NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 9 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF MICHAEL MCCORMACK, No. 23-55744 by and through his successor in interest Melinda Jacobson McCormack; MELINDA D.C. Nos. JACOBSON MCCORMACK, by and 5:21-cv-00148-JGB-SHK through her Guardian ad Litem, James 5:22-cv-00769-JGB-SHK McCormack,

Plaintiffs-Appellants, MEMORANDUM*

v.

COUNTY OF SAN BERNARDINO; SAN

BERNARDINO COUNTY SHERIFF'S

DEPARTMENT; SANDRO XAVIER

RIVERA; BRANDON ENRIQUEZ; DOES,

1 through 10,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted September 13, 2024 Pasadena, California

Before: FRIEDLAND and DESAI, Circuit Judges, and SCHREIER,** District

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. Judge.

The Estate of Michael McCormack and Melinda Jacobson McCormack

(Appellants) appeal the district court’s grant of summary judgment in favor of

Brandon Enriquez on Appellants’ failure to protect claim under the Fourteenth

Amendment Due Process Clause.1 We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

On July 31, 2020, Michael McCormack was booked into pre-trial custody at

the West Valley Detention Center. West Valley mental health staff placed Sandro

Rivera, another detainee, in McCormack’s cell on August 23, 2020. McCormack

and Rivera, who were both designated by West Valley mental health professionals

as mentally ill, were housed together until August 31, 2020, when at approximately

12:09 a.m., Deputy Enriquez discovered that Rivera had brutally beaten and killed

McCormack in their shared cell.

We review a district court’s grant of summary judgment de novo, viewing

all evidence in the light most favorable to the nonmoving party and drawing all

reasonable inferences in that party’s favor. Herrera v. Los Angeles Unified Sch.

Dist., 18 F.4th 1156, 1158 (9th Cir. 2021). To succeed on a Fourteenth

Amendment due process claim for failure to protect from harm, a plaintiff must

1 The claims against the other named defendants were dismissed based on a stipulation of the parties.

2 show: (1) “[t]he defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (2) [t]hose conditions put the

plaintiff at substantial risk of suffering serious harm; (3) [t]he defendant did not

take reasonable available measures to abate that risk, even though a reasonable

officer in the circumstances would have appreciated the high degree of risk

involved—making the consequences of the defendant’s conduct obvious; and (4)

[b]y not taking such measures, the defendant caused the plaintiff’s injuries.”

Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en banc).

“With respect to the third element, the defendant’s conduct must be objectively

unreasonable.” Id.

Appellants contend that Deputy Enriquez knew or should have known that

Rivera posed a substantial risk of serious harm to McCormack because Rivera

repeatedly stood at his cell door and loudly yelled expletives at guards and other

inmates. Enriquez, however, never observed any conflict between McCormack

and Rivera and reported that Rivera’s yelling was never directed at McCormack.

Additionally, while McCormack and Rivera were housed together, there were no

reported acts of violence or other observed tensions between the two. McCormack

never reported any problems with Rivera to staff despite receiving regular

treatment from medical staff. There were also no reports that Rivera was

physically violent with staff or other inmates. Thus, no “reasonable officer in the

3 circumstances would have appreciated [a] high degree of risk involved” in housing

McCormack with Rivera. Id.

The district court therefore properly granted summary judgment to Enriquez

on Appellants’ failure to protect from harm claim.

AFFIRMED.

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