LENROY McLEAN v. Conrad Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LENROY McLEAN,
Plaintiff-Appellant,
v.
CONRAD HERNANDEZ,
Defendant-Appellee,
and
PHILLIP GUTIERREZ, Warden; et al.,
Defendants.
No. 20-55410
D.C. No. 5:15-cv-00275-RGK-SP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Federal prisoner Lenroy McLean appeals pro se from the district court’s
* 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
MAY 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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summary judgment in his action brought under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging Eighth
Amendment claims for excessive force and sexual assault. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217,
1222 (9th Cir. 2010). We reverse and remand.
The district court granted summary judgment on McLean’s sexual assault
claim because it concluded that McLean failed to raise a genuine dispute of
material fact as to whether defendant Hernandez’s striking of McLean’s right
testicle during a pat down search constituted sexual assault. However, McLean
alleged in his verified complaint that Hernandez attacked his testicle to cause pain
and humiliation. See Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020)
(providing requirements to establish a prisoner sexual assault claim). Resolving all
factual disputes and drawing all reasonable inferences in McLean’s favor, we
reverse the district court’s judgment on McLean’s sexual assault claim and remand
for further proceedings.
The district court granted summary judgment on McLean’s excessive force
claim because it concluded that there is no evidence from which a reasonable juror
could infer that Hernandez acted maliciously and sadistically to harm McLean
when Hernandez struck McLean’s right testicle during a pat down search.
However, McLean submitted a declaration that provided a credible motive for

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Hernandez’s alleged assault, namely that Hernandez acted on behalf of another
prison staff member who expressed a desire to retaliate against McLean for a
reprimand the staff member received due to his failure to release prison account
funds to pay McLean’s attorney. See Hudson v. McMillian, 503 U.S. 1, 7 (1992)
(“[T]he core judicial inquiry” in resolving an Eighth Amendment excessive force
claim is “whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm[.]”). Resolving all factual
disputes and drawing all reasonable inferences in McLean’s favor, we reverse the
district court’s judgment on McLean’s excessive force claim and remand for
further proceedings.
Hernandez is not entitled to qualified immunity for the sexual assault or
excessive force claims. See id. at 5 (noting the “settled rule that the unnecessary
and wanton infliction of pain . . . constitutes cruel and unusual punishment
forbidden by the Eighth Amendment” (internal quotation marks omitted));
Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and
most absolute of terms, the Eighth Amendment right of prisoners to be free from
sexual abuse was unquestionably clearly established prior to the time of this
alleged assault, and no reasonable prison guard could possibly have believed
otherwise.”).
The district court did not abuse its discretion by denying McLean’s motions

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for appointment of counsel because McLean failed to demonstrate “exceptional
circumstances” warranting the appointment of counsel. See Cano v. Taylor, 739
F.3d 1214, 1218 (9th Cir. 2014) (setting forth standard of review and “exceptional
circumstances” standard for appointment of counsel).
The district court did not abuse its discretion by denying McLean’s motion
for a protective order with regard to his medical records because McLean’s remedy
for an alleged violation of the Privacy Act of 1974 was damages, not exclusion of
evidence. See 5 U.S.C. § 552a(g)(1)(D) & (g)(4)(A) (providing the remedy of a
civil action for damages); Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th
Cir. 2002) (standard of review); see also United States v. Lombera-Camorlinga,
206 F.3d 882, 886 (9th Cir. 2000) (en banc) (“[A]n exclusionary rule is typically
available only for constitutional violations, not for statutory or treaty violations.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
REVERSED and REMANDED.

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