NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 13 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMIR SHABAZZ, No. 18-16909

Plaintiff-Appellee, D.C. No. 1:15-cv-00881-DAD-EPG

v.

MEMORANDUM*

FELIX IGBINOSA,

Defendant-Appellant,

and

JEFFREY A. BEARD; et al.,

Defendants.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Defendant Felix Igbinosa appeals from the district court’s order denying him

* 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). qualified immunity in plaintiff Amir Shabazz’s 42 U.S.C. § 1983 action alleging

deliberate indifference claims. We have jurisdiction over this interlocutory appeal

under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985). We

review de novo the district court’s ruling on qualified immunity. George v.

Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014). We vacate and remand.

The district court determined that Igbinosa was not entitled to qualified

immunity on Shabazz’s deliberate indifference claims. However, after the district

court’s order was entered, this court in Hines v. Youseff, 914 F.3d 1218, 1229 (9th

Cir. 2019), concluded that a prisoner’s “right to be free from heightened exposure

to Valley Fever spores” was not clearly established. Because the district court did

not have the benefit of the decision in Hines when it entered its order, we vacate

the denial of qualified immunity as to Shabazz’s deliberate indifference claims

against Igbinosa, and remand with instructions to grant Igbinosa’s motion to

dismiss.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

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