James Edward Jones v. Special Commitment Center;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES EDWARD JONES,
Plaintiff - Appellant,
v.
SPECIAL COMMITMENT CENTER; et
al.,
Defendants - Appellees.
No. 15-35079
D.C. No. 3:14-cv-05018-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted February 24, 2016**
Before: LEAVY, FERNANDEZ, and RAWLINSON, Circuit Judges.
James Edward Jones, a Washington pre-trial civil detainee, appeals pro se
from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
constitutional claims in connection with the quality and temperature of the water
FILED
MAR 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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and air in his housing unit at the Special Commitment Center (“SCC”). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, and may affirm on any
basis supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d
802, 811 (9th Cir. 2004). We affirm in part, reverse in part, and remand.
Summary judgment was proper as to Jones’ claims against defendants
Dubble and Nerio, and his water temperature, air temperature, and air quality
claims against defendant Strong, because Jones failed to raise a genuine dispute of
material fact as to whether these defendants were personally involved in a
constitutional violation or whether their conduct caused any such violation. See
Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (requirements for
establishing supervisory liability).
The district court granted summary judgment for Strong on Jones’ water
quality claim. However, Jones raised a genuine dispute of material fact as to
whether Strong violated his Fourteenth Amendment rights by subjecting him to
punishment. See Jones v. Blanas, 393 F.3d 918, 931-32 (9th Cir. 2004) (analyzing
pre-trial civil detainees’ conditions of confinement under the Fourteenth
Amendment and explaining that such individuals cannot be subject to conditions
amounting to punishment). The record contains evidence showing that the water in
Jones’ housing unit was often brown, had floating debris, and at least once, caused
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Jones and another detainee gastrointestinal distress and vomiting. See Keenan v.
Hall, 83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir.
1998) (reversing summary judgment on prisoner’s Eighth Amendment claim
alleging that water in his housing unit was “Blue/Green in Color and Foul
Tasting[,]” even though defendants produced evidence that “recent water quality
tests showed that the water was pristine” (internal quotation marks omitted)).
Jones also submitted evidence showing that staff occasionally told detainees not to
use the water and passed out water bottles, and Strong did not address Jones’
concern that he was unable to shower, wash, or shave. Accordingly, we reverse
summary judgment on this claim and remand for further proceedings.
Contrary to Jones’ contention, the district court did not overlook his claim
regarding SCC Policy 204 because it granted summary judgment on this claim.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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