FILED

NOT FOR PUBLICATION

MAR 16 2023

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT ANTHONY J. PHILLIPS, Sr., No. 22-55113

Plaintiff-Appellant, D.C. No.

2:17-cv-04673-MCS-SHK v. D. MELO TREJOS, Correctional Officer, MEMORANDUM* individual,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of California

Mark C. Scarsi, District Judge, Presiding

Submitted March 15, 2023**

San Francisco, California Before: WALLACE, FERNANDEZ, and SILVERMAN, Circuit Judges.

Anthony Phillips appeals pro se from the district court’s summary judgment in favor of Defendant D. Melo Trejos in his 42 U.S.C. § 1983 civil rights action

*

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). alleging excessive force in violation of the Eighth Amendment. We review de novo,1 and we affirm.

The district court correctly determined that there was no genuine dispute of material fact that Trejos did not use excessive force when he deployed a sponge round from a forty millimeter launcher to break up a fight between Phillips and another inmate. The evidence before the district court showed that Trejos did not act maliciously or sadistically. See Simmons v. Arnett, 47 F.4th 927, 932–33 & n.1 (9th Cir. 2022); see also U.S. Const. amend. VIII; Whitley v. Albers, 475 U.S. 312, 318–26, 106 S. Ct. 1078, 1083–87, 89 L. Ed. 2d 251 (1986).

The district court also correctly determined that Phillips failed to identify a violation of a “clearly established right” that would defeat Trejos’s defense of qualified immunity. See Mullenix v. Luna, 577 U.S. 7, 11–12, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (per curiam).

Phillips’s argument that Trejos was estopped from asserting a qualified immunity defense on summary judgment after asserting the defense at the motion to dismiss stage has no merit. See Behrens v. Pelletier, 516 U.S. 299, 306, 116 S. Ct. 834, 839, 133 L. Ed. 2d 773 (1996).

AFFIRMED.

1

Hughes v. Rodriguez, 31 F.4th 1211, 1218 (9th Cir. 2022).

2 22-55113