Toy Smith v. K. Cruse

MEMORANDUM

Plaintiff Toy Smith appeals the district court’s grant of summary judgment in favor of defendants K. Cruse, D. Melton, and N. Navarro on Smith’s claims under 42 U.S.C. § 1983 . Smith also appeals the district court’s denial of his request for appointment of counsel. Finally, Smith appeals the district court’s failure to rule on his negligence claim against Cruse and Melton under California law. We affirm in part, reverse in part, and remand.

We affirm the district court’s grant of summary judgment to Cruse, Melton, and Navarro on Smith’s § 1983 claims. Summary judgment was proper on Smith’s Eighth Amendment claim against Cruse and Melton because the conclusory allegations in Smith’s verified complaint are not sufficient to create a genuine dispute of material fact on whether Cruse or Melton actually knew that Smith’s enemy was be ing transferred into Smith’s facility. See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1048, 1052 (9th Cir.2002) (“[N]egli-gence, or failure to avoid a significant risk that should be perceived but wasn’t, ‘cannot be condemned as the infliction of punishment.’ ” (quoting Farmer v. Brennan, 511 U.S. 825, 838 , 114 S.Ct. 1970 , 128 L.Ed.2d 811…