Oray Fifer v. United States , 649 F. App'x 426 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 25 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ORAY P. FIFER, No. 14-15275
Petitioner - Appellant, D.C. No. 2:12-cv-01753-NVW
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted April 7, 2016
Pasadena, California
Before: FERNANDEZ and BEA, Circuit Judges and MENDOZA,** District Judge.
Plaintiff-Appellant Oray Fifer (“Fifer” or “Appellant”) appeals the district
court’s grant of summary judgment in favor of the government on his Federal Tort
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Salvador Mendoza, Jr., District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
Claims Act (“FTCA”) assault and battery claims for damages to compensate Fifer
for a claimed eye injury caused by prison officials’ efforts to quell a prison riot.
We review a grant of summary judgment de novo, Olson v. Morris, 188 F.3d
1083, 1085 (9th Cir. 1999), and may uphold the district court’s determination only
if the movant (here, the United States) can show that “there is no genuine dispute
as to any material fact and [the United States] is entitled to judgment as a matter of
law,” Fed. R. Civ. Proc. 56(a). Here, genuine disputes as to questions of material
fact exist which preclude summary judgment. Accordingly, we reverse the lower
court’s judgment and remand for further proceedings consistent with this
disposition.
I.
The FTCA “authorizes private tort actions against the United States ‘under
circumstances where the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or omission
occurred.’” U.S. v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. §
1346(b)(1)). Here, that place is Arizona. Applying Arizona law, we first hold that
the district court erred to the extent it concluded that the record contained “no
evidence of battery.” Under Arizona law, an actor commits battery “if the actor [1]
intentionally [2] engages in an act [3] that results in [4] harmful or offensive
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contact with the person of another.” Duncan v. Scottsdale Med. Imaging, Ltd., 70
P.3d 435, 438 (Ariz. 2003). Here, two correctional officers admitted that they [1]
intentionally [2] fired bullets at Fifer. [3] As a result, [4] multiple rubber bullets
hit Fifer in the head; one hit his left eye, causing permanent harm. Fifer has made
a prima facie case of battery under Arizona law.
The question is whether the government has established its affirmative
defense that its use of force against Fifer was justified as a matter of law under
Arizona Revised Statutes § 13-403(2). That statute provides that “[a]
superintendent or other entrusted official of a jail, prison or correctional institution
may use physical force for the preservation of peace, to maintain order or
discipline, or to prevent the commission of any felony or misdemeanor.” Id.; see
also Pfeil v. Smith, 900 P.2d 12, 14 (Ariz. Ct. App. 1995) (stating that Section 13-
403 is an “affirmative defense in civil lawsuits”).
Appellant argues that § 13-403(2) applies only to government (i.e., “public”)
employees, and is therefore unavailable to the United States when the United
States’ liability is measured by that of a private person, as the FTCA requires. We
reject this argument because its premise is flawed: § 13-403(2) is available to
“private” persons. Unlike other provisions of the same statutory scheme, e.g.,
Ariz. Rev. Stat. §§ 13-414, 13-416, the text of § 13-403(2) does not limit its
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application to only private, or only public, prison officials. We therefore need not
decide the more difficult question whether governing FTCA jurisprudence
precludes the United States from invoking state-law defenses applicable only to
“public” correctional officers.
However, we agree with Appellant that material factual disputes are made
out by the record—(1) whether Fifer was complying with an official order to return
to his cell when he was shot, (2) whether Fifer was down on hands and knees at the
time he was shot, and (3) whether prison officials intentionally, but needlessly,
targeted Fifer’s head and face. These disputes prevent us from finding that the
United States’ actions were justified under § 13-403(2) as a matter of law.
Section 13-403(2) does not give prison officials carte blanche to use any and all
force against prisoners when quelling a prison riot. See State v. Bojorquez, 675
P.2d 1314, 1317 (Ariz. 1984) (interpreting § 13-403(2) as justifying only “that
amount of physical force necessary to maintain order within the prison” (emphasis
added)). A reasonable jury could therefore conclude that—while custodial
officers’ use of force to suppress the prison riot is generally justified—their use of
force against Fifer was not reasonably “necessary” to maintain prison order, to
preserve the peace, or to prevent the commission of a crime.
II.
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Appellant argues for the first time on appeal that the district court erred in
failing to read into his pro se complaint an additional claim based on state-law
negligence (i.e., that prison officials negligently induced Fifer to proceed into
harm’s way by issuing conflicting orders). But even were we to acknowledge that
the liberal pleading rules which govern pro se complaints would permit us to
construe Fifer’s complaint as stating a negligence claim, any such negligence claim
is waived in this appeal by virtue of Fifer’s failure to pursue any theory sounding
in negligence in his opposition to the United States’ motion for summary
judgment. See Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008) (finding that a
plaintiff had failed to preserve an Establishment Clause claim on appeal because,
even assuming his pro se complaint could be liberally construed as stating such a
claim, the prisoner had clearly abandoned the issue in his opposition to summary
judgment). Fifer’s cited cases merely require this court to construe pro se
complaints liberally and “afford the petitioner the benefit of any doubt.” E.g.,
Wilhelm v. Rotman, 680 F.3d 1113, 1121, 1123 (9th Cir. 2012). They do not
require us to overlook Fifer’s later abandonment of any negligence claim.
III.
For all the reasons set forth herein, we REVERSE the district court’s
judgment and REMAND for further proceedings consistent with this disposition.
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