ANTHONY J. PHILLIPS, Sr. v. D. MELO TREJOS, Correctional Officer, individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY J. PHILLIPS, Sr.,
Plaintiff-Appellant,
v.
D. MELO TREJOS, Correctional Officer,
individual,
Defendant-Appellee.
No. 22-55113
D.C. No.
2:17-cv-04673-MCS-SHK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Mark C. Scarsi, District Judge, Presiding
Submitted March 15, 2023**
San Francisco, California
Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.
Anthony Phillips appeals pro se from the district court’s summary judgment
in favor of Defendant D. Melo Trejos in his 42 U.S.C. § 1983 civil rights action
FILED
MAR 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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alleging excessive force in violation of the Eighth Amendment. We review de
novo,1 and we affirm.
The district court correctly determined that there was no genuine dispute of
material fact that Trejos did not use excessive force when he deployed a sponge
round from a forty millimeter launcher to break up a fight between Phillips and
another inmate. The evidence before the district court showed that Trejos did not
act maliciously or sadistically. See Simmons v. Arnett, 47 F.4th 927, 932–33 & n.1
(9th Cir. 2022); see also U.S. Const. amend. VIII; Whitley v. Albers, 475 U.S. 312,
318–26, 106 S. Ct. 1078, 1083–87, 89 L. Ed. 2d 251 (1986).
The district court also correctly determined that Phillips failed to identify a
violation of a “clearly established right” that would defeat Trejos’s defense of
qualified immunity. See Mullenix v. Luna, 577 U.S. 7, 11–12, 136 S. Ct. 305, 308,
193 L. Ed. 2d 255 (2015) (per curiam).
Phillips’s argument that Trejos was estopped from asserting a qualified
immunity defense on summary judgment after asserting the defense at the motion
to dismiss stage has no merit. See Behrens v. Pelletier, 516 U.S. 299, 306, 116 S.
Ct. 834, 839, 133 L. Ed. 2d 773 (1996).
AFFIRMED.
1 Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022).
22-55113 2

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