FILED
NOT FOR PUBLICATION JAN 26 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAG EDWARD ALTHOF, No. 15-35213
Plaintiff - Appellant, D.C. No. 6:12-cv-00091-AA
v.
MEMORANDUM*
MICHAEL F. GOWER, Assistant
Director, Operations Division; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Tag Edward Althof appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging an Eighth Amendment excessive
force claim against prison officials. We have jurisdiction under 28 U.S.C. § 1291.
*
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).
We review de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013).
We affirm in part, reverse in part, and remand.
The district court properly granted summary judgment for defendants
Gower, Premo, and Yoder because Althof failed to raise a genuine dispute of
material fact as to whether these defendants participated in, directed, or knowingly
failed to prevent the alleged constitutional violations. See Starr v. Baca, 652 F.3d
1202, 1207 (9th Cir. 2011) (setting forth requirements for establishing supervisory
liability under § 1983).
However, the district court erred in granting summary judgment for
defendants Kittleson and Blachly on Althof’s claim for monetary damages because
the district court improperly disregarded statements in Althof’s verified complaint
and affidavit opposing summary judgment. For example, according to Althof,
after he turned his head to one of the officers to address the fact that the officer was
“manhandling me and purposely causing me pain,” he was “slamm[ed] . . . against
the wall forcibly.” He alleges that while being escorted his arms were lifted behind
his back causing pain that was “unbearable,” despite having previously told one of
the officers of a prior shoulder injury. Althof disputes the officer’s account that he
attempted to run away, and contends that leg restraints were applied so tightly that
they cut into his flesh. Althof alleges injuries, including extreme physical pain and
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nerve damage, as a result of these events.
Thus, viewing the evidence in the light most favorable to Althof, Althof
raised a genuine dispute of material fact as to whether defendants maliciously and
sadistically used force against him. See Hudson v. McMillian, 503 U.S. 1, 7 (1992)
(holding that “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”);
Furnace, 705 F.3d at 1026 (a court reviewing a summary judgment motion must
“assume the truth of the evidence set forth by the nonmoving party”). Moreover,
summary judgment on the basis of qualified immunity was also improper because,
viewing the facts in the light most favorable to Althof, there is a genuine dispute of
material fact as to whether it would have been clear to every reasonable official
that Kittleson and Blachly’s actions violated Althof’s constitutional rights. See
Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741 (2011) (discussing qualified immunity
and noting that a right is clearly established only if “every reasonable official
would have understood that what he is doing violates that right” (citation and
internal quotation marks omitted)). Accordingly, we reverse and remand for
further proceedings on the claim for monetary damages against defendants
Kittleson and Blachly.
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The parties shall bear their own costs on appeal.
AFFIRMED in part; REVERSED in part; and REMANDED.
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