C.m.v., by v. PATRINA SMITH, AKA Doe 11

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C.M.V., by and through his Guardian Ad
Litem Cindy Martinez; A.S.M., a minor,
by and through her Guardian Ad Litem
Cindy Martinez,
Plaintiffs - Appellees,
v.
PATRINA SMITH, AKA Doe 11,
Defendant - Appellant,
and
COUNTY OF LOS ANGELES; LEROY
BACA, individually and in his official
capacity,
Defendants.
No. 09-56324
D.C. No. 2:07-cv-05044-CAS-
PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted November 8, 2011
Pasadena, California
FILED
NOV 18 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Karen Nelson Moore, Circuit Judge for the Sixth**
Circuit, sitting by designation.
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Before: FERNANDEZ, MOORE, and McKEOWN, Circuit Judges.**
Los Angeles Sheriff’s Department Deputy Patrina Smith brings an
interlocutory appeal of the district court’s order denying her motion for summary
judgment on qualified immunity. Plaintiff-appellee, C.M.V., alleges that while he
was incarcerated at Pitchess Detention Center, Smith violated his constitutional
rights by failing to protect him from a violent assault at the hands of other inmates.
To survive summary judgment in his claim under 42 U.S.C. § 1983, C.M.V. must
show that there is a genuine issue of material fact as to whether Smith was
deliberately indifferent to a “substantial risk of serious harm.” See Farmer v.
Brennan, 511 U.S. 825, 834 (1994).
We have jurisdiction pursuant to 28 U.S.C. § 1291 and the collateral order
doctrine. See Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d
971, 976 (9th Cir. 1998). “[A]ppellate jurisdiction over a summary judgment
denial of qualified immunity is limited to reviewing the ‘purely legal’ issue of
‘whether the facts alleged [by the plaintiff] support a claim of violation of clearly
established law.’” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 528 n.9 (1985)
(second alteration in original)). We assume the facts alleged by C.M.V. to be

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correct. See Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001). We review de
novo the district court’s decision to deny summary judgment based on qualified
immunity. Galen v. Cnty. of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007).
Nothing in the record suggests that Smith knew or had reason to know of the
risk that C.M.V. would be assaulted. See Farmer, 511 U.S. at 837 (holding that “a
prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official . . . [was] aware of
facts from which the inference could be drawn that a substantial risk of serious
harm exist[ed], and . . . [drew] the inference”); Berg v. Kincheloe, 794 F.2d 457,
460 (9th Cir. 1986) (affirming summary judgment as to certain defendants because
plaintiff “failed to come forward with facts showing that these defendants had any
reason to believe he would be attacked”). Further, the record provides no basis to
impute this knowledge to Smith simply because C.M.V. was incarcerated at
Pitchess Detention Center.
At most, Smith’s conduct could be characterized as negligent, not
deliberately indifferent. See Davidson v. Cannon, 474 U.S. 344, 347-48 (1986)
(holding that prison officials’ negligence did not give rise to liability under
§ 1983). Because C.M.V. has not put forth evidence or allegations to sustain a

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constitutional violation, the district court erred in denying summary judgment to
Smith. Smith is entitled to qualified immunity.
Plaintiff-appellee A.S.M. acknowledges that her claim is dependent on
C.M.V.’s claim. Accordingly, Smith is also entitled to qualified immunity as to
A.S.M.’s claim. See Corales v. Bennett, 567 F.3d 554, 569 n.11 (9th Cir. 2009).
REVERSED and REMANDED with direction to enter judgment in favor of
Smith.

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