UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KEVIN ANGELO SIMMONS, No. 20-55043 Plaintiff-Appellant, D.C. No. v. 2:16-cv-02858- R-KES G. ARNETT; ROMO, Sgt, individual capacity; M. LOPEZ, Nurse, individual capacity, OPINION Defendants-Appellees.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted April 14, 2022 Pasadena, California

Filed August 31, 2022

Before: Consuelo M. Callahan and Lawrence VanDyke, Circuit Judges, and Janet Bond Arterton, * District Judge.

Opinion by Judge Callahan; Partial Concurrence and Partial Dissent by Judge Arterton

* The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation. 2 SIMMONS V. ARNETT

SUMMARY **

Prisoner Civil Rights

The panel affirmed the district court’s summary judgment for defendants in an action brought by a California state prisoner alleging excessive force and deliberate indifference to medical needs.

Defendant G. Arnett, a prison guard, shot plaintiff Kevin Simmons with three sponge-tipped plastic rounds during a prison fight, breaking Simmons’s leg and injuring his butt and thigh. Following the fight, prison nurse M. Lopez assessed Simmons’s injuries and transferred him to an emergency room without fully completing her notes or conducting a full body examination.

The panel first held that the district court correctly concluded that there was no constitutional violation. Arnett’s decision to shoot Simmons with sponge rounds was not an excessive use of force. He had a duty to keep prison staff and the prisoners in his care safe and he used the lowest level of force available to him. Even viewing the record in the light most favorable to Simmons, there was no evidence showing that Arnett had any improper motive, let alone that he acted “maliciously and sadistically for the very purpose of causing harm.” As to defendant Lopez, rather than deliberate indifference, her actions seemed to reflect the conduct of a medical professional who quickly and successfully ensured that her patient received the appropriate level of care. Even assuming that defendants somehow may ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SIMMONS V. ARNETT 3 have violated the Eighth Amendment, their actions could not be characterized as violating some clearly established principle of constitutional law. Defendants were therefore entitled to protection under the doctrine of qualified immunity and summary judgment was properly entered in their favor.

Concurring in part and dissenting in part, Judge Arterton concurred with the majority’s conclusion that the district court’s grant of summary judgment in favor of Nurse Lopez should be affirmed on the view that her conduct did not rise to the level of deliberate indifference. Judge Arterton respectfully dissented, however, from the majority’s grant of qualified immunity to Officer Arnett. Specifically, she was troubled by the majority’s determination that Arnett’s actions did not violate clearly established law, and its decision to rule on qualified immunity while key facts were still in dispute.

COUNSEL Michael D. Seplow (argued), Schonbrun Seplow Harris Hoffman & Zeldes LLP, Culver City, California; David Wilson (argued) and Jonathan Widjaja (argued), Certified Law Students, University of C