                                                                            FILED
                             NOT FOR PUBLICATION                             SEP 14 2012

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




                             FOR THE NINTH CIRCUIT



JESSE TYSON, Jr.,                                 No. 11-35358

               Plaintiff - Appellant,             D.C. No. 3:08-cv-00173-ST

  v.
                                                  MEMORANDUM *
OREGON DEPARTMENT OF
CORRECTIONS, a political subdivision
of the State of Oregon; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                     Anna J. Brown, District Judge, Presiding

                           Submitted September 10, 2012 **

Before:        WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

       Jesse Tyson, Jr., an Oregon state prisoner, appeals pro se from the district

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




          *
             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).
malicious prosecution, a conspiracy, and state tort law claims arising from a prison

altercation. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We affirm.

      The district court properly granted summary judgment for defendant

Williams because Tyson failed to raise a genuine dispute of material fact as to

whether Williams personally participated in any constitutional deprivation. See

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (no respondeat superior

liability under § 1983; plaintiff must show personal involvement in violations).

      The district court properly granted the remaining individual defendants

qualified immunity at summary judgment on the excessive force claim because

Tyson failed to raise a genuine dispute of material fact as to whether the defendants

acted with the requisite “malice” and “sadism” for the purpose of causing him

harm, rather than with a good faith purpose to restore discipline. See Whitley v.

Albers, 475 U.S. 312, 321-22 (1986) (when prison officials attempt to resolve a

disturbance, the inquiry turns on “whether force was applied in a good faith effort

to maintain or restore discipline or maliciously and sadistically for the very

purpose of causing harm”).

      The district court properly granted qualified immunity at summary judgment

on the malicious prosecution claim because Tyson failed to rebut the presumption


                                           2                                     11-35358
that the district attorney exercised independent judgment in determining that

probable cause existed, and failed to establish that the proceedings ultimately

terminated in such a manner as to indicate his innocence. See Newman v. County

of Orange, 457 F.3d 991, 993-95 (9th Cir. 2006) (plaintiff bears the burden of

rebutting independent judgment presumption, and “must provide more than an

account of the incident in question that conflicts with the account of the officers

involved”); Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) (“An

individual seeking to bring a malicious prosecution claim must generally establish

that the prior proceedings terminated in such a manner as to indicate his

innocence.”).

      The district court properly granted qualified immunity at summary judgment

on Tyson’s conspiracy claim because Tyson failed to allege any evidence

suggesting an agreement or meeting of the minds among supposed conspirators.

See Ward v. EEOC, 719 F.2d 311, 314 (9th Cir. 1983) (to survive summary

judgment on a conspiracy claim, plaintiff must show evidence of an agreement

between defendants).

      The district court also properly granted summary judgment on Tyson’s

remaining state tort claims and his claims against ODOC and defendants in their

official capacity on the basis of Eleventh Amendment immunity. See Or. Rev.


                                           3                                      11-35358
Stat. § 30.265 (the State of Oregon must be substituted in actions for torts allegedly

committed by individual officers and employees acting within the scope of their

employment); Alvarez v. Hill, 667 F.3d 1061, 1065 (9th Cir. 2012) (holding that a

claim for money damages against ODOC employees in their official capacity is

barred by the Eleventh Amendment).

      AFFIRMED.




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