                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 28 2010

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




                            FOR THE NINTH CIRCUIT



DONALD ROBIN LEACH,                              No. 08-15692

             Plaintiff - Appellee,               DC No. CV 00-6139 LJO

  v.
                                                 MEMORANDUM *
T. DREW, Correctional Officer; et al.,

             Defendants - Appellants,

  and

LOWE, Correctional Officer,

             Defendant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                             Submitted June 18, 2010 **
                              San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth 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)(C).
Before:         TASHIMA and BEA, Circuit Judges, and READE, District Judge.***

      Appellants Carey, Drew, Schroeder, and Haws (collectively, “Appellants”)

appeal for the second time the district court’s denial of their motion for summary

judgment on the issue of qualified immunity. Appellee, California inmate Donald

R. Leach (“Leach”), alleges that Appellants violated 42 U.S.C. § 1983 when they

failed to protect him after they were forewarned that he was the target of an

imminent assault.

      Our review of the district court’s order is limited to a single question:

whether Leach’s Eight Amendment rights were clearly established at the time he

was assaulted. We review this question of law de novo, Brooks v. City of Seattle,

599 F.3d 1018, 1021 (9th Cir. 2010), and we affirm.

      The assault on Leach, as well as its prior warning, occurred in August 1999.

As early as June 1994, it was clearly established that “prison officials have a duty .

. . to protect prisoners from violence at the hands of other prisoners,” and that a

prison official violates an inmate’s Eighth Amendment rights when the prison

official exhibits deliberate indifference to the inmate’s safety. Farmer v. Brennan,

511 U.S. 825, 833-34 (1994). By 1996, our decisions had made clear that prison



          ***
            The Honorable Linda R. Reade, Chief United States District Judge,
Northern District of Iowa, sitting by designation.

                                          -2-
officials have a duty to “take reasonable measures to protect inmates from violence

at the hands of other prisoners.” Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir.

2001). These and other cases had established that the failure of a prison official to

respond to a known, credible threat to an inmate’s safety constituted a violation of

the inmate’s Eighth Amendment rights. See Berg v. Kincheloe, 794 F.2d 457, 460-

61 (9th Cir. 1986).

      Appellants were explicitly warned that an assault on Leach was imminent,

and there are facts in the record upon which a reasonable jury may find that the

warning was credible. The guards did not protect Leach; they neither placed him

in administrative segregation nor warned him of the threat to his life. See 15 Cal.

Code Reg. § 3335(a) (mandating immediate administrative segregation when an

inmate’s safety is threatened); Hope v. Pelzer, 536 U.S. 730, 744 (2002) (relying in

part on Alabama Department of Corrections regulation to conclude that use of

“hitching post” violated an inmate’s clearly established Eighth Amendment rights).

      Viewing the facts in the light most favorable to Leach, Appellants received

credible information about a serious and immediate threat to Leach’s safety but

took no meaningful steps to address it. A reasonable officer would have

understood that delaying a response to the threat would constitute deliberate




                                         -3-
indifference.1 Accordingly, the district court’s order denying Appellants’ motion

for summary judgment based on qualified immunity is

      AFFIRMED.




      1
             Appellants contend that they were unsure whether the informant was
reliable. The reliability of the informant, however, is a controverted issue of fact
that we cannot review on this interlocutory appeal. See Jeffers v. Gomez, 267 F.3d
895, 903 (9th Cir. 2001) (per curiam).

                                         -4-
