The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMIR SHABAZZ, No. 18-16909
Plaintiff-Appellee, D.C. No. 1:15-cv-00881-DAD-EPG
v.
MEMORANDUM*
FELIX IGBINOSA,
Defendant-Appellant,
and
JEFFREY A. BEARD; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
Defendant Felix Igbinosa appeals from the district court’s order denying him
*
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).
qualified immunity in plaintiff Amir Shabazz’s 42 U.S.C. § 1983 action alleging
deliberate indifference claims. We have jurisdiction over this interlocutory appeal
under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). We
review de novo the district court’s ruling on qualified immunity. George v.
Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014). We vacate and remand.
The district court determined that Igbinosa was not entitled to qualified
immunity on Shabazz’s deliberate indifference claims. However, after the district
court’s order was entered, this court in Hines v. Youseff, 914 F.3d 1218, 1229 (9th
Cir. 2019), concluded that a prisoner’s “right to be free from heightened exposure
to Valley Fever spores” was not clearly established. Because the district court did
not have the benefit of the decision in Hines when it entered its order, we vacate
the denial of qualified immunity as to Shabazz’s deliberate indifference claims
against Igbinosa, and remand with instructions to grant Igbinosa’s motion to
dismiss.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
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