                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 19 2009

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




                            FOR THE NINTH CIRCUIT



JIMMY RAY BROMGARD,                              No. 09-35004

              Plaintiff - Appellant,             D.C. No. 1:05-cv-00032-RFC

  v.
                                                 MEMORANDUM *
YELLOWSTONE COUNTY; BILL
KENNEDY, Chairman; JOHN OSTLUND
Commissioner; JIM RENO,
Commissioner,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                      Argued and Submitted November 3, 2009
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.

       For a custom or policy of inaction to amount to deliberate indifference

toward constitutional rights and thus be actionable under 42 U.S.C. § 1983, it




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
             must be the result of a ‘conscious,’ City of Canton v.
             Harris, 489 U.S. 378, 389 (1989), or ‘deliberate choice to
             follow a course of action . . . made from among various
             alternatives by the official or officials responsible for
             establishing final policy with respect to the subject matter
             in question.’ Pembaur v. City of Cincinnati, 475 U.S. 469,
             483 (1986).

Butler v. Elle, 281 F.3d 1014, 1026 n.9 (9th Cir. 2002) (alteration in original).

Bromgard has presented no evidence that the County made a “conscious” or

“deliberate choice” of inaction “from among various alternatives.” Id. The

evidence demonstrates that the County was not in a legal or de facto position to

hire, supervise, remove or set the compensation of defense attorneys for indigents

in 1987. Thus, under Butler, the County’s inaction cannot amount to deliberate

indifference. Id.

      AFFIRMED.




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