                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 28 2011

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




                             FOR THE NINTH CIRCUIT



JESSE BRIEN BRITTAIN,                            No. 08-56575

               Plaintiff - Appellant,            D.C. No. 5:05-cv-01075-R-AGR

  v.
                                                 MEMORANDUM *
BOB DOYLE, Sheriff, in his individual
and official capacity and LAUS, Dr., in
his/her individual and official capacity,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Jesse Brien Brittain appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action challenging his conditions of confinement

at the Riverside County Jail while awaiting commitment hearings pursuant to

          *
             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).
California’s Sexually Violent Predators Act (“SVP Act”). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Jones v. Blanas, 393 F.3d 918, 926

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

       The district court properly granted summary judgment to defendant Laus

because Brittain failed to raise a genuine issue of material fact as to whether Laus

was personally involved with, or promulgated a specific policy that led to, the

alleged constitutional violations. See Arnold v. Int’l Bus. Machs. Corp., 637 F.2d

1350, 1355 (9th Cir. 1981) (to bring section 1983 claim, plaintiff must link each

named defendant with some affirmative act or omission that demonstrates a

violation of plaintiff’s constitutional rights).

       The district court granted summary judgment to defendant Doyle because it

concluded that the policies he instituted were constitutional. However, in

opposition to summary judgment, Brittain submitted evidence suggesting that,

while detained at Riverside County Jail, he was held in administrative segregation

where the conditions of his confinement were at least as harsh as those of the penal

inmates. Defendants submitted a declaration suggesting that it was their policy to

hold those awaiting hearings under the SVP Act in administrative segregation

where they were “afforded the same privileges as all other inmates unless specific

security concerns dictate otherwise.” Taken together, this evidence creates a


                                             2                                  08-56575
genuine issue of material fact as to whether Brittain was subjected to punishment

in violation of his due process rights. See Jones, 393 F.3d at 932-33 (holding that a

SVP detainee “is entitled to conditions of confinement that are not punitive” and a

presumption of punitive conditions arises “when a [SVP] detainee is confined in

conditions identical to, similar to, or more restrictive than, those in which his

criminal counterparts are held”). Accordingly, we reverse the district court’s

summary judgment for the county and defendant Doyle on Brittain’s due process

claim, and remand for further proceedings. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978) (a local government is liable for damages under § 1983

where a violation of constitutional rights resulted from its policy or custom);

Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (“A supervisor

may be liable if there exists either (1) his or her personal involvement in the

constitutional deprivation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.”); see also Streit v.

Cnty. of Los Angeles, 236 F.3d 552, 564-65 (9th Cir. 2001) (a California sheriff,

when functioning as the administrator of the local jail, is a county actor for the

purposes of § 1983).




                                           3                                        08-56575
      We decline to address whether defendant Doyle is entitled to qualified

immunity. On remand defendants may raise qualified immunity for the district

court to consider in the first instance.

      We do not consider whether the district court erred in granting summary

judgment on Brittain’s remaining constitutional claims because Brittain failed to

raise them in his opening brief. See Greenwood v. F.A.A., 28 F.3d 971, 978 (9th

Cir. 1994) (matter not specifically and distinctly argued in opening brief is waived

on review).

      Each party shall bear its own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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