                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             DEC 08 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

DANNY ATTERBURY,                                 No. 10-15578

              Plaintiff - Appellant,             D.C. No. 3:07-cv-06256-MHP

  v.
                                                 MEMORANDUM *
KATIE COOPER; GWEN LAST NAME
UNKNOWN; MIKE STOLP; ED FOULK,

              Defendants - Appellees.



                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                    Argued and Submitted November 14, 2011
                            San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

       Danny Atterbury was involuntarily committed at Napa State Hospital

(“NSH”) after pleading not guilty by reason of insanity to attempted murder.

Atterbury filed a complaint against Appellees, staff of NSH, alleging that they did

not protect him from being physically attacked and that they incited and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
encouraged other patients to develop animosity towards him, violating his

Fourteenth Amendment due process rights. The district court granted Appellees’

motion for summary judgment. Atterbury appeals, and we affirm.

      On review of a motion for summary judgment, we review the evidence in the

light most favorable to the nonmoving party. Waggy v. Spokane Cnty., 594 F.3d

707, 710 (9th Cir. 2010). But even viewing the evidence in this light, Atterbury

has not put any evidence on the record that presents a genuine dispute as to any

material fact showing that the staff at NSH failed to use their professional

judgment. Youngberg v. Romeo, 457 U.S. 307, 321–23 (1982).

      Atterbury’s claims are based on (1) his transfer from Ward T-4 to Ward T-7,

(2) an incident when he was punched in the face by another patient, and (3) an

incident where he asserts that an NSH staff member announced over the

loudspeaker that patients could not take their smoke break until Atterbury took his

medicine. As to the transfer, Atterbury submitted no evidence showing that Ward

T-7 is more violent than Ward T-4. Mere allegations cannot survive summary

judgment; an appellant must set forth specific facts. Fed. R. Civ. P. 56(e); Papa v.

United States, 281 F.3d 1004, 1011 (9th Cir. 2002) (noting that “appellants must

not merely have alleged sufficient violations, they must also have included ‘some

facts’ in support of their allegations”). As to the punch from the other patient,


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nothing in the record suggests it was other than an unanticipated attack; there is no

evidence the NSH staff failed to use their professional judgment in a way that led

to the attack.

       Finally, we also affirm the district court’s rejection of Atterbury’s claim that

the NSH staff encouraged other patients to develop animosity towards him by

calling out his name over the loudspeaker and saying that privileges of others

would be delayed until he took his medicine. The law did not clearly establish that

making such an alleged statement would violate the mentioned patient’s

constitutional rights, and there was no evidence that the announcement in fact

endangered the safety of Atterbury, who does not claim he was physically harmed

by others because of that statement. Saucier v. Katz, 533 U.S. 194, 201 (2001)

(modified, Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

       AFFIRMED.




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