NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 15 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER RUSSETT; et al., No. 17-15709 18-15325 Plaintiffs-Appellees, D.C. No. 2:16-cv-00431-ROS v.

STATE OF ARIZONA; et al., MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding

Argued and Submitted July 17, 2019 San Francisco, California

Before: MURPHY,** PAEZ, and RAWLINSON, Circuit Judges.

Defendants-Appellants appeal two district court orders denying their

motions to dismiss on grounds of qualified immunity in this 42 U.S.C. § 1983

action. We have jurisdiction over this appeal under 28 U.S.C. § 1291, and we

reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 1. Plaintiffs-Appellees (“Appellees”) are corrections officers who allege

they were assaulted by inmates while employed by the Arizona Department of

Corrections in various incidents from 2014 through 2015. Appellees brought

claims against individual prison employees and officials (“Appellants”) under 42

U.S.C. § 1983, alleging Appellants violated their Fourteenth Amendment due

process rights by placing them in known danger with deliberate indifference to

their personal safety. See Daniels v. Williams, 474 U.S. 327, 331 (1986) (noting

that the Fourteenth Amendment’s guarantee of due process applies “to deliberate

decisions of government officials to deprive a person of life, liberty, or property”);

Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72, 974 (9th Cir. 2011) (reiterating that

the Fourteenth Amendment does not impose a duty on the state to protect

individuals from the acts of third parties unless “the state affirmatively places the

plaintiff in danger by acting with deliberate indifference to a known or obvious

danger” (internal quotation marks omitted)). Although the complaint contains

allegations specific to each Appellee, the allegations can be summarized as

assertions that Appellants knowingly assigned Appellees to work with violent

inmates under extremely dangerous conditions.

2. Appellants twice moved to dismiss the claims asserted against them,

arguing they were entitled to qualified immunity because (1) the allegations in

Appellees’ complaint did not state a claim under the state-created danger doctrine,

2 17-15709 and (2) the alleged constitutional violations were not clearly established at the time

of the incidents. The district court denied Appellants’ motions as to the claims

asserted against them by Appellees. We review the district court’s denial of

qualified immunity de novo. Hernandez v. City of San Jose, 897 F.3d 1125, 1131

(9th Cir. 2018).

3. A state actor is entitled to qualified immunity unless: (1) “the facts

alleged, taken in the light most favorable to the party asserting the injury, show

that the official’s conduct violated a constitutional right” and (2) the right at issue

“was clearly established ‘in light of the specific context of the case’” at the time of

the alleged misconduct. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1100

(9th Cir. 2011). This court has discretion to address either prong of the qualified

immunity analysis first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

4. Here, it is unnecessary to address the first prong of the qualified

immunity analysis because Appellees cannot show that the right at issue was

clearly established at the time of the alleged incidents in 2014 and 2015. A clearly

established right is one that is “sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Reichle v.

Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alteration

omitted). A plaintiff need not identify “a case directly on point, but existing

precedent must have placed the statutory or constitutional question beyond

3 17-15709 debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Courts do not “define

clearly established law at a high level of generality,” id. at 742, because qualified

immunity is meant to protect “all but the plainly incompetent or those who

knowingly violate the law,” id. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)).

Appellees argue the constitutional right they assert was recognized by this

court in L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992). The plaintiff in Grubbs was

a registered nurse employed at a medium security custodial institution. Id. at 120.

She was sexually assaulted by an inmate who was selected by the defendants to

work alone with her in the medical clinic. Id. This court held that the plaintiff’s

complaint stated a claim under the state-created danger doctrine. Id. at 123.

Although Appellees underscore that the plaintiff in Grubbs was employed

by a correctional facility, she was employed as a nurse, not a corrections officer.

This distinction is key because, unlike nurses, the primary responsibility of

corrections officers is to constantly supervise and closely interact with violent

inmates. Further, this court emphasized in Grubbs that the defendants led the

plaintiff “to believe that she would not be required to work alone with violent sex

offenders.” Id. at 120. Neither this court nor the Supreme Court has ever held that

a prison employee whose essential duties involve monitoring inmates can assert a

4 17-15709 substantive due process claim when he is assaulted by an inmate he was tasked

with supervising.

We have never before recognized a state-created danger cause of action on

facts analogous to the ones asserted by Appellees. Thus, it was not clearly

established that Appellants’ conduct of assigning corrections officers to work with

inmates under dangerous conditions would have violated Appellees’ due process

rights and we reverse the district court’s denial of qualified immunity.

REVERSED and REMANDED.

5 17-15709