FILED

NOT FOR PUBLICATION

JUN 9 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN DWAYNE BROWN, No. 18-56603

Plaintiff-Appellant, D.C. No. 2:15-cv-06050-FMO-JEM v.

TREJO, Deputy Sheriff; DONALD MEMORANDUM* HINTON, Custody Assistant, in Individual and Official Capacity; CATHERINE CHAVERS YANES, Private Investigator #25489, in Individual and Official Capacity,

Defendants-Appellees,

and

SERGIO TREJO,

Defendant.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted June 5, 2020 **

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges

Steven Brown appeals the district court’s grant of summary judgment in

favor of the defendants in his pro se prisoner civil rights action. He also appeals

the district court’s denial of his motion for sanctions for spoliation of evidence.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the summary

judgment order de novo. Gordon v. County of Orange, 888 F.3d 1118, 1122 (9th

Cir. 2018). We review the district court’s spoliation of evidence order for an abuse

of discretion and any factual findings, including bad faith and prejudice, for clear

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

Summary judgment was proper for Deputy Trejo on Brown’s excessive

force claim. To prevail on his claim, Brown needed to establish “that the force

purposely or knowingly used against him was objectively unreasonable.” Kingsley

v. Hendrickson, 576 U.S. 389, 135 S.Ct. 2466, 2473 (2015). We assess the

reasonableness of force “from the perspective of a reasonable officer on the scene,”

using the facts known to the officer at the time and considering the legitimate

security interests of the jail. Id. Brown, who had a violent criminal history, was a

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 2 high security inmate. It was reasonable for jail officers to place him in hand cuffs

and a waist chain when moving him within the jail. Cuffs were applied and

removed through the tray slot while Brown remained in his cell. The handcuffs

were not too tight when the deputy secured them, escorted Brown to the law

library, and left Brown in the law library cage. Brown caused the cuffs to tighten

by attempting to free himself after the deputy left the law library. Brown did not

tell the deputy that the cuffs were too tight until the deputy and another deputy

were escorting Brown and two other high security inmates back to their cells. A

reasonable officer in the circumstances would have waited to loosen the cuffs until

Brown was returned to his cell.

Brown claims that being left handcuffed in the law library violated several

of his constitutional rights. The access to the courts and self-representation claims

fail because Brown did not establish actual injury or that the incident had any

impact on his criminal case. Alvarez v. Hill, 518 F.3d 1152, 1155 n. 1 (9th Cir.

2008) (requiring proof of actual injury for an access to the courts claim); see also

Nordstrom v. Ryan, 856 F.3d 1265, 1271 (9th Cir. 2017) (requiring proof of

substantial prejudice for a self-representation claim). Nor did the incident rise to

the level of punishment. Because the cuffs were not too tight when the deputy left

Brown in the law library, Brown cannot establish that the deputy intentionally

3 placed Brown at a substantial risk of suffering serious harm. Castro v. County of

Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc) (setting forth the

elements of the claim). Brown would have suffered only the normal condition of

being restrained during confinement if he had not tried to remove the cuffs by

himself. Finally, summary judgment was proper on the medical care claim.

Brown did not tell the deputy that he was injured or ask for medical care. In any

event, Brown obtained minor care from the nurse later the same day. Brown failed

to establish that the deputy intentionally placed Brown at substantial risk of

suffering serious harm or acted in an objectively unreasonable way. Gordon, 888

F.3d at 1124-25 (setting forth the elements of the medical care claim).

Defendant Hinton was entitled to summary judgment on Brown’s claims that

confiscation of newspaper articles violated Brown’s First Amendment right to

receive mail, denied Brown access to the courts or his right to self-representation,

and amounted to retaliation. The newspapers articles about other inmates and

former jail employees were properly seized as contraband pursuant to a policy that

served a legitimate government interest of protecting other inmates and former

staff. First Amendment rights to receive mail may be limited by regulations that

“are reasonably related to legitimate penological interests”, including prison

security. Nordstrom, 856 F.3d at 1272 (internal quotation marks omitted).

4 Because the articles were properly seized to protect other inmates and former staff,

Brown cannot establish that Hinton seized the mail in retaliation for Brown

engaging in protected conduct or that the action did not reasonably advance a

legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

2005) (setting forth the elements of a First Amendment retaliation claim). Brown

also failed to establish that he suffered the actual injury necessary to prevail on his

access to the courts claim or the substantial prejudice required for his self-

representation claim. Alvarez, 518 F.3d at 1155 n.1; Nordstrom, 856 F.3d at 1271.

There is no evidence that Andrew Smith, who sent the articles, was involved in

Brown’s defense or any other lawsuit or that the seized newspaper articles were

relevant in any way to Brown’s criminal case.

The district court properly granted summary judgment in favor of defendant

Hinton on Brown’s claims arising out of Hinton’s failure to investigate Brown’s

missing pro per phone funds. Pursuant to policy, Hinton was not required to

investigate the lost funds until Brown provided a criminal affidavit stating that he

had nothing to do with the loss of his personal identification number and obtained

a court order for a new number. Policy required the criminal affidavit because

inmates trade and sell personal identification numbers. Although Brown knew

about both requirements, he did not file the criminal affidavit or obtain a court

5 order. Therefore, Brown cannot establish elements of his retaliation claim, that

Hinton failed to investigate because of Brown’s protected conduct or that the

action did not reasonably advance a legitimate correctional goal. Rhodes, 408 F.3d

at 567-68 (setting forth the elements of a First Amendment retaliation claim).

Summary judgment was also proper on the access to the courts and self-

representation claims because Brown did not establish that the lost personal

identification number had any impact on his criminal case. Alvarez, 518 F.3d at

1155 n.1 (requiring proof of actual injury for access to the courts claims);

Nordstrom, 856 F.3d at 1271 (requiring proof of substantial prejudice for self-

representation claims). Moreover, Brown had a court-appointed investigator who

visited him at the jail, frequently and regularly visited the law library, and filed

numerous motions with the court.

The district court properly granted summary judgment for defendants Hinton

and Yanes on Brown’s claim that they conspired to interfere with his attorney-

client relationship with an intern from the ACLU. Brown failed to establish that

the defendants conspired to intentionally deprive him of constitutional rights.

Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (setting forth the

conspiracy requirements). At most, Brown speculated that Hinton and Yanes

agreed to interfere with his conversation with the ACLU intern, who was gathering

6 information for the jail conditions report. In addition, Brown did not prove that the

ACLU was representing him, that the intern ended the interview because of the

alleged interference, or that Brown was injured. The official capacity claims

against defendants Hinton and Yanes also fail because there is no evidence of a

policy or custom that violated Brown’s constitutional rights. Castro, 833 F.3d at

1073.

Finally, the district court did not abuse its discretion by denying Brown’s

motion for spoliation of evidence and refusing to sanction defendants by entering

judgment against them. There is no evidence that the defendants altered either the

inmate cell transfer log or video of Brown being escorted to the law library. Nor is

there evidence that the defendants intentionally destroyed video from the law

library. In any event, Brown cannot establish prejudice from the lost video. He

wanted the law library video to prove that he was left cuffed in the law library

cage, a fact that the district court assumed to be true for purposes of summary

judgment.

AFFIRMED.

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