NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ASHENAFI G. ABERHA, 

 Plaintiff-Appellee, 

 v. 

ERIC DELAFONTAINE, 

 Defendant-Appellant, 

and 

NEVADA DEPARTMENT OF 

CORRECTIONS; DIRECTOR, Nevada 

Department of Corrections; W. GITTERRE; 

JAMES DZURENDA; SUNDAY; G. T. 

DAVIS, 

 Defendants.

No. 22-15282 

D.C. No. 

3:19-cv-00606-MMD-CSD 

MEMORANDUM* 

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Submitted February 15, 2023**

 

San Francisco, California

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

except as provided by Ninth Circuit Rule 36-3.

 

 ** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 23 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.

Correctional officer Eric Delafontaine appeals the district court’s order 

denying him qualified immunity from inmate Ashenafi Aberha’s suit under 42 

U.S.C. § 1983, in which Aberha claims that Delafontaine failed to protect him 

from sexual assaults allegedly committed by Aberha’s cellmate. We have 

jurisdiction under 28 U.S.C. § 1291 to review the district court’s denial of qualified 

immunity “to the extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 

U.S. 511, 530 (1985). Reviewing such legal issues de novo, see Stewart v. Aranas, 

32 F.4th 1192, 1195 (9th Cir. 2022), we affirm in part and dismiss in part.

“An official sued under § 1983 is entitled to qualified immunity unless it is 

shown that: (1) the official violated a statutory or constitutional right, and (2) the 

right was ‘clearly established’ at the time the violation occurred.” Manriquez v. 

Ensley, 46 F.4th 1124, 1129 (9th Cir. 2022) (quoting Plumhoff v. Rickard, 572 U.S. 

765, 778 (2014)). “The failure of prison officials to protect inmates from attacks 

by other inmates may rise to the level of an Eighth Amendment violation when: (1) 

the deprivation alleged is ‘objectively, sufficiently serious’ and (2) the prison 

officials had a ‘sufficiently culpable state of mind,’ acting with deliberate 

indifference.” Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005) (quoting 

Farmer v. Brennan, 511 U.S. 825, 834 (1994)).
3

1. In Delafontaine’s first two arguments as to why he was entitled to 

summary judgment, he contends that he “did not know of a substantial risk of 

serious harm to Aberha.” Delafontaine first argues that “the only factual allegation 

of what exactly was reported . . . comes from [his own] declaration,” which 

“clearly establishes there was no report of a sexual assault.” In the alternative, he 

argues that “an [inmate’s] uncorroborated allegation [of sexual assault] alone is not 

sufficient to establish the subjective component of deliberate indifference.” We 

lack jurisdiction to consider these arguments. “[D]eterminations of evidentiary 

sufficiency at summary judgment are not immediately appealable” in a qualified 

immunity case “if what is at issue . . . is . . . whether the evidence could support a 

finding that particular conduct occurred.” Behrens v. Pelletier, 516 U.S. 299, 313 

(1996). Therefore, we dismiss the appeal to the extent it raises these issues.

2. Delafontaine also argues that he “took a reasonable step after learning of 

the . . . threat” to Aberha by “instigating an investigation into Aberha’s allegation” 

of sexual assault. The district court did not explicitly address this argument,

1 so 

we must “review . . . the record to determine what facts the district court, in the 

1 Delafontaine did not raise the issue below. To the extent we have subject 

matter jurisdiction, we usually “decline to consider arguments raised for the first 

time on appeal,” though we have discretion to do so if “the issue is purely one of 

law, does not affect or rely upon the factual record developed by the parties, and 

will not prejudice the party against whom it is raised.” Paeste v. Gov’t of Guam, 

798 F.3d 1228, 1235 (9th Cir. 2015) (quoting Dream Palace v. County of 

Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004)).
4

light most favorable to the nonmoving party, likely assumed.” Behrens, 516 U.S. 

at 313 (quoting Johnson v. Jones, 515 U.S. 304, 319 (1995)). Because the record 

lacks evidence that Delafontaine took any steps after Aberha reported the first 

sexual assault until Delafontaine responded to the third sexual assault—when the 

investigation was already underway—the district court likely assumed that 

Delafontaine did not instigate the investigation. Although Delafontaine disputes 

this implicit finding, we lack jurisdiction to revisit the district court’s assessment of 

the evidence in the record. See id. Therefore, we also dismiss the appeal as to this 

issue.

3. Lastly, Delafontaine argues that “there is no clearly established law that

put [him] on clear notice that his actions constituted cruel and unusual punishment

in violation of the Eighth Amendment.” We disagree. In September 2018, when 

the incident at issue here occurred, it was clearly established that Delafontaine’s 

conduct—viewing the evidence in the light most favorable to Aberha—violated the 

Eighth Amendment. It “has been clearly established since the Supreme Court’s 

decision in Farmer . . . in 1994” that an inmate has the “right to be protected from 

violence at the hands of other inmates.” Wilk v. Neven, 956 F.3d 1143, 1150 (9th 

Cir. 2020). And since Clem v. Lomeli, 566 F.3d 1177 (9th Cir. 2009), it has been 

clear that a correctional officer’s “doing nothing in response to [an inmate’s] pleas 

for help” after the inmate’s cellmate threatened physical violence is “unreasonable, 
5

amounting to ‘deliberate indifference.’” Wilk, 956 F.3d at 1148 (quoting Clem, 

566 F.3d at 1182). We affirm the district court’s denial of qualified immunity on 

this ground.

AFFIRMED in part; DISMISSED in part.