Luna v. Thurien

129 F. App'x 381

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 27, 2005
• Docket: No. 04-15120; DC No. CV 02-0706 DFL
• Status: Published

Opinions

MEMORANDUM

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Pro se litigant Benito Julian Luna brought a 42 U.S.C. § 1983 action against Sacramento County Sheriffs Officer Michael Thurien, alleging that Thurien violated Luna’s Fourteenth Amendment rights by allowing two inmates to enter unescorted into an area where total-separation inmate Luna was showering. The two unescorted inmates attacked Luna, causing him to suffer serious injuries including a broken hand. The district court denied Thurien’s motion for summary judgment. Thurien appeals, contending that the district court erroneously determined that: (1) a genuine issue of material fact regarding Thurien’s state of mind precluded summary judgment in his favor; and (2) Thurien was not entitled to summary judgment based on qualified immunity.

We lack jurisdiction to address Thurien’s first contention. Johnson v. Jones, 515 U.S. 304, 307, 313, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Wilkins v. City of Oakland, 350 F.3d 949, 952 (9th Cir.2003). Accordingly, the appeal must be dismissed as to that contention. We have jurisdiction, however, to consider his second contention, but only insofar as it turns on an issue of law. Id. at 951-52. Accordingly, we must consider whether Thurien is eligible for qualified immunity under Luna’s version of the disputed facts. Id. at 952. The district court’s denial of summary judgment based on qualified immunity is reviewed de novo. Id. at 952, 954.

During the events in question, Luna was an inmate at the Sacramento County Jail. His version of events is as follows. Luna was classified as a total separation inmate because of his former affiliation with a Northern Mexican gang. Total-separation inmates are separated from other inmates at all times and are housed in a separate unit for their own protection. On the evening of October 4, 2001, Luna was in his cell in the total separation unit on the 7-East floor. Thurien was the control/floor officer on duty at the pertinent times that evening, controlling inmates’ entry and exit from their cells and common areas of the unit. Thurien released Luna from his cell to allow Luna to “program” (i. e., to shower, shave, etc., in the common area of the unit) for one hour. Approximately 30-40 minutes into Luna’s program time, two inmates arrived at the unit for reclassification because they had started a fight in another unit earlier in the day. Thurien released the two unescorted inmates, who were affiliated with a gang that rivaled Luna’s former gang, into the common area of the unit, after which they attacked Luna in the shower area. Luna sustained serious injuries in the ensuing fight.

Luna alleges that Thurien deliberately released the two inmates in order to provoke a fight, as retaliation for Luna’s testimony against jail officers in an earlier court case, and to provide amusement for jail officers witnessing the fight. He also alleges that Thurien knew of Luna’s prior gang affiliation and the gang affiliation of the other two inmates.

Accepting Luna’s version of events,¹ we must determine whether Thurien was entitled to qualified immunity from Luna’s suit. The threshold question in this inquiry is whether the alleged facts show that Thurien’s conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If so, we must then determine whether that right was clearly established at the time of the incident. Id. A constitutional right was clearly established if it would have been “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

Because Luna was a pretrial detainee at the time of the incident, his claim arises under the Fourteenth Amendment. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). We apply the same standards to such claims as to prisoners’ claims under the Eighth Amendment. Id. The Eighth Amendment requires prison officials to provide humane conditions of confinement and imposes a duty to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A prison official violates the Eighth Amendment if he shows deliberate indifference to a substantial risk of serious harm to an inmate. Id. at 828. Deliberate indifference means that the prison official has subjective knowledge that a substantial risk of serious harm exists. Id. at 837.

Thurien’s release of two unescorted members of a rival gang into the common area of the total separation unit while Luna was showering there exposed Luna to a substantial risk of serious harm. Under Luna’s version of the facts, reasonable inferences support that Thurien knew of the inmates’ rival gang affiliations and released the two unescorted inmates with deliberate indifference to the substantial risk that a two-on-one fight would ensue. Thurien therefore had subjective knowledge of the serious risk to which Luna was exposed. The facts alleged thus establish a violation of Luna’s Fourteenth Amendment rights.

Because the facts construed in Luna’s favor establish that Thurien’s conduct violated a constitutional right, we must ask whether that right was clearly established in that it would have been clear to a reasonable officer in Thurien’s position that his conduct was unlawful. By the time of the incident in question, the Supreme Court’s decision in Farmer v. Brennan had clearly established that the Eighth Amendment imposes a duty on prison officials to protect prisoners from violence at the hands of other prisoners. See 511 U.S. at 832-33; see also Frost, 152 F.3d at 1128 (stating in 1998 that Eighth Amendment standards apply to the Fourteenth Amendment claims of pretrial detainees). Thus, Thurien could not reasonably have believed that it was lawful for him to be deliberately indifferent to the risk of serious harm to Luna by exposing him to attack by other inmates.

Because the facts construed in Luna’s favor establish a violation of Lima’s clearly established rights under the Fourteenth Amendment, Thurien is not entitled to qualified immunity. Accordingly, the district court’s summary judgment denying qualified immunity is affirmed. Luna shall recover his costs on appeal.

DISMISSED in part and AFFIRMED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . While acknowledging that Thurien’s actions were "in contravention of” the County Jail’s total-separation policy, Dissent at 384, the dissent asserts that Thurien’s actions in "ordering] the reclassified inmates to their cells without officer escort while Luna was programming” were in accordance with another jail policy. Id. at 383, 384. While it is true that Thurien makes the conclusory allegation in his declaration that his actions were "pursuant to jail policy,” a copy of whatever policy he was referring to is not a part of the record, nor is there any other elaboration of what that policy was. Thus, to credit that vague "policy” over the clear duty enunciated by the total-separation policy, would be to construe the facts in the light most favorable to Thurien, something we cannot do. We therefore disagree with the dissent’s conclusion that "Thurien was simply doing his job in accordance with jail policy.” Id. at 385.