                                                                              FILED
                            NOT FOR PUBLICATION                               JAN 11 2011

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




                            FOR THE NINTH CIRCUIT



BRIAN LEE BANKS, Sr.,                            No. 09-35787

              Plaintiff - Appellant,             D.C. No. 6:06-cv-06299-TC

  v.
                                                 MEMORANDUM *
DESCHUTES COUNTY; DESCHUTES
COUNTY SHERIFF; LES STILES,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Thomas M. Coffin, Magistrate Judge, Presiding

                     Argued and Submitted December 10, 2010
                               Seattle, Washington

Before: BEEZER, O’SCANNLAIN, and PAEZ, Circuit Judges.

       Brian Lee Banks, Sr. was incarcerated as a pre-trial detainee at the

Deschutes County Adult Jail when Banks was assaulted by his cellmate, Kristopher

Holland. Banks filed suit against the county, the sheriff, and unnamed prison

guards (“Defendants”) under 42 U.S.C. § 1983. Banks alleged that Defendants


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violated his constitutional rights by acting with deliberate indifference to his safety

and medical needs. The district court granted summary judgment in favor of

Defendants, and Banks filed a timely appeal. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      The facts of this case are known to the parties. We do not repeat them.

      We review de novo a district court’s grant of summary judgment. F.T.C. v.

Stefanchik, 559 F.3d 924, 927 (9th Cir. 2009). Viewing the evidence in the “light

most favorable to the non-moving party,” we determine “whether there are any

genuine issues of material fact and whether the district court correctly applied the

substantive law.” Id. We “may affirm summary judgment on any ground

supported by the record.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n.3 (9th

Cir. 2008).

      Pre-trial detainees have a due process right not to be punished. Bell v.

Wolfish, 441 U.S. 520, 535 (1979). We analyze pretrial detainees’ due process

claims under the same standard that we apply to Eighth Amendment claims of

convicted prisoners. See Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1242-

44 (9th Cir. 2010) (rejecting a pretrial detainee’s arguments for a different

standard).

      To prove that prison officials violated his constitutional rights by failing to


                                           2
prevent harm, Banks must show that incarceration conditions posed “a substantial

risk of serious harm” and that prison officials showed “‘deliberate indifference’ to

inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). We apply

a subjective standard of deliberate indifference. Id. at 837; Clouthier, 591 F.3d at

1244. To meet this subjective standard, “the official must both be aware of facts

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

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.

      In this case, Banks fails to raise a genuine factual dispute that prison

officials were aware of a substantial risk of serious harm prior to Holland’s attack.

Banks correctly notes that he may prove the defendants’ subjective awareness of a

risk “in the usual ways, including inference from circumstantial evidence.” Id. at

842. But the circumstantial evidence merely shows that Holland had a disciplinary

record. Holland’s disciplinary record does not prove that Holland posed a

substantial risk of serious harm to Banks, and it does not prove that prison officials

were subjectively aware of any risk Holland posed. Banks has therefore failed to

establish that his constitutional rights were violated.

      Further, Banks brings claims against the county, but Banks provides no

evidence that the county is responsible for the alleged constitutional violations.

Under 42 U.S.C. § 1983, a local government may be liable for constitutional


                                           3
violations only “when execution of [the] government’s policy or custom” inflicts

the constitutional injury. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694

(1978). Banks asserts that the county misclassified Holland’s security level and

that this misclassification led to Banks’ injury. But Banks offers no evidence that

the county had either a policy or customary practice of misclassification, and he

does not show that Banks and Holland were celled together because of

misclassification. The district court therefore properly granted summary judgment

to Defendants on Banks’ claim that prison officials were deliberately indifferent to

his safety.

       The same standard of deliberate indifference applies to claims of inadequate

medical treatment, see Lolli v. Cnty. of Orange, 351 F.3d 410, 418-19 (9th Cir.

2003), but we do not separately address Banks’ inadequate medical treatment

claim. “[W]e ‘review only issues which are argued specifically and distinctly in a

party’s opening brief.’” Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929

(9th Cir. 2003) (quoting Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994)).

Although Banks alleges in his statement of facts that officers delayed in

responding to his calls for help, Banks does not raise specific arguments regarding

his inadequate medical treatment claim.

       AFFIRMED.


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