                                                                               FILED
                           NOT FOR PUBLICATION                                 APR 20 2012

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



                            FOR THE NINTH CIRCUIT


JOHN YOUNG,                                      No. 09-56642

              Plaintiff - Appellant,             D.C. No. 2:07-cv-03190-RSWL-
                                                 RZ
  v.

ARON WOLFE; et al.,                              MEMORANDUM*

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                       Argued and Submitted April 11, 2012
                              Pasadena, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.**

       Plaintiff John Young filed this 42 U.S.C. § 1983 case against the Los

Angeles Sheriff’s Department and multiple sheriff’s officers—of which all but



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Frederic Block, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
Defendants Wolfe, Ochoa, Martinez, and Smith were dismissed. Relevant to this

appeal are Young’s § 1983 claims for malicious prosecution and excessive force.

      First, we review the district court’s grant of summary judgment de novo.

Delia v. City of Rialto, 621 F.3d 1069, 1074 (9th Cir. 2010).

      The district court erred when it ruled, sua sponte, that Young’s malicious

prosecution claim failed because he remained in custody on his two-year

conviction for receiving stolen property during the entire prosecution relating to

the fight. The district court was required to give Young notice and an opportunity

to respond before granting Defendants’ motion for summary judgment on a ground

not raised by Defendants. Greene v. Solano Cnty. Jail, 513 F.3d 982, 990 (9th Cir.

2008).

      Young had no notice that the length of his incarceration would be at issue

and he was therefore never able to develop facts tending to show that he would

have been released before his acquittal on the charges relating to the fight. If it is

true that after considering Young’s mandatory good time credits he would have

been released before he was acquitted had he not been held in county jail on the

battery charges, he may have been deprived of a liberty interest. See Hayward v.

Marshall, 603 F.3d 546, 556-57 (9th Cir. 2010), overruled on other grounds in

Swarthout v. Cooke, 131 S. Ct. 859, 863 n.* (2011).
      Second, we review the district court’s decision not to enforce the two writs

directing Neve and Sutton to appear, as well as the district court’s denial of the

request for a continuance or stay pending their appearance, for abuse of discretion.

See Wiggins v. Alameda Cnty., 717 F.2d 466, 468 n.1 (9th Cir. 1983); Danjaq LLC

v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001).

      Writs should be directed at the person having custody of the prisoner and it

is the custodian’s duty to produce the detainee. Pa. Bureau of Corr. v. U.S.

Marshals Serv., 474 U.S. 34, 38-39 (1985). Here, the writ applications indicated

that the custodians were wardens John Marshall and J. Choate.

      Young established the importance of Neve and Sutton’s testimony to his

case, and the district court acknowledged the importance of Sutton’s testimony in

its summary judgment order.

      The record is silent as to why the wardens, as the appropriate custodians, did

not present Neve and Sutton before the district court on September 8, 2009 as

directed. There is no evidence in the record that Young or his counsel were at fault

for the witnesses’ non-appearance. We fail to understand why the district court

would not take appropriate steps to enforce the writs. Counsel for Defendants was

unable to identify any legitimate basis to justify the district court’s exercise of

discretion in this fashion.
      It was therefore an abuse of discretion for the district court to decline to

effectuate the writs or grant Young a continuance.

      Finally, we review de novo whether a jury instruction misstates the law.

Duran v. City of Maywood, 221 F.3d 1127, 1130 (9th Cir. 2000).

      The district court did not err in giving a jury instruction modeled after an

Eighth Amendment excessive force instruction. After arraignment, the Due

Process Clause of the Fourteenth Amendment protects a detainee from excessive

force amounting to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10

(1989). A pretrial post-arraignment detainee’s rights under the Fourteenth

Amendment are comparable to a prisoner’s rights under the Eighth Amendment,

Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998), so, post-arraignment, the

Eighth Amendment “malicious and sadistic” standard applies. The pre-

arraignment cases cited do not apply here because Young had already been

arraigned when the fight occurred; the Fourth Amendment’s protection ends at “the

time such arrestee is released or found to be legally in custody based upon probable

cause for arrest.” Pierce v. Multnomah Cnty., Or., 76 F.3d 1032, 1043 (9th Cir.

1996).

      REVERSED and REMANDED.
