Jacob Silverman v. MENDIBURU, Corporal;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB SILVERMAN,
Plaintiff-Appellant,
v.
MENDIBURU, Corporal; et al.,
Defendants-Appellees.
No. 18-16476
D.C. No. 5:17-cv-01146-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Jacob Silverman, a former California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging
excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We vacate and
* 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
NOV 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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remand.
The district court determined that Silverman failed to submit competent
evidence, such as a declaration or affidavit, sufficient to establish a genuine dispute
of material fact as to whether defendants used excessive force. However,
Silverman filed a verified complaint and opposition papers, including a
declaration, signed under penalty of perjury. The district court should have
considered these filings as competent evidence in ruling on defendants’ motion for
summary judgment. See 28 U.S.C. § 1746 (providing that a written unsworn
declaration or statement subscribed as true under penalty of perjury may substitute
for an affidavit); Keenan v. Hall, 83 F.3d 1083, 1090 n.1 (9th Cir. 1996) (“[A]
verified complaint may be treated as an affidavit to oppose summary
judgment[.]”).
We vacate and remand for further proceedings on Silverman’s excessive
force claim. We do not consider in the first instance whether defendants are
entitled to qualified immunity.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.

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