                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 18 2011

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




                            FOR THE NINTH CIRCUIT



C.M.V., by and through his Guardian Ad           No. 09-56324
Litem Cindy Martinez; A.S.M., a minor,
by and through her Guardian Ad Litem             D.C. No. 2:07-cv-05044-CAS-
Cindy Martinez,                                  PLA

              Plaintiffs - Appellees,
                                                 MEMORANDUM *
  v.

PATRINA SMITH, AKA Doe 11,

              Defendant - Appellant,

  and

COUNTY OF LOS ANGELES; LEROY
BACA, individually and in his official
capacity,

              Defendants.



                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding

                     Argued and Submitted November 8, 2011
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FERNANDEZ, MOORE,** and McKEOWN, Circuit Judges.

      Los Angeles Sheriff’s Department Deputy Patrina Smith brings an

interlocutory appeal of the district court’s order denying her motion for summary

judgment on qualified immunity. Plaintiff-appellee, C.M.V., alleges that while he

was incarcerated at Pitchess Detention Center, Smith violated his constitutional

rights by failing to protect him from a violent assault at the hands of other inmates.

To survive summary judgment in his claim under 42 U.S.C. § 1983, C.M.V. must

show that there is a genuine issue of material fact as to whether Smith was

deliberately indifferent to a “substantial risk of serious harm.” See Farmer v.

Brennan, 511 U.S. 825, 834 (1994).

      We have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order

doctrine. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d

971, 976 (9th Cir. 1998). “[A]ppellate jurisdiction over a summary judgment

denial of qualified immunity is limited to reviewing the ‘purely legal’ issue of

‘whether the facts alleged [by the plaintiff] support a claim of violation of clearly

established law.’” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985)

(second alteration in original)). We assume the facts alleged by C.M.V. to be


       **
               The Honorable Karen Nelson Moore, Circuit Judge for the Sixth
Circuit, sitting by designation.

                                           2
correct. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001). We review de

novo the district court’s decision to deny summary judgment based on qualified

immunity. Galen v. Cnty. of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).

      Nothing in the record suggests that Smith knew or had reason to know of the

risk that C.M.V. would be assaulted. See Farmer, 511 U.S. at 837 (holding that “a

prison official cannot be found liable under the Eighth Amendment for denying an

inmate humane conditions of confinement unless the official . . . [was] aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exist[ed], and . . . [drew] the inference”); Berg v. Kincheloe, 794 F.2d 457,

460 (9th Cir. 1986) (affirming summary judgment as to certain defendants because

plaintiff “failed to come forward with facts showing that these defendants had any

reason to believe he would be attacked”). Further, the record provides no basis to

impute this knowledge to Smith simply because C.M.V. was incarcerated at

Pitchess Detention Center.

      At most, Smith’s conduct could be characterized as negligent, not

deliberately indifferent. See Davidson v. Cannon, 474 U.S. 344, 347-48 (1986)

(holding that prison officials’ negligence did not give rise to liability under

§ 1983). Because C.M.V. has not put forth evidence or allegations to sustain a




                                           3
constitutional violation, the district court erred in denying summary judgment to

Smith. Smith is entitled to qualified immunity.

      Plaintiff-appellee A.S.M. acknowledges that her claim is dependent on

C.M.V.’s claim. Accordingly, Smith is also entitled to qualified immunity as to

A.S.M.’s claim. See Corales v. Bennett, 567 F.3d 554, 569 n.11 (9th Cir. 2009).

      REVERSED and REMANDED with direction to enter judgment in favor of

Smith.




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