Lucious Wilson v. DEPUTY COSIO, No 495876, in individual and official capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCIOUS WILSON,
Plaintiff-Appellant,
v.
DEPUTY COSIO, No 495876, in individual
and official capacity,
Defendant-Appellee.
No. 15-56535
D.C. No. 2:12-cv-09724-GW-
MRW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted January 18, 2017**
Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.
Lucious Wilson, a California state prisoner, appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging a Fourth
Amendment excessive force claim arising from his arrest. We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 15-56535
under 28 U.S.C. § 1291. We review de novo. Glenn v. Washington County, 673
F.3d 864, 870 (9th Cir. 2011). We affirm.
The district court properly granted summary judgment because Wilson
failed to raise a genuine dispute of material fact as to whether defendant’s use of
less-lethal force to disarm Wilson and effectuate his arrest violated Wilson’s
Fourth Amendment rights. See Lal v. California, 746 F.3d 1112, 1115, 1117 (9th
Cir. 2014) (setting forth framework for analyzing an excessive force claim under
the Fourth Amendment); see also Glenn, 673 F.3d at 871-72 (explaining
circumstances under which a bean bag gun, which is a “‘less-lethal’ weapon,” is
permissible).
The district court did not abuse its discretion by denying Wilson’s motion
for default judgment because the clerk never entered a default. See Eitel v.
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard of review
and factors to consider before entering default judgment).
To the extent that Wilson’s request, filed on June 3, 2016, seeks entry of
default, the request is denied.
AFFIRMED.

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