                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 23 2016

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



                            FOR THE NINTH CIRCUIT


TERRENCE TONYAN,                                 No. 15-16189

              Plaintiff-Appellant,               D.C. No. 2:13-cv-01021-JJT

 v.
                                                 MEMORANDUM*
JOSEPH STUSSY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    John Joseph Tuchi, District Judge, Presiding

                          Submitted November 16, 2016**

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      Terrence Tonyan, an Arizona state prisoner, appeals pro se from the district

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

Amendment excessive force claim arising from his arrest. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Arpin v. Santa Clara Valley Transp.

      *
             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).
Agency, 261 F.3d 912, 919 (9th Cir. 2001). We reverse and remand.

      The district court granted summary judgment on Tonyan’s Fourth

Amendment excessive force claim after concluding that a reasonable officer could

have concluded that Tonyan’s bulky clothing concealed a weapon. This finding,

however, is unsupported by the record. Further, in Tonyan’s verified amended

complaint, Tonyan stated that he was unarmed and never threatened any officer by

word or action. Thus, viewing the evidence in the light most favorable to Tonyan,

Tonyan raised a genuine dispute of material fact as to whether defendant used

excessive force by striking Tonyan’s bike with his patrol car while Tonyan fled the

scene of a burglary. See Lal v. California, 746 F.3d 1112, 1115, 1117 (9th Cir.

2014) (setting forth framework for analyzing an excessive force claim under the

Fourth Amendment). Accordingly, we reverse and remand for further proceedings

on this claim.

      REVERSED and REMANDED.




                                         2                                   15-16189
