Rudy Harris v. Frank P. Alvarado , 402 F. App'x 180 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RUDY HARRIS, No. 08-16860
Plaintiff - Appellant, D.C. No. 1:03-cv-5690-OWW-DLB P
v.
MEMORANDUM *
FRANK P. ALVARADO,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wagner, District Judge, Presiding
Argued and Submitted October 5, 2010
San Francisco, California
Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY,**
District Judge.
Plaintiff Rudy Harris appeals from the district court’s grant of summary
judgment for Defendant Frank Alvarado, the only remaining defendant in this 42
U.S.C. § 1983 case. We review de novo, Serrano v. Francis, 345 F.3d 1071, 1082
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Donald W. Molloy, United States District Judge,
District of Montana, sitting by designation.
(9th Cir. 2003), and affirm for a different reason, see id. at 1076-77 (noting that we
may affirm on any ground supported by the record).
Even if we assume that Plaintiff can establish that Defendant fired him to
accomplish "ethnic balancing" and that doing so was unconstitutional, Defendant is
still entitled to qualified immunity. California Code of Regulations title 15, section
3041.1(a), instructs inmate work supervisors to take into account "ethnic balance,"
in addition to several other criteria, when assigning inmates to paid positions.
Thus, Defendant was following an official regulation duly promulgated by
California’s Corrections Standards Authority.
At the time of Plaintiff’s termination, we reviewed race-based prison
regulations only to see that they were "reasonably related to legitimate penological
interests," Armstrong v. Davis, 275 F.3d 849, 873 (9th Cir. 2001) (internal
quotation marks omitted), rather than using strict scrutiny as the Supreme Court
later instructed in Johnson v. California, 543 U.S. 499, 504-05 (2005). To date, no
court has questioned the legality of California’s inmate hiring regulation or another
like it. In these circumstances, any right that Plaintiff had was not "clearly
established," Pearson v. Callahan, 129 S. Ct. 808, 815 (2009), so Defendant is
entitled to qualified immunity. Cf. Grossman v. City of Portland, 33 F.3d 1200,
1209-10 (9th Cir. 1994) (holding that a duly enacted city ordinance that explicitly
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sanctions the conduct in question absolves an officer from knowing that his
conduct was unlawful, except when the ordinance so patently violates the
Constitution that a reasonable officer could not believe that it was permissible to
enforce it).
AFFIRMED.
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