# Derrick Billups v. Lomeli

> Court of Appeals for the Ninth Circuit · March 15, 2012 · 471 F. App'x 780

URL: https://www.frixlaw.com/law-library/cases/625468

## Case

- **Full name:** Derrick Lee BILLUPS, Plaintiff-Appellant, v. LOMELI, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 15, 2012
- **Citations:** 471 F. App'x 780
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Fletcher, Reinhardt, Tashima
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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NOT FOR PUBLICATION MAR 15 2012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

2 10-17233
and internal quotation marks omitted). Accordingly, we reverse summary

judgment on Billups’ deliberate indifference claim and remand for further

proceedings.

REVERSED and REMANDED.

3 10-17233

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/625468. Public record. Not legal advice.