Terrie Sena v. Nicole Coleman ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 21 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRIE L. SENA, No. 18-15236
Plaintiff-Appellant, D.C. No.
2:15-cv-02066-JCM-CWH
v.
NICOLE COLEMAN, Corrections MEMORANDUM*
Officer; ZIPPORA CLINKSCALES,
Corrections Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted June 14, 2019**
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
*
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).
***
The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
Terrie Sena appeals the district court’s summary judgment in favor of
corrections officers Nicole Coleman and Zippora Clinkscales (collectively,
“defendants”) on Sena’s claims brought under 42 U.S.C. § 1983. We have
jurisdiction under 28 U.S.C. § 1291.
Taking the evidence in the light most favorable to Sena, a reasonable officer
in Coleman and Clinkscale’s position could conclude that Sena’s complaints that
her roommate (Allen) had verbally harassed her and hit things in the cell, Allen’s
shouting that her attorney was “going to fix” Sena, and reports from other inmates
that Allen was a problem, did not give rise to “a substantial risk of serious harm”
requiring immediate re-celling of Sena. Estate of Ford v. Ramirez-Palmer, 301
F.3d 1043, 1051 (9th Cir. 2002) (emphasis added). Because existing precedent has
not placed beyond debate the question whether, given the information available to
Coleman and Clinkscale, double celling a person like Sena with a person like Allen
would violate Sena’s constitutional rights under the Fourteenth Amendment, the
officers are entitled to qualified immunity. See id. at 1050–51; see also Horton by
Horton v. City of Santa Maria, 915 F.3d 592, 599–600 (9th Cir. 2019).1
1
Because Sena did not argue to the district court that it erred in construing
her First Amendment claim as a claim arising under the Eighth or Fourteenth
Amendment, any such argument is waived on appeal. See Hills v. Heineman, 626
F.3d 1014, 1019 (9th Cir. 2010).
2
AFFIRMED.
3