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Banks v. McDonald

United States Court of Appeals, Ninth Circuit
Nov 14, 2003
81 F. App'x 227 (9th Cir. 2003)

Summary

In Banks, a prisoner in his cell, in an angry and upset state, intentionally threw his television on the cell floor and told Officer Robison that "someone was going to get hurt."

Summary of this case from Williams v. Young

Opinion

Submitted November 10, 2003.

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

State inmate, proceeding pro se, appealed grant of summary judgment, by the United States District Court for the District of Arizona, Paul G. Rosenblatt, J., in favor of prison guard, in inmate's § 1983 action alleging that guard's use of a chemical agent on inmate violated the Eighth Amendment. The Court of Appeals held that: (1) guard did not use excessive force when she sprayed inmate six or seven times for refusing orders to cuff up; (2) guard was not liable for any insufficient decontamination of cell and failure to allow inmate to shower for 48 hours; and (3) inmate was not entitled to any extension of discovery deadlines.

Affirmed. Appeal from the United States District Court for the District of Arizona; Paul G. Rosenblatt, District Judge, Presiding.

John J. Banks, Buckeye, AZ, pro se.

James Russel Morrow, Office of the Attorney General, Daniel P. Schaack, dag, Attorney General Office, Phoenix, AZ, for Defendant-Appellee.


Before KOZINSKI, SILVERMAN, and TALLMAN, Circuit Judges.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Arizona state prisoner John J. Banks appeals pro se the district court's summary judgment in favor of a prison guard in his 42 U.S.C. § 1983 action alleging the guard violated the Eighth Amendment by spraying Banks with a chemical agent for not following orders. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003), and we affirm.

The district court properly granted summary judgment on Banks' excessive force claim because Banks failed to raise a genuine issue for trial because he presented no facts to support that being sprayed six or seven times for refusing orders to cuff up constituted excessive force. The undisputed evidence shows that McDonald warned Banks that refusing to cooperate would result in his being sprayed and that McDonald stopped spraying Banks once he complied. See Clement v. Gomez, 298 F.3d 898, 903 (9th Cir.2002).

The district court properly granted summary judgment on Banks' deliberate indifference claim alleging that his cell was not sufficiently decontaminated and cleaned, and that he did not receive a shower for 48 hours after being sprayed. McDonald submitted evidence that she instructed that Banks' cell be cleaned and new bedding be issued when Banks was taken to the Health Unit immediately after being sprayed. Banks submitted no evidence demonstrating that McDonald was aware that her instructions had not been carried out to his satisfaction. See id. at 904-5.

To the extent that Banks contends that summary judgment was improperly granted because he lacked access to a law library, this contention fails because Banks' filings with the district court demonstrate that McDonald did not deny him access to the courts. See Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir.1999).

The district court did not abuse its discretion in denying Banks' Fed.R.Civ.P. 56(f) motion because Banks failed to specifically state what evidence he sought or

Page 229.

show that the desired evidence actually existed. See Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767, 775-76 (9th Cir.2003).

To the extent Banks contends that the district court erred in not filing his motions to recuse the district court judge, this contention fails because Banks submits no evidence that he submitted the motions for filing.

AFFIRMED.


Summaries of

Banks v. McDonald

United States Court of Appeals, Ninth Circuit
Nov 14, 2003
81 F. App'x 227 (9th Cir. 2003)

In Banks, a prisoner in his cell, in an angry and upset state, intentionally threw his television on the cell floor and told Officer Robison that "someone was going to get hurt."

Summary of this case from Williams v. Young

In Banks, the Ninth Circuit affirmed the district court's grant of summary judgment to McDonald because plaintiff "presented no facts to support that being sprayed six or seven times for refusing orders to cuff up constituted excessive force," and the "undisputed evidence shows that McDonald warned Banks that refusing to cooperate would result in his being sprayed and that McDonald stopped spraying Banks once he complied."

Summary of this case from Williams v. Young
Case details for

Banks v. McDonald

Case Details

Full title:John J. BANKS, Plaintiff-Appellant, v. Sergeant MCDONALD…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 14, 2003

Citations

81 F. App'x 227 (9th Cir. 2003)

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