*1 throughout ties be heard the fifteen Decree,
years developing joint the Consent NEVADA DEPARTMENT OF COR- statements, and the Action Plan in the RECTIONS, political subdivision of “meet-and-confers,” form of negotiations, Nevada; McDaniel, State E. K. objections, motions, hearings. and The individually and in his capaci- official terms of the Consent Decree Action and ty; Whorton, Individually Glen and sufficiently specific satisfy Plan are capacity; his Howes, official in- Trent requirements process. notice of due dividually capacity; his official negotiated State and consented Stolk, individually Jason and in his Consent Fifth Decree and the Joint State- capacity; Landon, official Theresa in- position ment. It is “now in no to object to dividually in his capacity; official rely vagueness or to on the [them] Otero, Ofc., individually and in his language [their] as a defense.” United capacity; Drain, official “Casework (9th Schafer, States 600 F.2d er”, individually and in his official detailed, Cir. The Action Plan is a capacity; Candliss, “Counselor”, R. in sixty-five page adopts document dividually capacity; his official 50-51; terms from the IDEA. PER See Does, I-X, inclusive; Roes, I-X, inclu 1416; § U.S.C. 34 C.F.R. 300.600-608. sive, Defendants-Appellees. The terms of the IDEA routinely in- No. 14-17204 See, terpreted e.g., courts. enforced T.A., Forest Grove Sch. Dist. v. Court Appeals, United States 2008) (articulating 1088-89 Ninth Circuit. relevant factors be considered inter- Argued and Submitted October IDEA). preting “appropriate” relief under Francisco, 2016 San California AFFIRMED.3 Filed December ROMERO, Special Helen Jane Ad as Anthony of the
ministrator Estate Beltran, deceased; Anthony Gilbert G. Beltran, Jr., child, minor heir as Anthony Beltran; Gilbert Britnie Ni Beltran, child,
cole a minor heir Beltran; Anthony Gilbert Christian Beltran, child, Leo Clifford minor Anthony Beltran, heir Gilbert Plaintiffs-Appellants, pending-motions 3. All are denied. *2 *
MEMORANDUM 28, 2006, On December Anthony Bel- tran, Ely an inmate at State Prison Nevada, fatally stabbed his cell- mate, Douglas mother, Potter. Beltran’s *3 Romero, Helen brought this lawsuit against Nevada, Department the Nevada (“NDOC”), of Corrections and various employees (collectively, NDOC the “Defen- dants”), alleging protect from Beltran Potter. Romero asserted vio- lations Beltran’s and Fourteenth rights Amendment under 42 U.S.C. § as well as claims for state-law death, wrongful negligent supervision, and liability. vicarious She asserted these claims on minor behalf chil- dren. years delays, of litigation
After the dis- granted trict court the Defendants’ motion for judgment summary as to Romero’s claims, § 1983 and remanded the remain- ing state-law claims to state court. appeals only grant court’s judgment. summary jurisdiction We have pursuant to 28 af- U.S.C. and we firm.
I. argues
Romero first the dis trict court abused its discretion refus ing to her on consider evidence Potter, IV, Esquire, Attorney, Cal J. America, v. Bank Orr judgment. NV, Offices, Vegas, Potter Law Las for 2002) (evidentiary Plaintiffs-Appellants rulings for of discre are reviewed abuse tion). Leslie, At hearing on the Defendants’ Esquire, Deputy Clark Assis- G. motion, General, summary judgment Attorney tant district AGNV—Nevada General, repeatedly pointed court out that much of Office of the Carson Attorney NV, documentary was unau City, for Romero’s evidence Defendants-Appellees Despite warnings,
thenticated. these THOMAS, Judge, Before: Chief Romero did not to authenticate attempt IKUTA, BEA Judges. during period Circuit her two-month * disposition appropriate publica- This is not for Ninth Circuit Rule 36-3. precedent except provided tion and is not as may respon- been employees have of the NDOC hearing and date
between to live with assigning for sible district court’s order. Potter, employees may these only argues that the appeal, Romero On assignment placed have known evidentiary ruling an of harm. De- Beltran at an increased risk it because was made abuse discretion that Romero knew the iden- spite the fact argument unper- find this sponte. sua We early August tity of these individuals 56(f)(2)(explic- P. See Fed. R. Civ. suasive. of them were as defen- none named itly providing action the time between in this dants sponte sua after grant summary hearing on the De- August 2009 and the giving losing party “notice and rea- fendants’ motion Although respond”). Rule sonable time 2013. October amended in to eliminate the *4 that evidence unequivocal requirement A. at must be submitted authenticated, of raises re- None evidence the amended Rule still Romero’s of material fact either genuine such be admis- issue that quires that evidence “would Whorton, NDOC, of or the director at Fed. R. Civ. P. Glen sible evidence” trial. E.K, McDaniel, 56(c)(4). Ely of State argue Romero does not that she warden to Prison, “deliberately indifferent” proffer been able to her evi- would have Brennan, safety. v. 511 form trial. Nor Farmer dence admissible at does Beltran’s 825, 834, 1970, L.Ed.2d 114 S.Ct. 128 argue she that her evidence was authenti- U.S. (1994). to Nothing in record tends produced by it was the De- 811 cated because arguments prove either these two Defendants fendants These waived, to house therefore and we need not was involved with decision argues that sustain Beltran with Potter. Romero consider whether would im responsible for challenge district these Defendants were Romero’s to the court’s FAA, to Bel- plementing policies v. that led evidentiary rulings. Greenwood 28 flawed (9th 1994) death, has to demon (arguments Cir. tran’s but she failed challenged policy was “so any court or in the strate that made before district waived). repu policy opening [was] brief are deficient itself appellant’s rights,” of constitutional Hansen
diation II. Black, 885 F.2d Thus, grant court’s the district sum Even if did err mary judgment as to Romero’s claims refusing to consider evidence Romero’s against Director and Warden Whorton to the opposition submitted Defendants’ McDaniel not error. was summary judgment, motion for that error harmless, was because Romero’s evidence B. genuine did raise a issue of material gen- liability fact as to the Nor does Romero’s evidence raise any Defendant Orr, any uine fact Beltran’s death. issue material (“[We] in this court un- correctional officers sued action— must affirm Howes, Stolk, manifestly evidentiary ruling less its Officers Trent Jason Robert was Indeed, Otero, “delib- prejudicial.”). and Theresa Landon—were erroneous safety. to erately Defendants’ to Romero’s inter- indifferent” answers Again, rogatories some of docu- none of Romero’s tends Romero’s evidence mentary prove any of suggest evidence that other these Defendants were with the involved decision house Beltran sion house any Beltran with Potter. In Indeed, case, with Potter. Romero has failed year notes were sent full before any adduce evidence that Officers Beltran, Stolk Potter attacked and in the inter- Otero were in the leading im, involved events Potter had lived with two other cell- up to Beltran’s death. Officer Landon was without mates incident. Romero therefore one the correctional officers who re- genuine failed raise a issue material occurred, sponded stabbing to the after it as to fact Drain’s and Chambliss’s “delib- explain but Romero does not how Officer safety, erate indifference” to Beltran’s “deliberately Landon’s conduct was indif- grant judg- safety. health or ferent” Beltran’s in favor of ment Chambliss and Drain was error, has adduce demonstrating that Officer Howes, who handcuffed Beltran immedi D. Potter, ately prior to his being stabbed Romero has also failed to adduce evi- “deliberately indifferent” to Beltran’s dence of the Defendants were Nothing in safety. the record suggests that deliberately indifferent Beltran’s medi- Officer Howes was aware Potter’s inten Gamble, cal Estelle needs. 429 U.S. Beltran, tion to attack or even that Potter (1976). 97 S.Ct. L.Ed.2d Moreover, likely so. if do even it *5 Romero dispute does not that medical were constitutional violation for Officer team on the was scene within minutes Howes to in handcuff Beltran his cell while attack, the nor explain does she how a unrestrained, leaving Potter as Romero ar speedier response medical in- would have gues, this fact was not “clearly estab creased chances Beltran’s of survival. The lished” at the time the incident. Pearson grant summary district court’s judg- Callahan, 223, 224, 555 129 S.Ct. U.S. this ment on claim was therefore not error. 808, 172 (2009). L.Ed.2d 565 Officer Howes
is qualified therefore immunity, entitled E. and the district grant in his favor not error. challenges Romero § court’s decision dismiss the 1983 C. brought claims she on behalf Beltran’s Romero has also failed to demon minor adopts children. Section 1983 its strate Michael Drain and Robert survivorship law the law the forum Chambliss, caseworkers, two NDOC state, Wegmann, 436 Robertson v. U.S. “deliberately indifferent” Beltran’s safe 1991, 584, 590, 98 S.Ct. 56 554 L.Ed.2d ty. proffered Romero notes that Pot three (1978),which is Nevada. Under here Neva 2005, sent to Drain ter and Chambliss in in law, only the da or administra “executor which Potter told the caseworkers that he tor” of can sue on the deceased’s estate the did want a cellmate that if deceased’s behalf. Rev. Stat. Nev. him, placed one with he would assault that 41.100(3). § no Romero has adduced evi This, argues, inmate. Romero should have dence have been children put Chambliss and Drain on notice that appointed as executors administrators housing Beltran with Potter would dan be Thus, of Beltran’s estate. children gerous to Beltran. 1983 claims on Beltran’s be assert nothing But in suggests Vegas the record half. Metro. Police Moreland Las either caseworker Dep’t, was involved in the deci- (refusal discovery is reopen reviewed
III. discretion). First, as the dis- for abuse argues that Finally, Romero noted, Romero correctly trict its de court abused discretion at depositions at issue to conduct discovery. reopen nying motion her period between during two-year time discovery so sought additional Romero filed, litigation first when the McDaniel, depose that she could Warden discovery when November Landon, Howes, Kay Officer Officer Thus, “diligently Romero did closed. Weiss, originally depositions were whose discovery opportu- previous pursue[ ] [her] 2010 but were September scheduled Panatronic, at 846. 287 F.3d nities.” conflict with defense to a cancelled due Second, sought the de- although Romero Romero). (according to counsel’s schedule (at identify part) least in positions depositions, of these purposes One defendants, a list of she had received “doe” identify explained, was description fit employees is, NDOC who the NDOC em “doe” defendants—that in Defen- August in of the “does” to house ployees who made the decision interrogatories. to her responses dants’ Potter but whose identities Beltran with Nonetheless, sought leave she never to Romero. were unknown employ- complaint her to add those amend discovery for additional Romero asked Thus, Romero has as defendants.1 ees (a month times: once October three allowing “how addi- failed to demonstrate discovery November dead- before the precluded discovery tional would have line), in 2013. The and once once Panatronic, summary judgment,” motion the first with- district court denied not abuse court did and the district explanation, it never answered the sec- out motion denying Romero’s its discretion motion, it the third motion ond denied reopen granted in which it the same order AFFIRMED. motion for Defendants’ *6 (the appeal). order now on THOMAS, concurring in Judge, Chief emphasize that in The Court wishes in part: part dissenting and course, courts ordinary district should majority’s I of the dis- agree with much deny motions or them ignore litigants’ part. disagree in position, respectfully but Nonetheless, for explanation. two without reasons, its court did abuse I refusing to allow additional discretion Panatronic agree majority I with the dis- USA AT&T discovery here. (1) 2002) (9th granting Corp., trict court did not err in: 846 Cir. 287 F.3d stricken the oversized brief was argument, counsel Because 1. At oral Romero's main- docket, part tained had moved to amend her it is not that Romero from the district-court complaint these defendants. Counsel may to add appeal, on and this Court the record Fed, copy opposi- a of an 10(a) (de- then with the Court filed App. consider it. See R. Proc. tion brief that was stricken from the district of, consisting fining appeal as record on being In the for oversized. strick- docket alia, original papers exhibits "the inter brief, court for leave to en Romero asked the case, court”). In filed complaint amend to add the additional her by its discretion district court did not abuse she refiled to defendants. In the brief that request declining to address Romero's length comply re- with the district complaint, it was leave amend her because however, make this quirements,- she did not properly filed brief. not made request.
647 summary judgment Farmer, motion for indifference.” Id. (quoting Defendants’ 511 as to Romero’s claim of deliberate indiffer- U.S. S.Ct. “Deliberate (2) needs; something indifference entails than medical more ence Beltran’s enter- negligence mere but by is satisfied ing summary judgment on Beltran’s chil- some- thing less than claims; (3) acts omissions for the denying Romero’s dren’s very purpose causing harm or with reopen discovery. motion to
knowledge that harm will result.” Id. Farmer, (quoting 511 U.S. at II 1970) (internal quotations S.Ct. and altera- As to the claims deliberate indiffer- omitted). tions Beltran in custody; died safety ence to Beltran’s constitutional parties dispute do not this is suffi- it is rights, undisputed that Beltran was ciently to trigger Eighth serious Amend- by murdered who fellow inmate had scrutiny. ment Prison officials also were prison announced to his officials intention aware the risk of harm to Beltran. cellmate, to Mil his a history and who had The district court based its Despite warnings, of violence. large part conclusion in on its inmate, housed with the who then sponte sua not to decision certain consider undisputed Mlled him. Those facts would because the evidence was not au- summary judg- seem sufficient to survive However, long- thenticated affidavit. problems ment motion. But the in this case standing rule of is doc- authentication (1) largely Romero named the by having uments be authenticated defendants, (2) wrong produced been e.g. See Orr v. court—incorrectly in my view-refused Am., (9th Bank Cir. consider evidence tendered 2002); Prods., Maljack Inc. v. GoodTimes ruling when on Corp., Home Video n.12 motion. 1996) (concluding that “[t]he dis- in considering trict court not err did A as indicators of documents motiva- MPI’s First, to the law. Amend- ... produced tion MPI [because] the docu- ment serves to those of our ensure GoodTimes, many ments the docu- imprisoned citizens who are shall not suf- on ments MPI letterhead and MPI punishments.” fer “cruel and U.S. unusual authenticity”); does not contest their see Const, amend. “Prison officials have VUI. 31 Fed. Prac. & Proc. Evid. *7 duty protect prisoners a to from violence (1st ed.) (“Authentication can also be ac- prisoners.” at the hands of Hearns other complished through judicial admissions Terhune, such stipulations, pleadings, pro- and- 2005) Brennan, (quoting Farmer response duction in subpoena items to U.S. 114 S.Ct. 128 L.Ed.2d discovery or other request.”). The records (1994)) (internal quotations and altera- at in produced by issue this case were the omitted). tions A prison official’sfailure to in point Defendants At no in the protect custody an inmate in at- his from litigation the did the Defendants contest by Therefore, tack another inmate is a of the authenticity violation in these records. resulting view, if my erred, Amendment the harm the district court in decid- serious,” “objectively, sufficiently is and ing, sponte, sua not to consider these rec- prison the official with ords.1 acted “deliberate records, Although I the I
1. believe the district court should have considered commend the Romero or cell mate whom majority asserts that sault murder The with housed, in the that the caseworkers any argument about admissibil- he was waived threats, by failing argue to that ity of her evidence formed the warden Potter’s to this at she be able admit evidence would that Potter in murdered Beltran while fact by produced or that it was Defen- custody. trial were in There also was both men discovery in is therefore admis- Aryan in dants the that Warri evidence record of the Feder- interpretation Such an sible. to generally ors are condone known of Civil Procedure is untenable. al Rules on sexual of perpetrate violent assaults 56(c)(1), party opposing Rule fenders, instance, Under and, in members this a summary judgment may that “assert[] Aryan charged in a Warriors must genuinely disputed [and] ... is fact conspiracy for federal RICO indictment (a) by: citing par- support assertion evidence, and the of Beltran. This murder in rec- of materials parts ticular considered, if have been sufficient would ” seeking summary party .... The ord prison of fact as to the raise a triable issue “object then that the mate- to Bel officers’ “deliberate indifference” can- dispute or a fact support rial cited to Farmer, 511 safety. U.S. tran’s See in form presented not be a would be that (“[A]n Eighth Amendment S.Ct. 1970 in R. Civ. P. evidence.” Fed. admissible prison offi claimant need that show 56(c)(2).Thus, party opposing sum- Rule believing or that cial acted failed to act mary judgment not preemptively need inmate; an it is actually harm would befall be demonstrate that her evidence would enough or that the official acted Rather, only she admissible at trial. need knowledge of a despite act his substantial (in- requirements comply with the Rule’s harm.”). Thus, appropriate risk serious cluding that the be authentic evidence considered, ly evidence was the tendered authenticated) capable being in order genuine sufficient Romero create dis- her evidence considered have of fact on the indifference issue deliberate trict court. claim. the benefit consideration With B court, by the excluded
documents then, is question, sufficient The whether Romero had tendered evidence show, of a causal general, prison officials tendered sufficient evidence of harm to connection to named Defendants knowledge had of the risk Beltran, agree I with genuine summary judgment. survive there was a majority court issue of fact as to whether and the district material Defendants, many of the named officials acted indiffer- prison deliberate Indeed, housing to that answer is “no.” the actual ence known risk. evidence appears decision been made the record that the district chose have prison as a to consider that Potter official who was named evidence includes Warrior,” is no defendant case. There record “Aryan an this Howes, Stolk, Otero, assault, that Potter Officers convicted sexual *8 in- and Landon were involved the decision previously violently assaulted fellow Potter, nor informed to house Beltran mates and cell mates and thrice with deliberately to indifferent DOC his intention as- these Officers were caseworkers of litigated for thorough of difficult case that been over court for had examination record, claims, years. The district the and defenses. five messy in a with a court was faced record viction, any perceived risk at the history time the Potter s of violence against is also no other incident. There evidence that the inmates—four facts that conveyed Moving Potter caseworkers whom the Defendants do not contest—made do anything celling had to with the it foreseeable that threats hous- these inmates ing any authority together put decision or had over Beltran in unreasonable risk housing. is there of a of harm.” The district court Nor then relin- supplemental jurisdiction quished causal connection Director Whar- and re- between alleged in wrongful ton and the the com- manded the events death claim to Neva- Thus, I plaint. agree with state court. Although da the standards for majority summary judgment an Amendment violation and a appropriately wrongful in favor of claim entered these state law death differ- duty Defendants. indifference versus ent—deliberate an risk of avoid unreasonable harm—the However, I respectfully disagree that facts offered to both claims support genuine Romero has failed to raise issue same. of material fact as to the Warden’s liabili- ty. The was informed the risk Warden Therefore, sum,-1 agree with the ma- certainly authority to had the ultimate However, jority as almost all issues. I Indeed, housing. take action as to respectfully disagree that Romero did housing policy at issue bears Warden’s genuine establish issue material fact course, signature. Of whether Romero against her claim Warden. prevail could the claim is trial on anoth- Therefore, part I respect- concur in question, er but at the fully part. dissent stage all she is establish the exis- need do genuine of a tence issue material fact. noting
It is also worth that the district question court concluded that of fact regard with to Romero’s state law remains wrongful respect death claim. “With
duty prison protect officials inmates inmates, from attacks other [... Supreme duty defines Court] Nevada prevent one of care to reasonable inten- tional harm or to an unreasonable avoid harm,
risk when such harm is foresee- America, UNITED STATES Bayer, Butler ex Biller able.” rel. Plaintiff-Appellee, (2007). Nev. P.3d argued duty no Defendants owed Potter’s attack was un- because NEMAN, aka Shervin Shervin foreseeable.' But the district court denied Davatgarzadeh, Defendant- summary judg- Defendants’ motion for Appellant. issue, noting question on this that “a ment Moving fact exists as Defen- whether No. 15-50087 gang Avere ‘on notice’ that Potter’s dants
affiliation, gang-related Appeals, clas- United States Court OAvn sification, and Beltran’s sexual assault con- Ninth Circuit.