NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE ABEL FIERRO, No. 17-15288
Plaintiff-Appellee, D.C. No. 2:13-cv-02173-JJT-BSB v.
KEITH SMITH, Security Operations MEMORANDUM* Administrator at Phoenix Division Director’s Office; et al.,
Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted April 9, 2018 Pasadena, California
Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.
Defendants-Appellants are prison officials in the Arizona State Prison
Complex (“ASPC”) who appeal the district court’s decision denying them
qualified immunity from plaintiff-appellee Jose Fierro’s Eighth Amendment
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Irene M. Keeley, United States District Judge for the Northern District of West Virginia, sitting by designation. claims. Fierro claims that defendants-appellants, including Protective Custody
Administrator Marlene Coffey, Security Operations Administrator Smith, Deputy
Warden Ochoa, Deputy Warden Sanders, Deputy Warden Pruett, and Deputy
Warden Forester (collectively, “defendants”), violated his Eighth Amendment
rights by denying his requests for protective custody (“PC”) six times between
2011 and 2013.1 After each PC request, Defendants recommended alternative
placement, wherein Fierro was moved from unit to unit within the general
population in the ASPC. Fierro claimed throughout that time that he faced a
statewide threat from the Border Brothers prison gang, who have members in each
of the prison units in the ASPC, and that he was therefore in danger in any general
population unity within the ASPC. Shortly after his sixth request for PC was
denied, Fierro was seriously assaulted by another prison inmate. Defendants all
were involved in the review process for Fierro’s PC requests at various points
1 Fierro also has filed a motion asking the court to take judicial notice of two copies of the Arizona Department of Corrections Department Order 801 (Inmate Classification), effective February 25, 2010 and July 21, 2017. Defendants do not oppose Fierro’s motion. “The court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. This can include records of a state agency. See City of Sausalito v. O'Neil, 386 F.3d 1186, 1123 n.2 (9th Cir. 2004). Because Fierro’s motion is unopposed, and the facts in the documents appear to be records about a state agency’s inmate classification procedures not subject to reasonable dispute, we grant Fierro’s motion (Doc. 18).
2 during the relevant time period. Fierro claims that each of defendant-appellees
were subjectively and objectively aware of the substantial danger Fierro faced in
the general prison population, but nevertheless deliberately ignored that danger.
We review a district court’s decision denying summary judgment based on
qualified immunity de novo, accepting facts and reasonable inferences in the light
most favorable to plaintiff. See Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d
945, 959 (9th Cir. 2010).
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted)). To
determine whether an official is entitled to qualified immunity, the court must
decide whether the facts that plaintiff has alleged make out a violation of a
constitutional right. Pearson, 555 U.S. at 232. If, taking the facts and inferences in
the light most favorable to plaintiff, plaintiff has alleged violation of a
constitutional right, the court must decide whether the right at issue was “clearly
established at the time of defendant’s alleged misconduct.” Id. (internal quotation
marks omitted). Courts may exercise their discretion in deciding which of the two
qualified immunity prongs should be addressed first “in light of the circumstances
3 of the particular case at hand.” Id. at 236.
The Supreme Court has interpreted the Eighth Amendment to require prison
officials to “protect prisoners from violence at the hands of other prisoners.”
Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omitted).
A prison official may be “held liable under the Eighth Amendment” if the official
knows that an inmate “face[s] a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Id. at 847. Breaking down
the standard into a two part test, a prison official violates the Eighth Amendment
if, (1) “objectively viewed, the prison official’s act or omission [causes] ‘a
substantial risk of serious harm,’” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir.
2015) (quoting Farmer, 511 U.S. at 834); and (2) the official is subjectively aware
of that risk and acts with “‘deliberate indifference to inmate health or safety.’” Id.
Because fellow inmates eventually assaulted Fierro, defendants do not
contest that objectively their decision to grant alternative placement in lieu of PC
caused Fierro to be at substantial risk of serious harm. Instead, defendants each
argue that because they followed ASPC procedures by reviewing Fierro’s claims
and concluding that alternative placement was warranted, they were not
subjectively aware of the risk to Fierro, and therefore, did not act with deliberate
indifference to his safety. We review each defendant’s eligibility for qualified
4 immunity separately. See Cunningham v. Gates, 229 F.3d 1271, 1287 (9th Cir.
2000).
1. Deputy Warden Ochoa was involved in reviewing only Fierro’s second
PC request, which Fierro made on March 11, 2012. Nevertheless, there is evidence
in the record from which a jury could infer that Ochoa believed there to be a state-
wide threat to Fierro but was nevertheless deliberately indifferent to it. Fierro’s
second PC request followed Fierro’s report that unknown inmates, both members
of the “Border Brothers” prison gang, entered his cell, assaulted him, and stole
some of his belongings, all on the orders of the Border Brother’s leader. As part of
ASPC procedures, Ochoa was required to review Fierro’s PC packet, which
included Fierro’s first PC request following an altercation with his cellmate, also a
Border Brothers member, who accused Fierro of being a rat and a snitch. Ochoa
reviewed Fierro’s second PC request and recommended alternative placement in
lieu of PC.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOSE ABEL FIERRO, No. 17-15288
Plaintiff-Appellee, D.C. No. 2:13-cv-02173-JJT-BSB v.
KEITH SMITH, Security Operations MEMORANDUM* Administrator at Phoenix Division Director’s Office; et al.,
Defendants-Appellants.
Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted April 9, 2018 Pasadena, California
Before: BEA and MURGUIA, Circuit Judges, and KEELEY,** District Judge.
Defendants-Appellants are prison officials in the Arizona State Prison
Complex (“ASPC”) who appeal the district court’s decision denying them
qualified immunity from plaintiff-appellee Jose Fierro’s Eighth Amendment
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Irene M. Keeley, United States District Judge for the Northern District of West Virginia, sitting by designation. claims. Fierro claims that defendants-appellants, including Protective Custody
Administrator Marlene Coffey, Security Operations Administrator Smith, Deputy
Warden Ochoa, Deputy Warden Sanders, Deputy Warden Pruett, and Deputy
Warden Forester (collectively, “defendants”), violated his Eighth Amendment
rights by denying his requests for protective custody (“PC”) six times between
2011 and 2013.1 After each PC request, Defendants recommended alternative
placement, wherein Fierro was moved from unit to unit within the general
population in the ASPC. Fierro claimed throughout that time that he faced a
statewide threat from the Border Brothers prison gang, who have members in each
of the prison units in the ASPC, and that he was therefore in danger in any general
population unity within the ASPC. Shortly after his sixth request for PC was
denied, Fierro was seriously assaulted by another prison inmate. Defendants all
were involved in the review process for Fierro’s PC requests at various points
1 Fierro also has filed a motion asking the court to take judicial notice of two copies of the Arizona Department of Corrections Department Order 801 (Inmate Classification), effective February 25, 2010 and July 21, 2017. Defendants do not oppose Fierro’s motion. “The court may judicially notice a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. This can include records of a state agency. See City of Sausalito v. O'Neil, 386 F.3d 1186, 1123 n.2 (9th Cir. 2004). Because Fierro’s motion is unopposed, and the facts in the documents appear to be records about a state agency’s inmate classification procedures not subject to reasonable dispute, we grant Fierro’s motion (Doc. 18).
2 during the relevant time period. Fierro claims that each of defendant-appellees
were subjectively and objectively aware of the substantial danger Fierro faced in
the general prison population, but nevertheless deliberately ignored that danger.
We review a district court’s decision denying summary judgment based on
qualified immunity de novo, accepting facts and reasonable inferences in the light
most favorable to plaintiff. See Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d
945, 959 (9th Cir. 2010).
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotation marks omitted)). To
determine whether an official is entitled to qualified immunity, the court must
decide whether the facts that plaintiff has alleged make out a violation of a
constitutional right. Pearson, 555 U.S. at 232. If, taking the facts and inferences in
the light most favorable to plaintiff, plaintiff has alleged violation of a
constitutional right, the court must decide whether the right at issue was “clearly
established at the time of defendant’s alleged misconduct.” Id. (internal quotation
marks omitted). Courts may exercise their discretion in deciding which of the two
qualified immunity prongs should be addressed first “in light of the circumstances
3 of the particular case at hand.” Id. at 236.
The Supreme Court has interpreted the Eighth Amendment to require prison
officials to “protect prisoners from violence at the hands of other prisoners.”
Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks omitted).
A prison official may be “held liable under the Eighth Amendment” if the official
knows that an inmate “face[s] a substantial risk of serious harm and disregards that
risk by failing to take reasonable measures to abate it.” Id. at 847. Breaking down
the standard into a two part test, a prison official violates the Eighth Amendment
if, (1) “objectively viewed, the prison official’s act or omission [causes] ‘a
substantial risk of serious harm,’” Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir.
2015) (quoting Farmer, 511 U.S. at 834); and (2) the official is subjectively aware
of that risk and acts with “‘deliberate indifference to inmate health or safety.’” Id.
Because fellow inmates eventually assaulted Fierro, defendants do not
contest that objectively their decision to grant alternative placement in lieu of PC
caused Fierro to be at substantial risk of serious harm. Instead, defendants each
argue that because they followed ASPC procedures by reviewing Fierro’s claims
and concluding that alternative placement was warranted, they were not
subjectively aware of the risk to Fierro, and therefore, did not act with deliberate
indifference to his safety. We review each defendant’s eligibility for qualified
4 immunity separately. See Cunningham v. Gates, 229 F.3d 1271, 1287 (9th Cir.
2000).
1. Deputy Warden Ochoa was involved in reviewing only Fierro’s second
PC request, which Fierro made on March 11, 2012. Nevertheless, there is evidence
in the record from which a jury could infer that Ochoa believed there to be a state-
wide threat to Fierro but was nevertheless deliberately indifferent to it. Fierro’s
second PC request followed Fierro’s report that unknown inmates, both members
of the “Border Brothers” prison gang, entered his cell, assaulted him, and stole
some of his belongings, all on the orders of the Border Brother’s leader. As part of
ASPC procedures, Ochoa was required to review Fierro’s PC packet, which
included Fierro’s first PC request following an altercation with his cellmate, also a
Border Brothers member, who accused Fierro of being a rat and a snitch. Ochoa
reviewed Fierro’s second PC request and recommended alternative placement in
lieu of PC. The Protective Segregation Decision Worksheet, which describes the
reasons for the alternative placement, states that Fierro “did not claim that he acted
as an informant in the past or provide any reason why others might think he is a
‘snitch.’” This statement is inaccurate, as Fierro had pointed specifically to his first
PC request as the reason to the attack on him, and thus provided a “reason why
others might think he is a ‘snitch.’” Taking the facts and inferences in the light
most favorable to Fierro, a jury thus could be permitted to disbelieve Ochoa’s
5 claim that she did not subjectively believe that Ochoa faced a substantial risk of
serious harm. A jury therefore could infer that Ochoa knew that Fierro faced a
substantial risk of serious harm, and, by recommending alternative placement in
lieu of PC, failed to take reasonable measures to abate it. See Farmer, 511 U.S. at
832–34.
2. Deputy Warden Sanders, Protective Custody Administrator Coffey,
Security Operations Administrator Smith, and Deputy Warden Pruett, each were
involved in denying Fierro’s third, fourth, fifth, or sixth PC requests on the
grounds that the threats Fierro reported were unsubstantiated. However, nowhere
in Fierro’s PC file do these defendants provide an affirmative statement explaining
their reasons for determining that Fierro’s threats were unsubstantiated, despite
instructions on the PC worksheet to do so. Additionally, the PC documents
prepared after Fierro’s third, fourth, fifth, and sixth requests reflect that not all
suspects involved in the reported threats had been interviewed. This missing
information contradicts the defendants’ claims that they followed ASPC
regulations. Further, in an internal prison email following Fierro’s seventh request
for PC, the Central Office of Arizona State Prison notes that there is “not any
documentation . . . which indicates Fierro’s statements [about being targeted by the
Border Brothers] have been checked out and either confirmed or not confirmed.”
Moreover, that Deputy Warden Schuster had recommended PC after Fierro’s third
6 request belies Sanders’, Coffey’s, Smith’s, and Pruett’s purported belief that the
risk to Fierro was unsubstantiated. Taking the facts and inferences in the light most
favorable to Fierro, the remaining defendants Sanders, Coffey, Smith, and Pruett,
knew that Fierro faced a substantial risk of serious harm, and by repeatedly
recommending alternative placement in lieu of PC, failed to take reasonable
measures to abate it. See Farmer, 511 U.S. at 832–34.
Because we conclude that the law requiring prison officials to take
reasonable measures to abate an inmate’s substantial risk of serious harm from
other inmates clearly was established when Fierro made his PC requests, see
Farmer, 511 U.S. at 842–43, defendants are not entitled to qualified immunity
from Fierro’s Eighth Amendment claims.
AFFIRMED.