Unpublished Disposition, 940 F.2d 667 (9th Cir. 1991)

MEMORANDUM^** 

Ward Brown, Sargeant Milie Graff and Lieutenant Don J. Glenn, employees of the California Department of Corrections, appeal the district court's denial of their summary judgment motion in a 42 U.S.C. § 1983 action brought by John R. Bertram, a California state prisoner. Appellants contend that the district court erred by denying their summary judgment motion on qualified immunity grounds. We have jurisdiction to review an appeal of the denial of a summary judgment motion on the ground of qualified immunity, and we affirm. Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985) (" [A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment").

We review the district court's determination regarding qualified immunity de novo. Lum v. Jensen, 876 F.2d 1385, 1387 (9th Cir.), cert. denied, 110 S. Ct. 867 (1990).

The qualified immunity defense is not a license to violate the law but rather "is intended to allow a public official to act with 'independence and without fear of consequences' when his actions are not clearly contrary to the law." Alexander v. Perrill, 916 F.2d 1392, 1396 (9th Cir. 1990) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). Government officials who perform discretionary functions are immune from liability for damages if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818. The right alleged to have been violated by an official's conduct must be "sufficiently clear" that the unlawfulness of the conduct is readily apparent to a reasonable official. Lum, 876 F.2d at 1386. Officials, however, are charged with knowledge of constitutional developments and relevant caselaw in existence at the time of the alleged violative conduct. Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.), cert. denied, 490 U.S. 1075 (1989).

We need not find a prior case with facts identical to the present one in order to hold that the officials breached a clearly established right or duty. Alexander, 916 F.2d at 1397-98. In the absence of binding precedent, we look to all available caselaw including decisions of other circuits, district courts, and state courts to determine if the right is clearly established. See Tribble, 860 F.2d at 324.

Here, Bertram alleges that given the medical problems with his feet, placing him in a three by three by seven foot cell for twelve hours showed a deliberate indifference to his medical needs and amounted to an unnecessary and wanton infliction of pain. Appellants contend that there are no cases holding that on similar facts, appellants' conduct constituted a violation of the eighth amendment proscription against cruel and unusual punishment. Taking all of Bertram's allegations as true, appellants cannot claim that they are entitled to qualified immunity from suit for eighth amendment violations.

At the time of the alleged conduct, it was clearly established that prison officials' "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' ... proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). It was also clearly established that "deliberate indifference to the 'safety needs' of prisoners, as shown by prison administrators' indifference to brutal behavior by guards toward inmates was sufficient to state an eighth amendment claim." Vaughan v. Ricketts, 859 F.2d 736, 741 (9th Cir.), cert. denied, 490 U.S. 1012 (1989) (citing Hoptowit v. Ray, 682 F.2d 1237, 1249-50 (9th Cir. 1982)). Moreover, there is no indication that the medical evidence of record supported appellants' decision to place Bertram in the holding cell.

Accordingly, we find that the district court did not err by denying appellants' motion for summary judgment based on their claim that they were entitled to qualified immunity from liability for their alleged treatment of Bertram.

AFFIRMED.