                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 02 2010

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




                            FOR THE NINTH CIRCUIT



EILEEN KELLY, as the Surviving Parent            No. 09-17574
of Sean Desmond Kelly; et al.,
                                                 D.C. No. 2:09-cv-00824-DGC
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

STATE OF ARIZONA, acting by and
through the Arizona Department of
Corrections; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                     Argued and Submitted November 4, 2010
                            San Francisco, California

Before: PAEZ and BEA, Circuit Judges, and DUFFY, District Judge.**

       Appellant Lynn Butcher, as representative of the estate of Sean Kelly,

appeals from the district court’s judgment dismissing the estate’s 42 U.S.C. § 1983

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
action against Appellees Dora Schriro, the former Arizona Department of

Corrections Director, and Berry Larson, the former Warden of the Arizona State

Prison Complex, Lewis/Morey Unit for failure to state a claim.1 We review de

novo a district court’s dismissal. Coto Settlement v. Eisenberg, 593 F.3d 1031,

1034 (9th Cir. 2010). We affirm.2

      At the time of his death, Sean Kelly was a prisoner of the state of Arizona,

serving a nine-year sentence for possession of dangerous drugs and conspiring to

promote prison contraband. On multiple occasions, Kelly notified state authorities

that he needed to be placed in protective segregation because of threats to his

safety by other prisoners. On June 29, 2008, following a multi-faith religious

service, two inmates sneaked into Kelly’s housing unit and murdered him by

stabbing him no less than 116 times.


      1
        The district court did not specify whether the dismissal was with prejudice
or without prejudice, so its dismissal operated as an adjudication on the merits.
Fed. R. Civ. P. 41(b). Prior to its order to dismiss, the district court had once
granted Butcher leave to amend her complaint with sufficient factual content.
Butcher did so amend; it is her amended complaint on which the district court
ruled. Although Butcher could have requested leave to amend a second time when
defendants moved again to dismiss her amended complaint, see Fed. R. Civ. P.
15(a)(2), she never requested such leave.
      2
       Because the parties are familiar with the facts of this case, we will repeat
them here only to the extent necessary to explain our decision.



                                          2
       Butcher alleges that Schriro and Larson violated Kelly’s Eighth Amendment

rights by permitting the prison to be understaffed in violation of Department of

Corrections policies, which enabled the inmates to murder Kelly.

       The failure of prison officials to protect a prisoner from violence by other

inmates may constitute an Eighth Amendment violation if (1) the deprivation

alleged is sufficiently, serious and (2) the prison official acts with deliberate

indifference to the inmate’s safety. Hearns v. Terhune, 413 F.3d 1036, 1040 (9th

Cir. 2005) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Butcher,

however, has failed to plead any facts that would allow this court to draw a

reasonable inference that Schriro and Larson acted with deliberate indifference.

       To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to “ ‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. Here, Butcher’s allegations are not supported by any well-pleaded

facts; her complaint merely recites the elements of an Eighth Amendment claim

and insists that Schriro and Larson violated Kelly’s constitutional rights. Butcher

does not allege any personal involvement by Schriro and Larson sufficient to make


                                             3
them complicit in Kelly’s death. See id. at 1948 (“[A] plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has

violated the Constitution.”). There is no suggestion that Schriro and Larson were

personally aware that the prison was understaffed, that prisoners were able to

access Kelly’s cell, or that Kelly had previously been threatened and requested

segregation. Butcher’s allegations are insufficient to show the active knowledge

and disregard required for deliberate indifference, and the district court was correct

to dismiss her claim. Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000) (“[T]o

act with deliberate indifference, an official must have actual knowledge of an

excessive risk to inmate health or safety and must deliberately disregard that risk.”)

(citing Farmer, 511 U.S. at 837).

AFFIRMED.




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