                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 21 2013

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




                              FOR THE NINTH CIRCUIT



MILES O. BONTY,                                  No. 12-15075

                Plaintiff - Appellant,           D.C. No. 5:10-cv-05360-LHK

  v.
                                                 MEMORANDUM *
J. RAMSEY, Correctional Officer; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                        Lucy Koh, District Judge, Presiding

                               Submitted May 14, 2013 **

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

       California state prisoner Miles O. Bonty appeals pro se from the district

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

indifference, excessive force, and retaliation. We have jurisdiction under 28



            *
             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).
U.S.C. § 1291. We review de novo, Toguchi v. Chung, 391 F.3d 1051, 1056 (9th

Cir. 2004), and we affirm.

      The district court properly granted summary judgment on Bonty’s deliberate

indifference claim because, even though defendants likely knew of a substantial

risk of serious harm to Bonty’s safety as a result of another inmate’s threats, Bonty

failed to raise a genuine dispute of material fact as to whether they consciously

disregarded such a risk. See Farmer v. Brennan, 511 U.S. 825, 833-35, 844 (1994)

(setting forth elements of deliberate indifference and noting that prison officials are

not liable if they knew of an objectively substantial risk to inmate safety but

responded reasonably to the risk, even if the harm ultimately was not averted).

      The district court properly granted summary judgment on Bonty’s excessive

force claim because, even though defendants likely used force prematurely to

prevent an inmate assault from escalating, Bonty failed to raise a triable dispute as

to whether the force they used was objectively unreasonable or meant to

maliciously or sadistically harm him. See Whitley v. Albers, 475 U.S. 312, 320-21,

324-26 (1986) (setting forth elements of excessive force claim, and concluding that

officer’s use of force in a good-faith effort to restore discipline during a prison riot

was not unconstitutional despite the officer’s failure to give a verbal warning

before shooting inmate).


                                            2                                     12-15075
      The district court properly granted summary judgment on Bonty’s retaliation

claim because Bonty failed to raise a triable dispute as to whether defendants’

conduct was motivated by retaliatory animus or failed to advance valid penological

interests. See Rhodes v. Robinson, 408 F.3d 559, 568 (9th Cir. 2005) (setting forth

elements of retaliation); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)

(preserving internal order and security is a valid correctional goal).

      The district court did not abuse its discretion in denying Bonty’s motion for

reconsideration because Bonty failed to establish that the erroneous exclusion of

certain properly-subscribed declarations in opposition to summary judgment was

prejudicial or satisfied one of the grounds for reconsideration. See Sch. Dist. No.

1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993)

(setting forth standard of review and listing grounds warranting reconsideration

under Fed. R. Civ. P. 60(b)); see also Orr v. Bank of Am., NT&SA, 285 F.3d 764,

773 (9th Cir. 2002) (exclusion of evidence on summary judgment only constitutes

an abuse of discretion if it is “manifestly erroneous and prejudicial” (emphasis in

original; citations omitted)).

      Bonty’s contentions regarding the allegedly erroneous exclusion of his

opposition and sur-reply briefs on summary judgment are unpersuasive.

      AFFIRMED.


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