                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 11 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


PETER FUGAWA,                                    No.   15-16223

              Plaintiff-Appellant,               D.C. No.
                                                 1:11-cv-00966-LJO-SKO
 v.

L. DEARMOND,                                     MEMORANDUM*

              Defendant-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Lawrence J. O’Neill, Chief District Judge, Presiding

                       Argued and Submitted March 12, 2018
                            San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**
District Judge.

      The district court improperly granted summary judgment to Officer L.

DeArmond on plaintiff Peter Fugawa’s Eighth Amendment claim under 42 U.S.C.

§ 1983. Construing the evidence in the light most favorable to Fugawa, a

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
                                                                           Page 2 of 4
reasonable jury could conclude that Officer DeArmond attempted to slam

Fugawa’s face into the ground for the purpose of maliciously and sadistically

causing harm, rather than in a good-faith effort to gain compliance with a lawful

order. See Hudson v. McMillian, 503 U.S. 1, 6–7 (1992).

      Crediting Fugawa’s account of the events, a reasonable jury could infer that

Officer DeArmond was threatening to inflict unnecessary pain and suffering when

he told Fugawa, right before sweeping his legs out from under him, “I’m going to

slam your face into the ground if you don’t go into that cell.” That inference is

bolstered by the fact that, again on Fugawa’s account, Officer DeArmond’s partner

said, in response to DeArmond’s alleged threat, “That’s not necessary.” And a

reasonable jury could conclude from the record evidence that, at the time, Fugawa

was engaged in minimal resistance and posed a minimal threat, given that his

hands were cuffed behind his back and an officer was gripping each arm. From

these facts, among others, a reasonable jury could conclude that Officer DeArmond

used force “‘maliciously and sadistically’ rather than as part of ‘a good-faith effort

to maintain or restore discipline.’” Wilkins v. Gaddy, 559 U.S. 34, 40 (2010) (per

curiam) (quoting Hudson, 503 U.S. at 7).

      It is true, as Officer DeArmond points out, that Fugawa’s injuries were not

severe. But a reasonable jury could find from the record evidence that this was
                                                                           Page 3 of 4
largely due to the fortuitous intervention of Officer DeArmond’s partner, who

partially broke Fugawa’s fall after DeArmond executed the leg sweep. And the

core focus of the analysis under the Eighth Amendment is the nature of the force

used, not the extent of the injury. Id. at 39.

      If the jury accepts Fugawa’s version of events, Officer DeArmond will not

be entitled to qualified immunity. Since Hudson, a person serving a term of

incarceration has had a clearly established right not to have his face slammed into

the ground for the purpose of maliciously and sadistically causing harm. See

Hudson, 503 U.S. at 9 (“When prison officials maliciously and sadistically use

force to cause harm, contemporary standards of decency always are violated. This

is true whether or not significant injury is evident.”); Furnace v. Sullivan, 705 F.3d

1021, 1028 (9th Cir. 2013). Officer DeArmond, of course, disputes that he

deployed force for that purpose, but whether he acted for the purpose of inflicting

unnecessary pain and suffering or instead in a good-faith effort to maintain or

restore discipline is an issue the jury must resolve. The main case Officer

DeArmond cites, Shafer v. County of Santa Barbara, 868 F.3d 1110 (9th Cir.

2017), is readily distinguishable, for there the officer used a leg sweep to gain

custody of a non-compliant suspect. Here, Fugawa was already in handcuffs with
                                                                        Page 4 of 4
a guard gripping each arm when Officer DeArmond executed the leg sweep that

sent Fugawa’s face to the ground.

      Because resolution of Fugawa’s state-law negligence and battery claims

turns on whether Officer DeArmond used excessive force, a question the jury must

resolve, we reverse the district court’s grant of summary judgment on these claims

as well.

      REVERSED and REMANDED.
