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United States Court of Appeals, Ninth CircuitJan 12, 2010
362 Fed. Appx. 638 (9th Cir. 2010)

No. 08-17451.

Submitted December 15, 2009.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed January 12, 2010.

Tomeko Malone, Norco, CA, pro se.

Phillip Arthur, Esquire, Office of the California Attorney General, Sacramento, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence J. O'Neill, District Judge, Presiding. D.C. No. 1:06-cv-00199-LJO-DLB.

Before: GOODWIN, WALLACE and CLIFTON, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Tomeko Malone, a California state prisoner, appeals pro se from the district court's summary judgment for defendants in his 42 U.S.C. § 1983 action alleging that a prison official used excessive force against him when removing him from his prison cell. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo an order granting summary judgment, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and we affirm.

The district court properly granted summary judgment on the Eighth Amendment claim because Malone failed to raise a triable issue as to whether Peterson's use of physical force was more than de minimis, and whether the force was used maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).