                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 12 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSSIE RAMOS and MELISSA ORTIZ,                  No.   15-55397

              Plaintiffs-Appellees,              D.C. No.
                                                 5:12-cv-01089-BRO-SP
 v.

GARY SWATZELL,                                   MEMORANDUM*

              Defendant,

 and

GUILLERMO GARCIA, Warden,

              Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                            Submitted October 7, 2016**
                               Pasadena, California

Before: TROTT, OWENS, and FRIEDLAND, Circuit Judges.


         *
             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).
      Guillermo Garcia, former Warden at the California Institution for Women,

appeals from the district court’s denial of his motion for summary judgment based

on qualified immunity in a 42 U.S.C. § 1983 action brought by plaintiffs Jossie

Ramos and Melissa Ortiz alleging deliberate indifference to their safety in

violation of the Eighth Amendment. Specifically, plaintiffs allege that, in 2010,

Garcia failed to take reasonable measures to protect them as inmates from sexual

abuse by a correctional officer. As the parties are familiar with the facts, we do not

recount them here. We review de novo a district court’s order denying summary

judgment on the ground of qualified immunity, Huskey v. City of San Jose, 204

F.3d 893, 899 (9th Cir. 2000), and we affirm.

      As a preliminary matter, the parties dispute whether we have jurisdiction to

review this interlocutory appeal. This court’s jurisdiction to review a denial of

qualified immunity is limited to questions of law, and a district court’s

determination “that the parties’ evidence presents genuine issues of material fact is

categorically unreviewable on interlocutory appeal.” George v. Morris, 736 F.3d

829, 834, 836 (9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th

Cir. 2009)). However, “[w]here disputed facts exist, . . . we can determine whether

the denial of qualified immunity was appropriate by assuming that the version of

the material facts asserted by the non-moving party is correct.” Bingue v.


                                           2
Prunchak, 512 F.3d 1169, 1172-73 (9th Cir. 2008) (quoting Jeffers v. Gomez, 267

F.3d 895, 903 (9th Cir. 2001) (per curiam)). Further, whether governing law was

“clearly established” for purposes of qualified immunity, and whether specific

facts constitute a violation of established law, are appealable legal questions. See

Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014). Therefore, we have

jurisdiction to determine, based on the facts as alleged by plaintiffs, whether Garcia

is entitled to qualified immunity.

      To determine whether qualified immunity applies, we consider: (1) whether

the facts, taken in the light most favorable to the party asserting injury, show that

the defendant’s conduct violated a constitutional right; and (2) whether that right

was clearly established at the time of the alleged violation. Pearson v. Callahan,

555 U.S. 223, 232, 235-36 (2009).

      Viewing the facts in the light most favorable to plaintiffs, the district court

properly determined that there was a genuine dispute of material fact as to whether

Garcia violated plaintiffs’ Eighth Amendment rights by failing to take reasonable

measures in response to the substantial risk that plaintiffs would be sexually

abused. See Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012) (“Sexual

harassment or abuse of an inmate by a corrections officer is a violation of the

Eighth Amendment.”); see also Farmer v. Brennan, 511 U.S. 825, 828, 837 (1994)


                                           3
(holding that “[a] prison official’s ‘deliberate indifference’ to a substantial risk of

serious harm to an inmate violates the Eighth Amendment,” and a prison official

acts with deliberate indifference when “the official knows of and disregards an

excessive risk to inmate health or safety”).

      In addition, it was clearly established in 2010 that the failure to protect

inmates from sexual abuse violated the Eighth Amendment. See Schwenk v.

Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and most absolute

of terms, the Eighth Amendment right of prisoners to be free from sexual abuse

was unquestionably clearly established prior to the time of this alleged assault, and

no reasonable prison guard could possibly have believed otherwise.”); see also

Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (discussing supervisor

liability). Garcia argues that the law governing his duty as a supervisor was not

clearly established because it did not alert him that the actions he took in response

to the complaints would be insufficient. But his argument depends on accepting

his version of the facts—not the facts in the light most favorable to plaintiffs, as

our precedent requires. See Jeffers, 267 F.3d at 903.

      Accordingly, the district court properly denied qualified immunity to Garcia.

      Each party shall bear its own costs on appeal.

      AFFIRMED.


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