The opinion
FILED
NOT FOR PUBLICATION MAR 15 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DERRICK LEE BILLUPS, No. 10-17233
Plaintiff - Appellant, D.C. No. 1:06-cv-01014-DCB
v.
MEMORANDUM *
LOMELI,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
David C. Bury, District Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Derrick Lee Billups, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendant Lomeli was deliberately indifferent to a serious risk to his safety. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni,
31 F.3d 813, 815 (9th Cir. 1994) (per curiam), and we reverse and remand.
The district court granted summary judgment because it determined that
Lomeli was not deliberately indifferent to Billups’ safety. However, Billups
submitted evidence that he and his cellmate told Lomeli that there was a threat to
Billups’ safety and that Billups told Lomeli that it could get “dangerous” if Billups
was not moved to a different cell. Billups also submitted evidence that the only
option Lomeli gave him was to continue insisting on a cell change and that Lomeli
threatened to place him in administrative segregation if he continued to violate
orders to return to his cell. This evidence, viewed in the light most favorable to
Billups, creates a genuine dispute of material fact as to whether Lomeli acted with
deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Berg v.
Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986) (prison officials liable under § 1983
if they act with deliberate indifference to the prisoner’s plight). Moreover, Lomeli
is not entitled to qualified immunity because, at the time of the events at issue, the
law was clearly established that the deliberate indifference standard “does not
require that the guard or official believe to a moral certainty that one inmate
intends to attack another at a given place at a time certain before that officer is
obligated to take steps to prevent such an assault.” Berg, 794 F.2d at 459 (citations
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and internal quotation marks omitted). Accordingly, we reverse summary
judgment on Billups’ deliberate indifference claim and remand for further
proceedings.
REVERSED and REMANDED.
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