Toy Smith v. J. Torres ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOY TERRELL SMITH, No. 19-17042
Plaintiff-Appellant, D.C. No. 1:16-cv-01924-LJO-JDP
v.
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