NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 3 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAUSTEVEION DELANO JOHNSON, No. 20-17280

Plaintiff-Appellee, D.C. No. 2:19-cv-00232-MMD-NJK v.

JAMES DZURENDA; et al., MEMORANDUM*

Defendants-Appellants,

and

SOUTHERN DESERT CORRECTIONAL

CENTER; et al.,

Defendants.

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

Argued and Submitted November 18, 2021 San Francisco, California

Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Page 2 of 5

Defendants James Dzurenda, Brian Williams, and James Cox appeal from

the district court’s denial of their motion for summary judgment on plaintiff

Lausteveion Johnson’s Eighth Amendment claims under 42 U.S.C. § 1983. (The

district court granted summary judgment to defendants on the only claim naming

defendant Michaela Garufalo.) Defendants argue that the district court erred in

denying their motion because they are entitled to qualified immunity on each of

Johnson’s claims. We affirm.

1. In their motion for summary judgment, defendants did not assert

qualified immunity as a defense to Johnson’s claim alleging that the fire safety

system at the Southern Desert Correctional Center (SDCC) is constitutionally

deficient. Defendants have raised that argument for the first time in their opening

brief on appeal. We see no basis for excusing defendants’ failure to assert

qualified immunity as a defense below, and accordingly adhere to our general rule

that issues not raised in the district court “will not be considered for the first time

on appeal.” In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir.

2014).

2. In the district court, defendants raised qualified immunity as a defense to

Johnson’s claim alleging constitutionally inadequate dental care for the first time in

their reply brief, and for that reason the court declined to address it. The court did

not disturb this forfeiture ruling when it denied defendants’ motion for Page 3 of 5

reconsideration. Defendants do not clearly challenge this forfeiture ruling on

appeal, so any argument that it was an abuse of discretion is itself waived. See

Tobias v. Arteaga, 996 F.3d 571, 581 n.7 (9th Cir. 2021) (quoting McKay v.

Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (“Because this argument was not

raised clearly and distinctly in the opening brief, it has been waived.”)).

3. The district court properly denied defendants’ request for qualified

immunity on Johnson’s claim regarding his assignment to a top bunk. Viewed in

the light most favorable to Johnson, the record indicates that he repeatedly notified

defendants that his assignment to a top bunk without a ladder was causing him

excruciating pain due to his pre-existing knee and back conditions. At the time in

question, the law was clearly established that a prison official who displays

deliberate indifference to an inmate’s serious pain or medical needs violates the

Eighth Amendment. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

Defendants argue that as high-level administrators they should not be held

responsible for Johnson’s bed assignment, but “a prison administrator can be liable

for deliberate indifference to a prisoner’s medical needs if he knowingly fails to

respond to an inmate’s requests for help.” Peralta v. Dillard, 744 F.3d 1076,

1085–86 (9th Cir. 2014) (en banc) (cleaned up).

4. The district court properly denied defendants’ request for qualified

immunity on Johnson’s conditions of confinement claim regarding overcrowding Page 4 of 5

and unsafe conditions at SDCC. During the relevant time frame, the law was

clearly established that overcrowding can violate the Eighth Amendment when it

“is combined with other factors such as violence or inadequate staffing.” Balla v.

Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989). Johnson’s verified

complaint alleges that the overcrowding at SDCC led to regular fights and assaults

that were not addressed by guards due to inadequate staffing. The complaint also

indicates that he relayed his concerns about these conditions multiple times to

defendants, and that they took no action in response. We have repeatedly held that

a prison official’s knowledge of unconstitutional conditions of confinement,

coupled with inaction, can suffice to show deliberate indifference under the Eighth

Amendment. See, e.g., Starr v. Baca, 652 F.3d 1202, 1207–08 (9th Cir. 2011).

In support of their motion for summary judgment, defendants did not offer

any evidence contesting Johnson’s allegations concerning the conditions of

confinement. They instead argued that Johnson had not alleged that he was

directly harmed by the prison’s conditions. However, the Eighth Amendment is

violated when an inmate is incarcerated under conditions that pose “a substantial

risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Johnson’s

purported lack of injury may be relevant to the question of damages, but it does not

relieve defendants of their constitutional obligations. On the record as it now

stands, a reasonable trier of fact could conclude that defendants’ failure to respond Page 5 of 5

to Johnson’s complaints constituted deliberate indifference and therefore violated

the Eighth Amendment.

AFFIRMED.