White

901 F.2d 1501 William M. WHITE, Plaintiff-Appellant, v. Sergeant ROPER, Deputies Devin, Miller, O'Dowd, De La Pena, Willock, as day-shift employees at San Francisco County Jail no. 2, 7th Floor, 850 Bryant Street, San Francisco, California, Defendants-Appellees. No. 89-15243. United States Court of Appeals, Ninth Circuit. Submitted Jan. 11, 1990 * . Decided May 1, 1990. Michael N. Burt, Deputy Public Defender, City and County of San Francisco, San Francisco, Cal., for plaintiff-appellant. Geoffrey Spellberg, Deputy City Atty., San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before WIGGINS, THOMPSON and TROTT, Circuit Judges. DAVID R. THOMPSON, Circuit Judge: 1 William M. White appeals the district court's grant of summary judgment in his 42 U.S.C. Sec. 1983 action in favor of Sergeant Roper and Deputies Devin, Miller, O'Dowd, De La Pena, and Willock (collectively, "the deputies") of the San Francisco County Jail. White contends genuine issues of material fact exist as to his claims that Sergeant Roper was deliberately indifferent to White's personal safety while he was confined in jail, and that…

William M. White appeals the district court’s grant of summary judgment in his 42 U.S.C. § 1983 action in favor of Sergeant Roper and Deputies Devin, Miller, O’Dowd, De La Pena, and Willock (collectively, “the deputies”) of the San Francisco County Jail. White contends genuine issues of material fact exist as to his claims that Sergeant Roper was deliberately indifferent to White’s personal safety while he was confined in jail, and that Sergeant Roper and the jail deputy defendants used excessive force in subduing White when he resisted being put into another inmate’s cell. We affirm as to the excessive force claim, but reverse as to the deliberate indifference claim.

FACTS

On February 13, 1986, White, a pretrial detainee at the San Francisco County Jail, was reassigned from his cell to a cell occu *1503 pied by inmate David Shaw. Sergeant Roper took White to Shaw’s cell and ordered White to go inside. Shaw blocked the entrance to his cell, stating that he did not want anyone else in his cell. White then refused to enter Shaw’s cell and backed away from the entrance, moving down the cell block corridor. After securing the entrance to Shaw’s cell, Sergeant Roper and some of the…

dissenting:

I dissent.

It must be especially remembered that White seeks damages because of injuries sustained by him as the result of “force used by Sergeant Roper and the deputies to subdue him after he backed away from Shaw’s cell.” Maj.Op. p. 3597. No claim is made for injuries as a result of being forced into Shaw’s cell or from Shaw.

The circumstances surrounding the attempted placing of White into Shaw’s cell are relevant to White’s claim for damages only insofar as those circumstances might explain and perhaps justify White’s backing away from the cell. But those circumstances do not justify White’s remaining at large and out of control within the prison. The officers had a duty to retake custody of White. White had no right to resist being retaken into custody and to the extent that he did so, the officers had the right to use reasonable force to accomplish this lawful objective.

*1508 The majority claims that White is entitled to present to a jury the questions of whether Sergeant Roper knew or should have known (1) that attempting to force White into Shaw’s cell would cause White to resist; (2) that in resisting White might “back away,” compelling the prison guards…