                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 26 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TSHOMBE KELLEY,                                 No.    18-17157

                Plaintiff-Appellant,            D.C. No. 2:16-cv-01894-JAM-CKD

 v.
                                                MEMORANDUM*
A. HERRERA, Correctional Officer; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                          Submitted November 18, 2019**

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

      California state prisoner Tshombe Kelley appeals pro se from the district

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

and failure to protect. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s ruling on cross-motions for summary judgment.



      *
             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).
Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016). We affirm.

      The district court properly granted summary judgment for defendants on

Kelley’s excessive force claim because Kelley failed to raise a genuine dispute of

material fact as to whether defendants maliciously and sadistically used force

against him. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (the “core judicial

inquiry” in resolving an Eighth Amendment excessive force claim is “whether

force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm”).

      Because Kelley failed to raise a genuine dispute of material fact as to

whether defendants used excessive force against him, the district court properly

granted summary judgment for defendants on Kelley’s claim that defendants failed

to protect him from the use of excessive force. See Cunningham v. Gates, 229

F.3d 1271, 1289 (9th Cir. 2000) (officers “have a duty to intercede when their

fellow officers violate the constitutional rights of a suspect or other citizen”

(citation and internal quotation marks omitted)).

      We reject as unsupported by the record Kelley’s contention that the district

court improperly sealed confidential materials.

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.


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