Luna

MEMORANDUM **

Pro se litigant Benito Julian Luna brought a 42 U.S.C. § 1983 action against Sacramento County Sheriffs Officer Michael Thurien, alleging that Thurien vio *382 lated Luna’s Fourteenth Amendment rights by allowing two inmates to enter unescorted into an area where total-separation inmate Luna was showering. The two unescorted inmates attacked Luna, causing him to suffer serious injuries including a broken hand. The district court denied Thurien’s motion for summary judgment. Thurien appeals, contending that the district court erroneously determined that: (1) a genuine issue of material fact regarding Thurien’s state of mind precluded summary judgment in his favor; and (2) Thurien was not entitled to summary judgment based on qualified immunity.

We lack jurisdiction to address Thurien’s first contention. Johnson v. Jones, 515 U.S. 304, 307, 313, 319-20 , 115 S.Ct. 2151 , 132 L.Ed.2d 238 (1995); Wilkins v. City of Oakland, 350 F.3d 949, 952 (9th Cir.2003). Accordingly, the appeal must be dismissed as to that contention. We have jurisdiction, however, to consider his second contention, but only insofar as it turns on an issue of law. Id. at 951-52 . Accordingly, we…

dissenting.

I respectfully dissent from the majority’s determination that Officer Thurien is not entitled to qualified immunity. I am obliged to begin with the premise that “[qualified immunity is the rule, not the exception.” Rowe v. Schreiber, 139 F.3d 1381, 1385 (11th Cir.1998). Under the sec *384 ond prong of the Saucier 1 analysis, a reasonable officer in Thurien’s position would not have known under clearly established law that his conduct violated the Constitution. Qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law,” Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986), encompassing both mistakes of fact and mistakes of law. Rudebusch v. Hughes, 313 F.3d 506, 514 (9th Cir.2002).

Here, there are two jail policies resulting in a potential conflict: one that requires the total separation of Luna from other inmates, and the other, which called for Thurien to order the reclassified inmates to their cells without officer escort while Luna was programming. There is no showing that by merely following the first policy, resulting in the contravention of the second policy, Officer Thurien knowingly violated…