NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAUSTEVEION DELANO JOHNSON, No. 20-17280
Plaintiff-Appellee, D.C. No.
2:19-cv-00232-MMD-NJK
v.
JAMES DZURENDA; et al., MEMORANDUM*
Defendants-Appellants,
and
SOUTHERN DESERT CORRECTIONAL
CENTER; et al.,
Defendants.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted November 18, 2021
San Francisco, California
Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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Defendants James Dzurenda, Brian Williams, and James Cox appeal from
the district court’s denial of their motion for summary judgment on plaintiff
Lausteveion Johnson’s Eighth Amendment claims under 42 U.S.C. § 1983. (The
district court granted summary judgment to defendants on the only claim naming
defendant Michaela Garufalo.) Defendants argue that the district court erred in
denying their motion because they are entitled to qualified immunity on each of
Johnson’s claims. We affirm.
1. In their motion for summary judgment, defendants did not assert
qualified immunity as a defense to Johnson’s claim alleging that the fire safety
system at the Southern Desert Correctional Center (SDCC) is constitutionally
deficient. Defendants have raised that argument for the first time in their opening
brief on appeal. We see no basis for excusing defendants’ failure to assert
qualified immunity as a defense below, and accordingly adhere to our general rule
that issues not raised in the district court “will not be considered for the first time
on appeal.” In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 780 (9th Cir.
2014).
2. In the district court, defendants raised qualified immunity as a defense to
Johnson’s claim alleging constitutionally inadequate dental care for the first time in
their reply brief, and for that reason the court declined to address it. The court did
not disturb this forfeiture ruling when it denied defendants’ motion for
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reconsideration. Defendants do not clearly challenge this forfeiture ruling on
appeal, so any argument that it was an abuse of discretion is itself waived. See
Tobias v. Arteaga, 996 F.3d 571, 581 n.7 (9th Cir. 2021) (quoting McKay v.
Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (“Because this argument was not
raised clearly and distinctly in the opening brief, it has been waived.”)).
3. The district court properly denied defendants’ request for qualified
immunity on Johnson’s claim regarding his assignment to a top bunk. Viewed in
the light most favorable to Johnson, the record indicates that he repeatedly notified
defendants that his assignment to a top bunk without a ladder was causing him
excruciating pain due to his pre-existing knee and back conditions. At the time in
question, the law was clearly established that a prison official who displays
deliberate indifference to an inmate’s serious pain or medical needs violates the
Eighth Amendment. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).
Defendants argue that as high-level administrators they should not be held
responsible for Johnson’s bed assignment, but “a prison administrator can be liable
for deliberate indifference to a prisoner’s medical needs if he knowingly fails to
respond to an inmate’s requests for help.” Peralta v. Dillard, 744 F.3d 1076,
1085–86 (9th Cir. 2014) (en banc) (cleaned up).
4. The district court properly denied defendants’ request for qualified
immunity on Johnson’s conditions of confinement claim regarding overcrowding
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and unsafe conditions at SDCC. During the relevant time frame, the law was
clearly established that overcrowding can violate the Eighth Amendment when it
“is combined with other factors such as violence or inadequate staffing.” Balla v.
Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989). Johnson’s verified
complaint alleges that the overcrowding at SDCC led to regular fights and assaults
that were not addressed by guards due to inadequate staffing. The complaint also
indicates that he relayed his concerns about these conditions multiple times to
defendants, and that they took no action in response. We have repeatedly held that
a prison official’s knowledge of unconstitutional conditions of confinement,
coupled with inaction, can suffice to show deliberate indifference under the Eighth
Amendment. See, e.g., Starr v. Baca, 652 F.3d 1202, 1207–08 (9th Cir. 2011).
In support of their motion for summary judgment, defendants did not offer
any evidence contesting Johnson’s allegations concerning the conditions of
confinement. They instead argued that Johnson had not alleged that he was
directly harmed by the prison’s conditions. However, the Eighth Amendment is
violated when an inmate is incarcerated under conditions that pose “a substantial
risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Johnson’s
purported lack of injury may be relevant to the question of damages, but it does not
relieve defendants of their constitutional obligations. On the record as it now
stands, a reasonable trier of fact could conclude that defendants’ failure to respond
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to Johnson’s complaints constituted deliberate indifference and therefore violated
the Eighth Amendment.
AFFIRMED.