                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 09 2010

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




                             FOR THE NINTH CIRCUIT



 JEFFREY A. PATE,                                  No. 08-17228

               Plaintiff - Appellant,              D.C. No. 2:04-cv-01201-FCD-
                                                   DAD
   v.

 MARTIN GARCIA,                                    MEMORANDUM *

               Defendant - Appellee.



                     Appeal from the United States District Court
                         for the Eastern District of California
                    Frank C. Damrell, Jr., District Judge, Presiding

                            Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        California state prisoner Jeffrey A. Pate appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

LSS/Research
indifference to his safety while he was a pretrial detainee at the Sacramento County

Main Jail. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

       The district court properly granted summary judgment because the

uncontroverted evidence showed that Garcia had no control over Pate’s placement

in the housing unit in which Pate was attacked, nor was there evidence that Garcia

knew of the risk to Pate’s safety before the attack. See Farmer v. Brennan, 511

U.S. 825, 837 (1994) (“[A] prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or safety . . . .”);

Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (providing that an official can

be liable under § 1983 only “‘if he does an affirmative act, participates in another’s

affirmative acts, or omits to perform an act which he is legally required to do that

causes the deprivation’” at hand (citation omitted)).

       Pate’s remaining contentions are unpersuasive.

       All pending motions are denied.

       AFFIRMED.




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