TOY SMITH V. J. TORRES, No. 19-17042 (9th Cir. 2021)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED APR 22 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT TOY TERRELL SMITH, No. Plaintiff-Appellant, v. U.S. COURT OF APPEALS 19-17042 D.C. No. 1:16-cv-01924-LJO-JDP MEMORANDUM* J. TORRES, Correctional Counselor; et al., Defendants-Appellees, and R. MICHAEL HUTCHINSON; et al., Defendants. Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding Submitted April 20, 2021** Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges. California state prisoner Toy Terrell Smith appeals pro se from the district * 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). court’s summary judgment in his 42 U.S.C. § 1983 action alleging deliberate indifference to his safety. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Sandoval v. County of Sonoma, 912 F.3d 509, 515 (9th Cir. 2018). We affirm. The district court properly granted summary judgment because Smith 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 held liable for deliberate indifference “unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference”); Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (“[S]tate departmental regulations do not establish a federal constitutional violation.”). AFFIRMED. 2 19-17042

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