                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                       JUN 13 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


    BENITA PALMER, et al.,                         No. 15-16787

              Plaintiffs-Appellants,               D.C. No. 1:13-cv-01400-AWI-JLT

      v.

    SALVADOR VASQUEZ, individually and             MEMORANDUM*
    as a Correctional Officer, et al.,

              Defendants-Appellees.

                    Appeal from the United States District Court
                        for the Eastern District of California
                  Anthony W. Ishii, Senior District Judge, Presiding

                         Argued and Submitted May 10, 2017
                                Pasadena, California

Before: O’SCANNLAIN and OWENS, Circuit Judges and WILKEN,** Senior
District Judge.

       Plaintiffs appeal the district court’s decision to grant summary judgment for

Defendants in this prisoner civil rights case. We have jurisdiction pursuant to 28



*
 This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
  The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
U.S.C. § 1291, and we affirm.

       We review de novo a district court’s decision to grant summary judgment.

Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990, 995 (9th Cir. 2017).

       Every person who, “under color of” law, subjects another person within the

jurisdiction of the United States “to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable” to that person. 42

U.S.C. § 1983.1 “Section 1983 creates a ‘species of tort liability’” for causing such

deprivations. Manuel v. City of Joliet, 137 S. Ct. 911, 916 (2017) (citation

omitted). “Under Section 1983, supervisory officials are not liable for actions of

subordinates on any theory of vicarious liability.” Crowley v. Bannister, 734 F.3d

967, 977 (9th Cir. 2013) (citation and internal quotation marks omitted). “A

supervisor may be liable only if (1) he or she is personally involved in the

constitutional deprivation, or (2) there is ‘a sufficient causal connection between

the supervisor’s wrongful conduct and the constitutional violation.’” Id. (citation

and internal quotation marks omitted). “Under the latter theory, supervisory

liability exists even without overt personal participation in the offensive act if

supervisory officials implement a policy so deficient that the policy itself is a

1
    All citations to the United States Code are to Title 42 unless otherwise stated.

                                            2
repudiation of constitutional rights and is the moving force of a constitutional

violation.” Id.

     “The Eighth Amendment imposes a duty on prison officials to protect inmates

from violence at the hands of other inmates.” Cortez v. Skol, 776 F.3d 1046, 1050

(9th Cir. 2015) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994)). A prison

official violates this duty when, viewed objectively, the official’s act or omission

causes a substantial risk of serious harm, and the official is subjectively aware of

that risk and acts with deliberate indifference to the inmate’s health or safety. Id.

     Plaintiffs argue that Correctional Officers Salvador Vasquez and Darren

Brown and Warden Kim Holland violated decedent Ladwright Smith’s Eighth

Amendment rights by housing him in a double-cell with Anthony Taylor and by

failing to check on his welfare frequently enough.

   1. Housing Decision

     Plaintiffs argue that Smith never should have been housed with Taylor. But

none of the Defendants was responsible for housing Smith with Taylor. The three

officers involved in the decision to house the men together are not parties. In

addition, the undisputed evidence in the record shows that the decision to house

them together was not the result of overcrowding. Accordingly, no Defendant is

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liable for this decision. See § 1983; Cortez, 776 F.3d at 1050; Crowley, 734 F.3d at

977.

   2. Welfare Checks

       Plaintiffs argue that California Correctional Institution at Tehachapi (CCI)

had no policy requiring welfare checks and this absence demonstrates Holland’s

deliberate indifference. In the alternative, they argue that CCI did maintain a policy

requiring welfare checks every half hour and that Vasquez and Brown

demonstrated deliberate indifference by failing to check on Smith’s welfare for a

period of at least an hour and fifteen minutes.

       Assuming that Holland was responsible for CCI’s policies at the time, she

could be liable under § 1983 if Plaintiffs could show that the welfare check policy

or lack thereof was “so deficient that the policy itself is a repudiation of

constitutional rights and is the moving force of a constitutional violation.”

Crowley, 734 F.3d at 977 (citation and internal quotation marks omitted). Plaintiffs

rely on Vasquez’s testimony that a policy requiring welfare checks every half hour

began only after Smith’s death. However, Vasquez did not say that there was no

welfare check policy previously. A senior officer testified that welfare checks were

performed every half hour to an hour at the time prior to Smith’s death. In

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addition, it is undisputed that officers conducted welfare checks when they

conducted inmate counts every twenty-four hours, see Cal. Code Regs. tit. 15

§ 3274(a), when they offered to escort inmates to shower, and presumably when

they brought meals. Plaintiffs have not shown that the policy, or lack of a policy,

requiring welfare checks was so deficient that it constitutes a constitutional

violation. Furthermore, Plaintiffs have not shown that any lack of an additional

welfare check policy was the moving force behind Smith’s death.

     Holland could also be liable if she knew that an existing welfare check policy

was not being followed. Plaintiffs argue that Holland admitted that welfare checks

were not being performed when she declared that she had no knowledge that they

were not. This is specious. Plaintiffs do not present evidence that welfare checks

were not in fact performed.

     Plaintiffs argue in the alternative that CCI did maintain a policy requiring

half-hourly welfare checks and Vasquez and Brown violated it on the day in

question. Assuming that Vasquez violated the welfare check policy between 2 pm,

when his shift began, and 3:15 pm, when he discovered Smith’s death, he is not

liable under § 1983 because there is no evidence that he was subjectively aware

that failing to conduct a welfare check during this period would create a serious

                                          5
risk of harm to Smith. Furthermore, it is not clear that checking on Smith during

that period would have prevented his death, because the county coroner was unable

to determine the time at which it occurred. Brown and Holland also cannot be held

liable under this theory, because Brown was assigned to another building and

Holland was not present at CCI on the day Smith died. See Lemire v. Cal. Dep’t of

Corr. & Rehab., 726 F.3d 1062, 1080 (9th Cir. 2013).

     Plaintiffs’ First and Fourteenth Amendment familial association claim is

premised on their Eighth Amendment claim and therefore fails as well.

     For the foregoing reasons, the district court correctly granted summary

judgment for Defendants.

   AFFIRMED.




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