Phillip Harmon v. Tim Anderson

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NOT FOR PUBLICATION JUN 21 2010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
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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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