                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                        FILED
                               FOR THE NINTH CIRCUIT                          JAN 14 2014

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

    WILLIAM JACKSON KITCHENS,                   No. 10-15737

                 Plaintiff - Appellant,         D.C. No. 1:05-cv-01567-DCB
                                                Eastern District of California,
     v.                                         Fresno

    RICHARD PIERCE, Sheriff;
    MARGARET MIMS, Asst. Sheriff;               ORDER
    GARY JOHNSON, Lieutenant,                   AMENDING MEMORANDUM
    Classification; MONICA MUELLER
    GARCIA; DERRICK WATKINS; NORA
    VARELA,

                 Defendants - Appellees.


Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.*

          The memorandum disposition filed June 14, 2013 is hereby amended. An

amended disposition is filed concurrently with this order.

          With these amendments, Judge Bea and Judge Restani have voted to deny

the petition for panel rehearing. Judge Wallace’s dissent from the denial of panel

rehearing is attached hereto. Judge Bea has voted to deny the petition for rehearing


*
      The Honorable Jane A. Restani, Judge for the U.S. Court of International
Trade, sitting by designation.
en banc, and Judge Restani has so recommended. Judge Wallace recommends en

banc rehearing.




                                     2
                                                                                FILED
Kitchens v. Pierce, et al., No. 10-15737                                        JAN 14 2014

                                                                           MOLLY C. DWYER, CLERK
WALLACE, Circuit Judge, dissenting from the denial of the petition for rehearing:OF APPEALS
                                                                         U.S. COURT



      In the amended memorandum disposition, the majority asserts that

“[b]ecause no policy from ‘higher authority’ specified how SVPs housed in

Isolation or the Hole must be treated, a question of material fact exists as to Mims’

authority to affect the conditions afforded to SVPs in those locations.” In reaching

this conclusion, the majority errs both procedurally and substantively. As to the

first, there is no “question of material fact,” because Kitchens presented no

evidence before the district court as to Mims’s putative “authority” over these

conditions. Consequently, the district court was correct to grant summary

judgment to Mims on this issue. As to the second, the panel errs by holding, in

effect, that Mims may be held liable under a theory of respondeat superior for the

actions of jail employees under her supervision. This runs contrary to Ashcroft v.

Iqbal, in which the Supreme Court held that “[g]overnment officials may not be

held liable for the unconstitutional conduct of their subordinates under a theory of

respondeat superior.” 556 U.S. 662, 676 (2009). For both of these reasons, I

dissent from the denial of the petition for rehearing.



                                           I.

                                           1
      Before the district court, Kitchens made the unsupported assertion that

Mims, as Assistant Sheriff, was “empowered with the authority to effectuate

policies and procedures within the [jail] facility.” The district court rejected this

argument on the ground that Kitchens had “offered no evidence that Sheriff Mims

effectuated any policies or procedures related to inmate classification when she

was Assistant Sheriff.”

      In its discussion of this issue, the district court considered a pro se pleading

filed by Kitchens. In that pleading, which Kitchens made in support of his motion

for summary judgment, Kitchens asserted that Mims “was empowered with the

authority to effectuate policies and procedures within the [jail] facility.” This was

a verified pleading, insofar as Kitchens signed it and declared that it was true

“under the penalty of perjury.” Mims did not herself present any evidence as to

this issue. Instead, she argued that Kitchens had failed to present any evidence to

raise a triable issue of fact as to this claim, and therefore that summary judgment in

her favor was appropriate.

      Because Kitchens did not allege any facts to substantiate his assertion

regarding Mims’s authority, the district court’s summary judgment in favor of

Mims as to this issue could have been affirmed on that ground alone. See, e.g.,

Waggy v. Spokane Cnty. Wash., 594 F.3d 707, 713–14 (9th Cir. 2010) (explaining

                                           2
that the district court “did not err in granting summary judgment” against a

plaintiff who had “failed to allege any facts supporting [his] claim” that the

defendant had a “policy, practice, or custom that was violative of his rights”).

Under our precedents, a party cannot establish a disputed question of material fact,

and thereby avoid summary judgment, by making a “bare assertion” that is devoid

of “any legal or factual support.” DeNieva v. Reyes, 966 F.2d 480, 486 (9th Cir.

1992).

         This rule applies to pro se litigants, like Kitchens, just as much as it applies

to any other party. Our decision in Jones v. Blanas, 393 F.3d 918 (9th Cir. 2004),

is not to the contrary. In Jones, we held that when a litigant appears pro se, the

court “must consider as evidence . . . all of [his] contentions offered in motions and

pleadings, where such contentions are based on personal knowledge and set forth

facts that would be admissible in evidence, and where [he] attested under penalty

of perjury that the contents of the motions or pleadings are true and correct.” Id. at

922–23 (emphasis added). It is important to recognize that this is a narrow

exception to the general rule that a nonmoving party may survive summary

judgment only if he presents evidence of “sufficient caliber and quantity” to create

a genuine issue of material fact. See United Steelworkers of Am. v. Phelps Dodge

Corp., 865 F.2d 1539, 1542 (9th Cir. 1989), citing Anderson v. Liberty Lobby, Inc.,

                                             3
477 U.S. 242, 254 (1986).

      In particular, this exception solely applies if the pro se litigant’s contentions

are based on “personal knowledge.” In Jones, we considered a free exercise claim

brought by a pro se litigant. The district court had granted summary judgment to

the defendants, on the ground that the plaintiff had failed to explain how a “general

denial of access to religious services” denied him the “ability to practice his own

religion.” Jones, 393 F.3d at 935. We reversed summary judgment as to this

claim, on the ground that the plaintiff “was pro se and concluded [a pleading] with

a signed statement attesting under penalty of perjury to [its] truth,” which meant

that his “explanation of his religious beliefs qualifie[d] as evidence for the purpose

of opposing a summary judgment motion.” Id.

      Jones cited three cases on behalf of the proposition that a pro se litigant’s

verified pleadings may constitute evidence at summary judgment, if they are

“based on personal knowledge.” Id. at 923. First, in McElyea v. Babbitt, we

likewise considered a pro se litigant’s free exercise claims regarding practice of his

religion in prison. 833 F.2d 196, 197 (9th Cir. 1987). There, the evidence

considered by the court consisted of the prisoner’s allegations that “regular

Sabbath services” were not held in his prison, that he did not receive a kosher diet

in prison, that the religious library did not “contain Jewish reading material,” and

                                          4
that he was “refused permission to attend a special High Holy Day service.” Id. at

198–99. Second, in Johnson v. Meltzer, we considered a litigant’s assertions

regarding statements that had been made to him personally by a deputy. 134 F.3d

1393, 1399–1400 (9th Cir. 1998). Finally, in Schroeder v. McDonald, we also

considered a litigant’s assertions regarding two statements that had been made to

him personally by “correctional staff members at [his] minimum security facility.”

55 F.3d 454, 460 (9th Cir. 1995).

       Thus, in all four of these cases, the assertions “consider[ed] as evidence” by

us were things that were truly within the pro se litigant’s “personal knowledge,”

either because (1) they were statements about his own religious beliefs; (2) they

were statements about facts of his daily life in prison; or (3) they were statements

of what he had been told by another person. This makes sense. It is unclear, for

instance, what evidence a pro se litigant could offer regarding his own religious

beliefs other than a statement, signed under penalty of perjury, of what those

beliefs are.

       Our cases addressing this “personal knowledge” exception for pro se

litigants derive from earlier cases interpreting Fed. R. Civ. P. 56(e), which–in a

previous version–stated that a party opposing a motion for summary judgment

must “set forth specific facts showing that there is a genuine issue for trial” in the

                                           5
form of “affidavits or as otherwise provided in this rule.”1 See Lew v. Kona Hosp.,

754 F.2d 1420, 1423 (9th Cir. 1985). As we explained in Lew, a litigant’s verified

complaint may be “treated as an affidavit” for purposes of opposing a motion for

summary judgment, so long as “the complaint is based on personal knowledge and

sets forth facts admissible in evidence and to which the affiant is competent to

testify.” Lew, 754 F.2d at 1423 (citation omitted) (emphasis added). Again, this

makes sense. If, for instance, the plaintiff in Jones had been called to testify at trial

as to his own religious beliefs, he surely would have been competent to do so.

      By contrast, if Kitchens were called to testify at trial as to Mims’s “authority

to effectuate policies and procedures” at the Fresno County Jail, what could he

possibly say that would be admissible in court? It is clear that Kitchens would not

be competent to testify as to Mims’s authority within the jail, because he has no

“personal knowledge” of what Mims was “empowered with the authority to

effectuate” there.

      A pro se litigant may assert any number of things in his pleadings, “verified”

or not. He may assert that Freemasons run the country, that the moon is made of

      1
         In 2010, Rule 56 was reorganized: some aspects of what was formerly
Rule 56(e) were transferred to Rule 56(c), while others were “relocated or
omitted.” See, e.g., Jajeh v. Cnty. of Cook, 678 F.3d 560, 567–68 (7th Cir. 2012)
(discussing the revisions). This reorganization does not affect the issues under
consideration here.

                                           6
green cheese, or that all Cretans are liars. But, because he would lack “personal

knowledge” of the truth of any of those assertions, we would not treat them as

evidence sufficient to defeat a summary judgment motion. In the same way,

Kitchens, as a detainee who was briefly held in the Fresno County Jail, lacks any

personal knowledge of that jail’s bureaucratic hierarchy or the “authority” invested

in its various officials. Therefore, his assertions as to this matter cannot be

regarded as evidence of sufficient “caliber and quantity” to create a genuine issue

of material fact.

                                           II.

      But even if Kitchens had presented admissible evidence of Mims’s authority

within the jail, which he has not, he would still not be able to establish liability. In

essence, Kitchens’s claim against Mims is based on respondeat superior, because

the claim is not based on any action undertaken by Mims, but instead is based on

what was done by jail employees under her supervision. Such a claim is

necessarily predicated on the theory of respondeat superior.

      However, the Supreme Court, in Ashcroft v. Iqbal, has made clear that

“[g]overnment officials may not be held liable for the unconstitutional conduct of

their subordinates under a theory of respondeat superior.” 556 U.S. 662, 676

(2009). As the Supreme Court explained in Iqbal, “vicarious liability is

                                           7
inapplicable” to suits–like Kitchens’s–that are brought under section 1983. Id.

Instead, a plaintiff bringing a section 1983 action “must plead that each

Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Id. (emphasis added).

      Our court has been reluctant to apprehend Iqbal’s clear teaching that

government officials may not be held liable under a theory of respondeat superior.

See, e.g., Maxwell v. Cnty. of San Diego, 697 F.3d 941, 962–63 (9th Cir. 2012)

(Ikuta, J., dissenting) (explaining that, under Iqbal, the defendants could not be

held liable for the “allegedly unconstitutional acts of their subordinates”); OSU

Student Alliance v. Ray, 699 F.3d 1053, 1079–80 (9th Cir. 2012) (Ikuta, J.,

dissenting) (explaining that “to state a claim under § 1983 against a government

official, a plaintiff must allege that the official’s ‘own misconduct’ violated the

plaintiff’s constitutional rights”) (citation omitted); Williams v. Cnty. of San Mateo,

487 F. App’x 344, 346–47 (9th Cir. 2012) (Ikuta, J., dissenting) (explaining that

the “Supreme Court has made it clear that government officials are not liable for

the misdeeds of their subordinates”); Starr v. Cnty. of Los Angeles, 659 F.3d 850,

854–55 (9th Cir. 2011) (O’Scannlain, J., dissenting from the order denying

rehearing en banc) (explaining, in a dissent joined by seven other judges, that the

majority had erred by effectively “inserting respondeat superior liability into

                                           8
section 1983 despite the Supreme Court’s admonition” to the contrary in Iqbal). I

join my voice to this chorus.




                                        9
                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 14 2014

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



                            FOR THE NINTH CIRCUIT


WILLIAM JACKSON KITCHENS,                        No. 10-15737

              Plaintiff - Appellant,             D.C. No. 1:05-cv-01567-DCB

  v.
                                                 AMENDED
RICHARD PIERCE, Sheriff;                         MEMORANDUM*
MARGARET MIMS, Asst. Sheriff;
GARY JOHNSON, Lieutenant,
Classification; MONICA MUELLER
GARCIA; DERRICK WATKINS; NORA
VARELA,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                    David C. Bury, District Judge, Presiding

                     Argued and Submitted October 16, 2012
                           San Francisco, California

Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.**

       William Kitchens appeals the district court’s summary judgment in favor of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
Appellees, Margaret Mims and Gary Johnson (“County Defendants”) and Derrick

Watkins, Monica Garcia, and Nora Varela (“Transportation Defendants”). In this

42 U.S.C. § 1983 action, Kitchens claims his constitutional rights were violated

when he was transported and detained pending adjudication of his civil

commitment as a sexually violent predator (“SVP”). We affirm the district court’s

summary judgment in favor of Johnson and the Transportation Defendants but

reverse the district court’s summary judgment in favor of Mims.

      Detainees awaiting civil commitment proceedings are entitled to conditions

at least as favorable as those provided to individuals civilly committed and to all

criminal detainees. Jones v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004). A

rebuttable presumption of punitive treatment arises when an SVP is detained in

“conditions identical to, similar to, or more restrictive than, those in which his

criminal counterparts are held.” Id. To rebut that presumption, the government

may not rely on generalized assertions of the need to separate SVPs from the

general population, as required by California law. Id. at 934. California Penal

Code sections 1610 and 4002(b) also require SVPs be administratively segregated

and not deprived of privileges.

      Kitchens’ detention in Isolation reveals conditions that are substantially

worse than those of the criminal detainees in administrative segregation
                                           2
(“MSEG”), giving rise to a presumption of punishment. The County Defendants

failed to rebut this presumption because they have proffered only generalized jail

management concerns for support, a position rejected in Jones. See 393 F.3d at

934. Kitchens’ conditions in Isolation were actually worse than the

unconstitutional ones clearly described in Jones.1 Kitchens continued to

experience worse treatment than criminal detainees while in the Hole. Because the

County Defendants failed to proffer evidence to rebut the presumption of

punishment, summary judgment in their favor was improper. They may produce

additional evidence to rebut the presumption on remand.

      Although Kitchens may have a cognizable claim that his constitutional rights

were violated with respect to privileges, he chose to sue some defendants who do

not bear responsibility for the deprivation. In section 1983 actions, employers and

supervisors are not automatically liable for constitutional torts committed by their

employees. Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007), vacated on

other grounds, 556 U.S. 1256 (2009). Instead, a plaintiff must prove that the

supervisor personally committed the tort, set in motion events which he knew or

reasonably should have known would cause the alleged constitutional harm, or


      1
        In view of the conditions described in Jones, the County Defendants’
assertion of qualified immunity here is without merit.
                                          3
acquiesced in a constitutional deprivation by subordinates. See id.; see also Moss

v. U.S. Secret Serv., 675 F.3d 1213, 1231 (9th Cir. 2012).

      The affidavits submitted by the County Defendants support Kitchens’

argument that his housing in both Isolation and the Hole were pursuant to official

jail policies.2 Although the County Defendants argued in their briefs that these

policies were set by higher authorities, who they were bound to follow, counsel for

County Defendants conceded at oral argument that these policies related only to

the locations to which SVPs were assigned, not to the privileges afforded to

prisoners in those locations. Because no policy from “higher authority” specified

how SVPs housed in Isolation or the Hole must be treated, a question of material

fact exists as to Mims’ authority to affect the conditions afforded to SVPs in those

locations. In particular, the issue is whether, in the absence of a policy, Mims, as

the person who “oversaw jail operations” and “in charge of the Fresno County

Jail,” had the authority to ensure that SVPs would be afforded better conditions

than others housed in Isolation or the Hole. A reasonable trier of fact could

conclude that she controlled Kitchens’ circumstances of confinement and is thus

potentially liable under a supervisor theory of liability. There is no reason to


      2
       Kitchens’ housing in MSEG admittedly was not based on any jail policy,
and therefore, he has failed to support this part of his § 1983 claim.
                                          4
conclude, however, that Johnson, as a classification officer, had any policy-making

authority in terms of the privileges afforded to particular prisoners, and therefore

no question of fact exists as to his involvement in the jail policy. Accordingly,

Johnson is not liable for Kitchens’ conditions as a matter of law.

      Kitchens also argues that County Defendants violated his Fourth

Amendment rights when they subjected him to a “strip search” upon entering the

jail. Strip searches are constitutionally permissible, even if not based on

reasonable suspicion, when routinely conducted by prison officials on inmates as

they enter the prison’s general population. Florence v. Bd. of Chosen Freeholders,

132 S. Ct. 1510, 1523 (2012). Because Kitchens was not subjected to a full strip

search, as the petitioner in Florence was, and because Kitchens was housed, at least

at some point, in an area with other prisoners, his rights were not violated.

Kitchens also argues that the Transportation Defendants violated his substantive

and procedural due process rights when they transported him handcuffed to the

Fresno County Jail in the same compartment as criminal detainees. In Bagent v.

Pierce, we stated that California Penal Code sections 1610 and 4002 were

inapplicable to the brief time an SVP spends inside a bus because those statutes

only address confinement in a “room,” “housing,” or “facility.” 463 F. App’x 636,

637 (9th Cir. 2011) (unpublished). Our decision in Bagent, while non-
                                          5
precedential, is consistent with the legislative history of sections 1610 and 4002.

Accordingly, Kitchens’ procedural due process rights were not violated. Similarly,

Kitchens was not deprived of his substantive due process rights because the Jones

presumption of punishment has been overcome by the Transportation Defendants’

asserted justification of segregating juveniles and women within the vehicle,

combined with obvious space limitations.

      For the foregoing reasons, we REVERSE the district court’s summary

judgment with respect to Defendant Mims. Additionally, we AFFIRM the district

court’s summary judgment in favor of Defendant Johnson and the Transportation

Defendants. The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                          6
