                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 16 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JACOB RAMIE PRATT,                               No. 12-16291

              Plaintiff - Appellant,             D.C. No. 3:10-cv-00615-RCJ-VPC

  v.
                                                 MEMORANDUM*
DEEDS; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Nevada
                 Robert Clive Jones, Chief District Judge, Presiding

                           Submitted August 13, 2013**
                             San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

       Nevada state prisoner Jacob Ramie Pratt appeals from the district court’s

order granting summary judgment on his 42 U.S.C. § 1983 claims in favor of

defendants, who are current and former correctional officers at Ely State Prison.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291. We review the grant of summary

judgment de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). We

affirm in part, reverse in part, and remand for further proceedings.

                                           I

      The district court erred in granting summary judgment on Pratt’s claim that

the defendant officers violated the Eighth Amendment by using excessive force

after they fully restrained him and he was no longer struggling. Pratt does not

dispute that the defendants used reasonable force in subduing him during the cell

extraction. However, the parties offered markedly different accounts of the force

used after Pratt was restrained. If true, Pratt’s allegations that the defendants

repeatedly punched him in the face after restraining him, repeatedly slammed his

head into a sliding door and wall, and pinned him against the wall while one of

them pinched and twisted his skin and nipples, establish a “malicious and sadistic”

use of force in violation of the Eighth Amendment. Clement v. Gomez, 298 F.3d

898, 903 (9th Cir. 2002). While the exigencies of the cell extraction and Pratt’s

violent attack on one of the officers warranted the use of force to subdue and

restrain Pratt, they would not justify the subsequent acts alleged. See Hudson v.

McMilliam, 503 U.S. 1, 6 (1992) (holding that “the core judicial inquiry” in

resolving an Eighth Amendment excessive force claim is “whether force was


                                           2
applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm”). In granting summary judgment, the district court

erred by resolving disputed issues of material fact in the defendants’ favor. See

Furnace, 705 F.3d at 1026 (affirming that a court reviewing a summary judgment

motion must “assume the truth of the evidence set forth by the nonmoving party”).1

                                           II

      The district court properly granted the defendants’ motion for summary

judgment on Pratt’s claim of deliberate indifference to his medical needs. To

prevail on this claim, Pratt must show that he was “confined under conditions

posing a risk of ‘objectively, sufficiently serious’ harm and that the officials had a

‘sufficiently culpable state of mind’ in denying the proper medical care.” Clement,

298 F.3d at 904 (quoting Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995)).

On the objective prong, the defendants introduced evidence that Pratt sustained

minor injuries that were addressed by first aid treatment. Pratt failed to respond

with evidence of more serious injuries. Even assuming Pratt created a triable issue

as to the seriousness of his injuries, he has failed to allege that any defendant was



      1
         Because a reasonable correctional officer would know that the treatment
alleged would violate Pratt’s constitutional rights, we decline to affirm on the
alternate ground that the defendants are entitled to qualified immunity. Pearson v.
Callahan, 555 U.S. 223, 231 (2009).

                                           3
subjectively aware of an excessive risk of serious harm to Pratt from the denial of

additional medical care. See id. (describing subjective component of “deliberate

indifference” standard). Because no reasonable jury could find for Pratt on this

claim, the district court properly granted summary judgment in favor of the

defendants.

                                         III

      In sum, we reverse the grant of summary judgment as to Pratt’s Eighth

Amendment claim and affirm the grant of summary judgment as to his deliberate

indifference claim. Each party shall bear its own costs.



      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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