Robert J. McCullock v. N. SCHARR, Sgt.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT J. MCCULLOCK,
Plaintiff-Appellant,
v.
N. SCHARR, Sgt.; H. FERREL, Lt.; T.
MARTINEZ, Capt.; J. JUAREZ, Associate
Warden of “D” Yard, RJDFC; P.
COVELLO, Warden; SMITH,
Correctional Officer; DOES, 1-10
Correctional Officer,
Defendants-Appellees.
No. 21-55804
D.C. No.
3:19-cv-02110-DMS-DEB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, Chief District Judge, Presiding
Submitted September 1, 2023**
San Francisco, California
Before: FERNANDEZ, KLEINFELD, and SILVERMAN, Circuit Judges.
FILED
SEP 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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California prisoner Robert McCullock appeals pro se from the district
court’s summary judgment in favor of Defendants1 in his 42 U.S.C. § 1983 action,
in which he claimed that his constitutional rights were violated when he was
housed with a cellmate who attacked him. See U.S. Const. amends. VIII & XIV.
We review de novo,2 and we affirm.
The district court did not err in entering summary judgment on McCullock’s
Eighth Amendment deliberate indifference claim. See Farmer v. Brennan, 511
U.S. 825, 833–34, 114 S. Ct. 1970, 1976–77, 128 L. Ed. 2d 811 (1994). At the
time of the inmate’s reassignment to McCullock’s cell, there was no material
evidence that he posed “‘a substantial risk of serious harm’” to McCullock.
Norbert v. City & County of San Francisco, 10 F.4th 918, 934 (9th Cir. 2021).
That is, nothing in this record suggested that McCullock’s having that cellmate
“present[ed] an excessive risk to [his] health or safety” or was “sure or very likely
to cause serious illness and needless suffering.” Id. (internal quotation marks
omitted); see also Farmer, 511 U.S. at 842–43, 114 S. Ct. at 1981–82; cf. Wilk v.
Neven, 956 F.3d 1143, 1149 (9th Cir. 2020) (substantial risk of harm where inmate
1 Defendants Scharr, Ferrel, Martinez, Juarez, and Smith. McCullock has
not appealed the dismissal of his claims against Defendant Covello.
2 See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.
2013).
2

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had threatened victim); Cortez v. Skol, 776 F.3d 1046, 1051–52 (9th Cir. 2015)
(substantial risk of harm when undermanned guard transported inmates without leg
restraints in a dangerous area of the prison, when inmates had engaged in harassing
talk and one was in protective custody).3
Because there was no material evidence of a constitutional violation, we
likewise affirm the district court’s judgment as to McCullock’s supervisory
liability claim against the Defendants. See Flores v. County of Los Angeles, 758
F.3d 1154, 1158–59 (9th Cir. 2014).
We decline to consider issues raised for the first time on appeal4 and “bare
assertion[s]”5 made in the opening brief.
AFFIRMED. McCullock’s request for judicial notice (Dkt. 21) is
DENIED.
3 Summary judgment was also appropriate on McCullock’s Fourteenth
Amendment claim because his failure to adduce evidence of deliberate indifference
is fatal to it. See Sinclair v. City of Seattle, 61 F.4th 674, 680 (9th Cir. 2023).
4 See Crawford v. Lungren, 96 F.3d 380, 389 n.6 (9th Cir. 1996).
5 Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994); see also Fed. R.
App. P. 28(a)(8).
3

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