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Tomeko MALONE, Plaintiff-Appellant, v. C/O PETERSON, Defendant-Appellee

United States Court of Appeals for the Ninth Circuit2010-01-12No. No. 08-17451
362 F. App'x 638

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Opinion

majority opinion

MEMORANDUM

Tomeko Malone, a California state prisoner, appeals pro se from the district court’s summary judgment for defendants in his 42 U.S.C. § 1983 action alleging that a prison official used excessive force against him when removing him from his prison cell. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo an order granting summary judgment, To-guchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004), and we affirm.

The district court properly granted summary judgment on the Eighth Amendment claim because Malone failed to raise a triable issue as to whether Peterson’s use of physical force was more than de minim-is, and whether the force was used maliciously and sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.