NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 6 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESTER CANADA, No. 19-15606

Plaintiff-Appellee, D.C. No. 3:16-cv-00601-MMD-

WGC

v.

GENE BEITLER, C.O.; JEFFREY MEMORANDUM*

HOWELL, C.O.,

Defendants-Appellants,

and

ISIDRO BACA, Warden; et al.,

Defendants.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Appellants appeal from the district court’s order denying in part their motion

* 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). for summary judgment on the basis of qualified immunity in Canada’s 42 U.S.C.

§ 1983 action alleging a failure-to-protect claim. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Pauluk v. Savage, 836 F.3d 1117, 1120 (9th

Cir. 2016). We affirm in part and dismiss in part.

We lack jurisdiction to consider appellants’ arguments challenging the

district court’s factual conclusions regarding their subjective awareness of a risk of

harm to Canada. See Knox v. Sw. Airlines, 124 F.3d 1103, 1107 (9th Cir. 1997)

(“[W]e do not have jurisdiction over an interlocutory appeal that focuses on

whether there is a genuine dispute about the underlying facts.”). Accordingly, we

dismiss this portion of the appeal.

The only reviewable issue in this appeal is the purely legal question of

“whether or not certain given facts showed a violation of clearly established law.”

Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir. 2018) (citation and internal

quotation marks omitted). As to this issue, the district court properly concluded

that appellants were not entitled to qualified immunity on Canada’s failure-to-

protect claim. Viewing the facts in the light most favorable to Canada, as we are

required to do, Canada was among a group of inmates targeted for assault and

robbery by other inmates; Canada asked appellants to move him because plaintiff

was being targeted; appellants did not move plaintiff or otherwise respond to

Canada’s request; and appellants left an overcrowded prison floor unattended,

2 19-15606 during which time Canada was assaulted.

As of 2016, the law was clearly established that appellants’ actions would

violate Canada’s Eighth Amendment rights. See Ashcroft v. al-Kidd, 563 U.S. 731,

735, 741 (2011) (for purposes of qualified immunity, “[a] government official’s

conduct violates clearly established law when, at the time of the challenged

conduct, [t]he contours of [a] right [are] sufficiently clear that every reasonable

official would have understood that what he is doing violates that right” (citation

and internal quotation marks omitted)); Farmer v. Brennan, 511 U.S. 825, 834

(1994) (a prison official is deliberately indifferent in violation of the Eighth

Amendment if the official knew of and disregarded a substantial risk of serious

harm to the inmate); see also, e.g., Robinson v. Prunty, 249 F.3d 862, 867 (9th Cir.

2001) (prison guards were not entitled to qualified immunity where the prisoner

alleged that prison guards were aware that “placing inmates of different races in

the yard at the same time present[ed] a serious risk of violent outbreaks,” made

jokes of this effect to plaintiff, and then failed to intervene when plaintiff was

attacked by another inmate).

AFFIRMED in part, DISMISSED in part.

3 19-15606