Tshombe Kelley v. A. HERRERA, Correctional Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TSHOMBE KELLEY,
Plaintiff-Appellant,
v.
A. HERRERA, Correctional Officer; et al.,
Defendants-Appellees.
No. 18-17157
D.C. No. 2:16-cv-01894-JAM-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
California state prisoner Tshombe Kelley appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging excessive force
and failure to protect. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo the district court’s ruling on cross-motions for summary judgment.
* 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
NOV 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-17157
Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). We affirm.
The district court properly granted summary judgment for defendants on
Kelley’s excessive force claim because Kelley failed to raise a genuine dispute of
material fact as to whether defendants maliciously and sadistically used force
against him. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (the “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”).
Because Kelley failed to raise a genuine dispute of material fact as to
whether defendants used excessive force against him, the district court properly
granted summary judgment for defendants on Kelley’s claim that defendants failed
to protect him from the use of excessive force. See Cunningham v. Gates, 229
F.3d 1271, 1289 (9th Cir. 2000) (officers “have a duty to intercede when their
fellow officers violate the constitutional rights of a suspect or other citizen”
(citation and internal quotation marks omitted)).
We reject as unsupported by the record Kelley’s contention that the district
court improperly sealed confidential materials.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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