                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 07 2011

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




                            FOR THE NINTH CIRCUIT



EVERETT LOBERIEST HOLLAND,                       No. 09-56613

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01362-MMA-
                                                 WMC
  v.

BACH, Sergeant, Calipatria State Prison;         MEMORANDUM *
et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                          Submitted December 14, 2010 **

Before:       GOODWIN, WALLACE, and THOMAS, Circuit Judges.

       California state prisoner Everett Loberiest Holland appeals pro se from the

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

excessive force by prison officials. We have jurisdiction under 28 U.S.C. § 1291.


          *
             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).
We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We

vacate and remand.

      The district court determined that there was no genuine issue of material fact

as to whether defendants inflicted more than “de minimis” injury upon Holland.

However, the Supreme Court recently emphasized that the “core judicial inquiry”

is “not whether a certain quantum of injury was sustained, but rather whether force

was applied in a good-faith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Wilkins v. Gaddy, 130 S.Ct. 1175, 1178 (2010).

Here, the force Holland alleges is in its nature “malicious” and “sadistic.” See id.

Moreover, there is a triable issue as to whether any defendant used such force,

given that there are no witnesses to the incident in question and the notes from a

medical examination the following day provide at least limited support for

Holland’s allegations. See Hauk v. JP Morgan Chase Bank USA, 552 F.3d 1114,

1117-18 (9th Cir. 2009) (“When determining whether a genuine issue of material

fact remains for trial, we must view the evidence and all inferences therefrom in

the light most favorable to the non-moving party and may not weigh the evidence

or make credibility determinations.”). Accordingly, we remand for further

proceedings consistent with our disposition.

      VACATED and REMANDED.


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