United States v. 2015-11-25 | 13-16989 | TIMOTHY BARRY V. J. BISHOP | nonprecedential | memorandum…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY DEMOND BARRY, ) No. 13-16989
)
Plaintiff - Appellant, ) D.C. No. 2:08-cv-01722-PMP-GWF
)
v. ) MEMORANDUM*
)
J. BISHOP; N. ALBONICO, )
)
Defendants - Appellees. )
)
Appeal from the United States District Court
for the Eastern District of California
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted November 17, 2015
San Francisco, California
Before: FERNANDEZ and M. SMITH, Circuit Judges, and MORRIS,** District
Judge.
Timothy Demond Barry, a California prison inmate, appeals the district
court’s summary judgment in favor of prison officials, Sergeant Nickolus Albonico
and Lieutenant Jason Bishop, in Barry’s action against them under 42 U.S.C.
FILED
NOV 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The Honorable Brian M. Morris, District Judge for the U.S. District Court
for the District of Montana, sitting by designation.

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§ 1983 for violation of his rights under the Eighth Amendment to the United States
Constitution. We affirm.
Barry asserts that Albonico and Bishop used excessive force against him
after Albonico ordered an on-the-spot search of all of the approximately one
hundred inmates in an exercise yard where one inmate had been chased down and
stabbed to death. We disagree. While the vast majority of inmates complied,
Barry refused to comply with a public search as opposed to one in private.
Albonico directed that Barry be restrained (which included his being cuffed and
placed on his knees) and watched over by other officers until the search of the
other inmates was completed. While kneeling, Barry suffered burns to his knees.
The district court did not err when it determined that Albonico had not used
excessive force1 when he ordered that Barry be restrained on his knees pending the
search of the other inmates. The evidence presented by Barry was insufficient to
permit a reasonable trier of fact2 to determine that Albonico had demonstrated a
1See Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084, 89 L. Ed.
2d 251 (1986); see also Hudson v. McMillian, 503 U.S. 1, 6–7, 112 S. Ct. 995,
998–99, 117 L. Ed. 2d 156 (1992).
2See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 250–51, 106 S. Ct.
2505, 2511–12, 91 L. Ed. 2d 202 (1986); Lemire v. Cal. Dep’t of Corr. & Rehab.,
726 F.3d 1062, 1074 (9th Cir. 2013).
2

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“‘knowing willingness that [harm] occur,’”3 or applied force “‘for the very purpose
of causing harm,’”4 as opposed to “‘a good faith effort to maintain or restore
discipline.’”5 To the extent that Barry then asserts that excessive force was used
when he was required to keep kneeling even though he was suffering undue pain
and harm to his knees, the evidence will not support a determination that Albonico,
as opposed to his subordinates,6 was aware of that. Moreover, to the extent that
Barry now seeks to have the whole incident analyzed under the deliberate
indifference standard, he did not plead that theory,7 and, in any event, that standard
is not the proper one to use in the exigencies of this prison disturbance situation.8
And to the extent that Barry now asserts that there was deliberate indifference in
failing to obtain medical care for him after the yard incident ended, there was no
3Farmer v. Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970, 1978, 128 L. Ed.
2d 811 (1994); see also Hudson, 503 U.S. at 7, 112 S. Ct. at 999.
4Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013).
5Id.
6See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Ashcroft v.
Iqbal, 556 U.S. 662, 675–76, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009).
7See Thomas v. Ponder, 611 F.3d 1144, 1150–51 (9th Cir. 2010); Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
8See Whitley, 475 U.S. at 320, 106 S. Ct. at 1084; cf. Johnson v. Lewis, 217
F.3d 726, 734 (9th Cir. 2000) (inmates unnecessarily kept in inhumane situation
for days).
3

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evidence to support a determination that Albonico was responsible for that.9
What we have said regarding Albonico applies also to Bishop, with the
further reflection that there is even less evidence from which a reasonable trier of
fact could conclude that Bishop had any knowledge of the yard incident that
harmed Barry while it was proceeding.10
AFFIRMED.
9Because we find no violation, we need not, and do not, address qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 232, 236, 129 S. Ct. 808,
815–16, 818, 172 L. Ed. 2d 565 (2009).
10To the extent that Barry now asserts that we should reverse for an alleged
violation of Eastern District of California Local Rule 133(j), we disagree. That
issue was not brought to the attention of the district court. See Smith v. Marsh, 194
F.3d 1045, 1052 (9th Cir. 1999); Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th
Cir. 1996). Moreover, Barry has not shown any prejudice arising from the claimed
violation.
4

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