                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 11 2012

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




                             FOR THE NINTH CIRCUIT



CHARLES T. DAVIS,                                 No. 09-17433

               Plaintiff - Appellee,              D.C. No. 2:04-cv-00878-GEB-
                                                  DAD
  v.

C/O KISSINGER; et al.,                            MEMORANDUM *

               Defendants - Appellants.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       California Correctional Officials Kissinger, Peery, Qualls, Money, and

Ingwerson appeal from the district court’s order denying summary judgment based

on qualified immunity in state prisoner Charles T. Davis’s 2 U.S.C. § 1983 action

alleging, among other claims, denial of due process. We have jurisdiction under

          *
             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).
the collateral order doctrine. Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009),

cert. denied, 130 S. Ct. 1047 (2010). We review de novo. Id. We affirm in part,

reverse in part, and remand.

      The district court properly denied qualified immunity to Kissinger, Peery,

Qualls, and Money on Davis’s equal protection claim. See id. (two-pronged

qualified immunity analysis). First, Davis raised a genuine dispute of material fact

as to whether these defendants used excessive force against him, or failed to

protect him from the use of excessive force, based on their racial animus. See

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (standard for Eighth Amendment

excessive force claim); Serrano v. Francis, 345 F.3d 1071, 1080-83 (9th Cir. 2003)

(officer’s alleged racially tinged statements coupled with a due process violation

created triable dispute on prisoner’s equal protection claim); Robins v. Meachem,

60 F.3d 1436, 1442 (9th Cir. 1995) (failure to intervene and protect can violate a

prisoner’s Eighth Amendment rights). Second, Davis’s constitutional right not to

be subjected to excessive force based on his race was clearly established before

2001, when the incidents at issue occurred. See Hudson, 503 U.S. at 6-7; Wolff v.

McDonnell, 418 U.S. 539, 556 (1974) (Equal Protection Clause protects prisoners

from invidious discrimination based on race); Robins, 60 F.3d at 1442.

      However, defendant Ingwerson was entitled to qualified immunity on


                                          2                                     09-17433
Davis’s equal protection claim because Davis failed to raise a triable dispute as to

whether Ingwerson used excessive force against him or failed to protect him from

the use of excessive force. Under these circumstances, Ingwerson’s alleged

racially tinged comment, without more, did not violate Davis’s constitutional

rights. See Austin v. Terhune, 367 F.3d 1167, 1171 (9th Cir. 2004) (verbal

harassment alone does not generally violate the Eighth Amendment).

      We therefore affirm the district court’s denial of qualified immunity to

defendants Kissinger, Peery, Qualls, and Money; reverse the denial of qualified

immunity to defendant Ingwerson; and remand for further proceedings.

      The parties’ remaining contentions are unpersuasive.

      Davis’s request for judicial notice is denied, and his “Motion to Forward

Answering Brief to the Panel” dated July 6, 2010 is granted.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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