                                                                            FILED
                             NOT FOR PUBLICATION                             DEC 22 2010

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




                             FOR THE NINTH CIRCUIT



JOSEPH ARTHUR RODRIGUEZ,                         No. 09-16900

               Plaintiff - Appellant,            D.C. No. 4:05-cv-05068-SBA

  v.
                                                 MEMORANDUM *
V. ELMORE, Correctional Lieutenant,
Salinas Valley State Prison; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                   Saundra B. Armstrong, District Judge, Presiding

                                                          **
                           Submitted December 14, 2010

Before:        GOODWIN, WALLACE, and THOMAS, Circuit Judges.

       Joseph Arthur Rodriguez, a California state prisoner, appeals pro se from the

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

officials subjected him to excessive force and were deliberately indifferent to his


          *
             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).
serious medical needs in violation of the Eighth Amendment. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo both summary judgment and an order

dismissing a claim. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009);

Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment on the excessive

force claim because Rodriguez failed to raise a triable issue as to whether prison

officials “acted maliciously and sadistically for the very purpose of causing harm”

by using pepper spray after Rodriguez and his cellmate repeatedly refused to

comply with orders to exit their cell and be handcuffed so that prison officials

could search their cell for a missing metal object. Clement v. Gomez, 298 F.3d

898, 903-04 (9th Cir. 2002) (evidence that prison official administered second

pepper spray after coughing and gagging was heard from cell “does not lead to the

inference that the official used the pepper spray ‘maliciously and sadistically for

the very purpose of causing harm.’”) (quoting Whitley v. Albers, 475 U.S. 312,

320-21 (1986)).

      The district court also properly dismissed the deliberate indifference claim

because Rodriguez failed to allege facts supporting an inference that prison

medical officials who examined him after his pepper spray decontamination knew

of and disregarded an excessive risk to his health and safety. See Clement, 298


                                           2                                    09-16900
F.3d at 904 (“‘Deliberate indifference’ is evidenced only ‘when the official knows

of and disregards an excessive risk to inmate health or safety . . . .’”) (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

      We do not consider Rodriguez’s contentions not supported by argument.

See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992).

      Rodriguez’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           3                                     09-16900
