                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 30 2015

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



                              FOR THE NINTH CIRCUIT


JAMES RUHALLAH HARRISON,                         No. 14-15400

                Plaintiff - Appellant,           D.C. No. 1:12-cv-01400-SAB

  v.
                                                 MEMORANDUM*
SEDLEZKY, Correctional Officer; et al.,

                Defendants - Appellees.


                     Appeal from the United States District Court
                         for the Eastern District of California
                   Stanley A. Boone, Magistrate Judge, Presiding**

                             Submitted January 21, 2015***

Before:         CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       James Ruhallah Harrison, a California state prisoner, appeals pro se from the

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



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            Harrison consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
use of pepper spray constituted excessive force in violation of the Eighth

Amendment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C.

§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)

(dismissal under 28 U.S.C. § 1915(e)(2)). We affirm in part, reverse in part, and

remand.

       The district court properly dismissed Harrison’s claims against defendant

Oddie because Harrison failed to allege facts sufficient to show that Oddie acted

“maliciously and sadistically for the very purpose of causing harm” by opening

Harrison’s cell door for defendants Sedlezky and Atkinson to enter. Clement v.

Gomez, 298 F.3d 898, 903 (9th Cir. 2002) (citation and internal quotation marks

omitted); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although

pro se pleadings are to be liberally construed, a plaintiff must present factual

allegations sufficient to state a plausible claim for relief).

       However, dismissal of Harrison’s claims against defendants Sedlezky and

Atkinson was premature at this early stage of the proceedings. Harrison alleged

that Sedlezky sprayed an entire can of pepper spray in his face without warning,

while Atkinson sprayed his cellmate, after Harrison failed to comply with an order

to stop placing paper on the cell windows. Liberally construed, the allegations in


                                             2                                     14-15400
the amended complaint are “sufficient to warrant ordering [Sedlezky and Atkinson]

to file an answer.” Wilhelm v. Rotman, 680 F.3d 1113, 1116, 1123 (9th Cir. 2012).

Cf. Furnace v. Sullivan, 705 F.3d 1021, 1028-30 (9th Cir. 2013) (reversing

summary judgment on an excessive force claim where pepper spray “was

employed without significant provocation from [the plaintiff] or warning from the

officers”). Accordingly, we reverse and remand for further proceedings as to

Harrison’s claim against defendants Sedlezky and Atkinson only.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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