Bradley Vandyke v. D. Sisto

FILED NOT FOR PUBLICATION OCT 17 2012 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT BRADLEY VANDYKE, No. 11-17380 Plaintiff - Appellant, D.C. No. 2:08-cv-03120-JLQ v. MEMORANDUM * D. K. SISTO, Warden; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Justin L. Quackenbush, District Judge, Presiding Submitted October 9, 2012 ** Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges. Bradley VanDyke, a California state prisoner, appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that prison officials were deliberately indifferent to his safety by failing to protect him * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). from gang violence. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm. The district court properly granted summary judgment because VanDyke failed to raise a genuine dispute of material fact as to whether defendants knew of and disregarded an excessive risk to his safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official cannot be found liable for failing to protect one inmate from another “unless the official knows of and disregards an excessive risk to inmate health or safety”); Berg v. Kincheloe, 794 F.2d 457, 462 (9th Cir. 1986) (a dispute over the existence of arguably superior alternatives to the action taken by prison officials will not defeat summary judgment). AFFIRMED. 2 11-17380