FILED
NOT FOR PUBLICATION
APR 11 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER FUGAWA, No. 15-16223
Plaintiff-Appellant, D.C. No.
1:11-cv-00966-LJO-SKO
v.
L. DEARMOND, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief District Judge, Presiding
Argued and Submitted March 12, 2018
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**
District Judge.
The district court improperly granted summary judgment to Officer L.
DeArmond on plaintiff Peter Fugawa’s Eighth Amendment claim under 42 U.S.C.
§ 1983. Construing the evidence in the light most favorable to Fugawa, a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
Page 2 of 4
reasonable jury could conclude that Officer DeArmond attempted to slam
Fugawa’s face into the ground for the purpose of maliciously and sadistically
causing harm, rather than in a good-faith effort to gain compliance with a lawful
order. See Hudson v. McMillian, 503 U.S. 1, 6–7 (1992).
Crediting Fugawa’s account of the events, a reasonable jury could infer that
Officer DeArmond was threatening to inflict unnecessary pain and suffering when
he told Fugawa, right before sweeping his legs out from under him, “I’m going to
slam your face into the ground if you don’t go into that cell.” That inference is
bolstered by the fact that, again on Fugawa’s account, Officer DeArmond’s partner
said, in response to DeArmond’s alleged threat, “That’s not necessary.” And a
reasonable jury could conclude from the record evidence that, at the time, Fugawa
was engaged in minimal resistance and posed a minimal threat, given that his
hands were cuffed behind his back and an officer was gripping each arm. From
these facts, among others, a reasonable jury could conclude that Officer DeArmond
used force “‘maliciously and sadistically’ rather than as part of ‘a good-faith effort
to maintain or restore discipline.’” Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (per
curiam) (quoting Hudson, 503 U.S. at 7).
It is true, as Officer DeArmond points out, that Fugawa’s injuries were not
severe. But a reasonable jury could find from the record evidence that this was
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largely due to the fortuitous intervention of Officer DeArmond’s partner, who
partially broke Fugawa’s fall after DeArmond executed the leg sweep. And the
core focus of the analysis under the Eighth Amendment is the nature of the force
used, not the extent of the injury. Id. at 39.
If the jury accepts Fugawa’s version of events, Officer DeArmond will not
be entitled to qualified immunity. Since Hudson, a person serving a term of
incarceration has had a clearly established right not to have his face slammed into
the ground for the purpose of maliciously and sadistically causing harm. See
Hudson, 503 U.S. at 9 (“When prison officials maliciously and sadistically use
force to cause harm, contemporary standards of decency always are violated. This
is true whether or not significant injury is evident.”); Furnace v. Sullivan, 705 F.3d
1021, 1028 (9th Cir. 2013). Officer DeArmond, of course, disputes that he
deployed force for that purpose, but whether he acted for the purpose of inflicting
unnecessary pain and suffering or instead in a good-faith effort to maintain or
restore discipline is an issue the jury must resolve. The main case Officer
DeArmond cites, Shafer v. County of Santa Barbara, 868 F.3d 1110 (9th Cir.
2017), is readily distinguishable, for there the officer used a leg sweep to gain
custody of a non-compliant suspect. Here, Fugawa was already in handcuffs with
Page 4 of 4
a guard gripping each arm when Officer DeArmond executed the leg sweep that
sent Fugawa’s face to the ground.
Because resolution of Fugawa’s state-law negligence and battery claims
turns on whether Officer DeArmond used excessive force, a question the jury must
resolve, we reverse the district court’s grant of summary judgment on these claims
as well.
REVERSED and REMANDED.