                                                                           FILED
                             NOT FOR PUBLICATION                            DEC 08 2009

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




                             FOR THE NINTH CIRCUIT



 TRACYE B. WASHINGTON,                           No. 08-17246

               Plaintiff - Appellant,            D.C. No. 3:05-cv-02775-WHA

   v.
                                                 MEMORANDUM *
 W. A. DUNCAN; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                     William H. Alsup, District Judge, Presiding

                           Submitted November 17, 2009 **

Before:        ALARCÓN, TROTT, and TASHIMA, Circuit Judges.

        Tracye B. Washington, a California state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that

defendants violated his Eighth Amendment rights by using excessive force. We

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

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have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Barnett v.

Centoni, 31 F.3d 813, 815 (9th Cir. 1994) (per curiam). We vacate and remand for

further proceedings.

        The record indicates that Washington submitted his summary judgment

opposition to prison authorities for mailing on September 22, 2008, one day before

the filing deadline. Washington’s opposition was therefore timely under the prison

mailbox rule. See Houston v. Lack, 487 U.S. 266, 270-71 (1988) (holding that a

pro se prisoner’s filing was deemed filed on the date of delivery to prison

authorities for filing with the district court); Faile v. Upjohn Co., 988 F.2d 985,

988 (9th Cir. 1993) (“We see no reason to treat other civil filing deadlines

differently than the deadline for filing a civil appeal.”). Accordingly, we vacate the

district court’s order granting the defendants’ motion for summary judgment based

on Washington’s failure to file an opposition, and remand so that the district court

may consider Washington’s opposition in the first instance.

        The appellees shall bear the costs on appeal.

        VACATED and REMANDED.




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