TORBERT v. GORE (2019)

MEMORANDUM **

Javon Lamar Torbert appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging excessive force and deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm in part, reverse in part, and remand.

Summary judgment on Torbert’s deliberate indifference claims was proper because, under any potentially applicable standard, Torbert failed to raise a genuine dispute of material fact as to whether defendants disregarded an excessive risk to Torbert’s serious medical needs. See id. at 1057 (elements of a deliberate indifference claim under the Eighth Amendment); see also Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (elements of a Fourteenth Amendment medical care claim by a pretrial detainee).

Summary judgment on Torbert’s excessive force claim arising from the October 21, 2014 incident was proper because, under any potentially applicable standard, Torbert failed to raise a genuine dispute of material fact as to whether defendant Gebregiorgis used unreasonable force under the circumstances. See Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (elements of excessive force claim under the Eighth Amendment); see also Kingsley v. Hendrickson, ––– U.S. ––––, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015) (elements of excessive force claim under the Fourteenth Amendment).

However, summary judgment on Torbert’s excessive force claim arising from the October 2, 2014 incident was improper. The district court initially determined that there were genuine disputes of material fact as to (1) whether defendant Dailly used force intentionally, (2) the threat Dailly perceived, (3) the need to use force or if another means was available, and (4) the degree of injury inflicted. The district court then sua sponte reexamined the summary judgment record and concluded that no reasonable jury could conclude that Dailly applied force “maliciously and sadistically to cause harm,” rather than “in a good-faith effort to maintain or restore discipline.” In reaching this conclusion, the district court relied on the evidence showing that Torbert’s injuries were not significant. Viewing the evidence in Torbert’s favor, a fact question remains as to whether defendant Dailly’s use of force was excessive even if Torbert’s injuries were not lasting and significant. See Kingsley, 135 S.Ct. at 2473; Martinez, 323 F.3d at 1184; see also Wilkins v. Gaddy, 559 U.S. 34, 37, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (per curiam) (reversing a dismissal based on “the supposedly de minimis nature of [the inmate’s] injuries”). We reverse the judgment in part and remand for further proceedings on the excessive force claim against defendant Dailly only.

Because the factual record concerning Torbert’s detention is undeveloped, we do not consider Torbert’s argument that, although a parolee, his excessive force claim is governed by the Fourteenth Amendment rather than the Eighth Amendment. Torbert may pursue that argument on remand.

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

All pending motions are denied.

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.