                                                                            FILED
                           NOT FOR PUBLICATION                               JUN 21 2010

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




                            FOR THE NINTH CIRCUIT



PHILLIP L. HARMON,                               No. 08-55418

              Plaintiff - Appellee,              D.C. No. 2:05-cv-04237-AHS-OP

  v.
                                                 MEMORANDUM *
TIM ANDERSON, Santa Barbara County
Sheriff; JASON REES,

              Defendants - Appellants.



                   Appeal from the United States District Court
                       for the Central District of California
               Alicemarie H. Stotler, Senior District Judge, Presiding

                              Submitted June 8, 2010 **
                                Pasadena, California

Before: TROTT and W. FLETCHER, Circuit Judges, and BREYER, District
Judge.***




        *
             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).
        ***
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
      Santa Barbara County Sheriff Tim Anderson and Deputy Sheriff Jason Rees

appeal the district court’s order in this 42 U.S.C. § 1983 action denying them

summary judgment on the basis of qualified immunity. We have jurisdiction under

28 U.S.C. § 1291, and we reverse and remand for entry of judgment in favor of

Anderson and Rees in their individual capacities.

      The district court erroneously concluded that at the time of Harmon’s

confinement, it would have been clear to a reasonable officer that housing Harmon

with convicted criminals violated Harmon’s right to substantive due process.

Although Harmon had a right under state law to be housed separately from

sentenced prisoners, Cal. Penal Code § 4002, it was not clearly established that he

had a similar federal right, which is required for § 1983 liability.

      We held for the first time in Jones v. Blanas, 393 F.3d 918, 931 (9th Cir.

2004), that a person held in custody pending an adjudication under California’s

Sexually Violent Predator Act (“SVPA”) “is entitled to protections at least as great

as those afforded to a civilly committed individual and at least as great as those

afforded to an individual accused but not convicted of a crime.” It is clear after

Jones that if a person held in custody pending SVPA proceedings is “detained

under conditions identical to, similar to, or more restrictive than those under which

pretrial criminal detainees are held, or where the individual is detained under


                                           2
conditions more restrictive than those he or she would face upon commitment,” a

rebuttable presumption arises that those conditions constitute punishment in

violation of the Fourteenth Amendment. Id. at 934.

      However, Jones was not decided until after Harmon was transferred out of

the Santa Barbara County Jail. Therefore, during the period Harmon was confined

in the jail, it was not clearly established that holding Harmon in protective custody

would violate Harmon’s constitutional rights. See Pearson v. Callahan, ___ U.S.

___, 129 S. Ct. 808, 822-23 (2009).

      Harmon argues that Youngberg v. Romeo, 457 U.S. 307 (1982), Bell v.

Wolfish, 441 U.S. 520 (1979), and Sharp v. Weston, 233 F.3d 1166 (9th Cir. 2000)

compel a contrary result. However, Youngberg involved civilly-committed

mentally ill individuals confined for their own good, Bell involved pretrial criminal

detainees, and Sharp involved sexually violent predators who were held in a civil

commitment center. Those cases did not address whether their standards applied

also to an individual pending a hearing under the SVPA who is housed in a law

enforcement detention facility such as a jail or a prison, where security risks are

higher than in civil commitment facilities.

      Therefore, because a reasonable officer would not have understood that he

was violating Harmon’s constitutional rights by housing him in protective custody


                                           3
along with sentenced prisoners and treating him the same as those prisoners,

Anderson is entitled to qualified immunity.

      Rees is also entitled to qualified immunity; he was not deliberately

indifferent to a substantial risk of serious harm to Harmon and thus did not violate

Harmon’s clearly established Fourteenth Amendment rights. See Clouthier v.

County of Contra Costa, 591 F.3d 1232, 1242 (9th Cir. 2010). Harmon admitted in

his deposition that he asked Rees for help in finding his missing glasses, that Rees

suspended the privileges of the inmates in Harmon’s unit in an attempt to retrieve

the glasses, and that there was no evidence that Rees did anything other than try to

help. Even though identifying Harmon as the person whose glasses were missing

and thus the person responsible for the loss of privileges might have constituted

negligence, there is no genuine dispute that Rees did not have the requisite

culpable state of mind to support an inference of deliberate indifference. Harmon

cites to no case that clearly establishes that Rees could be liable for less than

deliberate indifference.

REVERSED and REMANDED.




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