Gerald Johannes v. Jim Hernandez , 466 F. App'x 574 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GERALD JOHANNES, No. 09-56286
Plaintiff - Appellant, D.C. No. 2:04-cv-00028-TJH-
VBK
v.
JIM HERNANDEZ; STEPHANIE MEMORANDUM *
FRENCH,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, Jr., District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Gerald Johannes appeals pro se from the district court’s judgment in his 42
U.S.C. § 1983 action alleging constitutional violations in connection with the use
of restraints during an incident while he was confined at Atascadero State Hospital
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“ASH”) awaiting civil commitment proceedings pursuant to California’s Sexually
Violent Predators (“SVP”) Act. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo, Carver v. Lehman, 558 F.3d 869, 872 (9th Cir. 2009), and we
affirm.
Even if Johannes could show that he suffered a violation of his constitutional
rights when he was placed in wrist restraints for thirty minutes after he refused to
obey orders, the district court properly concluded that defendants were entitled to
qualified immunity because the law regarding detention of individuals awaiting
SVP proceedings was not clearly established at the time of the alleged violation in
2003. See Pearson v. Callahan, 555 U.S. 223, 243-44 (2009); Jones v. Blanas,
393 F.3d 918, 931-34 (9th Cir. 2004) (holding for the first time that an SVP
detainee “is entitled to conditions of confinement that are not punitive”).
Johannes’s remaining contentions, including those concerning whether an
ASH administrative directive mandates a different conclusion, are unpersuasive.
AFFIRMED.
2 09-56286