Paris Cherer v. Frazier , 465 F. App'x 681 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PARIS CHERER, No. 09-16077
Plaintiff - Appellant, D.C. No. 2:06-CV-00502-PMP-
LRL
v.
DEPUTY CHIEF FRAZIER; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Paris Cherer, a federal prisoner, appeals pro se from the district court’s
summary judgment and judgment as a matter of law in his 42 U.S.C. § 1983 action
alleging constitutional violations arising from his confinement at the Las Vegas
*
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). Accordingly, Cherer’s
request for oral argument is denied.
Detention Center. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Mangum v. Action Collection Serv., Inc., 575 F.3d 935, 938 (9th Cir. 2009).
We may affirm on any ground supported by the record. McSherry v. City of Long
Beach, 584 F.3d 1129, 1135 (9th Cir. 2009), cert. denied, 131 S. Ct. 79 (2010).
We affirm.
Defendants were entitled to qualified immunity on Cherer’s claims
concerning confinement in Intake Room 7A, where Cherer could be viewed by
female guards and inmates, because there was no clearly established law at the
time to give defendants notice that their conduct violated any constitutional right.
See Pearson v. Callahan, 555 U.S. 223, 243-45 (2009) (officers were entitled to
qualified immunity because their actions did not violate clearly established law);
Grummet v. Rushen, 779 F.2d 491, 494-95 (9th Cir. 1985) (no constitutional
violation where female officers had restricted views of male prisoners while
disrobing, showering, and using toilet). Accordingly, summary judgment was
proper on these claims.
The district court properly granted summary judgment on Cherer’s claim
concerning the removal of his mattresses because Cherer conceded that he was
given another mattress within hours of when the mattresses were taken. See
Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005) (“‘The circumstances,
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nature, and duration of a deprivation of [] necessities must be considered in
determining whether a constitutional violation has occurred.’” (citation omitted)).
The district court properly granted judgment as a matter of law on Cherer’s
claim concerning denial of access to hygiene supplies because the evidence
showed that defendants either took steps to remedy the problem once they learned
about it or were not personally involved in the violations, and thus no reasonable
juror could find that defendants violated Cherer’s constitutional rights. See
Mangum, 575 F.3d at 939 (judgment as a matter of law is proper “‘if no reasonable
juror could find in the non-moving party’s favor’” (citation omitted)); Anderson v.
County of Kern, 45 F.3d 1310, 1312-13 (9th Cir. 1995) (setting forth deliberate
indifference standard); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)
(“Liability under section 1983 arises only upon a showing of personal participation
by the defendant.”).
Summary judgment was also proper against defendants in their official
capacities. See Brandon v. Holt, 469 U.S. 464, 471-72 (1985) (a claim against a
public official in his or her official capacity is the same as a claim against the
governmental entity); Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir.
2007) (a municipality is liable under § 1983 only if the unconstitutional conduct is
caused by a municipal policy or custom, or by a failure to train officials properly);
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Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (there is no municipal liability if
there is no underlying constitutional violation).
We do not address Cherer’s claims concerning the temperature of Intake
Room 7A, the denial of his legal papers, and outdoor exercise, because Cherer did
not specifically and distinctly argue these claims in his opening brief. See Entm’t
Research Grp., Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir.
1997) (“‘We review only issues which are argued specifically and distinctly in a
party’s opening brief. We will not manufacture arguments for an appellant, and a
bare assertion does not preserve a claim . . . .’” (citation omitted)).
Cherer’s remaining contentions are unpersuasive.
AFFIRMED.
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