The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRIS K. BENNETT, No. 22-36046
Plaintiff-Appellee, D.C. No. 2:21-cv-00154-TOR
v.
MEMORANDUM*
CHRIS HICKS, Correctional Unit
Supervisor, CRCC,
Defendant-Appellant,
and
WASHINGTON STATE DEPARTMENT
OF CORRECTIONS; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted December 7, 2023
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and SANCHEZ, Circuit Judges.
Chris Hicks appeals from the district court’s denial of summary judgment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
based on qualified immunity. We have jurisdiction under 28 U.S.C. § 1291. See
Peck v. Montoya, 51 F.4th 877, 885 (9th Cir. 2022). We review de novo and
reverse.
Kris Bennett brought this action under 42 U.S.C. § 1983, alleging that Hicks
violated the Eighth Amendment in failing to protect him from assault by his prison
cellmate. Hicks filed an answer pleading qualified immunity as an affirmative
defense. We assume without deciding that a genuine dispute exists as to whether
Hicks violated the Eighth Amendment.
“Qualified immunity is applicable unless the official’s conduct violated a
clearly established constitutional right.” Pearson v. Callahan, 555 U.S. 223, 232
(2009). To show that the law was clearly established at the time of the events,
“[p]laintiffs must ‘identify a case where an officer acting under similar
circumstances as [the defendant] was held to have violated the [Eighth]
Amendment.’” Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017)
(quoting White v. Pauly, 580 U.S. 73, 79 (2017)). Here, Bennett fails to do so. In
his briefing and at oral argument, Bennett points to only two cases: Farmer v.
Brennan, 511 U.S. 825 (1994), and Wilk v. Neven, 956 F.3d 1143 (9th Cir. 2020).
But the Court in Farmer merely established the broad strokes of a failure to protect
claim under the Eighth Amendment, which “is not sufficient” to put a reasonable
officer on notice as to whether the officer’s conduct violated the Constitution, see
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Est. of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir. 2002); and the
Ninth Circuit published Wilk in 2020, two years after the alleged constitutional
violation in this case, see 956 F.3d at 1143. Bennett has thus failed to identify a
case that demonstrates what “clearly established constitutional right” Hicks
violated. See Pearson, 555 U.S. at 232. Accordingly, Hicks is entitled to qualified
immunity, and we reverse the district court’s ruling to the contrary.
REVERSED.
3