Durrell

dissenting.

I respectfully dissent. No evidence suggests that defendants Cook, Armenakis, Lampert, and Heath were personally involved in DurrelTs housing assignment and thus, the district court properly granted summary judgment in their favor. See Farmer v. Brennan, 511 U.S. 825, 884 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994).

With respect to the remaining defendants, the most logical way to analyze the case is to affirm the district court on the ground that Durrell has not established an Eighth Amendment violation. See Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001) (requiring courts to determine, as a threshold matter, whether a constitutional right was violated). Alternatively, the remaining defendants are entitled to qualified immunity under Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th Cir.2002). 1 In Ford , we held that prison officials were entitled to qualified immunity based on their decision to house Ford with another inmate who was classified as a “predator” and who had an “extensive history of violent behavior toward inmates and staff, including eleven separate assaults, one of which involved stabbing an inmate seventeen times.” Id. at 1051…

MEMORANDUM **

Plaintiff Paul Durrell appeals the grant of summary judgment for defendants in his 42 U.S.C. § 1983 action for violation of his Eighth Amendment rights. We reverse.

Durrell was housed for one week, despite his protests, with an inmate he alleges is an “aggressive homosexual.” Durrell claims he was subjected to “overwhelming mental and emotional stress” from being housed with the sexually aggressive cellmate. In addition, he claims that he was injured defending himself from his cellmate, and sought medical attention for his injury (though this is disputed). We have held that mental injury suffices for Eighth Amendment cruel and unusual punishment cases, 1 and physical injury for which medical care is sought does as well. If this injury is self-inflicted in the course of self-defense against a rape, it is properly treated as caused by the attempted rape. 2 A genuine issue of material fact exists as to whether the injury suffered by Durrell was caused by deliberate indifference to his safety.

Under Farmer v. Brennan, 3 and Redman v. County of San Diego, 4 an Eighth Amendment violation is established if prison officials “know[ ] of and disregard[ ] an excessive risk…