                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JACOB SILVERMAN,                                No. 18-16476

                Plaintiff-Appellant,            D.C. No. 5:17-cv-01146-BLF

 v.
                                                MEMORANDUM*
MENDIBURU, Corporal; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Northern District of California
                  Beth Labson Freeman, District Judge, Presiding

                          Submitted November 18, 2019**

Before:      CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

      Jacob Silverman, a former California state prisoner, appeals pro se from the

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

excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We vacate and



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

      The district court determined that Silverman failed to submit competent

evidence, such as a declaration or affidavit, sufficient to establish a genuine dispute

of material fact as to whether defendants used excessive force. However,

Silverman filed a verified complaint and opposition papers, including a

declaration, signed under penalty of perjury. The district court should have

considered these filings as competent evidence in ruling on defendants’ motion for

summary judgment. See 28 U.S.C. § 1746 (providing that a written unsworn

declaration or statement subscribed as true under penalty of perjury may substitute

for an affidavit); Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (“[A]

verified complaint may be treated as an affidavit to oppose summary

judgment[.]”).

      We vacate and remand for further proceedings on Silverman’s excessive

force claim. We do not consider in the first instance whether defendants are

entitled to qualified immunity.

      The parties shall bear their own costs on appeal.

      VACATED and REMANDED.




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