                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOHN YOUNG,                                      No. 13-56438

              Plaintiff - Appellant,             D.C. No. 2:07-cv-03190-RSWL-
                                                 RZ
 v.

ARON WOLFE; SHANNON, Sr. Dep.;                   MEMORANDUM*
MICHAEL SMITH, Dep.; CHRISTINA
MARTINEZ, Dep.; ALBIZURES, Dep.;
MIGUEL MEJIA, Sgt.; ROBERT
OCHOA, Dep.; DOYLE R. CAMPBELL;
LOS ANGELES COUNTY SHERIFFS
DEPARTMENT; COUNTY OF LOS
ANGELES; JOHN L. SCOTT; DENNIS
A. CONTE; JOHN VANDER HORCK;
DENNIS H. BURNS; KENNETH J.
BRAZILE; LEE C. MCCOWN; LEE
BACA,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Central District of California
                Ronald S.W. Lew, Senior District Judge, Presiding

                     Argued and Submitted November 4, 2015
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and GOULD, Circuit Judges and CHRISTENSEN,** Chief
District Judge.

      In 2007, John Young brought a civil case against defendants Wolfe, Smith,

Martinez, and Ochoa for malicious prosecution and excessive use of force. The

district court granted defendants’ motion for summary judgment on Young’s

malicious prosecution claim. A jury later heard Young’s excessive force claim, but

found for the defendants. Young appeals the district court’s summary judgment

order. He also claims that the court improperly instructed the jury regarding his

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

novo the district court’s grant of summary judgment and its jury instruction. We

reverse and remand on both grounds.

      The district court erred in granting summary judgment on Young’s

malicious prosecution claim. It erred in finding that, because Young was already in

custody for case LA045506, he was not deprived of a liberty interest when he was

held pending his prosecution in case BA268358. Young was still in custody when,

on September 14, 2005, the Los Angeles County Superior Court determined that

his “custody credits exceed[ed] the state prison sentence imposed” for his burglary

conviction in case LA045506. This evidence is sufficient to demonstrate that


       **
             The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
Young served more days than he would have had he not been prosecuted for his

May 15, 2005, altercation with defendants in case BA268358. We therefore reverse

the district court’s summary judgment order and remand to that court to address, in

the first instance, the remaining questions necessary to evaluate Young’s malicious

prosecution claim.

      We also remand this case to the district court for a new trial on Young’s

excessive force claim. The district court’s jury instruction required Young to prove

that the defendants acted maliciously and sadistically for the purpose of causing

harm. As the Supreme Court later clarified in Kingsley v. Hendrickson, 135 S. Ct.

2466 (2015), however, the appropriate standard for evaluating the use of excessive

force against a post-arraignment, pre-trial prisoner like Young is objective

unreasonableness. Given the nature of the evidence, appellees cannot show that

this error was more likely than not harmless.

      REVERSED and REMANDED.
