NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID M. GARCIA, No. 19-17366

Plaintiff-Appellant, D.C. No. 2:13-cv-01591-DJH-DMF v.

MINERETTE JASSO; IAN THOMPSON, MEMORANDUM* Sergeant; ENDE, named as Jane Doe Ende, wife; RIAZ, named as Jane Doe Riaz, wife; ROJAS, named as Jane Doe, wife; SMALLEY, named as John Doe Smalley, husband; LEWIS, named as Jane Doe Lewis, wife; CAREY TUCKER, Wife; TUCKER, named as John Doe Tucker; husband

Defendants-Appellees,

and

CHARLES L. RYAN; THERESE SCHROEDER, Warden; FEY, Deputy Warden of Santa Rita Unit; CHILDREF, Captain; RICHARD JOHNSON, Inmate at Santa Rita Unit of the Tucson Complex; UNKNOWN PARTIES, named as John and Jane Doe 1-80; CAMERON LEWIS, husband; RICHARD PRATT, Director of Division of Health Services; CORIZON HEALTH, INC.; LINDA HAMMER; THOMAS, Unknown Warden;

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. LUNDBERG, Deputy Warden; J. KOKEMOR, husband; TUCKER; MARTIN PACHECO, Badge No. 6165; RYAN, named as Jane Doe Ryan, wife; C. THOMAS, husband; THOMAS, named as Jane Doe Thomas, wife; CHRIS MOODY, husband; MOODY, named as Jane Doe Moody, wife; THOMPSON, named as Jane Doe Thompson, wife; ROBERT RUNGE, husband; RUNGE, named as Jane Doe Runge, wife; PACHECO, named as Jane Doe Pacheco, wife; JASSO, named as John Doe Jasso, husband; ASHIS PURI, husband; PURI, named as Jane Doe Puri, wife; MITCHELL CRAIG PATRICK, Husband; PATRICK, named as Jane Doe Patrick, wife; RANDY LUKER, husband; LUKER, named as Jane Doe Luker, wife; BAKER, named as John Doe Baker, husband; BAKER, named as Jane Doe Baker, wife; KOKEMOR, named as John Doe Kokemor, husband; MCCUTCHEON, named as COIII McCutcheon, husband; MCCUTCHEON, named as Jane Doe McCutcheon, wife; CARRIE SMALLEY, wife; LAWRENCE ENDE, husband; JAWAD RIAZ, husband; THOMAS RAWA, husband; RAWA, named as Jane Doe Rawa, wife; BRENDA ROJAS, wife; WEXFORD HEALTH SOURCES INCORPORATED,

Defendants.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

2 Submitted November 16, 2020** Phoenix, Arizona

Before: BYBEE, MURGUIA, and BADE, Circuit Judges.

Plaintiff David Garcia appeals from the district court’s summary judgment

denying his 42 U.S.C. § 1983 Eighth Amendment claim against Corrections Officer

Minerette Jasso for injuries incurred during a violent prison riot. Garcia contends

that the district court erred in applying the emergency standard for an Eighth

Amendment violation in Whitley v. Albers, 475 U.S. 312 (1986), and should have

instead applied the deliberate indifference standard established in Farmer v.

Brennan, 511 U.S. 825 (1994). “We review the district court’s decision to grant

summary judgment de novo.” Gordon v. Cnty. of Orange, 888 F.3d 1118, 1122 (9th

Cir. 2018) (citation omitted). As the parties are familiar with the facts, we do not

recount them here. We affirm.

The district court did not err in applying Whitley to Garcia’s claims. We have

made clear that “[i]n emergency circumstances, such as those that exist during a

prison uprising, where prison officials must weigh the competing institutional

interests of ensuring the safety of staff, visitors, and inmates, and where life-and-

death decisions must be made quickly,” “prison officials’ actions and accompanying

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

3 state of mind should [] be measured against the Whitley standard for an Eighth

Amendment violation” during the emergency. Johnson v. Lewis, 217 F.3d 726, 733–

34 (9th Cir. 2000). Garcia’s argument that Whitley is limited to use of force claims

is without support.

As such, Garcia was required to present evidence creating a genuine issue of

material fact that Jasso acted “maliciously and sadistically for the very purpose of

causing harm.” Whitley, 475 U.S. at 320–21 (citation and quotation marks omitted).

The district court did not err in finding that Garcia has failed to do so.

AFFIRMED.

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