990 F.2d 1256
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Ronald S. BURGO, Plaintiff-Appellee,v.Edwin T. SHIMODA, Defendant-Appellant.
No. 92-16352.
United States Court of Appeals, Ninth Circuit.
Submitted March 10, 1993.*Decided March 17, 1993.

Before WALLACE, Chief Judge, and FARRIS and BRUNETTI, Circuit Judges.


1
MEMORANDUM**


2
Edwin T. Shimoda, Administrator of the Oahu Community Correctional Center, appeals the district court's denial of his summary judgment motion based on qualified immunity in an action under 42 U.S.C. § 1983 brought by Ronald S. Burgo, a Hawaii state prisoner.   We have jurisdiction to review an appeal of the denial of a summary judgment motion on the ground of qualified immunity.   Mitchell v. Forsythe, 472 U.S. 511, 530 (1985).   We affirm.


3
We review de novo the district court's denial of the defense of qualified immunity.   Lum v. Jensen, 876 F.2d 1385, 1386 (9th Cir.), cert. denied, 493 U.S. 1057 (1990).   We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.   Hamilton v. Endell, 981 F.2d 1062 (9th Cir.1992).


4
Burgo alleged that his eighth amendment right not to be subjected to cruel and unusual punishment was violated when Sergeant Supervisor Melvin Kauhane physically attacked him, breaking his jaw and causing other injuries.   It is undisputed that the attack was unprovoked.   Sergeant Kauhane had previously assaulted two other inmates.   The district court denied Administrator Shimoda's summary judgment motion as premature, without prejudice to his reasserting qualified immunity as a defense, on the ground that there were disputed issues of fact about whether Shimoda's failure to prevent the assault on Burgo constituted deliberate indifference to Burgo's rights.


5
Shimoda contends that the district court erred in denying his motion for summary judgment because (1) the law governing his conduct as Administrator of the prison was not clearly established;  and (2) even if the district court had correctly ruled that Shimoda could be liable if he had been "deliberately indifferent" to the danger of Kauhane assaulting prisoners, Shimoda had not shown "deliberate indifference."


6
Qualified immunity protects government officials who perform discretionary functions from liability for damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.   Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);   Hamilton, 981 F.2d at 1066.   To determine whether an official is entitled to qualified immunity, a court must (1) identify the right allegedly violated;  (2) determine whether that right was "clearly established" at the time of the alleged violation;  and (3) determine whether, in light of that law, a reasonable official would have believed his conduct to be lawful.   Hamilton, 981 F.2d at 1066;  see also Act Up!/Portland v. Bagley, No. 90-35888, slip op. 1071, 1076-77 (9th Cir.  Feb. 10, 1993).   The officer should prevail if the right asserted by the plaintiff was not "clearly established" or if the officer could have reasonably believed that his conduct was lawful.   Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991).   Officials are charged with knowledge of relevant law in existence at the time of the alleged violative conduct.   Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.1988), cert. denied, 490 U.S. 1075 (1989).


7
Shimoda disputes the district court's conclusion that it was clearly established "that a violation of the constitution would occur if a prison official who was in a position to take steps to avert an assault failed to do so intentionally or with deliberate indifference."   At the time of the assault, in March 1988, it was clearly established that the use of excessive force against prisoners by prison personnel violated prisoners' eighth amendment rights.   See McRorie v. Shimoda, 795 F.2d 780, 783-84 (9th Cir.1986).   It was also clear that prison officials would be liable in their personal capacities under section 1983 if their conduct caused the violation.   Id. (citing  Kentucky v. Graham, 473 U.S. 159 (1985)).   Prisoners could state a claim against prison personnel under 42 U.S.C. § 1983 "by establishing that prison personnel acted with 'deliberate indifference' in creating the condition that violates the eighth amendment."   Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988) (citing  Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir.1978) and  Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986)).


8
Shimoda contends, however, that the "deliberate indifference" standard set forth in  Leer, 844 F.2d 628, and  Berg, 794 F.2d 457, is inapplicable because those cases involved attacks on inmates by other inmates, not attacks on prisoners by prison personnel.  Leer made no such distinction, however, and when Leer was decided, we had previously held that prison officials would be personally liable under section 1983 for a deprivation of a prisoner's eighth amendment rights resulting from an assault by a prison guard if the officials' conduct "caused the deprivation."   McRorie, 795 F.2d at 783 (citing  Kentucky v. Graham, 473 U.S. at 166).   Accordingly, the district court correctly determined that Burgo's right not to be subjected to excessive force by prison personnel was clearly established, as was the responsibility of supervisory prison personnel not to act with deliberate indifference to that right.   Leer, 844 F.2d 628, 633.1


9
Shimoda also contends that even if "deliberate indifference" is the applicable standard, he was not deliberately indifferent to Burgo's rights because he did not know that Kauhane was having contact with inmates at the time of the attack on Burgo, and that it was not his direct responsibility to enforce the "no contact" order that issued after the first reported assault.   Burgo contends, however, that Shimoda did know that Kauhane was in contact with inmates in violation of the order because a second assault by Kauhane on an inmate was reported while Kauhane was under the no-contact order, and Shimoda ordered an investigation into that incident.   The parties also disagree about whether Shimoda is responsible for lengthy delays in investigating Kauhane's two previous assaults on inmates and in taking disciplinary action.   Because these disputed issues of fact must be resolved in order to determine whether Shimoda was deliberately indifferent to the danger of Kauhane repeating his attacks on inmates, the district court did not err in denying summary judgment.   See Hamilton, 981 F.2d 1062, 1067.


10
AFFIRMED.



*
 The panel unanimously finds this case suitable for decision without oral argument.   Fed.R.App.P. 34(a);  9th Cir.R. 34-4.   Therefore, Shimoda's request for oral argument is denied


**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


1
 Shimoda contends that the Supreme Court's recent decision in  Hudson v. McMillian, 112 S.Ct. 995 (1992) requires that Burgo prove that Shimoda acted "maliciously or sadistically" rather than with "deliberate indifference" to Burgo's rights.   This decision does not affect our determination of whether Burgo had a clearly established right at the time of the alleged violation, for purposes of Shimoda's claim of qualified immunity.   See  Anderson v. Creighton, 483 U.S. 635, 640 (1987) ("[I]n the light of preexisting law the unlawfulness must be apparent.");   Tribble, 860 F.2d at 324


