                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 12 2010

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




                             FOR THE NINTH CIRCUIT



TOMEKO MALONE,                                   No. 08-17451

               Plaintiff - Appellant,            D.C. No. 1:06-cv-00199-LJO-DLB

  v.
                                                 MEMORANDUM *
C/O PETERSON,

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                            Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE and CLIFTON, Circuit Judges.

       Tomeko Malone, a California state prisoner, appeals pro se from the district

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

that a prison official used excessive force against him when removing him from 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).

IL/RESEARCH
prison cell. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de

novo an order granting summary judgment, Toguchi v. Chung, 391 F.3d 1051,

1056 (9th Cir. 2004), and we affirm.

      The district court properly granted summary judgment on the Eighth

Amendment claim because Malone failed to raise a triable issue as to whether

Peterson’s use of physical force was more than de minimis, and whether the force

was used maliciously and sadistically to cause harm. See Hudson v. McMillian,

503 U.S. 1, 9-10 (1992).

      AFFIRMED.




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