Malo v. Hernandez, 092116 FED9, 15-55035

Docket Nº:15-55035
Party Name:JIMMY SIMEONA MALO, Plaintiff-Appellant, v. M. HERNANDEZ, Individual; et al., Defendants-Appellees.
Judge Panel:Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Case Date:September 21, 2016
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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JIMMY SIMEONA MALO, Plaintiff-Appellant,

v.

M. HERNANDEZ, Individual; et al., Defendants-Appellees.

No. 15-55035

United States Court of Appeals, Ninth Circuit

September 21, 2016

NOT FOR PUBLICATION

Submitted September 13, 2016 [**]

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding D.C. No. 5:13-cv-01781-SJO-JPR

Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

MEMORANDUM [*]

Jimmy Simeona Malo, a former California state prisoner, appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging Eighth and Fourth Amendment claims arising from a visual body cavity search. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We affirm.

The district court properly dismissed Malo's Eighth Amendment claims because Malo failed to allege facts sufficient to show that defendants were deliberately indifferent to Malo's health or safety. See Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009) (to establish deliberate indifference, an inmate must demonstrate that the official was aware of a risk and deliberately disregarded the risk).

The district court properly dismissed Malo's Fourth Amendment claim on the basis of qualified immunity because it would not have been clear to every reasonable official that defendants' conduct was unconstitutional. See Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014) (officials sued under § 1983 are entitled to qualified...

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