met Michelle Lopez, a licensed vocational nurse on duty that day. Lopez asked Simmons what had happened to him. Simmons answered, "no comment." Lopez transcribed this response onto her forms. One of the other prison staff noticed that Simmons's pants were wet and commented on them. Simmons then told Lopez that he "sat in some water." Lopez crossed out her previous comments and wrote that Simmons had "slipped in water." Eventually, Simmons told Lopez that he had been shot on his backside. On her forms, Lopez wrote that Simmons had lower leg pain, but she did not record any other injuries. Lopez quickly recognized that Simmons needed a higher level of medical care and had him transferred to the prison's emergency room. The forms Lopez filled out were not sent with Simmons nor did they establish the basis for his treatment. Prison officials stabilized Simmons's leg, gave him pain medication, and transported him to a local hospital. There, he was diagnosed with a fractured leg, which was surgically repaired the next day. Simmons's butt and thigh were not treated until three days after Lopez examined Simmons. By then, Simmons says, his bloodied clothing had dried into his wounds such that it had to be painfully torn away. Simmons was then discharged, but he has permanent nerve damage and now walks with a cane.

III. This Lawsuit

A few years after the fight, Simmons filed this civil rights lawsuit in federal court. In the operative complaint, Simmons alleges that Arnett and Lopez violated his Eighth Amendment rights. Arnett and Lopez moved for summary judgment. The district court granted their motion and entered judgment against Simmons. Now Simmons appeals.

LEGAL STANDARDS

We have jurisdiction to review the district court's grant of summary judgment and entry of judgment because they are the district court's final decisions. See 28 U.S.C. § 1291. We review an order granting summary judgment de novo but can affirm on any ground supported by the record, even when the district court did not address that same ground. Geurin v. Winston Indus., Inc. , 316 F.3d 879, 882 (9th Cir. 2002) ; Venetian Casino Resort, LLC v. Local Joint Exec. Bd. , 257 F.3d 937, 941 (9th Cir. 2001). We affirm a grant of summary judgment if "there is no genuine dispute as to any material fact" when viewing the record in the light most favorable to the nonmoving party, such that the moving party "is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Celotex Corp. v. Catrett , 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one that is needed to prove (or defend against) a claim, as determined by the applicable substantive law. Nat'l Am. Ins. Co. v. Underwriters , 93 F.3d 529, 533 (9th Cir. 1996).

DISCUSSION

The applicable substantive law in this case is rooted in the Eighth Amendment, which commands that "cruel and unusual punishments [shall not be] inflicted" by the government. U.S. Const. amend. VIII. Simmons accuses Arnett and Lopez of violating this dictate: Arnett by using excessive force when quelling the fight between Murillo and Simmons and Lopez by being deliberately indifferent to Simmons's medical needs following the fight. Arnett and Lopez both counter that they did not violate Simmons's constitutional rights.

Arnett and Lopez also raise the affirmative defense of qualified immunity, which protects government officials who violate constitutional rights from civil liability if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct....