FILED
NOT FOR PUBLICATION
OCT 12 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSSIE RAMOS and MELISSA ORTIZ, No. 15-55397
Plaintiffs-Appellees, D.C. No.
5:12-cv-01089-BRO-SP
v.
GARY SWATZELL, MEMORANDUM*
Defendant,
and
GUILLERMO GARCIA, Warden,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Beverly Reid O’Connell, District Judge, Presiding
Submitted October 7, 2016**
Pasadena, California
Before: TROTT, OWENS, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Guillermo Garcia, former Warden at the California Institution for Women,
appeals from the district court’s denial of his motion for summary judgment based
on qualified immunity in a 42 U.S.C. § 1983 action brought by plaintiffs Jossie
Ramos and Melissa Ortiz alleging deliberate indifference to their safety in
violation of the Eighth Amendment. Specifically, plaintiffs allege that, in 2010,
Garcia failed to take reasonable measures to protect them as inmates from sexual
abuse by a correctional officer. As the parties are familiar with the facts, we do not
recount them here. We review de novo a district court’s order denying summary
judgment on the ground of qualified immunity, Huskey v. City of San Jose, 204
F.3d 893, 899 (9th Cir. 2000), and we affirm.
As a preliminary matter, the parties dispute whether we have jurisdiction to
review this interlocutory appeal. This court’s jurisdiction to review a denial of
qualified immunity is limited to questions of law, and a district court’s
determination “that the parties’ evidence presents genuine issues of material fact is
categorically unreviewable on interlocutory appeal.” George v. Morris, 736 F.3d
829, 834, 836 (9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th
Cir. 2009)). However, “[w]here disputed facts exist, . . . we can determine whether
the denial of qualified immunity was appropriate by assuming that the version of
the material facts asserted by the non-moving party is correct.” Bingue v.
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Prunchak, 512 F.3d 1169, 1172-73 (9th Cir. 2008) (quoting Jeffers v. Gomez, 267
F.3d 895, 903 (9th Cir. 2001) (per curiam)). Further, whether governing law was
“clearly established” for purposes of qualified immunity, and whether specific
facts constitute a violation of established law, are appealable legal questions. See
Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014). Therefore, we have
jurisdiction to determine, based on the facts as alleged by plaintiffs, whether Garcia
is entitled to qualified immunity.
To determine whether qualified immunity applies, we consider: (1) whether
the facts, taken in the light most favorable to the party asserting injury, show that
the defendant’s conduct violated a constitutional right; and (2) whether that right
was clearly established at the time of the alleged violation. Pearson v. Callahan,
555 U.S. 223, 232, 235-36 (2009).
Viewing the facts in the light most favorable to plaintiffs, the district court
properly determined that there was a genuine dispute of material fact as to whether
Garcia violated plaintiffs’ Eighth Amendment rights by failing to take reasonable
measures in response to the substantial risk that plaintiffs would be sexually
abused. See Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012) (“Sexual
harassment or abuse of an inmate by a corrections officer is a violation of the
Eighth Amendment.”); see also Farmer v. Brennan, 511 U.S. 825, 828, 837 (1994)
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(holding that “[a] prison official’s ‘deliberate indifference’ to a substantial risk of
serious harm to an inmate violates the Eighth Amendment,” and a prison official
acts with deliberate indifference when “the official knows of and disregards an
excessive risk to inmate health or safety”).
In addition, it was clearly established in 2010 that the failure to protect
inmates from sexual abuse violated the Eighth Amendment. See Schwenk v.
Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and most absolute
of terms, the Eighth Amendment right of prisoners to be free from sexual abuse
was unquestionably clearly established prior to the time of this alleged assault, and
no reasonable prison guard could possibly have believed otherwise.”); see also
Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009) (discussing supervisor
liability). Garcia argues that the law governing his duty as a supervisor was not
clearly established because it did not alert him that the actions he took in response
to the complaints would be insufficient. But his argument depends on accepting
his version of the facts—not the facts in the light most favorable to plaintiffs, as
our precedent requires. See Jeffers, 267 F.3d at 903.
Accordingly, the district court properly denied qualified immunity to Garcia.
Each party shall bear its own costs on appeal.
AFFIRMED.
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