FILED
NOT FOR PUBLICATION NOV 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRENCE TONYAN, No. 15-16189
Plaintiff-Appellant, D.C. No. 2:13-cv-01021-JJT
v.
MEMORANDUM*
JOSEPH STUSSY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
Terrence Tonyan, an Arizona state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging a Fourth
Amendment excessive force claim arising from his arrest. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Arpin v. Santa Clara Valley Transp.
*
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).
Agency, 261 F.3d 912, 919 (9th Cir. 2001). We reverse and remand.
The district court granted summary judgment on Tonyan’s Fourth
Amendment excessive force claim after concluding that a reasonable officer could
have concluded that Tonyan’s bulky clothing concealed a weapon. This finding,
however, is unsupported by the record. Further, in Tonyan’s verified amended
complaint, Tonyan stated that he was unarmed and never threatened any officer by
word or action. Thus, viewing the evidence in the light most favorable to Tonyan,
Tonyan raised a genuine dispute of material fact as to whether defendant used
excessive force by striking Tonyan’s bike with his patrol car while Tonyan fled the
scene of a burglary. See Lal v. California, 746 F.3d 1112, 1115, 1117 (9th Cir.
2014) (setting forth framework for analyzing an excessive force claim under the
Fourth Amendment). Accordingly, we reverse and remand for further proceedings
on this claim.
REVERSED and REMANDED.
2 15-16189