Click Back Button to Return to Publication

 

 

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RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS.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

 

 

Click Back Button to Return to Publication