                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 15 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


M. G.,                                           No. 13-55764

              Plaintiff - Appellee,              D.C. No. 3:12-cv-02956-H-WVG

 v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant,

  And

CHARLES E. SAMUELS, Director of the
Federal Bureau of Prisons; et al.,

              Defendants - Appellants.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                        Argued and Submitted May 6, 2015
                              Pasadena, California

Before: FISHER, BEA, and FRIEDLAND, Circuit Judges.




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Defendants–appellants Charles E. Samuels, Fernando A. Arriola, and Robert

Garcia appeal the district court’s order denying their motion to dismiss

plaintiff–appellee M.G.’s Bivens claims against them. See Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). We have

jurisdiction under 28 U.S.C. § 1291, see Ashcroft v. Iqbal, 556 U.S. 662, 671–72

(2009), and review de novo, see Dunn v. Castro, 621 F.3d 1196, 1198 (9th Cir.

2010). Because the complaint fails to allege nonconclusory facts from which we

can infer defendants’ subjective knowledge that a substantial risk of serious harm

to M.G. existed, we reverse the district court’s order and remand for further

proceedings.

      “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A

claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). To state a Bivens

claim against a prison official who has allegedly failed to protect inmates from

violence at the hands of other prisoners, a plaintiff must allege facts, which, if

proven, would show (1) the inmate was “incarcerated under conditions posing a

substantial risk of serious harm,” and (2) the official acted with “deliberate

indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834


                                            2
(1994) (internal quotation marks omitted); see Simmons v. Navajo Cnty., 609 F.3d

1011, 1017 (9th Cir. 2010). To establish deliberate indifference, a plaintiff must

show the official was “aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists,” and “dr[ew] the inference.” Farmer, 511

U.S. at 837.

      M.G. claims defendants Arriola and Garcia1 were deliberately indifferent to

the substantial risk he faced when he was housed with his alleged assailant, Harold

Ford, a violent criminal. To plead deliberate indifference, M.G. must allege

nonconclusory facts from which we can infer defendants Arriola and Garcia

actually knew of the danger M.G. faced. See Iqbal, 556 U.S. at 678, 686–87;

Farmer, 511 U.S. at 837. This the complaint fails to do. It fails to allege facts

from which we can infer, for example, that defendants knew M.G., a nonviolent

detainee, was housed with Ford, a violent detainee, or that defendants knew of

prior incidents of prison violence arising out of a failure to segregate violent and

nonviolent prisoners, and thus were subjectively aware of a substantial risk of harm

to M.G. Cf. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (inferring sheriff’s

knowledge of substantial risk of serious harm to Starr from allegations that the



      1
          Samuels claims he is not named as a defendant in M.G.’s Bivens cause of
action; that section of the complaint names “Defendants ARRIOLA, GARCIA, and
DOE Defendants Only.” It seems the district court mistakenly included Samuels in
its discussion of M.G.’s Bivens claims.

                                           3
sheriff received notice of numerous incidents in which inmates had been killed or

injured because of the culpable actions of prison guards and allegations that the

sheriff received notice, in several reports, of systematic problems in the county

jails under his supervision that resulted in those deaths and injuries). We cannot

infer Arriola and Garcia specifically knew about the substantial risk of harm to

M.G. based solely on their positions and the allegation they were on “high alert” of

inmate violence in federal prisons generally.

      We reverse the order of the district court and remand for further

proceedings, including the opportunity to amend the complaint if information is

obtained in discovery on M.G.’s pending FTCA claim against the United States

that would support a Bivens claim.

      REVERSED and REMANDED.




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