Oscar Garcia Iii v. John Pope;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR GARCIA III,
Plaintiff-Appellant,
v.
JOHN POPE; et al.,
Defendants-Appellees.
No. 20-35364
D.C. No. 2:18-cv-01573-MC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Oscar Garcia III appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging Eighth Amendment violations while he was
housed in Oregon state prison. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s decision on cross-motions for summary
* 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 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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judgment. Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957,
970 (9th Cir. 2011). We may affirm on any basis supported by the record. Enlow
v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.
The district court properly granted summary judgment for defendants on
Garcia’s deliberate indifference claim on the basis of qualified immunity because
defendants’ conduct in providing Garcia with a warm/hot shower as part of
decontamination procedures after he was pepper sprayed did not violate clearly
established law. See Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014) (“[A]
defendant cannot be said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating it.”).
Summary judgment for defendants on Garcia’s excessive force claim was
proper because Garcia failed to raise a genuine dispute of material fact as to
whether defendants acted “maliciously and sadistically for the very purpose of
causing harm” in providing him with a warm/hot decontamination shower. See
Furnace v. Sullivan, 705 F.3d 1021, 1028 (9th Cir. 2013) (quoting Hudson v.
McMillian, 503 U.S. 1, 6 (1992)).

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We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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