Jeremy Pinson v. Unknown Party , 698 F. App'x 445 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMY V. PINSON, No. 16-16744
Plaintiff-Appellant, D.C. No. 4:13-cv-02059-DCB
v.
MEMORANDUM*
UNKNOWN PARTY, John Doe #1, Special
Investigative Agent; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Federal prisoner Jeremy V. Pinson appeals pro se from the district court’s
summary judgment and dismissal order in her action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the
Privacy Act, alleging deliberate indifference to her safety. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. §
1915(g), Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and summary
judgment, Nunez v. Duncan, 591 F.3d 1217, 1222 (9th Cir. 2010). We reverse and
remand.
The district court granted summary judgment on Pinson’s deliberate
indifference claim, concluding that defendants were not deliberately indifferent to
Pinson’s safety because they identified Pinson as an informant to inmates in a
facility where Pinson was not housed, and that her identification as an informant
was not the cause of the subsequent attack on Pinson. However, Pinson presented
evidence that she suffered an attack that was motivated by defendants’
identification of her as an informant. Viewing the evidence in the light most
favorable to Pinson, Pinson raised a triable dispute as to whether defendants were
deliberately indifferent to her safety when they identified her as an informant, and
whether this identification was the cause of the attacks and threats she suffered.
See Valandingham v. Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989) (labelling
prisoner a “snitch” may violate the prisoner’s right to be protected from violence
while in custody); see also Lemire v. Cal. Dep't of Corr. & Rehab., 726 F.3d 1062,
1074 (9th Cir. 2013) (explaining that plaintiffs alleging deliberate indifference in §
1983 actions “must ... demonstrate that the defendants’ actions were both an actual
and proximate cause of their injuries”). We reverse the judgment on this claim,
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and remand for further proceedings.
The district court properly determined that defendant Bureau of Prisons
(“BOP”), as a federal agency, is not a proper defendant in a Bivens action.
However, the district court did not address Pinson’s claim that the BOP violated
the Privacy Act, 5 U.S.C. § 552a, by improperly disclosing her records without her
consent. See Schowengert v. General Dynamics Corp., 823 F.2d 1328, 1340 (9th
Cir. 1987) (the agency is the only proper defendant in a civil action under the
Privacy Act); 5 U.S.C. § 552a(g)(1). We remand for the district court to consider
Pinson’s Privacy Act claim against the BOP in the first instance.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
REVERSED and REMANDED.
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