                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 13 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHARLES T. DAVIS,                               No.    18-17050

                Plaintiff-Appellee,             D.C. No. 1:10-cv-01184-DAD-SAB

 v.
                                                MEMORANDUM*
JAMES A. YATES, Warden; MATTHEW
CATE, Secretary,

                Defendants-Appellants.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Dale A. Drozd, District Judge, Presiding

                             Submitted June 11, 2019**

Before:      CANBY, GRABER, and MURGUIA, Circuit Judges.

      Defendants James A. Yates and Matthew Cate appeal from the district

court’s order denying them qualified immunity in plaintiff Charles T. Davis’s 42

U.S.C. § 1983 action alleging deliberate indifference claims. We have jurisdiction

over this interlocutory appeal under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472

      *
             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).
U.S. 511, 526-27 (1985). We review de novo the district court’s ruling on

qualified immunity. George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014). We

vacate and remand.

      The district court determined that Yates and Cate were not entitled to

qualified immunity on Davis’s deliberate indifference claims. However, after the

district court’s order was entered, this court in Hines v. Youseff, 914 F.3d 1218,

1229 (9th Cir. 2019), concluded that a prisoner’s “right to be free from heightened

exposure to Valley Fever spores” was not clearly established. Because the district

court did not have the benefit of the decision in Hines when it entered its order, we

vacate the denial of qualified immunity as to Davis’s deliberate indifference claims

against Yates and Cate, and remand with instructions to grant Yates and Cate’s

motion to dismiss.

      We lack jurisdiction to consider Davis’s contentions unrelated to the denial

of qualified immunity for Yates and Cate because they are outside the scope of this

appeal. See Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011) (jurisdiction over

interlocutory appeal from the denial of qualified immunity limited to “the purely

legal issue whether the facts alleged . . . support a claim of clearly established

law.” (citation and internal quotation marks omitted)).

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The parties shall bear their own costs on appeal.

VACATED and REMANDED.




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