Jessica Peterson v. Marsha McCorkhill ( 2021 )


Menu:
  •                            NOT FOR PUBLICATION                           FILED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.