FILED
NOT FOR PUBLICATION DEC 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES EDWARD MOORE, No. 14-16867
Plaintiff - Appellant, D.C. No. 3:13-cv-02852-JD
v.
MEMORANDUM*
A. BULATAO; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Charles Edward Moore, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging an
excessive force claim. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v.
*
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).
Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part, vacate in part, and
remand.
The district court properly dismissed Moore’s action because Moore failed
to allege facts sufficient to show that defendants Bulatao and Smethers acted
maliciously and sadistically. See Hudson v. McMillian, 503 U.S. 1, 7 (1992) (the
“core judicial inquiry” in resolving an Eighth Amendment excessive force claim is
“whether force was applied in a good-faith effort to maintain or restore discipline,
or maliciously and sadistically to cause harm”).
We reject Moore’s contention that the district court dismissed his action for
failure to exhaust administrative remedies.
We do not consider 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).
To the extent that Moore raised a due process challenge to OP 608, that
claim was not addressed by the district court. Accordingly, we vacate the
judgment in part and remand for the district court to assess this claim in the first
instance.
Moore’s request for sanctions, set forth in his opening brief, is denied.
Moore’s request for appointment of counsel, filed on December 14, 2015, is
denied.
2 14-16867
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
3 14-16867