SHABAZZ v. Jeffrey A. Beard; et al., Defendants. (2019)

United States Court of Appeals, Ninth Circuit.

Amir SHABAZZ, Plaintiff-Appellee, v. Felix IGBINOSA, Defendant-Appellant, Jeffrey A. Beard; et al., Defendants.

No. 18-16909

Decided: June 13, 2019

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Amir Shabazz, Pro Se Susan Eileen Coleman, Esquire, Senior Litigation Attorney, Kristina Doan Strottman, Attorney, Burke, Williams & Sorensen, LLP, Los Angeles, CA, for Defendant-Appellant Joseph R. Wheeler, Esquire, AGCA-Office of the California Attorney General, Sacramento, CA, for Defendants Susan L. Hubbard, Deborah Hysen, Tonya Rothchilds, James A. Yates Jaime G. Touchstone, Attorney, Futterman Dupree Dodd Croley Maier LLP, San Francisco, CA, for Defendant J. Clark Kelso Susan Eileen Coleman, Esquire, Senior Litigation Attorney, Burke, Williams & Sorensen, LLP, Los Angeles, CA, for Defendant Dwight Winslow

MEMORANDUM **

Defendant Felix Igbinosa appeals from the district court's order denying him qualified immunity in plaintiff Amir Shabazz's 42 U.S.C. § 1983 action alleging deliberate indifference claims. We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We review de novo the district court's ruling on qualified immunity. George v. Edholm, 752 F.3d 1206, 1214 (9th Cir. 2014). We vacate and remand.

The district court determined that Igbinosa was not entitled to qualified immunity on Shabazz's deliberate indifference claims. However, after the district court's order was entered, this court in Hines v. Youseff, 914 F.3d 1218, 1229 (9th Cir. 2019), concluded that a prisoner's “right to be free from heightened exposure to Valley Fever spores” was not clearly established. Because the district court did not have the benefit of the decision in Hines when it entered its order, we vacate the denial of qualified immunity as to Shabazz's deliberate indifference claims against Igbinosa, and remand with instructions to grant Igbinosa's motion to dismiss.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

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