FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHRISTOPHER L. WATTS,
Plaintiff-Appellee,

v.                                                 No. 03-16665

J. MCKINNEY,                                       D.C. No.
Defendant-Appellant,                               CV-98-03328-SI

and                                                OPINION

S. J. STEINBERG,
Defendant.

Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding

Submitted November 3, 2004*
San Francisco, California

Filed January 10, 2005

Before: Betty B. Fletcher, John T. Noonan, and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Noonan

_________________________________________________________________
*The panel unanimously finds this case suitable for submission without
oral argument pursuant to Fed. R. App. P. 34(a)(2).
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COUNSEL

Jennifer G. Perkell, Deputy Attorney General, San Fran-
cisco, California, for the defendant-appellant.

Christopher Watts, in pro per.

_________________________________________________________________

OPINION

NOONAN, Circuit Judge:

In his handwritten declaration under oath in his opposition
as plaintiff to defendant John McKinney's motion for sum-
mary judgment, Christopher Watts stated the following:

         During the course of October 10, 1995, the plain-
        tiff was escorted from his cell in punitive segregation
        and was interrogated by defendant McKinney and
        other officers at Pelican Bay State Prison (Here after
        P.B.S.P.). During this interrogation plaintiff stated
        he did not know of any officers bringing in drugs or
        knives into the prison and plaintiff repeatedly stated
        he wanted his attorney present during this interroga-
        tion. Defendant McKinney repeatedly threatened
        plaintiff and his family for not cooperating and
        stated plaintiff will be sorry. Defendant McKinney
        immediately escorted plaintiff to a holding cell, and
        without warning slammed plaintiff face into the wall
        causing a nose bleed, and swollen eye, and kicked
        plaintiff in his penis and several times in his back
        while plaintiff was lying on the cell floor with cuffs
        on and with his hands behind his back. During these
        events, plaintiff did not resist or threaten the defen-
        dant McKinney in any fashion or break any prison
        rules.

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In the light of this declaration, the district court held that a
triable issue of fact was raised, i.e., whether McKinney had
applied force "maliciously and sadistically to cause harm" in
violation of the Eighth Amendment. Hudson v. McMillian,
503 U.S. 1, 7 (1992). As to McKinney's claim of qualified
immunity, the district court followed Saucier v. Katz, 533
U.S. 194 (2001). The act attributed to McKinney violated a
clearly established constitutional right "of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1981).

McKinney, represented by the attorney general of Califor-
nia, appeals, contending that Watts' declaration if accepted as
true states no violation of the Eighth Amendment and that "a
reasonable officer in defendant McKinney's position would
not necessarily have believed" that his conduct was unlawful.
McKinney blunts Watts' precise delineation of the assault
upon him by describing it as a kick in "the groin."

A lawyer must be zealous on behalf of his client. But
zeal needs to be tempered by commonsense. The Supreme
Court in Hudson proscribed the use of force for the malicious
and sadistic purpose of causing harm. Watts' declaration,
describing the vengeful acts of a frustrated investigator, iden-
tifies the unconstitutional purpose and deeds. To suppose that
any reasonable person, let alone a trained prison officer,
would not know that kicking a helpless prisoner's genitals
was cruel and unusual conduct is beyond belief. The Supreme
Court did not need to create a catalogue of all the acts by
which cruel and sadistic purpose to harm another would be
manifest; but if it had, such act would be near the top of the
list. The case must go to trial.

AFFIRMED.

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