FILED

NOT FOR PUBLICATION MAY 30 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GLENDA PALMER, as surviving mother, No. 12-16340 personal representative of the Estate of Timothy Lucero and as Guardian of D.L.; D.C. No. 2:09-cv-01791-JWS D. L., a minor child; LEROY L. LUCERO, Sr., surviving father of Timothy L. Lucero, deceased, MEMORANDUM*

Plaintiffs - Appellees,

v.

ARIZONA DEPARTMENT OF

CORRECTIONS; ARIZONA, STATE

OF; RONALD CARLSON; ROBERT

STEWART,

Defendants,

UNKNOWN CARLSON; UNKNOWN

GAMBLIN; UNKNOWN STEWART,

Defendants,

And

PRESTON GAMBLIN, Corrections officer at ASPC Eyman,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding

Argued and Submitted May 15, 2014 San Francisco, California

Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.

On September 4, 2008, Timothy L. Lucero was stabbed to death by another

inmate while in the custody of the Arizona Department of Corrections (“ADC”) at

the Arizona State Prison Complex (“ASPC”)-Tucson. Four months before his

death, Lucero had been transferred to ASPC-Tucson from Special Management

Unit I (“SMU I”), a maximum-custody facility, at ASPC-Eyman. ASPC-Tucson

was a lower-security facility. Plaintiffs-Appellees are Lucero’s survivors.

Defendant-Appellant Preston Gamblin is a prison official at SMU I.

Gamblin appeals the district court’s denial of his motion for summary

judgment on his defense of qualified immunity from plaintiffs’ § 1983 deliberate

indifference claim. Plaintiffs assert that Gamblin violated Lucero’s Eighth

Amendment rights by failing to initiate the protective-segregation process required

2 under prison policy at SMU I upon learning of threats of mortal harm to Lucero.

We affirm.

Under ADC’s protective-segregation policy, known as DI 67, any inmate

may make a written or verbal request for protection against other inmates. Such a

request triggers a review process to determine whether the inmate requires long-

term protective segregation. DI 67 requires “any staff member . . . who becomes

aware of a threat to an inmate [to] immediately isolate the inmate in a safe,

reasonably secure area and notify the Shift Commander.”

Gamblin learned of specific, severe threats to Lucero’s safety on two

occasions. First, on January 25, 2008, he interviewed Lucero about the murder of

another inmate, Christopher Wathen. Gamblin wrote in his report that “since

[Lucero] . . . refused to carry out the assault on I/M Wathen, I/M Lucero . . . had

many individuals inform him that he is going to get the same fate as I/M Wathen.”

There is evidence that this report went only to Gamblin’s supervisor, Sergeant

Carlson, and did not make it into any personnel file for Lucero. It is undisputed

that the report did not trigger the DI 67 process. There is evidence from which a

reasonable juror could conclude that Gamblin knew that the report would stay in

Carlson’s file and would not trigger the DI 67 process.

3 Second, on January 31, 2008, Gamblin escorted Lucero to an interview with

ADC Special Investigator Henry Ross and Yuma County Attorney’s Office

attorneys who were investigating Wathen’s murder. During that interview, Lucero

provided information about the Wathen murder. Lucero stated several times that

his life was in danger because he had refused to carry out the assault on Wathen

and because he was divulging information about the Aryan Brotherhood’s

operations. Gamblin was in a position to hear Lucero’s statements.

Despite learning of these serious threats to Lucero’s safety, it is undisputed

that Gamblin did not initiate the DI 67 process. Lucero was likely safely isolated

at that time because he was then detained at SMU I, where he was housed in a

single cell and had limited contact with other inmates. But Gamblin has placed

nothing in the record to show that he notified the Shift Commander of the danger

to Lucero, as required by ADC’s mandatory policy.

Taking the facts in the light most favorable to the plaintiffs, a reasonable

juror could conclude that Gamblin’s failure to notify the Shift Commander, and

thereby to set the DI 67 process in motion, evinced deliberate indifference to

Lucero’s safety. A reasonable officer would have known that the DI 67 process

would almost certainly have resulted in a formal order providing protective

segregation for Lucero. A reasonable officer would also have known that, in the

4 absence of the DI 67 process and resulting formal order, Lucero was at some risk

of being transferred to an unsecure location. The degree of the risk that would

have been known to Gamblin is a question of fact that can be determined only at

trial. We therefore conclude that Gamblin was not entitled to qualified immunity

on summary judgment.

AFFIRMED.

5

FILED

Palmer v. Gamblin, No. 12-16340 MAY 30 2014

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I respectfully dissent.

Even taking all facts in the light most favorable to Plaintiffs, a reasonable

officer in Gamblin’s circumstances could not have known that it would be

deliberate indifference to fail to prevent an attack that occurred months later in a

different, less secure facility. Deliberate indifference requires that a prison official

"know of and disregard[] excessive risk to inmate health or safety; the official must

both be aware of facts from which the inference could be drawn that a substantial

risk of harm exists, and he must also draw the inference." Farmer v. Brennan, 511

U.S. 825, 837 (1994).

Here, Lucero was not attacked in the facility in which Gamblin worked. As

the majority recognizes, Lucero was housed there safely, in a single cell and with

limited contact with other inmates. It is undisputed that Gamblin documented

Lucero’s concerns in a report to his supervisor and that Lucero was not harmed at

that facility. Rather, Lucero was not attacked until months after his interaction

with Gamblin, and only after being transferred to a less secure facility. There is no

evidence that Gamblin knew of the possibility that Lucero would be transferred

and no evidence that Gamblin was involved in the transfer process in any way.

We require that prison officials act in the face of a known future risk to prisoners, Farmer, 511 U.S. at 837, but we also require, at the very least, that the

risk be known, Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1077–78

(9th Cir. 2013); see id. at 1078 ("Plaintiffs must demonstrate that the risk was

obvious or provide other circumstantial or direct evidence that the prison officials

were aware of the substantial risk to the [prisoner’s] safety."). In order to hold

Gamblin liable we must hold that he reasonably knew that his failure to notify the

Shift Commander of Lucero’s concerns would lead to Lucero’s being transferred,

and being transferred to a less secure facility, to which Lucero would not object,

where Lucero would be exposed to his enemies. Perhaps the Department or some

other defendant might be liable, but Gamblin, even assuming a deliberate or hostile

state of mind, could not have foreseen this highly speculative future risk. Because

no genuine issue of material fact exists as to whether Gamblin knew of the risk that

Lucero might be transferred to a less secure facility and might be attacked at that

other facility, Gamblin is entitled to qualified immunity.

2