                                                                          FILED
                           NOT FOR PUBLICATION
                                                                           FEB 01 2017
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

CHRISTOPHER A. JONES,                            No. 12-16571

              Plaintiff - Appellant,             D.C. No. 2:07-cv-01088-JCM-
                                                 GWF
 v.

DWIGHT NEVEN, Warden; BACA;                      MEMORANDUM*
COLE MORROW; GREG COX;
LORENA FLORES; DUANE GRAHAM;
LOEMAN CHURCH; WILLIAM
VENNEMAN; FRITZ SCHLOTTMAN;
LASHAWN MILLER; STEVEN
MACARTHUR; JAMES GREGORY
COX,

              Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted March 16, 2016
                           San Francisco, California

Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.

      Appellant Christopher A. Jones (Jones) challenges the district court's grant



*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of summary judgment in favor of Defendants in his action alleging that Defendants

violated his Eighth Amendment rights by: (1) failing to inform him that he tested

positive for hepatitis C; (2) exposing him to unsafe levels of environmental

tobacco smoke; and (3) forcing him to sleep on the floor in a constantly

illuminated and noisy solitary cell.

      “In order to prevail on an Eighth Amendment claim for inadequate medical

care, a plaintiff must show deliberate indifference to his serious medical needs. . .

.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation and internal

quotation marks omitted). To defeat a claim of qualified immunity, a plaintiff

must establish a violation of a clearly established constitutional right. See Hamby

v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016).

      1. Viewing the evidence in the light most favorable to Jones, we conclude

that genuine issues of material fact exist regarding whether Defendants were

deliberately indifferent to his Hepatitis C diagnosis. See Mendiola–Martinez v.

Arpaio, 836 F.3d 1239, 1247 (9th Cir. 2016). Hepatitis C is a chronic disease that

“quite obviously cause[s] serious health problems, and can result in death.”

Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007), as amended. Jones

tested positive for Hepatitis C in February, March, and June, 2004. During that

same period, a blood test reflected that Jones’ liver enzyme levels were elevated.


                                       Page 2 of 5
Yet, Jones was never informed that he had hepatitis. And, during the same period,

Defendant MacArthur prescribed Jones 800mg of ibuprofen three times a day,

which posed a significant risk of liver damage to a person with Hepatitis C.

According to Jones, the ibuprofen made him “sick as a dog!” A reasonable jury

could find that Defendants’ disregard for Jones’ Hepatitis C, and the

contraindicated ibuprofen prescriptions caused Jones “the unnecessary and wanton

infliction of pain.” Colwell, 763 F.3d at 1066 (citation omitted).

      Nor were Defendants entitled to qualified immunity on this claim. In Jones’

previous appeal, we held that the rights at issue in this case were clearly

established, such that a reasonable official would have known that his actions were

unconstitutional. See Jones v. Neven, 399 F. App’x. 203, 205 (9th Cir. 2010). We

reverse the grant of summary judgment in favor of Defendants on this claim.

      2. The district court properly granted summary judgment in favor of

Defendants on Jones’ claim regarding his exposure to environmental tobacco

smoke. Jones failed to adequately allege that he was “exposed to unreasonably

high levels of ETS.” Helling v. McKinney, 509 U.S. 25, 35 (1993). Jones only

alleged that his cellmate was a “heavy smoker.” The phrase “heavy smoker” used

by Jones lacks the specificity reflected in Helling, where the plaintiff alleged that




                                     Page 3 of 5
his cellmate was a “five-pack-a day smoker.” 509 U.S. at 35. We affirm the grant

of summary judgment in favor of Defendants on this claim.

      3. Defendants were entitled to qualified immunity on Jones’ conditions of

confinement claim based on his sleeping arrangements. We recently clarified that

there is no clear legal guidance “on whether mattress deprivation [requiring

sleeping on a concrete floor] was an Eighth Amendment violation.” Chappell v.

Mandeville, 706 F.3d 1052, 1060 (9th Cir. 2013). Therefore, the Defendants were

not “on notice” that depriving Jones of a mattress or bed for four days was “clearly

unlawful.” Saucier v. Katz, 533 U.S. 194, 202 (2001).

      4. Defendants were entitled to qualified immunity on Jones’ conditions of

confinement claims based on the constant lighting in his cell for a period of ninety-

six hours. To be sure, exposing prisoners to “constant illumination” is

unconstitutional. Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996), as amended

on denial of reh’g, 135 F.3d 1318 (9th Cir. 1998). However, it was not clearly

established in 2006 that subjecting a prisoner to illumination for four days violated

the Eighth Amendment. See Johnson v. Lewis, 217 F.3d 726, 732 (9th Cir. 2000)

(holding that “modest deprivations can also form the objective basis of a violation,

but only if such deprivations are lengthy or ongoing”) (citing Keenan, 83 F.3d at

1090-91).


                                     Page 4 of 5
      AFFIRMED IN PART, REVERSED IN PART. Each Party to bear its

costs of appeal.




                            Page 5 of 5
                                                                               FILED
Jones v. Neven, No. 12-16571
                                                                               FEB 01 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




KLEINFELD, Senior Circuit Judge, concurring in part and dissenting in part:

      I join the majority memorandum disposition with the exception of Part 1,

which discusses the hepatitis C claim. I would affirm on all claims.



      For a plaintiff to succeed on an Eighth Amendment claim for inadequate

medical treatment, he must satisfy both an objective and a subjective standard.1

The objective standard requires the prisoner to demonstrate the treatment or lack

thereof caused a risk of “further significant injury” or the “unnecessary and wanton

infliction of pain.”2 The subjective standard requires proof that a prison official

“knows of and disregarded an excessive risk to inmate health and safety.”3

Medical negligence, much less arguably substandard care, does not establish

unconstitutional cruel and unusual punishment, and that is at most what Jones’s

evidence might establish.4


      1
          Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
      2
          Id. (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)).
      3
          Id. (quoting Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004)).
      4
          Toguchi, 391 F.3d at 1057.
      The medical evidence submitted to the Superior Court shows merely that

Jones may not have been informed of a positive result on a test that the prison

routinely administers after physical altercations between inmates. The prison may

have failed to inform him of the positive result, because its focus was on preparing

him for imminent back surgery. Whether it did or not, he did not require treatment,

and his subsequent liver function testing was completely normal.



      Jones has pointed to an internet download on hepatitis C that establishes that

“at certain dosages, ibuprofen can stress the liver and elevate liver enzymes in

people with hepatitis C” and that “[i]buprofen must be used with extreme caution

in the later stages of liver disease and for those on interferon therapy.” Jones has

submitted no evidence that his liver was in fact stressed, the evidence shows that

his liver enzymes were not elevated, and he has submitted no evidence that he was

in the later stages of liver disease, nor that he was on interferon therapy.



      Basically, Jones had a great deal of back pain and was prescribed a double

dose of an over the counter anti-inflammatory for a short time without harm to his

liver. To characterize this medical treatment as knowing disregard of an

“excessive risk” to Jones’s health which risked “further significant injury” to his

liver or amounted to “unnecessary and wanton infliction of pain,” would trivialize
the constitutional protection against cruel and unusual punishment, as well as

running contrary to the controlling authorities.5




      5
          Colwell, 763 F.3d at 1066.
Jones v. Neven, No. 12-16571                                             FILED
HURWITZ, Circuit Judge, concurring in part and dissenting in part:         FEB 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
      I concur in the memorandum disposition except insofar as it affirms   the

district court’s summary judgment rejecting Jones’ Eighth Amendment claim

arising out of exposure to environmental tobacco smoke (ETS).

      A prisoner “states a cause of action under the Eighth Amendment by alleging

that [prison officials] have, with deliberate indifference, exposed him to levels of

ETS that pose an unreasonable risk of serious damage to his future health.” Helling

v. McKinney, 509 U.S. 25, 33 (1993). Jones’ uncontested submission that he was

incarcerated with “heavy smokers,” and the defendants’ admission that smoking was

only allowed in the cell, with closed windows, raises a question of material fact as

to whether Jones was “exposed to unreasonably high levels of ETS.” Id. at 35-36.

      A jury could also reasonably conclude that prison officials “deliberately

ignored” an “excessive risk to inmate health.” Johnson v. Lewis, 217 F.3d 726, 734

(9th Cir. 2000).     Jones’ medical records indicated a need for a smoke-free

environment, and the defendants presented no evidence of any change in his medical

condition since that classification.
