Ross

dissenting, in part.

CALLAHAN, Circuit Judge.

I respectfully dissent from the majority’s decision. Although I agree with my colleagues’ affirmance of the summary judgment on behalf of the officers for actions they took up to the handcuffing of Ross, I disagree with the conclusion that there is a triable issue of fact as to the force used thereafter.

Under the totality of the circumstances, the officers did not use excessive force. Any scraping of Ross’ face in the gravel was incidental to the struggle to subdue a struggling arrestee. The officers were faced with a highly recalcitrant and confrontational individual in a volatile and rapidly evolving situation. The record un-disputedly shows that Ross grabbed Lieutenant Diaz’s gun belt, a life-threatening action that would lead a reasonable officer to believe that an arrestee intended to use the gun against him. Ross’ son Benjamin, *30 in spite of being handcuffed, at least once tried to escape during the incident.

The entire encounter transpired in a parking lot that happened to have a gravel surface, where it was likely that scraping would occur. The majority has already concluded that the police acted reasonably when they…

MEMORANDUM **

Roy Ross appeals the district court’s summary judgment in favor of the defendants in his action alleging claims under 42 U.S.C. ,§ -1983 and state law. We y affirm the district court’s summary judgment in favor of the City of Toppenish. Ross failed to make any showing that the *28 City or its police department had a policy or custom that led to his injuries, see Monell v. Dept. of Soc. Servs., 436 U.S. 658, 694 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), and § 1983 liability may not be predicated upon respondeat superior. Id. at 691, 98 S.Ct. 2018 .

We affirm in part and reverse in part the district court’s summary judgment in favor of police officers Adam Diaz and Jared Quinlan and their wives and marital communities. 1 Viewing the evidence in the light most favorable to Ross, there is no disputed issue of material fact from which a jury could find that the use of force by Diaz and Quinlan was excessive up to the time Ross was handcuffed; thereafter, there is such a dispute, and as to those alleged events the officers are not, on summary judgment, entitled to qualified immunity.

Ross alleges in his declaration that throughout his confrontation with the officers he…