Charles Manley v. Michael Rowley, et al

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, RONALD M. GOULD and MILAN D. SMITH, JR.) After briefing concluded on this matter, Appellees submitted a letter, purportedly pursuant to Fed. R. App. P. 28(j), accompanied by new evidence in support of summary judgment on Manley s excessive force claim. Manley then submitted a letter opposing Appellees submission. We construe Manley s letter as a motion to strike Appellees letter. (SEE FN 2 FOR FULL TEXT) Manley s motion to strike is granted because Appellees letter offers no new authorities, but rather seeks to supplement the record with new evidence. Each party shall bear its own costs on appeal. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Judge: DFO Concurring & dissenting, Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [10289192]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES MANLEY,
Plaintiff-Appellant,
v.
MICHAEL ROWLEY, Officer; ALAN
ZIMMER; GLENN HAMMOCK; SCOTT
MANNING; STATE OF NEVADA,
Nevada Department of Corrections;
E. K. MCDANIEL; RENEE BAKER,
Warden,
Defendants-Appellees.

No. 15-15320
D.C. No.
3:11-cv-00636RCJ-WGC
OPINION

Appeal from the United States District Court
For the District of Nevada
Robert C. Jones, District Judge, Presiding
Argued and Submitted December 14, 2016
San Francisco, California
Filed January 30, 2017
Before: DIARMUID F. O’SCANNLAIN, RONALD M.
GOULD, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by
Judge O’Scannlain

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MANLEY V. ROWLEY
SUMMARY *

Prisoner Civil Rights
The panel reversed in part and affirmed in part the
district court’s summary judgment and remanded with
instructions to assign this 42 U.S.C. § 1983 prisoner civil
rights action, alleging Eighth and Fourteenth Amendment
claims for excessive force and deliberate indifference, to a
different judge.
Reversing the district court’s summary judgment on the
excessive force claim, the panel held that the record
indicated that a genuine dispute of material fact existed
regarding whether appellees’ use of force resulted in the
unnecessary and wanton infliction of pain or suffering.
Affirming the district court’s summary judgment on
plaintiff’s deliberate indifference claim against Officer
Zimmer for failure to intervene, the panel held that plaintiff
failed to timely exhaust his administrative remedies as to that
claim.
The panel instructed that on remand the case be
reassigned to different judge. The panel concluded that the
district judge would have substantial difficulty in putting out
of his mind previously expressed views regarding past trial
outcomes when presiding over this matter on remand. The
panel further held that the district judge’s stated position

*

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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confirmed that reassignment was necessary to preserve the
appearance of justice.
Concurring in part and dissenting in part, Judge
O’Scannlain concurred in the decision on the merits. Judge
O’Scannlain dissented from the panel’s decision to reassign
on remand, stating that although the district court’s judge’s
inappropriate comments regarding past trials were highly
unusual and logically incoherent, they did not warrant the
extraordinary measure of reassignment.

COUNSEL
Matthew Cormack (argued), Katherine Cheng, and Greg
Andres, Davis Polk & Wardwell LLP, New York, New
York, for Plaintiff-Appellant.
Lawrence VanDyke (argued), Solicitor General; Clark G.
Leslie, Assistant Solicitor General; Adam Paul Laxalt,
Attorney General; Office of the Attorney General, Carson
City, Nevada; for Defendants-Appellees.

OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Charles Manley challenges the
district court’s entry of summary judgment for DefendantsAppellees, who are various prison officers and officials, on
Manley’s Eighth and Fourteenth Amendment claims for
excessive force and deliberate indifference. For the reasons
given in this opinion, we affirm in part, reverse in part, and

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remand with instructions to assign this case to a different
district judge.
FACTUAL AND PROCEDURAL BACKGROUND
This matter began on July 2, 2009 as the result of an
altercation between Manley and his cellmate at Ely State
Prison (ESP). Manley claims that he fought in self-defense,
and that he used the prison’s intercom system multiple times
to contact Correctional Officer Zimmer and request removal
from the cell. Zimmer denies receiving any such requests.
Some time later, Appellees Officer Rowley and
Lieutenant Jones “responded to reports of a fight” in
Manley’s cell. Manley and his cellmate were extracted from
their cell, and officers video-recorded the extraction, as
required by Nevada Department of Corrections (NDOC)
Administrative Regulation (A.R.) 405.07. Because only one
camera was used, after Manley’s extraction, the camera
panned away from Manley (in alleged violation of prison
policy) to focus on his cellmate’s removal. Manley alleges
that during this unrecorded interval, Officers Rowley and
Hammock punched, kicked, and stomped him while he was
restrained in handcuffs and leg irons. The video pans back
to Manley and shows him walking briefly, before officers
begin carrying him by his shackles. Lifting an inmate by his
restraints contravenes ESP training, but does not violate
NDOC policy.
Manley alleges that he suffered numerous injuries as a
consequence of this rough treatment. His prison medical
records reflect various injuries and physical complaints,
though they do not indicate the cause of his ailments. The
record also shows that on July 2, 2009, Manley was under
the influence of methamphetamine.

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Manley was charged in a disciplinary proceeding for his
July 2, 2009 conduct. Manley challenged the results of the
disciplinary proceeding through the prison grievance
process, wherein he claimed that the proceeding had not
complied with prison procedural requirements. Thereafter,
Manley received a new hearing, wherein the presiding
officer found him guilty of disobeying a correctional
employee, abusive language or actions, delaying, hindering,
or interfering with a correctional employee in the
performance of his duties, and assault and battery. Manley
then filed a second grievance, wherein he argued that the
second hearing was held outside of the 30-day timeframe
required by A.R. 707(d)(1). Manley also claimed in his
second grievance that he had “proved at [the] hearing” that
he had called Officer Zimmer “requesting to be removed
from [his] cell,” but that “by the time someone responded to
the cell [his] cell[mate] had already started the fight.”
Manley noted that Officer Zimmer “requested that
[Manley’s] cell be checked,” and that neither “he [Zimmer]
nor [the prison] [is] responsible for what happened in the
cell.” However, Manley also disclaimed any personal
responsibility for what happened since he was left in the cell
and had to defend himself. Finally, Manley requested that
the “charges [] be dismissed due to information given that
Manley requested to leave the cell before the fight.”
Manley’s second grievance was denied, and he pursued it
through two more levels of appeal, each of which denied his
grievance.
Manley filed a complaint in the District Court of Nevada
on July 22, 2011, and Appellees removed the matter to
federal district court in the District of Nevada on September
1, 2011. Manley then filed an amended complaint, asserting
claims for (1) deliberate indifference against Officer Alan
Zimmer for failure to intervene, and (2) cruel and unusual

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punishment against Officers Michael Rowley, Cameron
Horsley, Glenn Hammock, and Scott Manning for their
alleged use of excessive force in removing and restraining
Manley on July 2, 2009, all in violation of the Eighth and
Fourteenth Amendment. 1 The parties filed cross-motions
for summary judgment, and a magistrate judge issued a
report recommending that the district court grant Appellees’
motion in part and deny it in part, and that the court deny
Manley’s motion. The magistrate judge recommended that
the district court dismiss Manley’s deliberate indifference
claim against Officer Zimmer “without prejudice for failing
to exhaust his administrative remedies.” The magistrate
judge provided a detailed recitation of the evidence
concerning Manley’s excessive force allegation, and found
that “a multitude of disputed facts preclude the court from
entering summary judgment.”
The district court adopted the magistrate judge’s report
and recommendation in part. It found that Manley had failed
to exhaust his administrative remedies against Officer
Zimmer, but it declined to dismiss the claim without
prejudice and instead granted summary judgment for Officer
Zimmer, thereby finalizing the adjudication of that claim. It
also adopted the magistrate judge’s findings of fact
regarding Manley’s excessive force claim, but rejected the
recommended disposition, and granted summary judgment
for Appellees. In so doing, the district court rejected
Manley’s testimony about the events at issue. The district
court further commented that,

1

Manley also asserted a supervisory liability claim against ESP
Warden E.K. McDaniel and Officer Renee Baker. Manley did not,
however, appeal the district court’s adjudication of this claim.

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[a]dmittedly, the Court does not have an
excellent track record with the Court of
Appeals in granting summary judgment
under similar circumstances, [citing four
reversals of the district court in similar
circumstances], but the Court of Appeals has
an equally poor record with juries after
remand, [citing jury verdicts in favor of the
defendants in each of the four remanded
cases], so this Court’s record in finding that a
reasonable jury could not find for a plaintiff
is ultimately very good.
Manley now appeals the district court’s grant of summary
judgment on his deliberate indifference and excessive force
claims.
ANALYSIS
I. Manley’s Excessive Force Claim
Courts may enter summary judgment if “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party may oppose a motion for
summary judgment by asserting “any of the kinds of
evidentiary materials listed in Rule 56(c),” including
declarations and affidavits. Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). “If, as to any given material fact,
evidence produced by the moving party … conflicts with
evidence produced by the nonmoving party … we must
assume the truth of the evidence set forth by the nonmoving

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MANLEY V. ROWLEY

party with respect to that material fact.” Furnace v. Sullivan,
705 F.3d 1021, 1026 (9th Cir. 2013). 2
We have refused to find a “‘genuine issue’ [as to a
material fact] where the only evidence presented is
‘uncorroborated and self-serving’ testimony.” Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)
(quoting Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th
Cir. 1996)). However, because a party’s own testimony will
nearly always be “self-serving,” the mere self-serving nature
of testimony permits a court to discount that testimony
where it “states only conclusions and not facts that would be
admissible evidence.” Nigro v. Sears, Roebuck and Co.,
784 F.3d 495, 497–98 (9th Cir. 2015). Moreover, a court
ruling on a motion for summary judgment may not engage
in “[c]redibility determinations” or “the weighing of
evidence,” as those are functions reserved for the jury.
Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

2
After briefing concluded on this matter, Appellees submitted a
letter, purportedly pursuant to Fed. R. App. P. 28(j), accompanied by
new evidence in support of summary judgment on Manley’s excessive
force claim. Manley then submitted a letter opposing Appellees’
submission. We construe Manley’s letter as a motion to strike
Appellees’ letter.

Rule 28(j) permits a party to file a letter alerting the court “[i]f
pertinent and significant authorities come to a party’s attention after the
party’s brief has been filed.” Fed. R. App. P. 28(j). As we have
previously stated, “Rule 28(j) permits a party to bring new authorities to
the attention of the court; it is not designed to bring new evidence
through the back door.” Trans-Sterling, Inc. v. Bible, 804 F.2d 525, 528
(9th Cir. 1986) (emphasis in original). Manley’s motion to strike is
granted because Appellees’ letter offers no new authorities, but rather
seeks to supplement the record with new evidence.

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The record in this case contains multiple issues of
disputed material fact regarding Manley’s excessive force
claim. Manley contends that he was beaten by corrections
officers during the period when the camera panned away
from him; Appellees claim that no such beating occurred.
The parties do not dispute that Manley was picked up by his
wrist and leg restraints and carried horizontally to a holding
cell. Manley, however, asserts that this was a wanton use of
force that caused him extreme pain and violated ESP
training, while Appellees claim that their actions were
necessary to restore and maintain order—though they
concede that it contravened officer training protocols.
Thus, the record indicates that a genuine dispute of
material fact exists regarding whether Appellees’ use of
force resulted in the unnecessary and wanton infliction of
pain or suffering. See Hudson v. McMillian, 503 U.S. 1, 5
(1992) (setting forth the standard for excessive force claims).
The district court’s conclusion to the contrary rested
primarily on its finding that, due to Manley’s ingestion of
methamphetamine, his testamentary evidence was “so
compromised as to be virtually worthless.” However, this
discounting of Manley’s testimony constitutes the sort of
credibility finding properly left for a jury. See Santos v.
Gates, 287 F.3d 846, 851–54 (9th Cir. 2002); Leslie v. Grupo
ICA, 198 F.3d 1152, 1158 (9th Cir. 1999). Manley’s
testimony must be credited at this stage of the proceedings
unless it is legally defective. Anderson, 477 U.S. at 255.
Accordingly, we reverse and remand the district court’s
grant of summary judgment for Appellees on Manley’s
excessive force claim.
II. Manley’s Deliberate Indifference Claim
The Prison Litigation Reform Act of 1996 (PLRA),
amended at 42 U.S.C. § 1997e, requires that inmates exhaust

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their administrative remedies prior to bringing a court action
to redress prison conditions or occurrences.
Id. at
§ 1997(e)(a). This exhaustion requirement is mandatory,
and “[a]ll available remedies must [] be exhausted; those
remedies need not meet federal standards, nor must they be
plain, speedy, and effective.” Porter v. Nussle, 534 U.S.
516, 524 (2002) (quotation marks omitted).
The Supreme Court instructs that “exhaustion” under the
PLRA requires compliance with both procedural and
substantive requirements set forth by prison grievance
processes in order to ensure that the prison receives the
“opportunity to correct its own mistakes … before it is haled
into federal court.” Woodford v. Ngo, 548 U.S. 81, 89 (2006)
(quotation marks omitted). The applicable procedures that a
prisoner must exhaust “are defined not by the PLRA, but by
the prison grievance process itself.” Jones v. Bock, 549 U.S.
199, 218 (2007).
The district court correctly entered summary judgment
on Manley’s deliberate indifference claim because Manley
failed to exhaust his administrative remedies. The second
grievance filed by Manley did not put the prison on notice of
Manley’s deliberate indifference claim against Officer
Zimmer; in fact, it specifically disavowed any assertion of
liability on the part of Officer Zimmer or the prison. The
prison therefore did not have the opportunity to respond to
Manley’s allegation on the merits, and the claim was not
exhausted.
Manley argues that even if he failed to exhaust his
deliberate indifference claim, the district court erred by
granting summary judgment to Appellees rather than
considering a stay to permit exhaustion. We decline to
consider whether the district court committed any such error
because it would be harmless in any event.

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ESP regulations require that grievances be filed within
six months of an alleged incident, and state that a prisoner’s
failure to file within that period constitutes abandonment of
such grievance at all levels. A.R. 740.05(4)(A), (8). The
Supreme Court has clarified that the unavailability of
administrative remedies due to missed deadlines does not
render such remedies “exhausted” under the PLRA, nor does
it excuse a failure to exhaust. Woodford, 548 U.S. at 90–93.
The incident giving rise to Manley’s deliberate indifference
claim occurred on July 2, 2009. Accordingly, by the time
the district court entered its order dismissing that claim on
February 10, 2015, the time for filing a grievance had long
since passed. Because Manley failed to timely exhaust his
deliberate indifference claim against Officer Zimmer, entry
of summary judgment on that claim was appropriate.
III.

Reassignment upon Remand

Manley asks that we reassign this case to a different
district judge on remand. 3 We will reassign a case to a new
judge on remand only under “unusual circumstances or when
required to preserve the interests of justice.” United States
v. Wolf Child, 699 F.3d 1082, 1102 (9th Cir. 2012). We need
not find actual bias on the part of the district court prior to
reassignment. Krechman v. Cty. of Riverside, 723 F.3d
1104, 1111 (9th Cir. 2013). Rather, we consider:

3

Manley has also requested appointment of counsel, and an
instruction that the district court consider appointing a guardian ad litem.
We conclude that the magistrate judge did not abuse his discretion when
he denied Manley’s previous motion for appointment of counsel.
However, we leave it to the discretion of the district court whether to
appoint counsel and/or a guardian ad litem if Manley so moves upon
remand.

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(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously expressed views or
findings determined to be erroneous or based
on evidence that must be rejected,
(2) whether reassignment is advisable to
preserve the appearance of justice, and
(3) whether reassignment would entail waste
and duplication out of proportion to any gain
in preserving appearance of fairness.

Wolf Child, 699 F.3d at 1102 (quoting United States v.
Quach, 302 F.3d 1096, 1103 (9th Cir. 2002)). The mere
erroneous grant of a party’s motion does not warrant
reassignment. McSherry v. City of Long Beach, 423 F.3d
1015, 1023 (9th Cir. 2005). However, the first two factors
of the reassignment consideration—the reasonable
expectation that a judge will have difficulty setting aside a
prior determination, and whether reassignment is advisable
to preserve the appearance of justice—are “equally
important and a finding of either is sufficient to support
reassignment on remand.” Krechman, 723 F.3d at 1112
(citing United States v. Jacobs, 855 F.2d 652, 656 (9th Cir.
1988)).
In granting summary judgment for Appellees, the district
judge conceded that he had previously been reversed by our
court at least four times under “similar circumstances.” He
further claimed that because juries ultimately decided the
four referenced cases in favor of the same parties for whom
he had initially granted summary judgment, his record was
“ultimately very good,” and implied that we should,
therefore, defer to his judgment.

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By matching his own reversals in other “similar” cases
with what he appears to construe as jury “reversals” of our
rulings on appeal, the district judge describes a personal
matrix wherein the ultimate finding of no liability by a jury
justifies his prior entry of summary judgment for Appellees
even if his doing so violated governing law. Taking such a
position is highly unusual, and goes well beyond a mere
legal error or offhand comment. It strongly suggests that the
district judge will “have substantial difficulty in putting out
of his . . . mind previously expressed views” when presiding
over this matter on remand. His stated position also
confirms that on remand we must reassign the case “to
preserve the appearance of justice.” Wolf Child, 699 F.3d at
1102. Finally, because no trial has yet occurred in this
matter, any duplication of judicial efforts will be minimal if
the case is reassigned on remand.
CONCLUSION
For the reasons stated in this opinion, we affirm the
district court’s grant of summary judgment on Manley’s
deliberate indifference claims, reverse its grant of summary
judgment on Manley’s claim for excessive force, and
remand with the instruction that this case be assigned to a
different district judge. Each party shall bear its own costs
on appeal.
AFFIRMED in part, REVERSED in part, and
REMANDED.

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O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:
While I concur in the decision on the merits, I
respectfully dissent from Part III, “Reassignment upon
Remand.” The district court’s argument that past trial
outcomes verify his ability to predict what a reasonable jury
can find is certainly “highly unusual.” It is also logically
incoherent. Whether a specific jury finds for one party does
not indicate that every reasonable jury would so find.
Nevertheless, I disagree that the trial court’s inappropriate
comment “call[s] for the extraordinary measure of
reassignment.” McSherry v. City of Long Beach, 423 F.3d
1015, 1023 (9th Cir. 2005).
“We have reassigned cases based upon the ‘appearance
of justice’ in few situations. . . . The common thread in these
cases is that the district court’s expressions of frustration
with an attorney or party somehow appeared to affect his or
her handling of the substantive issues in the case.” State of
Cal. v. Montrose Chemical Corp. of California, 104 F.3d
1507, 1521 (9th Cir. 1997). Judge Jones believes that he has
predicted many trial outcomes, but that does not mean he
would interfere with a trial to maintain his record. Reading
such an impulse into his language assumes bad faith where
none has been suggested.
Because there is no evidence that the district court’s
previous verbal excesses would affect its rulings during trial,
the request for reassignment should be denied. Compare
Krechman v. City of Riverside, 723 F.3d 1104, 1111–12 (9th
Cir. 2013) (deciding not to reassign because judge’s offcolor comments about an expert’s credibility did not indicate
that the judge would be unable to apply the correct standard
on remand) and California v. Montrose Chem. Corp.,
104 F.3d 1507, 1521–22 (9th Cir. 1997) (deciding not to

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reassign because judge’s repeated references to
environmental scientists as “pointy heads” and “so-called
experts” did not impact his substantive decisions) with
United States v. Jacobs, 855 F.2d 652, 656–57 (9th Cir.
1988) (deciding to reassign where trial judge criticized the
government’s handling of the case in the jury’s presence,
offered strategic advice to one defendant, dismissed
indictment in error, refused to reassemble the jury when the
mistake was discovered two minutes later, and allowed
defendants to file an untimely motion to dismiss).