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JAMES O'CONNOR, Plaintiff-Appellee, v. CAL TERHUNE, ROBERT AYERS, and DOES 1 to 50,
Defendants-Appellants.
No. 01-15517
UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
2002 U.S. App. Lexis 3624
January 14, 2002 **,
Submitted, San Francisco, California ** The panel finds this case appropriate
for submission without oral argument pursuant to Fed. R. App. P. 34(a)(2).
March 4, 2002, Filed
NOTICE:
RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO
UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF
APPEALS FOR THIS CIRCUIT.
MEMORANDUM *
* This disposition is not
appropriate for publication and may not be cited to or by the courts of this
circuit except as may be provided by Ninth Cir. R. 36-3.
Plaintiff-Appellee James O'Connor ("O'Connor") was formerly a
state prisoner at Pelican Bay State Prison ("Pelican Bay"). The
former director of the California Department of Corrections and the former
warden of Pelican Bay State Prison appeal interlocutorily the district court's
denial of qualified immunity in Plaintiff's 42 U.S.C. § 1983 action brought
against them. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and
remand with instructions to enter judgment for the defendants dismissing this
case on the ground of qualified immunity.
We
review the denial of qualified immunity de novo. Branch v. Tunnell, 937 F.2d 1382, 1385 (9th Cir. 1991). The test
for determining whether an official can be shielded by qualified immunity is
two-fold. The court must consider whether (1) "the law governing the
conduct was clearly established," and if so, whether (2) "under that
law, a reasonable official could have believed his conduct was lawful." Thompson
v. Souza, 111 F.3d 694, 698 (9th Cir. 1997).
O'Connor alleged that defendants
were deliberately indifferent to his safety in violation of the Eighth
Amendment by placing him in the general population of Level IV days before his
parole date where he was stabbed and after he had been previously attacked in
Level I.
Nowhere is it clearly
established that a prisoner may not be moved from a lesser classification to a
higher classification because of some abstract increase in danger. Here, any
reasonable officer would not have understood that the move to Level IV was
putting O'Connor unconstitutionally in harm's way; and qualified immunity is
appropriate.
A prison official violates the Eighth
Amendment when (1) the deprivation alleged is objectively, sufficiently
serious, see Farmer v. Brennan, 511
U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994), and (2) the prison
official possesses a sufficiently culpable state of mind, see id. In Farmer,
the Supreme Court held that deliberate indifference to the risk that an inmate
will be harmed by other prisoners constitutes a sufficiently culpable state of
mind, and is therefore, a violation of the Eighth Amendment. This case lacks any
indicia of actionable "deliberate indifference." Accordingly, this
case must be dismissed on qualified immunity grounds.
REVERSED AND REMANDED WITH INSTRUCTIONS TO
ENTER JUDGMENT FOR THE DEFENDANTS DISMISSING ON QUALIFIED IMMUNITY GROUNDS