The opinion
FILED
NOT FOR PUBLICATION MAY 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL M. ZELLMER, No. 12-35028
Plaintiff - Appellant, D.C. No. 2:10-cv-01288-MJP
v.
MEMORANDUM*
DOW CONSTANTINE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Washington state prisoner Joel M. Zellmer appeals pro se from the district
court’s judgment in his 42 U.S.C. § 1983 action alleging excessive force and
deliberate indifference to medical needs during his pretrial detention. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Gibson v. County of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Washoe, Nev., 290 F.3d 1175, 1180 (9th Cir. 2002) (summary judgment); Resnick
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A);
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal
under 28 U.S.C. § 1915(e)(2)). We affirm in part, reverse in part, and remand.
The district court properly dismissed defendant Constantine because Zellmer
failed to show that Constantine had any personal involvement in the alleged
violations. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (“Liability
under [§] 1983 arises only upon a showing of personal participation by the
defendant.”).
The district court properly granted summary judgment on Zellmer’s medical
deliberate indifference claim because Zellmer failed to raise a genuine dispute of
material fact as to whether he received inadequate care or whether defendants
consciously disregarded a substantial risk to his health. See Toguchi v. Chung, 391
F.3d 1051, 1057 (9th Cir. 2004) (prison officials act with deliberate indifference
only if they know of and disregard a “substantial risk of serious harm” to prisoner).
The district court properly granted summary judgment on Zellmer’s
excessive force claim against all defendants except the officer who applied the
handcuffs because Zellmer failed to raise a triable dispute as to whether those
defendants knowingly left him in too-tight handcuffs for a prolonged period of
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time. See Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (“The qualified
immunity standard gives ample room for mistaken judgments by protecting all but
the plainly incompetent or those who knowingly violate the law.” (citation and
internal quotation marks omitted)); see also Galen v. County of Los Angeles, 477
F.3d 652, 667 (9th Cir. 2007) (plaintiff is “required to establish that the County had
a deliberate policy, custom, or practice that was the ‘moving force’ behind the
constitutional violation he suffered[]” (citation omitted)).
However, the district court abused its discretion in denying Zellmer’s motion
to add as a named defendant the officer who applied the handcuffs, whom Zellmer
identified in his declaration as Officer Tomlin. See DCD Programs, Ltd. v.
Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (noting standard of review and stating
that the policy of favoring amendments to pleadings should be applied with
“‘extreme liberality’”) (citation omitted)). We therefore direct the district court to
allow Zellmer to add Officer Tomlin as a defendant, and we remand for further
proceedings.1
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
1
The district court may wish to reexamine the medical records attached to
Zellmer’s response to defendants’ motion to dismiss.
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