Glenda Palmer, as surviving mother, personal representative of the Estate of Timothy… v. Arizona Department of Corrections; Arizona, State of; Ronald Carlson; Robert Stewart

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLENDA PALMER, as surviving mother,
personal representative of the Estate of
Timothy Lucero and as Guardian of D.L.;
D. L., a minor child; LEROY L.
LUCERO, Sr., surviving father of Timothy
L. Lucero, deceased,
Plaintiffs - Appellees,
v.
ARIZONA DEPARTMENT OF
CORRECTIONS; ARIZONA, STATE
OF; RONALD CARLSON; ROBERT
STEWART,
Defendants,
UNKNOWN CARLSON; UNKNOWN
GAMBLIN; UNKNOWN STEWART,
Defendants,
And
PRESTON GAMBLIN, Corrections
officer at ASPC Eyman,
No. 12-16340
D.C. No. 2:09-cv-01791-JWS
MEMORANDUM*
FILED
MAY 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
John W. Sedwick, District Judge, Presiding
Argued and Submitted May 15, 2014
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
On September 4, 2008, Timothy L. Lucero was stabbed to death by another
inmate while in the custody of the Arizona Department of Corrections (“ADC”) at
the Arizona State Prison Complex (“ASPC”)-Tucson. Four months before his
death, Lucero had been transferred to ASPC-Tucson from Special Management
Unit I (“SMU I”), a maximum-custody facility, at ASPC-Eyman. ASPC-Tucson
was a lower-security facility. Plaintiffs-Appellees are Lucero’s survivors.
Defendant-Appellant Preston Gamblin is a prison official at SMU I.
Gamblin appeals the district court’s denial of his motion for summary
judgment on his defense of qualified immunity from plaintiffs’ § 1983 deliberate
indifference claim. Plaintiffs assert that Gamblin violated Lucero’s Eighth
Amendment rights by failing to initiate the protective-segregation process required
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under prison policy at SMU I upon learning of threats of mortal harm to Lucero.
We affirm.
Under ADC’s protective-segregation policy, known as DI 67, any inmate
may make a written or verbal request for protection against other inmates. Such a
request triggers a review process to determine whether the inmate requires long-
term protective segregation. DI 67 requires “any staff member . . . who becomes
aware of a threat to an inmate [to] immediately isolate the inmate in a safe,
reasonably secure area and notify the Shift Commander.”
Gamblin learned of specific, severe threats to Lucero’s safety on two
occasions. First, on January 25, 2008, he interviewed Lucero about the murder of
another inmate, Christopher Wathen. Gamblin wrote in his report that “since
[Lucero] . . . refused to carry out the assault on I/M Wathen, I/M Lucero . . . had
many individuals inform him that he is going to get the same fate as I/M Wathen.”
There is evidence that this report went only to Gamblin’s supervisor, Sergeant
Carlson, and did not make it into any personnel file for Lucero. It is undisputed
that the report did not trigger the DI 67 process. There is evidence from which a
reasonable juror could conclude that Gamblin knew that the report would stay in
Carlson’s file and would not trigger the DI 67 process.
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Second, on January 31, 2008, Gamblin escorted Lucero to an interview with
ADC Special Investigator Henry Ross and Yuma County Attorney’s Office
attorneys who were investigating Wathen’s murder. During that interview, Lucero
provided information about the Wathen murder. Lucero stated several times that
his life was in danger because he had refused to carry out the assault on Wathen
and because he was divulging information about the Aryan Brotherhood’s
operations. Gamblin was in a position to hear Lucero’s statements.
Despite learning of these serious threats to Lucero’s safety, it is undisputed
that Gamblin did not initiate the DI 67 process. Lucero was likely safely isolated
at that time because he was then detained at SMU I, where he was housed in a
single cell and had limited contact with other inmates. But Gamblin has placed
nothing in the record to show that he notified the Shift Commander of the danger
to Lucero, as required by ADC’s mandatory policy.
Taking the facts in the light most favorable to the plaintiffs, a reasonable
juror could conclude that Gamblin’s failure to notify the Shift Commander, and
thereby to set the DI 67 process in motion, evinced deliberate indifference to
Lucero’s safety. A reasonable officer would have known that the DI 67 process
would almost certainly have resulted in a formal order providing protective
segregation for Lucero. A reasonable officer would also have known that, in the
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absence of the DI 67 process and resulting formal order, Lucero was at some risk
of being transferred to an unsecure location. The degree of the risk that would
have been known to Gamblin is a question of fact that can be determined only at
trial. We therefore conclude that Gamblin was not entitled to qualified immunity
on summary judgment.
AFFIRMED.
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Palmer v. Gamblin, No. 12-16340
GRABER, Circuit Judge, dissenting:
I respectfully dissent.
Even taking all facts in the light most favorable to Plaintiffs, a reasonable
officer in Gamblin’s circumstances could not have known that it would be
deliberate indifference to fail to prevent an attack that occurred months later in a
different, less secure facility. Deliberate indifference requires that a prison official
"know of and disregard[] 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 harm exists, and he must also draw the inference." Farmer v. Brennan, 511
U.S. 825, 837 (1994).
Here, Lucero was not attacked in the facility in which Gamblin worked. As
the majority recognizes, Lucero was housed there safely, in a single cell and with
limited contact with other inmates. It is undisputed that Gamblin documented
Lucero’s concerns in a report to his supervisor and that Lucero was not harmed at
that facility. Rather, Lucero was not attacked until months after his interaction
with Gamblin, and only after being transferred to a less secure facility. There is no
evidence that Gamblin knew of the possibility that Lucero would be transferred
and no evidence that Gamblin was involved in the transfer process in any way.
We require that prison officials act in the face of a known future risk to
FILED
MAY 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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prisoners, Farmer, 511 U.S. at 837, but we also require, at the very least, that the
risk be known, Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1077–78
(9th Cir. 2013); see id. at 1078 ("Plaintiffs must demonstrate that the risk was
obvious or provide other circumstantial or direct evidence that the prison officials
were aware of the substantial risk to the [prisoner’s] safety."). In order to hold
Gamblin liable we must hold that he reasonably knew that his failure to notify the
Shift Commander of Lucero’s concerns would lead to Lucero’s being transferred,
and being transferred to a less secure facility, to which Lucero would not object,
where Lucero would be exposed to his enemies. Perhaps the Department or some
other defendant might be liable, but Gamblin, even assuming a deliberate or hostile
state of mind, could not have foreseen this highly speculative future risk. Because
no genuine issue of material fact exists as to whether Gamblin knew of the risk that
Lucero might be transferred to a less secure facility and might be attacked at that
other facility, Gamblin is entitled to qualified immunity.
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