                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 04 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



JOSEPH DEONN HORNE,                              No. 09-17378

               Plaintiff - Appellant,            D.C. No. 4:08-cv-01387-SBA

  v.
                                                 MEMORANDUM *
J. RUTLEDGE, Correctional Officer; et
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                   Saundra B. Armstrong, District Judge, Presiding

                           Submitted September 22, 2010 **

Before:        WALLACE, HAWKINS and THOMAS, Circuit Judges.

       The district court properly granted summary judgment on the excessive

force claim because Joseph Deonn Horne (“Horne”) failed to raise a triable issue as

to whether prison guards acted “maliciously and sadistically for the very purpose


          *
             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).
of causing harm” by using pepper spray after Horne repeatedly refused to comply

with orders to cease holding his blanket up to the cell door. Hudson v. McMillian,

503 U.S. 1, 6 (1992) (citation and internal quotation marks omitted).

      Horne’s remaining contentions are unpersuasive.

      AFFIRMED.




                                         2                                   09-17378
