                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 05 2014

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



                            FOR THE NINTH CIRCUIT


EUGENE HAMILTON,                                 No. 12-56736

              Plaintiff - Appellant,             D.C. No. 5:09-cv-02213-PA-
                                                 MRW
  v.

S. WHITE, Correctional Lieutenant; et al.,       MEMORANDUM*

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                          Submitted September 2, 2014 **

Before: GOULD, BERZON, and BEA, Circuit Judges.

       Former California state prisoner Eugene Hamilton appeals pro se from the

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

retaliation and excessive force. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1229 (9th Cir.

        *
             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).
2003). We affirm in part, vacate in part, and remand.

       The district court properly granted summary judgment on Hamilton’s

retaliation claim. Hamilton failed to raise a genuine dispute of material fact as to

whether defendant White was aware of Hamilton’s grievance before White

transferred Hamilton to another cell. See Rhodes v. Robinson, 408 F.3d 559, 567-

68 (9th Cir. 2005) (elements of a § 1983 retaliation claim in the prison context).

       The district court properly granted summary judgment on Hamilton’s

excessive force claim against defendants Milson, Morelli and Thomas. Those

defendants did not use force against Hamilton, and Hamilton has presented no facts

from which it can reasonably be inferred that they caused or should have foreseen

the use of pepper spray on Hamilton. Thus, Hamilton failed to raise a genuine

dispute of material fact as to whether these defendants acted “maliciously and

sadistically for the very purpose of causing harm” when defendant Moening used

pepper spray on Hamilton. Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002)

(citation and internal quotation marks omitted); see also Harper v. City of L.A., 533

F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff must . . .

demonstrate that the defendant’s conduct was the actionable cause of the claimed

injury.”).

       However, as to Moening, a case decided after the district court’s decision,


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Furnace v. Sullivan, 705 F.3d 1021, 1028-30 (9th Cir. 2013), is pertinent to the

issues in this case. Furnace reversed summary judgment on an excessive force

claim involving pepper spray, holding that, where pepper spray “was employed

without significant provocation from [the plaintiff] or warning from the officers,”

the use of force was constitutionally excessive, and the officers were not entitled to

summary judgment. As the facts in this case differ in ways that may be significant

and the district court did not have the benefit of Furnace when it granted summary

judgment on Hamilton’s excessive force claim against defendant Moening, we

remand to allow the court to reconsider this claim.

      The district court did not abuse its discretion by denying Hamilton’s motion

to compel interrogatory responses. See Hallett v. Morgan, 296 F.3d 732, 751 (9th

Cir. 2002) (setting forth standard of review and describing trial court’s broad

discretion to deny discovery).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or 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).

      Hamilton’s motion to include the judgment appealed from in his excerpts of

record, received on October 12, 2012, is granted.

      Each party shall bear its own costs on appeal.


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AFFIRMED in part, VACATED in part, and REMANDED.




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