John Jordan, Jr. v. D. Brown

FILED

NOT FOR PUBLICATION DEC 06 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOHN R. JORDAN, Jr., No. 10-17373

Plaintiff - Appellee, D.C. No. 2:03-cv-01820-LKK-

KJM

v.

D. J. BROWN, MEMORANDUM *

Defendant - Appellant,

and

J. BOITANO; T. COBB; J. COX; R.

DREITH; J. EDER; T. FELKER; B.

FLEMING; K. MCCRAW; D.

MCGUIRE; S. PECK; S. PLATT; J.

ROHLFING; D. VANDERVILLE; R.

MIRANDA; S. ARMOSKUS; K. KOPEC;

D. FLETCHER,

Defendants.

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

Submitted December 4, 2012 **

San Francisco, California

Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

In this pro se action, defendant Lieutenant Donald J. Brown appeals the

denial of his motion for summary judgment on his qualified-immunity defense.

We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291, see

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and review the immunity questions

de novo, CarePartners, LLC v. Lashway, 545 F.3d 867, 875–76 (9th Cir. 2008).

We reverse the district court’s order denying summary judgment and remand this

case for further proceedings in light of this court’s disposition.

Brown is entitled to qualified immunity either if plaintiff John R. Jordan’s

facts fail to “make out a violation of a constitutional right” or if the allegedly

violated right was not “clearly established at the time of defendant’s alleged

misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (internal quotation

marks omitted).

Because Jordan has failed to show that Brown subjectively inferred a

“substantial risk” that subordinates would misinterpret his order issued on

November 30, 2002, and thereby cause “serious harm,” Jordan’s facts fall short of

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2

stating a constitutional violation. Farmer v. Brennan, 511 U.S. 825, 834–40 (1994)

(defining deliberate indifference). The facts as found below establish, at most,

mere negligence. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)

(negligence does not establish deliberate indifference).

Jordan also contends that Brown engaged in fraudulent concealment, has

“unclean hands,” and breached a contract. These claims have no merit.

Jordan’s motion to correct his brief, received on May 11, 2011, is granted.

Jordan’s requests for judicial notice are denied. Jordan’s motion filed on

November 30, 2012, is denied.

Each party shall bear its own costs on appeal.

REVERSED and REMANDED.

3

FILED

Jordan v. Brown; No. 10-17373 DEC 06 2012

MOLLY C. DWYER, CLERK

THOMAS, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS

Drawing the inferences in favor of the non-moving party, as we must in

reviewing a summary judgment order, I agree with the magistrate judge’s analysis

contained in her Report and Recommendation dated June 30, 2010. Therefore, I

would affirm the district court’s denial of qualified immunity at this stage of the

litigation.