NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSCAR GARCIA III, No. 20-35364

Plaintiff-Appellant, D.C. No. 2:18-cv-01573-MC

v.

MEMORANDUM*

JOHN POPE; et al.,

Defendants-Appellees.

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). 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)).

2 20-35364 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.

3 20-35364