Covington

dissenting.

I agree with the majority that the panel can consider the redacted investigative reports. I disagree with the majority’s conclusion that Defendants are not entitled to qualified immunity.

Initially, it is important to point out who is not involved in this appeal. This appeal does not involve Officer Pifia, who punched Covington in the right eye as he lay on the ground, causing a cut to the eye. Nor does this appeal involve Officer Tostado, who jumped on Covington as he lay on a gurney and punched him four to five times *742 in the stomach. Neither of these incidents can be attributed to the officers who are a part of this appeal. This appeal involves two sets of defendants: Officers Lopez, Zinani, Brown, Haskins, Ballestreros, Barrier, and Davis (“the extraction officers”) and Cpt. Mattingly, Lt. Quiñones, and Sgt. Valenzuela (“the supervisors”). Because under the framework of Saucier v. Katz, 533 U.S. 194 , 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001), I believe all Defendants in this appeal are entitled to qualified immunity, I respectfully dissent.

FACTS

While I agree that Covington’s version of the facts must be taken as true, that does not mean that all other facts…

MEMORANDUM *

Correctional officers and their supervisors appeal from the district court’s order denying them summary judgment on grounds of qualified immunity in Plaintiff Terrance Covington’s action under 42 U.S.C. § 1983 . Plaintiff alleged that the officers used excessive force, in violation of the Eighth Amendment, during a “cell extraction” and that the supervisors witnessed that violation but failed to stop it.

1. Saucier Step One

Considering all the materials submitted in support of, and in opposition to, summary judgment and resolving all factual disputes in Plaintiffs favor, we conclude that Plaintiffs Eighth Amendment rights were violated. See Jeffers v. Gomez, 267 F.3d 895, 909 (9th Cir.2001) (per curiam) (describing the first step of the qualified immunity test in Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001)); Hudson v. McMillian, 503 U.S. 1, 7 , 112 S.Ct. 995 , 117 L.Ed.2d 156 (1992) (setting forth the standard for evaluating whether a prison security measure involved excessive force in violation of the Eighth Amendment).

In his verified complaint, which we may treat as an opposing affidavit, McElyea v. Babbitt, 833 F.2d 196, 197-98…