Javon Lamar Torbert v. WILLIAM D. GORE, Sheriff of San Diego Sheriff Department;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAVON LAMAR TORBERT,
Plaintiff-Appellant,
v.
WILLIAM D. GORE, Sheriff of San Diego
Sheriff Department; et al.,
Defendants-Appellees.
No. 17-56226
D.C. No. 3:14-cv-02911-BEN-NLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Javon Lamar Torbert appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging excessive force and deliberate
indifference to his serious medical needs. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Cir. 2004). We affirm in part, reverse in part, and remand.
Summary judgment on Torbert’s deliberate indifference claims was proper
because, under any potentially applicable standard, Torbert failed to raise a
genuine dispute of material fact as to whether defendants disregarded an excessive
risk to Torbert’s serious medical needs. See id. at 1057 (elements of a deliberate
indifference claim under the Eighth Amendment); see also Gordon v. County of
Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018) (elements of a Fourteenth
Amendment medical care claim by a pretrial detainee).
Summary judgment on Torbert’s excessive force claim arising from the
October 21, 2014 incident was proper because, under any potentially applicable
standard, Torbert failed to raise a genuine dispute of material fact as to whether
defendant Gebregiorgis used unreasonable force under the circumstances. See
Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003) (elements of excessive
force claim under the Eighth Amendment); see also Kingsley v. Hendrickson, 135
S. Ct. 2466, 2473 (2015) (elements of excessive force claim under the Fourteenth
Amendment).
However, summary judgment on Torbert’s excessive force claim arising
from the October 2, 2014 incident was improper. The district court initially

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determined that there were genuine disputes of material fact as to (1) whether
defendant Dailly used force intentionally, (2) the threat Dailly perceived, (3) the
need to use force or if another means was available, and (4) the degree of injury
inflicted. The district court then sua sponte reexamined the summary judgment
record and concluded that no reasonable jury could conclude that Dailly applied
force “maliciously and sadistically to cause harm,” rather than “in a good-faith
effort to maintain or restore discipline.” In reaching this conclusion, the district
court relied on the evidence showing that Torbert’s injuries were not significant.
Viewing the evidence in Torbert’s favor, a fact question remains as to whether
defendant Dailly’s use of force was excessive even if Torbert’s injuries were not
lasting and significant. See Kingsley, 135 S. Ct. at 2473; Martinez, 323 F.3d at
1184; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (reversing a
dismissal based on “the supposedly de minimis nature of [the inmate’s] injuries”).
We reverse the judgment in part and remand for further proceedings on the
excessive force claim against defendant Dailly only.
Because the factual record concerning Torbert’s detention is undeveloped,
we do not consider Torbert’s argument that, although a parolee, his excessive force
claim is governed by the Fourteenth Amendment rather than the Eighth

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Amendment. Torbert may pursue that argument on remand.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions are denied.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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