Unpublished Disposition, 855 F.2d 862 (9th Cir. 1988)

No. 87-2496.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and WIGGINS, Circuit Judges, and CAROLYN R. DIMMICK^* , District Judge.

MEMORANDUM^** 

Defendant Edwin Shimoda appeals from the trial court's order denying his motion for summary judgment dismissal on the basis of qualified immunity.¹  Although not a final judgment, the denial of a claim of qualified immunity is properly before this court. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). We affirm.

Plaintiff-appellee Victor R. Munford is acting pro se. Although awkwardly drafted, his complaint states a cause of action under 42 U.S.C. § 1983, alleging violation of his constitutional rights under the eighth amendment. The trial court dismissed some of Munford's claims, but held that Shimoda may be liable in his individual capacity for the alleged overcrowding and inadequate medical services at the Oahu Community Correctional Center, and for placing Munford in the same quarters as a convicted felon who was mentally disturbed.² 

At a hearing on Shimoda's summary judgment motion, the trial court permitted Munford to orally rebut the facts offered in Shimoda's affidavit. Munford testified orally that prior to the assault on him by an inmate, he had requested his counselor to notify Shimoda that as a pretrial detainee, he was wrongfully held with a convicted felon. Transcript at 10. Munford further testified that overcrowding at the prison was at least partly responsible for the sexual assault on him which resulted in internal bleeding. Further, he attested to improper and inadequate medical care following the assault. Transcript at 19-20.

A state official is generally entitled to immunity from section 1983 actions for damages; however, " [s]ection 1983 embodies the notion that individuals acting under state or territorial law who violate the federal rights of others are acting without the imprimatur of the government." Ngiraingas v. Sanchez, No. 86-2840, slip op. at 6684 (9th Cir. June 7, 1988). The individual is thus "stripped of his official or representative character and is subject in his person to the consequences of his individual conduct." Scheur v. Rhodes, 416 U.S. 232, 237, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).

In a recent case brought against a prison official, this Circuit recognized a prisoner's right to bring a section 1983 claim for violation of his eighth amendment rights.

[U]nder the eighth amendment, the exercise of professional judgment by prison officials that gives rise to injury to prisoners will not constitute cruel or unusual punishment unless it was the result of "deliberate indifference" to the safety of the inmates. Negligence alone is not enough. Whitley v. Albers, 475 U.S. 312, 319 (1986); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).

Klingele v. Eikenberry, No. 86-3767, slip op. at 6862 (9th Cir. June 13, 1988). Moreover, "deliberate indifference" requires proof of "some degree of 'individual culpability,' but does not require proof of an express intent to punish." Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (quoting Haygood, 769 F.2d at 1354-55).

In the instant case, Munford has raised sufficient questions of fact as to the "deliberate indifference" of Shimoda to defeat a motion for summary judgment.

AFFIRMED.