                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 15 2012

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




                             FOR THE NINTH CIRCUIT



DERRICK LEE BILLUPS,                             No. 10-17233

               Plaintiff - Appellant,            D.C. No. 1:06-cv-01014-DCB

  v.
                                                 MEMORANDUM *
LOMELI,

               Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     David C. Bury, District Judge, Presiding

                              Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Derrick Lee Billups, a California state prisoner, appeals pro se from the

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

defendant Lomeli was deliberately indifferent to a serious risk to his safety. We




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Barnett v. Centoni,

31 F.3d 813, 815 (9th Cir. 1994) (per curiam), and we reverse and remand.

      The district court granted summary judgment because it determined that

Lomeli was not deliberately indifferent to Billups’ safety. However, Billups

submitted evidence that he and his cellmate told Lomeli that there was a threat to

Billups’ safety and that Billups told Lomeli that it could get “dangerous” if Billups

was not moved to a different cell. Billups also submitted evidence that the only

option Lomeli gave him was to continue insisting on a cell change and that Lomeli

threatened to place him in administrative segregation if he continued to violate

orders to return to his cell. This evidence, viewed in the light most favorable to

Billups, creates a genuine dispute of material fact as to whether Lomeli acted with

deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 847 (1994); Berg v.

Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986) (prison officials liable under § 1983

if they act with deliberate indifference to the prisoner’s plight). Moreover, Lomeli

is not entitled to qualified immunity because, at the time of the events at issue, the

law was clearly established that the deliberate indifference standard “does not

require that the guard or official believe to a moral certainty that one inmate

intends to attack another at a given place at a time certain before that officer is

obligated to take steps to prevent such an assault.” Berg, 794 F.2d at 459 (citations


                                            2                                     10-17233
and internal quotation marks omitted). Accordingly, we reverse summary

judgment on Billups’ deliberate indifference claim and remand for further

proceedings.

      REVERSED and REMANDED.




                                         3                                  10-17233
