
    Jimmy Ray BROMGARD, Plaintiff-Appellant, v. YELLOWSTONE COUNTY; Bill Kennedy, Chairman; John Ostlund Commissioner; Jim Reno, Commissioner, Defendants-Appellees.
    No. 09-35004.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Nov. 3, 2009.
    Filed Nov. 19, 2009.
    Ronald F. Waterman, Esquire, Julie A. Johnson, Esquire, Gough Shanahan Johnson & Waterman, Helena, MT, Peter J. Neufeld, Monica R. Shah, Esquire, Cochran Neufeld & Scheck, LLP, New York, NY, for Plaintiff-Appellant.
    Kevin Gillen, Deputy Chief Counsel for Litigation, Billings, MT, for Defendants-Appellees.
    Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.
   MEMORANDUM

For a custom or policy of inaction to amount to deliberate indifference toward constitutional rights and thus be actionable under 42 U.S.C. § 1983, it

must be the result of a ‘conscious,’ City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), or ‘deliberate choice to follow a course of action ... made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.’ Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

Butler v. Elle, 281 F.3d 1014, 1026 n. 9 (9th Cir.2002) (alteration in original). Bromgard has presented no evidence that the County made a “conscious” or “deliberate choice” of inaction “from among various alternatives.” Id. The evidence demonstrates that the County was not in a legal or de facto position to hire, supervise, remove or set the compensation of defense attorneys for indigents in 1987. Thus, under Butler, the County’s inaction cannot amount to deliberate indifference. Id.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     