Steven Brown v. Anthony Baudino

Opinion

FILED NOT FOR PUBLICATION MAR 18 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN DWAYNE BROWN, No. 19-56337

Plaintiff-Appellant, D.C. No. 2:15-cv-08924-FMO-JEM v.

ANTHONY BAUDINO, Lieutetnant MEMORANDUM* Deputy Sheriff #173164, individual and official capacity; JOSEPH MORALES, Sergeant Deputy Sheriff #486791, individual capacity; DYLAN BUTLER, Deputy Sheriff #602227, individual capacity; COUNTY OF LOS ANGELES,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding

Submitted March 16, 2021**

Before: SILVERMAN, CHRISTEN, and R. NELSON, Circuit Judges

* 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). Steven Dwayne Brown appeals the district court’s grant of summary

judgment in favor of the defendants in his pro se civil rights lawsuit alleging

excessive force and retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the district court’s grant of summary judgment de novo. Gordon v.

Cnty. of Orange, 888 F.3d 1118, 1122 (9th Cir. 2018). We affirm.

Summary judgment was proper for the defendants on the excessive force

claim. To prevail on his pretrial detainee excessive force claim, Brown needed to

establish that the “force purposefully or knowingly used against him was

objectively unreasonable” in light of the facts known to the defendants at the time

and the legitimate security interests of the jail. Kingsley v. Hendrickson, 576 U.S.

389, 397 (2015). The brief use of pepper spray against Brown followed by

immediate medical attention was objectively reasonable under the circumstances.1

Brown was designated as a high security inmate due to his history of violence. He

repeatedly refused multiple orders to return to his cell, sat down and blocked the

only entry and exit to module 1700 for 15 to 20 minutes, went limp when the

defendants attempted to lift and return him to his cell, and ignored repeated

warnings that he would be pepper sprayed if he refused to return to his cell. The

defendants had legitimate security interests in returning Brown to his cell and

1 The incident was recorded on video from two angles. 2 clearing the only entry and exit to the module. Contrary to Brown’s claim, the

district court properly applied the law.

The retaliation claims similarly fail because the use of pepper spray

reasonably advanced legitimate correctional security goals of returning Brown to

his cell and clearing the entryway to the module. See Rhodes v. Robinson, 408

F.3d 559, 567-68 (9th Cir. 2005) (setting forth the elements of a First Amendment

retaliation claim and requiring proof that “the action did not reasonably advance a

legitimate correctional goal”).

Summary judgment was proper for Los Angeles County because Brown did

not show that any constitutional right was violated. Tatum v. City and Cnty. of San

Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).

The district court acted within its discretion when it denied Brown’s motions

to compel without prejudice to renewal after consideration of the cross motions for

summary judgment. Brown has not identified what discovery he was denied or

established how the lack of evidence prejudiced him at the summary judgment

stage. Nor did the district abuse its discretion by denying Brown’s motion to

order defense counsel to drive over 285 miles to show Brown the already-produced

video of the incident. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002)

3 (holding that we review discovery orders for an abuse of discretion and affirm

unless the party establishes “actual and substantial prejudice”).

The district court acted within its discretion by denying Brown’s motion for

spoliation sanctions. Leon v. IDX Sys. Corp., 464 F.3d 951, 957-58 (9th Cir. 2006)

(setting forth the standard of review). Brown did not establish that defendants

were at fault or acted willfully or in bad faith in failing to preserve any evidence or

that he was prejudiced. See id. (requiring proof of willfulness, fault, or bad faith

and prejudice for the district court to enter judgment as a sanction).

Brown has not come forward with any facts to support his claim that the

magistrate judge was biased. See Taylor v. Regents of Univ. of Cal., 993 F.2d 710,

712 (9th Cir. 1993) (setting forth the recusal standard).

We decline to consider the new claim asserted by Brown for the first time on

appeal. Weber v. Dep’t. of Veterans Affs., 521 F.3d 1061, 1068 (9th Cir. 2008).

AFFIRMED.