Jacobo

MEMORANDUM **

In this civil rights action under 42 U.S.C. § 1983 , alleging a violation of the *298 right to be free from cruel and unusual punishment, the district court denied summary judgment to Carlos Jacobo (Jacobo), a correctional officer at Salinas Valley State Prison (SVSP) on both the merits and the grounds of qualified immunity. Jacobo appeals the denial of qualified immunity. The district court, however, granted summary judgment to Gary Lindsey (Lindsey), the warden at SVSP, and C.A. Terhune (Terhune), the Director of the California Department of Corrections, on the merits and to Lindsey on the basis of qualified immunity. The Estate of Perez (the Estate) cross-appeals the summary judgment in favor of Terhune and Lindsey. We affirm the district court’s denial of qualified immunity to Jacobo and affirm the summary judgment in favor of Lindsey and Terhune.

Jacobo’s Appeal of the Denial of Qualified Immunity

We reject the Estate’s argument that we lack jurisdiction over Jacobo’s appeal. Because this interlocutory appeal is based on questions of law - do the facts as alleged support a claim that clearly established law was violated, and under the facts as alleged could a…