NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH BURNAM, 

Plaintiff-Appellant, 

 v. 

DENNIS SMITH, ET AL., 

Defendants-Appellees.

No. 17-16860

D.C. No. 

2:13-CV-01804-ROS

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Argued and Submitted September 12, 2019

San Francisco, California

Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.

Kenneth Burnam, who was incarcerated at Federal Correctional InstitutionPhoenix (“FCI Phoenix”), appeals (1) the district court’s grant of summary 

judgment to four correctional officers of FCI Phoenix as to Burnam’s claim that

they used excessive force to restrain him in violation of his Eighth Amendment 

rights, and (2) the district court’s grant of judgment as a matter of law under 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

OCT 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Federal Rule of Civil Procedure 50 to FCI Phoenix employee Frank Jacobs as to 

Burnam’s claim that Jacobs violated the Eighth Amendment because he was 

deliberately indifferent to the significant risk that Burnam would be sexually 

abused by another FCI Phoenix employee.

A ruling on a motion for summary judgment is reviewed de novo. Vasquez 

v. County of Los Angeles, 349 F.3d 634, 639 (9th Cir. 2004). A claim will survive 

a motion for summary judgment unless there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law. The Court

also reviews de novo a district court’s decision to grant a motion for judgment as a 

matter of law under Federal Rule of Civil Procedure 50(a). Torres v. City of Los 

Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008); Santos v. Gates, 287 F.3d 846, 851 

(9th Cir. 2002). Judgment as a matter of law is appropriate only when “no 

reasonable jury” could find for the nonmoving party based on the evidence 

presented at trial. Santos, 287 F.3d at 858. In making either determination, “[t]he 

evidence must be viewed in the light most favorable to the nonmoving party, and 

all reasonable inferences must be drawn in favor of that party.” Torres, 548 F.3d 

at 1205–06 (quoting LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 

2000)); see also Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991).

In January 2013, Burnam was detained temporarily in a small cell in FCI 

Phoenix’s Secure Housing Unit. Construing the evidence in the light most 
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favorable to Burnam, he told prison staff that he intended to hang himself if he was 

given a cellmate, and a staff psychologist was called to assess Burnam. During the 

assessment, Burnam told the psychologist that he would kill himself, stood up, 

took off his shirt, and prepared to fashion the shirt into a noose. When the 

psychologist called for help, Burnam sat down with his shirt on his lap. 

Responding to the psychologist’s call, defendants Frank Armenta, Fred Moreno, 

Jesus Rico, and Lucas Winn (all correctional officers at FCI Phoenix) arrived to 

find Burnam still sitting with his shirt in his lap. At some point, Burnam stood up. 

It is undisputed that Burnam was angry, swore at the officers, and was not 

handcuffed. The officers opened the cell door, grabbed the shirt from Burnam, 

took Burnam to the ground, stripped off his remaining clothes, and placed him in 

hand and leg restraints. Burnam was later treated for a small cut on his face.

Under the circumstances as they were presented by Burnam’s own 

testimony, there was no clearly established law that prohibited the officers’ 

conduct. Accordingly, the officers were entitled to qualified immunity, and the 

district court’s grant of summary judgment to the officers is affirmed.

Burnam also appeals the district court’s grant of judgment as a matter of law 

at the conclusion of trial to Jacobs, FCI Phoenix’s Food Service Administrator and

the supervisor of Carl Evans. The evidence presented at trial was as follows. 

Burnam worked in Food Service in 2011 and 2012. Evans subjected the inmate 
4 

cooks under his supervision, including Burnam, to regular sexual harassment and 

abuse, Jacobs witnessed this sexual harassment and abuse on many occasions, and

he did not intervene. Instead, Burnam testified that Jacobs would “just shake his 

head . . . or say, cut it out,” and walk away, and that Jacobs would often refer to 

another inmate as Evans’ “boyfriend” or “boy toy” and to Evans by an effeminate 

nickname (“Evelyn”). Burnam further testified that about a month after he 

complained to Jacobs about Evans’ conduct, Evans raped him in a storage room 

located in the prison’s kitchen. Burnam subsequently sued Jacobs, alleging he was 

deliberately indifferent to the substantial risk that Evans would violate Burnam’s 

constitutional rights.1

Burnam has a “clearly established” Eighth Amendment right “to be free 

from sexual abuse,” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000), 

and an implied cause of action exists for him to vindicate that right through 

monetary damages. The Supreme Court has extended monetary liability to a claim 

brought under the Eighth Amendment against prison officials who acted with 

deliberate indifference toward a substantial risk of an inmate suffering sexual 

abuse. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Similarly, this circuit has 

held that a Bivens cause of action exists where prison officials “failed to provide 

1 Burnam also sued Evans for an Eighth Amendment violation and obtained a 

default judgment against him.
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[an inmate] adequate protection from beatings and sexual attacks.” Gillespie v. 

Civiletti, 629 F.2d 637, 642 (9th Cir. 1980); see also Bivens v. Six Unknown 

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); Carlson v. 

Green, 446 U.S. 14, 18-23 (1980) (implying a Bivens cause of action in a different 

Eighth Amendment context). To be held liable for deliberate indifference to the 

sexual abuse of an inmate, “the official must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he must 

also draw the inference.” Farmer, 511 U.S. at 837.

Burnam testified at trial that Jacobs used nicknames for Evans and others 

that potentially referred to Evans’ reputation for sexual harassment and abuse, and 

that when Jacobs witnessed such behavior firsthand, instead of intervening or 

otherwise disciplining Evans, he would at most tell Evans to “cut it out,” which 

instruction apparently did not deter Evans from similar behavior (including Evans’ 

alleged rape of Burnam). From this, a reasonable juror could have concluded that 

Jacobs witnessed sexual abuse rising to the level of an Eighth Amendment 

violation and did nothing about it—and was therefore deliberately indifferent to the 

risk that Evans was sexually abusing inmates, including Burnam. In other words, 

Jacobs knew of and disregarded “an excessive risk to inmate health or safety” in 

the form of Evans’ sexual abuse. Id. Accordingly, the district court erred in 

holding that Jacobs was entitled to judgment as a matter of law under Rule 50(a). 
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We therefore reverse and remand to the district court for retrial as to Burnam’s 

deliberate indifference claim against Jacobs.

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED and REMANDED in part.