                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 10 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



KENNETH R. DELGADO,                              No. 10-17416

               Plaintiff - Appellant,            D.C. No. 4:08-cv-02556-PJH

  v.
                                                 MEMORANDUM *
A. BARNES, Correctional Officer; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       California state prisoner Kenneth R. Delgado appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging, inter alia, that

defendants were deliberately indifferent to his safety. We have jurisdiction under




          *
             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).
28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056

(9th Cir. 2004). We affirm in part, reverse in part, and remand.

      The district court properly granted summary judgment for defendants Woolf

and Johnson because Delgado failed to raise a genuine dispute of material fact as to

whether they knew of and disregarded an excessive risk that Delgado would be

attacked by rival gang members. See Farmer v. Brennan, 511 U.S. 825, 837

(1994) (“[A] prison official cannot be found liable under the Eighth Amendment

for denying an inmate humane conditions of confinement unless the official knows

of and disregards an excessive risk to inmate health or safety . . . .”).

      However, summary judgment for defendant Barnes was premature. There is

a genuine dispute of material fact as to whether Barnes knew of and disregarded an

excessive risk that the rival gang members would attack and injure Delgado. See

id. at 842 (“Whether a prison official had the requisite knowledge of a substantial

risk is a question of fact subject to demonstration in the usual ways, including

inference from circumstantial evidence, and a factfinder may conclude that a prison

official knew of a substantial risk from the very fact that the risk was obvious.”

(internal citation omitted)).

      Contrary to defendants’ contention, Barnes is not entitled to qualified

immunity because there remains a triable dispute as to whether he violated


                                            2                                   10-17416
Delgado’s clearly established constitutional rights. See Saucier v. Katz, 533 U.S.

194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009) (qualified immunity analysis requires a determination whether the facts,

taken in the light most favorable to the party asserting the injury, show that the

defendant violated a clearly established constitutional right); Farmer, 511 U.S. at

832-33 (clearly establishing that the Eighth Amendment imposes a duty on prison

officials to protect prisoners from violence at the hands of other prisoners).

Accordingly, we reverse and remand for further proceedings on Delgado’s

deliberate indifference claim against defendant Barnes.

      We do not consider Delgado’s contentions that the district court abused its

discretion by not appointing counsel or by granting defendants’ motion to stay

discovery, given his failure to raise these issues before the district court. See Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). On remand, the district court may

allow the parties to conduct discovery in light of the lack of previous opportunity

to conduct discovery.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                           3                                     10-17416
