Tomeko Malone v. C/o Peterson

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).
IL/RESEARCH
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOMEKO MALONE,
Plaintiff - Appellant,
v.
C/O PETERSON,
Defendant - Appellee.
No. 08-17451
D.C. No. 1:06-cv-00199-LJO-DLB
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted December 15, 2009**
Before: GOODWIN, WALLACE and CLIFTON, Circuit Judges.
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
FILED
JAN 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 2 --

IL/RESEARCH 2
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 (1992).
AFFIRMED.

-- 2 of 2 --