Reed v. Bean

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2025
• Docket: 24-2705
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID L REED, No. 24-2705 D.C. No. 2:19-cv-00103-RFB-NJK Plaintiff - Appellee,

v. MEMORANDUM*

BEAN, Associate Warden; Lt GLENN FOWLER; ERIC ROMERO,

Defendants - Appellants,

and

JAMES DZURENDA, Director,

Defendant.

Appeal from the United States District Court for the District of Nevada Richard F. Boulware, II, District Judge, Presiding

Submitted June 18, 2025**

Before: CANBY, S.R. THOMAS, and SUNG, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Defendants-appellants appeal from the district court’s interlocutory order

denying their motion to dismiss, on the basis of qualified immunity, David L.

Reed’s 42 U.S.C. § 1983 action alleging excessive force and failure-to-protect

claims arising during pretrial detention. We have jurisdiction under 28 U.S.C.

§ 1291 and the collateral order doctrine. Garraway v. Ciufo, 113 F.4th 1210, 1216

(9th Cir. 2024). We review de novo. Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.

2010). We affirm.

The district court properly denied qualified immunity because Reed alleged

facts sufficient to show that defendants-appellants violated the Fourteenth

Amendment when they participated in pepper-spraying Reed three hours after

visually verifying that he lay calmly in his bunk and posed no threat, and

defendants-appellants’ actions contravened clearly established law at the time of

the incident. See Castro v. County of Los Angeles, 833 F.3d 1060, 1068-71 (9th

Cir. 2016) (en banc) (setting forth standard for pretrial detainee claims under the

Fourteenth Amendment); Dunn, 621 F.3d at 1199 (setting forth requirements for

qualified immunity to apply); Spain v. Procunier, 600 F.2d 189, 195-96 (9th Cir.

1979) (explaining that chemical agents may not be used as punishment, and may

be used in non-dangerous quantities only in situations reasonably likely to result in

injury to persons or a substantial amount of valuable property).

We do not consider matters not specifically and distinctly raised and argued

2 24-2705 in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions are denied.

AFFIRMED.

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