FILED
NOT FOR PUBLICATION DEC 05 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUGENE HAMILTON, No. 12-56736
Plaintiff - Appellant, D.C. No. 5:09-cv-02213-PA-
MRW
v.
S. WHITE, Correctional Lieutenant; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted September 2, 2014 **
Before: GOULD, BERZON, and BEA, Circuit Judges.
Former California state prisoner Eugene Hamilton appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
retaliation and excessive force. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo. Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2003). We affirm in part, vacate in part, and remand.
The district court properly granted summary judgment on Hamilton’s
retaliation claim. Hamilton failed to raise a genuine dispute of material fact as to
whether defendant White was aware of Hamilton’s grievance before White
transferred Hamilton to another cell. See Rhodes v. Robinson, 408 F.3d 559, 567-
68 (9th Cir. 2005) (elements of a § 1983 retaliation claim in the prison context).
The district court properly granted summary judgment on Hamilton’s
excessive force claim against defendants Milson, Morelli and Thomas. Those
defendants did not use force against Hamilton, and Hamilton has presented no facts
from which it can reasonably be inferred that they caused or should have foreseen
the use of pepper spray on Hamilton. Thus, Hamilton failed to raise a genuine
dispute of material fact as to whether these defendants acted “maliciously and
sadistically for the very purpose of causing harm” when defendant Moening used
pepper spray on Hamilton. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002)
(citation and internal quotation marks omitted); see also Harper v. City of L.A., 533
F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff must . . .
demonstrate that the defendant’s conduct was the actionable cause of the claimed
injury.”).
However, as to Moening, a case decided after the district court’s decision,
2
Furnace v. Sullivan, 705 F.3d 1021, 1028-30 (9th Cir. 2013), is pertinent to the
issues in this case. Furnace reversed summary judgment on an excessive force
claim involving pepper spray, holding that, where pepper spray “was employed
without significant provocation from [the plaintiff] or warning from the officers,”
the use of force was constitutionally excessive, and the officers were not entitled to
summary judgment. As the facts in this case differ in ways that may be significant
and the district court did not have the benefit of Furnace when it granted summary
judgment on Hamilton’s excessive force claim against defendant Moening, we
remand to allow the court to reconsider this claim.
The district court did not abuse its discretion by denying Hamilton’s motion
to compel interrogatory responses. See Hallett v. Morgan, 296 F.3d 732, 751 (9th
Cir. 2002) (setting forth standard of review and describing trial court’s broad
discretion to deny discovery).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Hamilton’s motion to include the judgment appealed from in his excerpts of
record, received on October 12, 2012, is granted.
Each party shall bear its own costs on appeal.
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AFFIRMED in part, VACATED in part, and REMANDED.
4