SHERYL DENISE McCARTY, personal representative of JYLES JON DALE McCARTY v. Logan Jeffrey Egnor, 09594

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHERYL DENISE McCARTY, personal
representative of JYLES JON DALE
McCARTY,
Plaintiff-Appellant,
v.
LOGAN JEFFREY EGNOR, #09594;
SANJO SABU, #10423; A. BRANVITS,
#10640; PHOENIX POLICE
DEPARTMENT; EMILY HUSKISSON,
#10512,
Defendants-Appellees.
No. 21-15918
D.C. No. 2:21-cv-00473-MTL-
MTM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted November 15, 2022**
Before: CANBY, CALLAHAN, and BADE, Circuit Judges.
Sheryl Denise McCarty, as personal representative of Jyles Jon Dale
* 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). McCarty’s request for oral
argument, set forth in the opening brief, is denied.
FILED
NOV 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 21-15918
McCarty, appeals from the district court’s judgment dismissing Jyles Jon Dale
McCarty’s 42 U.S.C. § 1983 action alleging excessive force and other
constitutional claims in connection with his arrest. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28
U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We
affirm in part, vacate in part, and remand.
The district court dismissed McCarty’s excessive force claim because it
concluded that McCarty did not allege sufficient facts concerning his arrest.
However, McCarty alleged that defendant Egnor shot him five times with beanbag
rounds from a shotgun and then hogtied him, despite the fact that McCarty was not
committing a crime, was not resisting arrest, and was not a threat to the police or
public. Liberally construed, these allegations are sufficient to warrant ordering
Egnor to file an answer. See Byrd v. Phx. Police Dep’t, 885 F.3d 639, 642 (9th
Cir. 2018) (setting forth elements for claim of excessive force during an arrest and
explaining that courts have an obligation to construe pro se pleadings liberally);
Young v. County of Los Angeles, 655 F.3d 1156, 1163-65 (9th Cir. 2011)
(explaining that the government has “no reasonable safety concern” justifying the
use of significant force where an individual poses no immediate threat to police or
the public). We therefore vacate the district court’s dismissal of McCarty’s
excessive force claim only and remand for further proceedings.

-- 2 of 3 --

3 21-15918
Because McCarty does not challenge the district court’s dismissal of any
claims other than his claim for excessive force, we affirm the district court’s
judgment in all other respects.
AFFIRMED in part; VACATED in part; and REMANDED.

-- 3 of 3 --