                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 28 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


CHARLES EDWARD MOORE,                            No. 14-16867

               Plaintiff - Appellant,            D.C. No. 3:13-cv-02852-JD

 v.
                                                 MEMORANDUM*
A. BULATAO; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                     James Donato, District Judge, Presiding

                            Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Charles Edward Moore, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging an

excessive force claim. We have jurisdiction under 28 U.S.C. § 1291. We review

de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6). Hebbe v.

          *
             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).
Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part, vacate in part, and

remand.

      The district court properly dismissed Moore’s action because Moore failed

to allege facts sufficient to show that defendants Bulatao and Smethers acted

maliciously and sadistically. See Hudson v. McMillian, 503 U.S. 1, 7 (1992) (the

“core judicial inquiry” in resolving an Eighth Amendment excessive force claim is

“whether force was applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm”).

      We reject Moore’s contention that the district court dismissed his action for

failure to exhaust administrative remedies.

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      To the extent that Moore raised a due process challenge to OP 608, that

claim was not addressed by the district court. Accordingly, we vacate the

judgment in part and remand for the district court to assess this claim in the first

instance.

      Moore’s request for sanctions, set forth in his opening brief, is denied.

      Moore’s request for appointment of counsel, filed on December 14, 2015, is

denied.


                                           2                                      14-16867
The parties shall bear their own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.




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