Phillip Harmon v. Tim Anderson , 384 F. App'x 673 ( 2010 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                               JUN 21 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    PHILLIP L. HARMON,                               No. 08-55418
    Plaintiff - Appellee,              D.C. No. 2:05-cv-04237-AHS-OP
    v.
    MEMORANDUM *
    TIM ANDERSON, Santa Barbara County
    Sheriff; JASON REES,
    Defendants - Appellants.
    Appeal from the United States District Court
    for the Central District of California
    Alicemarie H. Stotler, Senior District Judge, Presiding
    Submitted June 8, 2010 **
    Pasadena, California
    Before: TROTT and W. FLETCHER, Circuit Judges, and BREYER, District
    Judge.***
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 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 Charles R. Breyer, United States District Judge for the
    Northern District of California, sitting by designation.
    Santa Barbara County Sheriff Tim Anderson and Deputy Sheriff Jason Rees
    appeal the district court’s order in this 
    42 U.S.C. § 1983
     action denying them
    summary judgment on the basis of qualified immunity. We have jurisdiction under
    
    28 U.S.C. § 1291
    , and we reverse and remand for entry of judgment in favor of
    Anderson and Rees in their individual capacities.
    The district court erroneously concluded that at the time of Harmon’s
    confinement, it would have been clear to a reasonable officer that housing Harmon
    with convicted criminals violated Harmon’s right to substantive due process.
    Although Harmon had a right under state law to be housed separately from
    sentenced prisoners, 
    Cal. Penal Code § 4002
    , it was not clearly established that he
    had a similar federal right, which is required for § 1983 liability.
    We held for the first time in Jones v. Blanas, 
    393 F.3d 918
    , 931 (9th Cir.
    2004), that a person held in custody pending an adjudication under California’s
    Sexually Violent Predator Act (“SVPA”) “is entitled to protections at least as great
    as those afforded to a civilly committed individual and at least as great as those
    afforded to an individual accused but not convicted of a crime.” It is clear after
    Jones that if a person held in custody pending SVPA proceedings is “detained
    under conditions identical to, similar to, or more restrictive than those under which
    pretrial criminal detainees are held, or where the individual is detained under
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    conditions more restrictive than those he or she would face upon commitment,” a
    rebuttable presumption arises that those conditions constitute punishment in
    violation of the Fourteenth Amendment. 
    Id. at 934
    .
    However, Jones was not decided until after Harmon was transferred out of
    the Santa Barbara County Jail. Therefore, during the period Harmon was confined
    in the jail, it was not clearly established that holding Harmon in protective custody
    would violate Harmon’s constitutional rights. See Pearson v. Callahan, ___ U.S.
    ___, 
    129 S. Ct. 808
    , 822-23 (2009).
    Harmon argues that Youngberg v. Romeo, 
    457 U.S. 307
     (1982), Bell v.
    Wolfish, 
    441 U.S. 520
     (1979), and Sharp v. Weston, 
    233 F.3d 1166
     (9th Cir. 2000)
    compel a contrary result. However, Youngberg involved civilly-committed
    mentally ill individuals confined for their own good, Bell involved pretrial criminal
    detainees, and Sharp involved sexually violent predators who were held in a civil
    commitment center. Those cases did not address whether their standards applied
    also to an individual pending a hearing under the SVPA who is housed in a law
    enforcement detention facility such as a jail or a prison, where security risks are
    higher than in civil commitment facilities.
    Therefore, because a reasonable officer would not have understood that he
    was violating Harmon’s constitutional rights by housing him in protective custody
    3
    along with sentenced prisoners and treating him the same as those prisoners,
    Anderson is entitled to qualified immunity.
    Rees is also entitled to qualified immunity; he was not deliberately
    indifferent to a substantial risk of serious harm to Harmon and thus did not violate
    Harmon’s clearly established Fourteenth Amendment rights. See Clouthier v.
    County of Contra Costa, 
    591 F.3d 1232
    , 1242 (9th Cir. 2010). Harmon admitted in
    his deposition that he asked Rees for help in finding his missing glasses, that Rees
    suspended the privileges of the inmates in Harmon’s unit in an attempt to retrieve
    the glasses, and that there was no evidence that Rees did anything other than try to
    help. Even though identifying Harmon as the person whose glasses were missing
    and thus the person responsible for the loss of privileges might have constituted
    negligence, there is no genuine dispute that Rees did not have the requisite
    culpable state of mind to support an inference of deliberate indifference. Harmon
    cites to no case that clearly establishes that Rees could be liable for less than
    deliberate indifference.
    REVERSED and REMANDED.
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