Richard Lee Foster v. A. Verkouteren

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The parties consented to the jurisdiction of the magistrate judge. See**
28 U.S.C. § 636.
The panel unanimously concludes this case is suitable for decision***
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD LEE FOSTER,
Plaintiff - Appellant,
v.
A. VERKOUTEREN,
Defendant - Appellee.
No. 09-56396
D.C. No. 3:08-cv-00554-CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, Magistrate Judge, Presiding**
Submitted November 16, 2010***
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Richard Lee Foster, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that a
FILED
NOV 23 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-56396
prison official used excessive force under the Eighth Amendment. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo, White v. Roper, 901 F.3d
1501, 1503 (9th Cir. 1990), and we affirm.
The district court properly granted summary judgment on Foster’s excessive
force claim because Foster failed to raise a triable issue as to whether Verkouteren
used physical force “maliciously and sadistically to harm him” rather than “in a
good-faith effort to maintain or restore discipline.” Hudson v. McMillian, 503 U.S.
1, 7 (1992) (core judicial inquiry in excessive force claim is whether force was
malicious and sadistic or a good-faith disciplinary effort); see also White, 901 F.2d
at 1507 (use of force not excessive where inmate resisted entering cell and only
suffered a minor cut and some bruises).
Foster’s allegation of an ex parte meeting between the district judge and
Verkouteren does not warrant reversal because Foster provides no evidence of the
alleged meeting and he cannot show that he was unfairly prejudiced. See
Alexander Shokai, Inc. v. Comm’r, 34 F.3d 1480, 1484-85 (9th Cir. 1994) (no due
process violation where ex parte communications did not unfairly prejudice party).
AFFIRMED.

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