Jack Robert Smith v. JESSE HENDERSON, Psychiatric Technician, in his/her official and individual capacity

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK ROBERT SMITH,

Plaintiff-Appellant,

v.

JESSE HENDERSON, Psychiatric
Technician, in his/her official and individual
capacity,

Defendant-Appellee.

No. 19-55855

D.C. No.
5:17-cv-01135-JFW-KK

MEMORANDUM
*

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding

Submitted November 24, 2020
**

San Francisco, California

Before: D.W. NELSON, LEAVY, and SILVERMAN, Circuit Judges.

California civil detainee Jack Robert Smith appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging Fourteenth
Amendment excessive force claims. We have jurisdiction under 28 U.S.C. § 1291.

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

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

NOV 24 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
We review de novo a district court’s summary judgment and qualified immunity
determination. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). We
reverse.
Smith alleges that a psychiatric technician at a California state mental
hospital where Smith had been civilly committed intentionally injured him twice
while the two were playing basketball, hitting him once in the eye and once in the
mouth. Both injuries required medical treatment, and the eye required stitches.
The amended Report and Recommendation (“R&R) takes as true that the
technician was a state actor, that the injuries were intentional, and that they were
intended as punishment. The R&R then concludes that qualified immunity should
be granted on summary judgment because there is no specific case clearly
establishing the unconstitutionality of the intentional infliction of excessive force,
with the deliberate intention to punish an inmate, in the course of an athletic game.
The Supreme Court has made clear that a plaintiff challenging qualified
immunity must point to precedent that “squarely governs” the facts at issue.
Mullenix v. Luna, 577 U.S. 7, 13 (2015) (per curiam) (emphasis omitted) (quoting
Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per curiam)). There is no sense to
a ruling, however, that the cases only establish the prohibition against the use of
intentional excessive force in the back of police cars and in prison cells but not
anywhere else. If the defendant’s actions were intentional and intended to punish,

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allegations that the R&R finds are factually supported, we fail to see why it matters
that they occurred on a basketball court.
The law is clearly established that where a state actor intentionally used
excessive force for the deliberate purpose of punishing the plaintiff, and that force
used caused a significant physical injury, such actions violate the Fourteenth
Amendment. A.D. v. California Highway Patrol, 712 F.3d 446, 454 (9th Cir.
2013) (a police officer who acted with the purpose to harm a civilian, unrelated to
the legitimate law enforcement objectives of arrest, self-defense, or the defense of
others, violated the Fourteenth Amendment due process clause); Felix v.
McCarthy, 939 F.2d 699, 701-02 (9th Cir. 1991) (holding that a reasonable officer
in 1985 would have known that “an unprovoked and unjustified attack by a prison
guard” that caused bruising, soreness, and emotional damage would violate
constitutional rights). Accordingly, we reverse the district court as to summary
judgment for the defendant on qualified immunity grounds.
The issue upon remand for trial is whether defendant Henderson, a state
actor, denied Smith’s substantive due process rights under the Fourteenth
Amendment; that is, whether Henderson’s conduct is so egregious that it “shocks
the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 851-53 (1998). An
intentional infliction of injury for no lawful purpose can shock the conscience. See
Zion v. Cnty. of Orange, 874 F.3d 1072, 1077 (9th Cir. 2017). When participants

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agree to play basketball, however, they consent to the possibility of sports-related
injuries. Participants nevertheless do not consent to, or assume the risk of,
intentional and deliberate infliction of injury. Therefore, the remaining factual
dispute is whether Henderson’s conduct intentionally and deliberately exceeded the
level of Smith’s consent to play basketball so as to cause intentional injury that
meets the shock the conscience standard.
Smith’s motions to supplement the record (Docket Entry Nos. 11 and 14) are
denied.
REVERSED AND REMANDED.