                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 25 2012

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




                             FOR THE NINTH CIRCUIT



DAVID GENE LANCASTER,                            No. 11-17332

               Plaintiff - Appellee,             D.C. No. 2:08-cv-00051-LKK-
                                                 GGH
  v.

TOM L. CAREY, Warden; et al.,                    MEMORANDUM *

               Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Defendants appeal from the district court’s denial of their motion for

summary judgment based on qualified immunity in David Gene Lancaster’s 42

U.S.C. § 1983 action alleging that prison officials retaliated against him for serving




          *
             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).
as a witness to a sexual misconduct complaint filed against a prison staff member.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Davis v. City of

Las Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007), and we affirm.

      The district court properly denied qualified immunity at this stage of the

proceedings because, assuming that Lancaster’s version of the facts is true,

defendants’ retaliation would constitute a violation of clearly established law and a

reasonable official would not have believed his conduct was lawful. See Jeffers v.

Gomez, 267 F.3d 895, 903, 910 (9th Cir. 2001) (per curiam) (explaining that

“[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” and stating test for qualified

immunity); Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (recognizing that

“the prohibition against retaliatory punishment is ‘clearly established law’ in the

Ninth Circuit, for qualified immunity purposes”).

      To the extent that defendants challenge the sufficiency of evidence

supporting the district court’s conclusion that an issue of fact remains as to whether

defendants’ actions were retaliatory, we lack jurisdiction to review that issue. See

Jeffers, 267 F.3d at 903.




                                           2                                    11-17332
         We do not consider on appeal materials that were not before the district

court.

         AFFIRMED.




                                            3                                   11-17332
