Jimenez

Jimenez v. California Department of Corrections

Good Law
139 F. App'x 806
United States Court of Appeals for the Ninth CircuitJuly 14, 2005No. 03-56848California399 words

Opinion

Lead Opinion

MEMORANDUM **

We conclude that defendant Bergner is not entitled to qualified immunity for the *807 February 21, 1998 incident. Taking the facts as alleged by Jimenez, see Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), we conclude that Bergner personally participated in conduct that violated Jimenez’s constitutional right. See Graham v. Connor, 490 U.S. 386 , 395 n. 10, 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989); Gibson v. County of Washoe, 290 F.3d 1175, 1197 (9th Cir.2002). We further conclude that Jimenez’s right was clearly established at the time of the incident. See Lolli v. County of Orange, 351 F.3d 410, 421-22 (9th Cir.2003) (citing Felix v. McCarthy, 939 F.2d 699, 701-02 (9th Cir.1991)). A reasonable officer would have known that Bergner’s actions were unlawful.

For the reasons stated above, defendants Ortega, Gonzalez, Casillas, Gomez, and Estrella are not entitled to qualified immunity for their alleged personal participation in the March 4, 1998 incident, and defendants Duron, Hoang, and Sum are not entitled to qualified immunity for their alleged personal participation in the March 27,1998 incident.

Taking Jimenez’s facts as alleged,…

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