NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 23 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL T. HAYES, No. 20-35994

Plaintiff-Appellant, D.C. No. 1:16-cv-00534-DCN

v.

MEMORANDUM*

RACHEL NETTLES; MICHAEL

MONTGOMERY; CHARLES

JOHANNESSEN; FELIX DIAZ,

Defendants-Appellees.

Appeal from the United States District Court for the District of Idaho David C. Nye, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Idaho state prisoner Michael T. Hayes appeals pro se from the district

court’s summary judgment and dismissal order in his 42 U.S.C. § 1983 action

alleging violations of the Eighth and Fourteenth Amendments. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668

F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii));

Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004) (summary judgment);

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C.

§ 1915A). We affirm in part, reverse in part, and remand.

The district court properly dismissed Hayes’s due process claim related to

the November 10 hearing and conditions-of-confinement claim because Hayes

failed to allege facts sufficient to state a plausible claim. See Sandin v. Conner,

515 U.S. 472, 483-84 (1995) (a prisoner has no protected liberty interest unless the

sanction imposed extends the length of his sentence or imposes an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life”); Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official is

deliberately indifferent only if he or she “knows of and disregards an excessive risk

to inmate health or safety; the official must both be aware of facts from which the

inference could be drawn that a substantial risk of serious harm exists, and he [or

she] must also draw the inference”); Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th

Cir. 2009) (failure to follow internal prison policy does not amount to a

constitutional violation).

The district court properly granted summary judgment on Hayes’s due

process claim related to the November 17 hearing because Hayes failed to raise a

2 20-35994 genuine dispute of material fact as to whether Hayes was denied any procedural

protections that were due. See Wolff v. McDonnell, 418 U.S. 539, 563-68 (1974)

(due process requirements for prison disciplinary proceedings).

The district court concluded that summary judgment was proper on Hayes’s

excessive force claim because the force used to restrain Hayes was not excessive in

light of evidence that Hayes had been aggressive and had kicked a defendant and

the district court’s conclusion that Hayes’s injuries were not extensive. However,

Hayes attested that two defendants held him face-down on the floor while a third

repeatedly jumped on Hayes’s back with his knee, and that Hayes urinated blood

for over a month after the incident. Defendants dispute that any defendant put a

knee on Hayes’s back. Thus, viewing the evidence in the light most favorable to

Hayes, Hayes raised a genuine dispute of material fact as to whether defendants’

use of force was applied in a good-faith effort to maintain or restore discipline.

See Hudson v. McMillian, 503 U.S. 1, 7 (1992) (“[T]he core judicial inquiry” in

resolving an Eighth Amendment excessive force claim is “whether force was

applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.”). Moreover, defendants are not entitled to qualified

immunity because, viewing the facts in the light most favorable to Hayes, it would

have been clear to every reasonable official that defendants’ actions violated

Hayes’s constitutional rights. See Ashcroft v. al-Kidd, 563 U.S. 731, 735, 741

3 20-35994 (2011) (discussing qualified immunity and noting that a right is clearly established

only if “every reasonable official would have understood that what he is doing

violates that right” (citation and internal quotation marks omitted and alteration

adopted)); Hudson, 503 U.S. at 7. Accordingly, we reverse and remand for further

proceedings on this claim.

We reject as without merit Hayes’s contention that his action should have

been treated as a criminal prosecution.

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).

The parties will bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

4 20-35994