                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 07 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WARREN ERIC ARMSTEAD,                            No. 13-56600

              Plaintiff - Appellee,              D.C. No. 2:11-cv-03363-CAS-
                                                 MRW
 v.

KEITH FIELDS; BRIAN MASON,                       MEMORANDUM*

              Defendants - Appellants.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                     Argued and Submitted December 9, 2015
                              Pasadena, California

Before: GOULD and BERZON, Circuit Judges, and STEEH,** Senior District
Judge.

      Defendants-Appellants Keith Fields and Brian Mason appeal the district

court’s denial of their motion for summary judgment on qualified immunity

grounds. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court for the Eastern District of Michigan, sitting by designation.
      Plaintiff-Appellee Warren Armstead filed suit under Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that

Fields and Mason violated Armstead’s Eighth Amendments rights in November

2009 when they disregarded a substantial risk of serious harm by placing Armstead

in a cell with José Barahona. Accepting the magistrate judge’s report and

recommendation, the district court denied Fields’s and Mason’s motion for

summary judgment, concluding that a reasonable factfinder could conclude that the

two officers had violated Armstead’s Eighth Amendment rights. On appeal, Fields

and Mason raise three challenges: (1) the district court used an incorrect standard

when assessing whether Armstead faced an objective “substantial risk of serious

harm” while sharing a cell with Barahona; (2) the district court erroneously found

that Fields and Mason knew of the substantial risk of serious harm to Armstead but

nonetheless disregarded that risk; and (3) the district court erred by concluding that

any Eighth Amendment violation Armstead suffered was based on law that had

been “clearly established” at the time of the alleged violation.

      We review district court rulings on qualified immunity and summary

judgment de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013).

Summary judgment is appropriate only if, viewing the evidence in the light most

favorable to the party opposing the summary judgment, there are no genuine issues


                                           2
of material fact. Id. Qualified immunity involves a two-step inquiry: (1) whether

the officers’ conduct violated a statutory or constitutional right; and (2) whether

that right was clearly established at the time of the alleged violation such that a

reasonable officer would have known that his conduct was unlawful. Pearson v.

Callahan, 555 U.S. 223, 232 (2009). Courts may address either prong first, but a

plaintiff must succeed on both prongs in order for a district court to deny qualified

immunity. Id. at 236.

      Fields and Mason contend that Armstead did not suffer an Eight Amendment

violation. “Deliberate indifference to the risk that an inmate will be harmed by

other prisoners constitutes a violation of the Eight Amendment.” Robinson v.

Prunty, 249 F.3d 862, 866 (9th Cir. 2001) (citing Farmer v. Brennan, 511 U.S.

825, 833 (1994)). When asserting a claim based on a failure to prevent harm, the

prisoner must make an objective showing that “he [wa]s incarcerated under

conditions posing a substantial risk of serious harm,” and a subjective showing that

the officer was both aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists and did in fact draw such an inference. See

Farmer, 511 U.S. at 834, 837.

      Here, the district court did not err by concluding that both the objective and

subjective tests were satisfied. A reasonable factfinder, viewing the facts in the


                                           3
light most favorable to Armstead, could find that Armstead was subjected to an

objectively substantial risk of serious harm when placed in and allowed to remain

in the cell with Barahona because Barahona told Fields and Mason three times that

he could not be placed with “blacks”; Barahona was in a Southern California

Mexican-American gang that has an ongoing “blood feud” with African

Americans; Barahona used a racial slur regarding African Americans while being

led to the shared cell; Armstead rang the duress button after he was in the cell with

Barahona; and Armstead, after Fields and Mason arrived, told them that he was “in

harm’s way” and that Barahona had already made physical contact with him, and

begged not to be left in the cell.

      That Barahona had not previously attacked Armstead when they worked on

the same crew did not detract from the objective risk. Barahona was quite specific

that it was sharing a cell with a black prisoner that violated his gang’s precepts.

      A reasonable factfinder could also find that the evidence demonstrates that

Fields and Mason knew of the substantial risk and deliberately disregarded it.

“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 . . . .” Farmer, 511 U.S. at 842. “[A] factfinder may

conclude that a prison official knew of a substantial risk from the very fact that the


                                           4
risk was obvious.” Id. Here, both officers were aware of Barahona’s statements

and actions, but still declined to give Armstead a different cellmate after Armstead

pressed the emergency button and pleaded to be celled elsewhere. Mason had

walked away, and Fields had turned and was starting to leave, despite Armstead’s

pleas that he was in “harm’s way.” Also, it is of some weight that, although

contesting the facts, both Mason and Fields said in their declarations that if both

Barahona and Armstead had asked to be separated, they would have done so

because this would facilitate their practice “to place inmates in cells where they

will remain safe.”

      Finally, Fields and Mason contend that even if there had been an Eighth

Amendment violation, that right was not clearly established when they celled

Armstead with Barahona. That argument is unavailing. By November 2009, it

was clearly established in the Ninth Circuit that if any officer knew that an inmate

was acting dangerously with cellmates, or that an inmate was a threat to his

cellmate, but housed the two together anyway, doing so would violate the Eighth

Amendment. See Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir.

2002); see also Robinson, 249 F.3d at 867 (demonstrating that prison officials

violate inmates’ constitutional rights when the officials are aware “that placing

inmates of different races in [an area] at the same time presents a serious risk of


                                           5
violent outbreaks,” but place them together anyway). Given the clearly established

law at the time of the alleged violation, a reasonable officer should have known

that Armstead’s Eighth Amendment rights were violated when he was assigned a

cellmate who the officers knew posed a substantial risk of serious harm to him.

      AFFIRMED.




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