Kevin Simmons v. G. Arnett

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN ANGELO SIMMONS, No. 20-55043
Plaintiff-Appellant,
D.C. No.
v. 2:16-cv-02858-
R-KES
G. ARNETT; ROMO, Sgt, individual
capacity; M. LOPEZ, Nurse,
individual capacity, OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 14, 2022
Pasadena, California
Filed August 31, 2022
Before: Consuelo M. Callahan and Lawrence VanDyke,
Circuit Judges, and Janet Bond Arterton, * District Judge.
Opinion by Judge Callahan;
Partial Concurrence and Partial Dissent by Judge Arterton
*
The Honorable Janet Bond Arterton, United States District Judge
for the District of Connecticut, sitting by designation.
2 SIMMONS V. ARNETT
SUMMARY **
Prisoner Civil Rights
The panel affirmed the district court’s summary
judgment for defendants in an action brought by a California
state prisoner alleging excessive force and deliberate
indifference to medical needs.
Defendant G. Arnett, a prison guard, shot plaintiff Kevin
Simmons with three sponge-tipped plastic rounds during a
prison fight, breaking Simmons’s leg and injuring his butt
and thigh. Following the fight, prison nurse M. Lopez
assessed Simmons’s injuries and transferred him to an
emergency room without fully completing her notes or
conducting a full body examination.
The panel first held that the district court correctly
concluded that there was no constitutional violation.
Arnett’s decision to shoot Simmons with sponge rounds was
not an excessive use of force. He had a duty to keep prison
staff and the prisoners in his care safe and he used the lowest
level of force available to him. Even viewing the record in
the light most favorable to Simmons, there was no evidence
showing that Arnett had any improper motive, let alone that
he acted “maliciously and sadistically for the very purpose
of causing harm.” As to defendant Lopez, rather than
deliberate indifference, her actions seemed to reflect the
conduct of a medical professional who quickly and
successfully ensured that her patient received the appropriate
level of care. Even assuming that defendants somehow may
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SIMMONS V. ARNETT 3
have violated the Eighth Amendment, their actions could not
be characterized as violating some clearly established
principle of constitutional law. Defendants were therefore
entitled to protection under the doctrine of qualified
immunity and summary judgment was properly entered in
their favor.
Concurring in part and dissenting in part, Judge Arterton
concurred with the majority’s conclusion that the district
court’s grant of summary judgment in favor of Nurse Lopez
should be affirmed on the view that her conduct did not rise
to the level of deliberate indifference. Judge Arterton
respectfully dissented, however, from the majority’s grant of
qualified immunity to Officer Arnett. Specifically, she was
troubled by the majority’s determination that Arnett’s
actions did not violate clearly established law, and its
decision to rule on qualified immunity while key facts were
still in dispute.
COUNSEL
Michael D. Seplow (argued), Schonbrun Seplow Harris
Hoffman & Zeldes LLP, Culver City, California; David
Wilson (argued) and Jonathan Widjaja (argued), Certified
Law Students, University of California School of Law,
Irvine, California; Peter Afrasiabi, One LLP, Newport
Beach, California; for Plaintiff-Appellant.
Cassandra J. Shryock (argued) and Kevin Voth, Deputy
Attorneys General; Neah Huynh, Supervising Deputy
Attorney General; Monica N. Anderson, Senior Assistant
Attorney General; Rob Bonta, Attorney General; Office of
the Attorney General, San Francisco, California; for
Defendants-Appellees.
4 SIMMONS V. ARNETT
OPINION
CALLAHAN, Circuit Judge:
A prison guard shot inmate Kevin Simmons with three
sponge-tipped plastic rounds during a prison fight, breaking
Simmons’s leg and injuring his butt and thigh. Following the
fight, a prison nurse assessed Simmons’s injuries and
transferred him to an emergency room without fully
completing her notes or conducting a full body examination.
Simmons later filed this lawsuit against the guard and the
nurse, alleging that they had violated his rights under the
Eighth Amendment to the U.S. Constitution. The district
court entered summary judgment against Simmons, finding
that even when viewing all the evidence in the light most
favorable to Simmons, the guard and nurse had not violated
his constitutional rights. Simmons now appeals.
We affirm the district court. The district court correctly
concluded that there was no constitutional violation. We
further hold that the guard and nurse are protected by the
doctrine of qualified immunity, which protects government
officials from civil liability when they are accused of
violating constitutional rights that are not clearly
established.
BACKGROUND
I. The Prison Fight
Simmons is 57 years old and has spent much of his life
in prison. For the past 11 years, he has been serving a life
sentence without the possibility of parole at California State
Prison, Los Angeles County, a large facility in the Mojave
Desert, just north of Los Angeles. During this
incarceration—his second at the facility—Simmons found
SIMMONS V. ARNETT 5
work as a prison barber. Five days a week, he went to each
of the prison’s five buildings to give haircuts to inmates.
Simmons intended to work on Thanksgiving Day 2013.
When he arrived at his assigned building that morning,
nothing appeared out of the ordinary. A lone guard sat in a
control booth overlooking the two floors of prison cells and
the common yard, where sixteen to eighteen inmates
gathered. Simmons recognized some of the inmates in the
yard as members and associates of a gang known as the Two-
Fivers, including an associate named Salvador Murillo.
Simmons asked the guard in the control booth if he could
walk around the cells and sign inmates up for haircuts. The
guard assented. Simmons then heard several Two-Fivers ask
the guard if they could sit together at a table in the common
yard. The guard agreed to this as well. Sign-up sheet in hand,
Simmons began his rounds on the building’s second floor.
He had climbed up the stairs and was chatting with another
inmate when the yard below went quiet.
A sudden commotion ended the momentary silence.
Simmons looked down at the yard, where Two-Fivers were
punching and slapping Murillo—not at full force, but hard
enough that Murillo had, in Simmons’s words, “his nose and
his mouth busted.” After about twenty-five or thirty seconds,
the guard in the control booth told the inmates to stop “horse-
playing.” The scuffle stopped.
Bloodied, Murillo crossed the yard and climbed stairs to
the second floor, where Simmons was speaking with another
inmate. Murillo walked past Simmons, then suddenly turned
around and struck him in the head, right above his left ear.
Murillo continued to hit Simmons, who says he did not fight
back.
6 SIMMONS V. ARNETT
The guard in the control booth—Garth Arnett—
immediately responded to the fight. He activated the
building alarm and announced on the prison-wide radio that
two inmates were fighting. Typically, prison staff responded
to such calls for help within thirty to forty-five seconds.
Arnett says he ordered Murillo and Simmons to stop
fighting, although Simmons says he heard no such
command.
At this point, Arnett’s choices were limited. Prison
policy forbade him from leaving the control booth because
it would then be unmanned. But staying in the booth and
doing nothing could result in severe injury or death to
Simmons, Murillo, or other inmates who might join the
fighting. In the booth, Arnett had two weapons that he could
use to try to stop the fight: (1) a Mini-14, a semiautomatic
rifle that shot live rounds with deadly force, and (2) a 40mm
launcher that shot less-lethal sponge rounds, high-speed
projectiles consisting of plastic bodies and foam noses.
Arnett chose to use the 40mm launcher. Because
Simmons was between Arnett and Murillo, Arnett could not
shoot Murillo. Arnett fired a round at Simmons from about
10 yards away, aiming for Simmons’s legs and avoiding his
groin, consistent with protocol for use of the launcher. The
round hit and broke Simmons’s left leg. Arnett says that he
kept ordering the two inmates to stop fighting, without any
success. Arnett fired two more rounds at Simmons, hitting
him in his butt and thigh. After Arnett fired the third round—
about thirty to forty-five seconds after he had sounded the
alarm—other prison staff arrived and Murillo and Simmons
immediately laid prone and stopped fighting.
SIMMONS V. ARNETT 7
II. The Fight’s Aftermath
Prison staff immediately took Simmons on a gurney to
the prison’s medical room to receive medical care. There,
Simmons met Michelle Lopez, a licensed vocational nurse
on duty that day. Lopez asked Simmons what had happened
to him. Simmons answered, “no comment.” Lopez
transcribed this response onto her forms. One of the other
prison staff noticed that Simmons’s pants were wet and
commented on them. Simmons then told Lopez that he “sat
in some water.” Lopez crossed out her previous comments
and wrote that Simmons had “slipped in water.” Eventually,
Simmons told Lopez that he had been shot on his backside.
On her forms, Lopez wrote that Simmons had lower leg pain,
but she did not record any other injuries. Lopez quickly
recognized that Simmons needed a higher level of medical
care and had him transferred to the prison’s emergency
room. The forms Lopez filled out were not sent with
Simmons nor did they establish the basis for his treatment.
Prison officials stabilized Simmons’s leg, gave him pain
medication, and transported him to a local hospital. There,
he was diagnosed with a fractured leg, which was surgically
repaired the next day. Simmons’s butt and thigh were not
treated until three days after Lopez examined Simmons. By
then, Simmons says, his bloodied clothing had dried into his
wounds such that it had to be painfully torn away. Simmons
was then discharged, but he has permanent nerve damage
and now walks with a cane.
III. This Lawsuit
A few years after the fight, Simmons filed this civil
rights lawsuit in federal court. In the operative complaint,
Simmons alleges that Arnett and Lopez violated his Eighth
Amendment rights. Arnett and Lopez moved for summary
8 SIMMONS V. ARNETT
judgment. The district court granted their motion and entered
judgment against Simmons. Now Simmons appeals.
LEGAL STANDARDS
We have jurisdiction to review the district court’s grant
of summary judgment and entry of judgment because they
are the district court’s final decisions. See 28 U.S.C. § 1291.
We review an order granting summary judgment de novo but
can affirm on any ground supported by the record, even
when the district court did not address that same ground.
Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir.
2002); Venetian Casino Resort, LLC v. Local Joint Exec.
Bd., 257 F.3d 937, 941 (9th Cir. 2001). We affirm a grant of
summary judgment if “there is no genuine dispute as to any
material fact” when viewing the record in the light most
favorable to the nonmoving party, such that the moving party
“is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986). A factual issue is genuine “if the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A material fact is one that is
needed to prove (or defend against) a claim, as determined
by the applicable substantive law. Nat’l Am. Ins. Co. v.
Underwriters, 93 F.3d 529, 533 (9th Cir. 1996).
DISCUSSION
The applicable substantive law in this case is rooted in
the Eighth Amendment, which commands that “cruel and
unusual punishments [shall not be] inflicted” by the
government. U.S. Const. amend. VIII. Simmons accuses
Arnett and Lopez of violating this dictate: Arnett by using
excessive force when quelling the fight between Murillo and
Simmons and Lopez by being deliberately indifferent to
SIMMONS V. ARNETT 9
Simmons’s medical needs following the fight. Arnett and
Lopez both counter that they did not violate Simmons’s
constitutional rights.
Arnett and Lopez also raise the affirmative defense of
qualified immunity, which protects government officials
who violate constitutional rights from civil liability if “their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
We thus confront two questions. First, did Arnett’s and
Lopez’s conduct violate Simmons’s constitutional rights
when viewing the facts alleged in the light most favorable to
Simmons, the party asserting the injury? CarePartners, LLC
v. Lashway, 545 F.3d 867, 876 (9th Cir. 2008). And second,
was the relevant right clearly established at the time Arnett
and Lopez acted, such that they would have (or should have)
known to not violate it? Id. Arnett and Lopez are entitled to
summary judgment if the answer to either question is “no.”
I. Violation of a Constitutional Right
We begin with the first question, just as the district court
did. While Simmons accuses both Arnett and Lopez of
violating the same constitutional provision—the Eighth
Amendment—separate standards apply to Simmons’s claim
against Arnett and Simmons’s claim against Lopez given the
nature of the challenged conduct.
10 SIMMONS V. ARNETT
A. Arnett Did Not Violate Simmons’s Constitutional
Rights
To sustain his excessive force claim against Arnett,
Simmons must show, among other things, that Arnett’s
actions were not “a good faith effort to maintain or restore
discipline,” and that Arnett instead acted “maliciously and
sadistically for the very purpose of causing harm.” Whitley
v. Albers, 475 U.S. 312, 320–21 (1986) (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). In Whitley, the
Supreme Court identified some of the factors that courts
should look to when assessing whether this standard has
been satisfied. These include the need for application of
force, the relationship between the need for force and the
amount of force used, any effort made to temper the severity
of the force used, and the extent of the threat to the safety of
staff and inmates. Id. at 321–22. Courts have recognized that
prison officials should be accorded “wide-ranging
deference” when they are exercising their judgment to
maintain prison safety. See id.; Bell v. Wolfish, 441 U.S. 520,
547 (1979). In the specialized context of prison operations,
the use of force can be a “legitimate means for preventing
small disturbances from becoming dangerous to other
inmates or the prison personnel.” Spain v. Procunier, 600
F.2d 189, 195 (9th Cir. 1979).
The district court correctly held that when these factors
are viewed through an appropriately deferential lens and
applied to the facts of this case, Arnett’s decision to shoot
Simmons with sponge rounds was not an excessive use of
force. It is undisputed that Arnett was the only guard in the
control booth and that he saw a fight break out. It is similarly
uncontroverted that Arnett had a duty to keep prison staff
and the prisoners in his care safe and that the fight between
Simmons and Murillo could threaten that safety. And
SIMMONS V. ARNETT 11
Simmons does not dispute that Arnett was not permitted to
leave the control booth, that he used the lowest level of force
available to him, and that Simmons was between Arnett and
Murillo. Even when the record is viewed in the light most
favorable to Simmons, there is no evidence in the record
showing that Arnett had any improper motive, let alone that
he acted “maliciously and sadistically for the very purpose
of causing harm.” Whitley, 475 U.S. at 320–21 (quoting
Johnson, 481 F.2d at 1033). These undisputed facts make
clear that Arnett did not violate Simmons’s Eighth
Amendment rights and as such, Arnett is entitled to summary
judgment. 1
1
The partial dissent disagrees. It argues that qualified immunity
should be addressed post-trial, primarily because of two differences in
Arnett’s and Simmons’s accounts of the fight: (1) whether Simmons
fought back against Murillo and (2) whether Arnett acted with the
requisite malice. According to the partial dissent, our conclusion rests on
a view of the record that is favorable to Arnett rather than Simmons. The
partial dissent offers three cases to show that in situations like this,
qualified immunity should not be granted: Martinez v. Stanford, 323 F.3d
1178 (9th Cir. 2003), Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013),
and Hughes v. Rodriguez, 31 F.4th 1211 (9th Cir. 2022).
The partial dissent’s position does not survive scrutiny. Regarding
the first difference, Simmons’s testimony that he did not fight back does
not ineluctably conflict with Arnett’s testimony that he believed he saw
both inmates throwing punches. To the degree that there is tension, our
analysis explicitly adopts Simmons’s telling. Regarding the second
difference, the partial dissent urges that Simmons’s assertion that Arnett
acted with malice creates a material issue of fact. We disagree. Without
corroborating evidence of animus—and here, there is none—Simmons’s
subjective assertion of Arnett’s intent is insufficient. If this were not the
case, a defendant could circumvent qualified immunity and force a case
to trial simply by alleging the requisite malice. The three cases cited by
the partial dissent—Martinez, Furnace, and Hughes—are too factually
dissimilar to be helpful here, as might be suggested by Simmons’s
decision to not cite to any of them.
12 SIMMONS V. ARNETT
B. Lopez Did Not Violate Simmons’s Constitutional
Rights
To sustain his inadequate medical care/deliberate
indifference claim against Lopez, Simmons must show
among other things, that Lopez “purposefully ignore[d] or
fail[ed] to respond to [Simmons’s] pain or possible medical
need.” McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir.
1992) (emphasis added), overruled on other grounds by
WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Under this standard, an inadvertent failure to provide
adequate medical care, differences of opinion in medical
treatment, and harmless delays in treatment are not enough
to sustain an Eighth Amendment claim. Estelle v. Gamble,
429 U.S. 97, 105 (1976); Sanchez v. Vild, 891 F.2d 240, 242
(9th Cir. 1989); Shapley v. Nev. Bd. of State Prison
Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Even medical
malpractice by itself would be insufficient to establish a
constitutional violation. Estelle, 429 U.S. at 106. Instead,
Simmons must show that Lopez acted with “subjective
recklessness,” analogous to how that phrase is used in
criminal law. Farmer v. Brennan, 511 U.S. 825, 839 (1994).
Simmons does not come close to satisfying this standard
as to Lopez, even accepting his allegations that Lopez erred
when she (1) failed to conduct a full-body examination of
Simmons as required by prison policy; (2) failed to properly
document the wounds on his buttocks and thigh; and
(3) “falsified” medical records by stating that Simmons
sustained his injury by slipping in water. Lopez was
presented with a recalcitrant inmate who was clearly injured
but initially refused to cooperate in his own diagnosis. She
nonetheless persisted in treating him. Perhaps realizing the
urgency with which he needed additional treatment, she
ensured that he was sent to the emergency room within
SIMMONS V. ARNETT 13
minutes of his arrival. Rather than deliberate indifference,
these actions seem to reflect the conduct of a medical
professional who quickly and successfully ensured that her
patient received the appropriate level of care. She did not
violate Simmons’s constitutional rights and on that basis
alone, she is entitled to summary judgment.
II. Clear Establishment of the Right
We turn to the second question, asking whether the rights
allegedly violated were clearly established such that a
reasonable official would have (or should have) known to
not violate them. While our findings that Arnett and Lopez
did not violate Simmons’s constitutional rights are sufficient
to grant them summary judgment, the “clearly established”
analysis confirms this conclusion. Further, this analysis is
less fact-bound and more clear-cut than a determination of
whether there has been a constitutional violation, which can
involve mixed questions of law and fact. In contrast, “the
‘clearly established’ inquiry is a question of law that only a
judge can decide.” Morales v. Fry, 873 F.3d 817, 821 (9th
Cir. 2017).
For a right to be clearly established, the right must first
“be defined at the appropriate level of specificity.” Dunn v.
Castro, 621 F.3d 1196, 1201 (9th Cir. 2010) (quoting Wilson
v. Layne, 526 U.S. 603, 615 (1999)). Then the “[t]he
contours of [that] right must be sufficiently clear that a
reasonable official would understand that what [the official]
is doing violates that right.” Anderson v. Creighton, 483 U.S.
635, 640 (1987). There need not be “a case directly on point
for a right to be clearly established, [but] existing precedent
must have placed the statutory or constitutional question
beyond debate.” Foster v. City of Indio, 908 F.3d 1204, 1210
(9th Cir. 2018) (per curiam) (quoting Kisela v. Hughes,
138 S. Ct. 1148, 1152 (2018)). The plaintiff bears the burden
14 SIMMONS V. ARNETT
of proving that the right allegedly violated was clearly
established at the time of the violation. Moran v.
Washington, 147 F.3d 839, 844 (9th Cir. 1998).
A. Arnett is Entitled to Qualified Immunity
Although Simmons has the burden to show that the rights
Arnett allegedly violated are clearly established, Simmons
makes no effort to identify any relevant precedent in his
opening brief or in his opposition to the motion for summary
judgment below. In his reply brief, Simmons points to only
two cases on this issue: Marquez v. Gutierrez, 322 F.3d 689(9th Cir. 2003) and Jeffers v. Gomez, 267 F.3d 895 (9th Cir.
2001). At oral argument, Simmons’s counsel identified
Marquez as his strongest support for showing that the right
at issue here was well-established. But we find that neither
Marquez nor Jeffers placed Arnett on notice that he would
be violating Simmons’s constitutional rights through the
conduct alleged in this case.
In Marquez, we held that under the standards applicable
at summary judgment—that is to say, when viewing the facts
in the light most favorable to the non-movant—a prison
guard violated the Eighth Amendment when he shot live
rounds at and broke the femur of “a passive, unarmed inmate
standing near a fight between other inmates, none of whom
was armed, when no inmate was in danger of great bodily
harm.” Marquez, 322 F.3d at 691–92. At a high level of
abstraction, there are some similarities between those facts
and the facts here—there was a prison fight, a prison guard
shot a non-assailant, and the non-assailant’s leg was broken.
But Marquez is materially distinguishable in at least two
critical ways. First, Arnett did not fire at an inmate who was
passively standing near a fight, and second, he did not shoot
the inmate with live rounds. Instead, Arnett shot a sponge
SIMMONS V. ARNETT 15
round at an inmate who acknowledges that he was grabbing
his assailant in the middle of a fight (though not punching
back). The use of sponge rounds instead of live bullets is
particularly important: to the extent Marquez provides
guidance, it suggests that a prison guard should not shoot a
fighting inmate with live rounds and should instead take
“efforts to temper the severity of his response” and use less-
lethal force—precisely what Arnett did when he used his
40mm launcher and sponge rounds instead of his
semiautomatic rifle. See id. at 692. Nothing in Marquez put
Arnett or any other reasonable officer in his position on
notice that using less-lethal force to break up a prison fight
would violate an inmate’s constitutional rights. Marquez
does not clearly establish the rights Simmons says were
violated here.
Jeffers provides even less guidance. There, we held that
two officers did not violate the Eighth Amendment when one
of them accidentally shot an inmate during one of the largest
prison disturbances in California history, involving between
150 and 200 inmates and lasting about 30 minutes. Jeffers,
267 F.3d at 901. Simmons does not explain how Jeffers—a
case in which we did not find an Eighth Amendment
violation—clearly establishes a right relevant to the facts of
Simmons’s case.
Simmons offers no other precedent to support his
contention that the rights Arnett allegedly violated were
clearly established and thus fails to satisfy his burden. That
failure confirms that Arnett’s actions are protected by
16 SIMMONS V. ARNETT
qualified immunity, even if we were to assume that they
somehow may have violated the Eighth Amendment. 2
B. Lopez is Entitled to Qualified Immunity
Simmons also fails to satisfy his burden to show that
Lopez violated a clearly established right when she (1) failed
to conduct a full-body examination of Simmons as required
by prison policy; (2) failed to properly document the wounds
on his buttocks and thigh; and (3) “falsified” medical records
2
As noted, the partial dissent disagrees. While we have explained
why remanding this case for trial is unwarranted, two practical points
merit mention.
First, the partial dissent’s suggested approach undercuts the purpose
of qualified immunity. The doctrine is not just a shield from eventual
civil liability. Behrens v. Pelletier, 516 U.S. 299, 308 (1996). It exists to
prevent the “distraction of officials from their governmental duties,
inhibition of discretionary action, and deterrence of able people from
public service”—in sum, it exists to avoid requiring government officials
to lead lives in limbo while a case is fully litigated over weeks, months,
and years. Harlow, 457 U.S. at 816. Accordingly, the Supreme Court has
“repeatedly . . . stressed the importance of resolving immunity questions
at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S.
224, 227 (1991) (collecting cases). Adopting a wait-and-see approach
here runs afoul of this fundamental principle.
Second and relatedly, the partial dissent does not offer an alternative
course of action that would have protected Arnett from civil liability.
Arnett’s only other viable option was to effectively do nothing. But
doing nothing seems likely to have led to serious injury or death,
particularly when we accept Simmons’s assertion that he was not
fighting back. Given that prison officials have a duty to protect prisoners
from violence at the hands of other prisoners, doing nothing likely also
would have led to a lawsuit. Farmer v. Brennan, 511 U.S. 825, 833
(1994). Denying Arnett qualified immunity for addressing in a moment
a problem that no one has solved with years of time for deliberation
appears to be inconsistent with the spirit of the doctrine.
SIMMONS V. ARNETT 17
by stating that Simmons sustained his injury by slipping in
water.
Simmons relies on two cases to show that the right at
issue was “clearly established”—Gibson v. County of
Washoe, 290 F.3d 1175 (9th Cir. 2002), overruled in part by
Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir.
2016), and Gordon v. County of Orange, 6 F.4th 961 (9th
Cir. 2021)—but neither illuminates the issues here. Both
cases relate to fatalities arising out of prison intake
screenings that failed to identify behavioral health or
substance use issues, situations far removed from the facts
of this case. Here, Lopez was presented with a recalcitrant
inmate who was clearly injured but initially refused to
cooperate in his own diagnosis. She nonetheless persisted in
treating him. Perhaps realizing the urgency with which he
needed additional treatment, she ensured that he was sent to
the emergency room within minutes of his arrival. Even
accepting Simmons’s assertions that Lopez did not take the
time to conduct a full body examination nor correctly
complete her notes in the face of his shifting stories about
the cause of his injuries, Simmons fails to identify any
materially similar case that would have served to put Lopez
on notice that her conduct violated Simmons’s clearly
established rights, particularly since the notes at issue were
not the basis of any future treatment. Instead, Lopez’s
actions seem to reflect the conduct of a medical professional
who quickly and successfully ensured that her patient
received the appropriate level of care. Lopez is thus entitled
to protection under the doctrine of qualified immunity and
summary judgment is properly entered in her favor.
CONCLUSION
Accepting Simmons’s well-plead allegations as true and
drawing all inferences in his favor, we can sympathize with
18 SIMMONS V. ARNETT
him on his bad fortune and its lingering, long-term effects on
his health. But such sympathy does not turn these events into
constitutional violations. On the record before us, we cannot
conclude that Arnett or Lopez violated Simmons’s
constitutional rights, nor can we characterize their actions as
violating some clearly established principle of constitutional
law. Indeed, the record reflects that both Arnett and Lopez
took reasonable steps to address urgent situations in short
periods of time. They are thus entitled to the protection
offered by qualified immunity.
We AFFIRM the district court.
ARTERTON, District Judge, concurring in part and
dissenting in part:
I.
I concur with the majority’s conclusion that the district
court’s grant of summary judgment in favor of Nurse Lopez
should be affirmed on the view that her conduct did not rise
to the level of deliberate indifference. I respectfully dissent,
however, from the majority’s grant of qualified immunity to
Officer Arnett. Specifically, I am troubled by the majority’s
determination that Officer Arnett’s actions did not violate
clearly established law, and its decision to rule on qualified
immunity while key facts are still in dispute. The majority’s
decision runs afoul of Ninth Circuit precedent requiring
courts to settle factual disputes material to that inquiry
before assessing a prison official’s entitlement to qualified
immunity as discussed below.
In my view, the qualified immunity analysis in this case
depends on the resolution of the parties’ two divergent
SIMMONS V. ARNETT 19
narratives. Simmons’s version of events describes him as a
passive victim, helpless to even find cover from an assault
when Officer Arnett shot him three times. His account
demonstrates a violation of his constitutional right to be free
from force applied for the very purpose of causing harm. See
Whitley v. Albers, 475 U.S. 312, 320–21 (1986).
Additionally, viewing the specific context of the incident in
the light most favorable to Simmons, his right was clearly
established such that a reasonable prison guard in Officer
Arnett’s position would have been aware that his conduct
was impermissible. See Saucier v. Katz, 533 U.S. 194, 202
(2001). But under Officer Arnett’s retelling, Simmons was
not helpless, or at least not obviously so. If Officer Arnett is
believed, while there may have been a constitutional
violation, his actions would not violate clearly established
law.
The majority chooses to grant qualified immunity
despite being presented with two fundamentally inconsistent
accounts of this case’s critical moments. In concluding that
Officer Arnett did not violate clearly established law on an
incomplete view of the relevant facts, the majority’s
approach diverges from the one established by qualified
immunity precedent in this circuit. Upon review of all the
facts, disputed and undisputed, I cannot endorse the
majority’s formulation of the law. Accordingly, I would
reverse the district court’s grant of summary judgment in
favor of Officer Arnett and remand for trial determination
the factual disputes prior to deciding his entitlement to
qualified immunity as a matter of law.
A.
My analysis begins with Simmons and Officer Arnett’s
opposing views of the facts. The morning of November 28,
2013, was Thanksgiving day. That morning, Officer Arnett
20 SIMMONS V. ARNETT
gave Simmons permission to walk freely out of his cell for
his shift as a barber in the facility. Simmons and Officer
Arnett diverge on much of what transpired next.
According to Simmons, as he approached the top tier of
the building to conduct his business as a barber, he observed
what he described as “girl fighting” between one prisoner
and a group of prisoners he associated with a prison gang.
Simmons recognized this as part of a gang initiation. After
about thirty seconds, Officer Arnett commanded the group
to stop “horse-playing” but did not use force or call for
backup. The prisoners stopped and Officer Arnett took no
further action.
At this point, one prisoner, face bloody from the
exchange, approached Simmons, and began punching him.
Dazed from the attack, Simmons made no attempt to punch
back. Even though Simmons did not swing back at his
assailant, Officer Arnett shot Simmons in the back of his left
shin. Simmons never heard any orders from Officer Arnett
before he was shot. Simmons started to collapse from the
combination of Officer Arnett’s shooting and the other
prisoner’s punches, and he grabbed hold of the other
prisoner’s waist for support. Even as the circumstances
evolved, Officer Arnett’s response remained the same. As
Simmons fell to the other prisoner’s waistline, Officer Arnett
shot him again, this time striking his right thigh. Simmons
slipped further down, grabbing for the other prisoner’s
ankles, when Officer Arnett shot him a third time.
Officer Arnett’s version of events differs significantly.
By Officer Arnett’s account, he observed Simmons and the
other prisoner swinging at each other, resembling a “boxing
match.” In his incident report, Officer Arnett represented
that he saw the two hitting each other in the face and upper
body. Officer Arnett gave orders to the prisoners to stop
SIMMONS V. ARNETT 21
fighting, activated the building’s alarm, and called for
backup. Because the two prisoners continued to swing at
each other despite his command, from a distance of about
thirty to fifty feet, Officer Arnett fired his forty-millimeter
launcher armed with sponge rounds at Simmons’s legs.
Officer Arnett chose to shoot Simmons because his back was
facing Officer Arnett, obstructing his view of the other
prisoner. He shot the sponge rounds aimed at Simmons’s
legs because it was the less lethal alternative to his other
firearm and he was trained to fire at an inmate’s lower
extremities (excluding the groin area) to minimize the risk
of causing severe injury. Officer Arnett could not see any
indication that his first shot made impact with Simmons, so
he fired a second shot within five or ten seconds of the first.
Even after this second shot, the prisoners kept swinging and
Simmons remained on his feet, so Officer Arnett shot him
again. Before the first shot and after the first and second
shots, Officer Arnett gave commands for the prisoners to
stop.
Simmons and Officer Arnett agree that additional prison
staff entered the area within forty-five seconds of Officer
Arnett’s call for backup and the two prisoners lay down on
the ground without further incident. Simmons could not be
handcuffed because he was holding his leg in place so that
his protruding bone would not pierce his skin. He then was
placed on a gurney so that he could be transferred to the
prison’s medical facility for treatment.
B.
Next, I consider the district court’s erroneous decision to
grant summary judgment in favor of Officer Arnett on the
merits of Simmons’s excessive force claim. To determine
whether a prison guard used excessive force in violation of
the Eighth Amendment, we examine “whether force was
22 SIMMONS V. ARNETT
applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of
causing harm.” Whitley, 475 U.S. at 320–21 (internal citation
and quotations omitted). To make this determination, this
court follows the five-pronged Hudson test: (1) the objective
need for force, (2) the relationship between any such need
and the amount of force used, (3) the threat reasonably
perceived by Officer Arnett, (4) whether Officer Arnett
attempted to temper the severity of his response, and (5) the
extent of Simmons’s injury. See Furnace v. Sullivan,
705 F.3d 1021, 1028 (9th Cir. 2013) (citing Hudson v.
McMillian, 503 U.S. 1, 7 (1992)).
The district court’s decision shows it viewed the
evidence in the summary judgment record in a light less than
“most favorable” to Simmons, the non-movant. Although
the district court concluded that Officer Arnett “witnessed a
violent attack,” that Simmons did not fight back, and that
Officer Arnett shot Simmons three times to stop the
altercation, it did not consider that this evidence also could
support a conclusion that Officer Arnett’s use of force was
maliciously and sadistically intended to cause Simmons
harm. Instead, the district court determined that the record
only showed Officer Arnett was “misguided” and interpreted
Officer Arnett’s actions as a response to the situation as
Officer Arnett claims to have perceived it, giving
disproportionate weight to the facts that Officer Arnett called
for backup and chose a less severe means of force. See
Furnace, 705 F.3d at 1026–27 (observing that “the district
court should have adopted” the non-movant’s version of the
events).
In my view, the majority compounds the district court’s
error; although the majority purports to view the facts
“through an appropriately deferential lens and applied to the
SIMMONS V. ARNETT 23
facts of this case,” the majority’s consideration of the merits
instead gives disproportionate weight to the facts supporting
Officer Arnett’s defense. In its view, because it is undisputed
that Officer Arnett had a duty to maintain safety, was not
permitted to leave his post, and used “the lowest level of
force available to him,” no evidence in the record supports
an inference that he acted “maliciously and sadistically for
the very purpose of causing harm.” Whitley, 475 U.S. at 320–
21.
However, taking the facts in the light most favorable to
Simmons, application of force in this situation would have
been warranted only as to the assaultive prisoner, not to
Simmons. Yet Officer Arnett shot Simmons while he was
under attack from that prisoner. Officer Arnett himself was
inconsistent on whether he saw Simmons strike the other
prisoner. Simmons maintains that he started to fall after
Officer Arnett’s first shot, casting doubt on Officer Arnett’s
claim that he still perceived a threat of violence from
Simmons thereafter. Additionally, Officer Arnett admitted
that he did not fear for the safety of other prisoners or prison
staff, undermining the relevance of his general duty to
maintain institutional safety. While Officer Arnett chose the
less lethal force option between a sponge launcher and rifle
with live rounds, his three shots caused damage so severe
that Simmons suffered a fractured leg and permanent nerve
damage. This version of the facts supports a conclusion that
Officer Arnett purposely inflicted unnecessary and wanton
harm on a passive prisoner. See Marquez v. Gutierrez,
322 F.3d 689, 692 (9th Cir. 2003) (holding that “[t]o shoot a
passive, unarmed inmate standing near a fight” according to
the prisoner’s account of events would violate the Eighth
Amendment).
24 SIMMONS V. ARNETT
II.
A.
After affirming the district court’s holding that Officer
Arnett did not violate Simmons’s Eighth Amendment rights,
the majority makes the additional assessment that Officer
Arnett is entitled to qualified immunity. Based on a review
of the two precedents Simmons presents, the majority
determines that “Simmons makes no effort to identify any
relevant precedent” showing that Officer Arnett violated
clearly established law. Relying only on the facts that
Simmons acknowledged he was grabbing at his assailant
rather than passively standing by, and that Officer Arnett
used “less-lethal force” on a prisoner engaged in a fight
instead of live rounds, the majority “confirms that Arnett’s
actions are protected by qualified immunity.”
I disagree that this is the proper qualified immunity
analysis. See Tolan v. Cotton, 572 U.S. 650, 655–57 (2014)
(observing that “under either prong” of qualified immunity,
courts must draw inferences in the non-movant’s favor). A
court should determine whether a prison official’s conduct
violated a federal right, which, in the Eighth Amendment
context, depends on “whether force was applied in a good
faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.”
Whitley, 475 U.S. at 320–21 (internal citation and quotations
omitted). If a right has been violated, a court asks whether
the law was clearly established such that a reasonable prison
official would have believed that his or her conduct was
lawful. Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir.
2003).
SIMMONS V. ARNETT 25
B.
As discussed, under Simmons’s version of the facts,
Officer Arnett inflicted unnecessary and wanton harm in
violation of the Eighth Amendment. Moreover, it has long
been established that prison officials use excessive force
when they inflict unnecessary harm on a prisoner in bad
faith. Hoard v. Hartman, 904 F.3d 780, 790 (9th Cir. 2018)
(collecting cases).
Simmons’s right to be free from excessive force must be
tested in “a particular context.” See Todd v. United States,
849 F.2d 365, 370 (9th Cir. 1988). Thus, the question that
remains is whether a reasonable prison guard in Officer
Arnett’s position could have believed his use of force was a
good faith attempt to restore order in the situation he
confronted. Marquez, 322 F.3d at 693. I believe that the
factual dispute in this case leaves that question unanswerable
at this juncture. Resolution of the difference between
Simmons’s testimony that he was clearly the cowering
victim of an attack and Officer Arnett’s view that Simmons
was an able-bodied combatant is central to a determination
about the reasonableness of Officer Arnett’s decision to
shoot Simmons three times. The majority dismissed this
distinction as unpersuasive when considering Simmons’s
and Officer Arnett’s factual accounts as part of its Eighth
Amendment analysis. But the Ninth Circuit has repeatedly
found a dispute of this nature between prisoners and prison
guards pivotal in refusing to grant qualified immunity.
In Martinez v. Stanford, for example, a panel of this court
reversed a district court’s grant of qualified immunity to
prison officers because triable issues of fact remained on
whether they acted reasonably. 323 F.3d at 1184. Under the
prisoner’s version of events, the prisoner had covered his cell
door with a bed sheet to prevent pepper spray fumes from
26 SIMMONS V. ARNETT
entering the cell during a prison disturbance. Id. at 1180. In
response, the officers fired two plastic bullets from a gas gun
and a taser cartridge into the cell, with one bullet striking the
prisoner. Id. From the prisoner’s account, “[o]nce the
officers entered the cell, they pushed him into a seated
position, and tasered him twice on his left arm, despite his
lack of resistance.” Id. Officers continued striking the
prisoner while he was restrained and eventually dragged him
out of the cell. Id. Given the officers’ denials, the district
court found factual disputes material to the question of
excessive force under the Eighth Amendment but did not
consider those disputes in its grant of qualified immunity. Id.
at 1184. On appeal, this court disagreed and concluded that
the district court should have evaluated these issues of fact
as relevant to whether the officers acted reasonably to
qualify for immunity. Id. Thus, the panel reversed the district
court’s decision to grant qualified immunity and remanded
for trial to resolve those factual disputes. Id. at 1183–85.
Martinez does not stand alone. In Furnace v. Sullivan,
this court again held that “qualified immunity was
inappropriately granted at the summary judgment phase.”
705 F.3d at 1030 (citing Martinez, 323 F.3d at 1184). There,
two prison officers sprayed a prisoner with pepper spray,
causing the prisoner to suffer burns and rashes to various
parts of his body. Id. at 1025. The parties disputed two
issues. First, they disagreed about how much pepper spray
the officers discharged on the prisoner. Id. at 1026–27. The
district court adopted the officers’ version of events with
respect to this issue and concluded that the prisoner did not
raise a triable dispute. Id. Second, the officers argued that the
prisoner posed a threat to their safety because he held the
food port to his cell open, while the prisoner maintained that
he merely “rested his fingers on the already-open food port
for balance.” Id. at 1027. Even though the district court
SIMMONS V. ARNETT 27
concluded that this factual dispute was triable, “it premised
its award of qualified immunity to the officers on its
determination that [the prison officers] could have
mistakenly, but reasonably, perceived that [the prisoner]
posed a threat.” Id.
The panel reversed this determination because the
“discrepancy” between the parties’ accounts was “too great
to be capable of resolution on summary judgment.” Id. The
district court erred by failing to draw all inferences in the
prisoner’s favor. “Had it done so,” the district court’s
“analysis of the prison officers’ entitlement to qualified
immunity” would have been altered. Id. Importantly, though
the “factual characterization” between whether the prisoner
held the food port open or just rested his hands on it while it
was already open “is subtle,” the panel concluded that it
nevertheless “is relevant to the question of whether [the
prison officers] could have reasonably believed that [the
prisoner] posed a threat to the safety and security of the
institution.” Id.
More recently, Hughes v. Rodriquez found that questions
of fact precluded qualified immunity to an officer for
excessive force under the Eighth Amendment. 31 F.4th
1211, 1224–25 (9th Cir. 2022). In Hughes, an escaped
prisoner claimed that, after police officers had apprehended
him by placing him in handcuffs, one continued to beat him.
Id. at 1217. The panel concluded that “whether the post-
handcuff beating and dog-biting occurred, and whether it
was proportional to the threat [the officer] reasonably
perceived by a handcuffed [prisoner], are questions for the
trier of fact.” Id. at 1222–23. Therefore, the panel held that
the officer was not entitled to qualified immunity for his
conduct. Id. at 1224–25.
28 SIMMONS V. ARNETT
A similar triable dispute as to the reasonableness of
Officer Arnett’s use of force remains here. Viewing the facts
in the light most favorable to Simmons, not only was
Simmons a passive victim of an attack by another prisoner,
but also the circumstances could not lead a reasonable guard
in Officer Arnett’s position to a contrary perspective. For
instance, if, as Simmons contends, he did not rush towards
his assailant, did not swing back, and lost his footing such
that he could not stand upright after the first shot to his leg,
it would have been unreasonable for Officer Arnett to
believe that Simmons posed a threat to the other prisoner.
With no other prisoners or prison staff in harm’s way, it
likewise would have been unreasonable for Officer Arnett to
shoot Simmons two more times, causing severe leg and
nerve damage, to restore institutional order. Thus, the
dispute about Simmons’s behavior in response to the attack
should be settled by a jury before a court decides Officer
Arnett’s entitlement to qualified immunity. 1
1
I am cognizant of the principle that qualified immunity disputes
generally ought to be resolved at the “earliest possible stage in
litigation.” However, this is usually possible “because qualified
immunity most often turns on legal determinations, not disputed facts.”
Morales v. Fry, 873 F.3d 817, 822 (9th Cir. 2017) (citing Sloman v.
Tadlock, 21 F.3d 1462, 1468 (9th Cir. 1994)). Morales also recognized
that while the trend in the Ninth Circuit has been resolving qualified
immunity at summary judgment, situations still arise where a qualified
immunity case must go to trial “because disputed factual issues remain.”
Id. In that situation, qualified immunity “is transformed from a doctrine
providing immunity from suit to one providing a defense at trial.” Id. at
823. The Ninth Circuit’s Manual of Model Civil Jury Instructions also
recognizes that the situation may arise, explaining that “[w]hen there are
disputed factual issues that are necessary to a qualified immunity
decision, these issues must first be determined by the jury before the
court can rule on qualified immunity.” Ninth Circuit Model Civil Jury
Instruction 9.34 (2017).
SIMMONS V. ARNETT 29
The majority does not appreciate the importance of this
dispute to the qualified immunity question evaluating the
reasonableness of Officer Arnett’s conduct in light of clearly
established law. 2 While it is Simmons’s burden to show that
Officer Arnett violated a clearly established right, Moran v.
Washington, 147 F.3d 839, 844 (9th Cir. 1998), the majority
roundly rejects Simmons’s reliance on Marquez v. Gutierrez
to show that Officer Arnett’s conduct violated his clearly
established Eighth Amendment right.
In Marquez, the Ninth Circuit held that a prison officer
was entitled to qualified immunity even though he used
excessive force when he used live rounds to shoot a prisoner
who was an unarmed bystander to a fight. Id. at 692. The
officer argued that he believed the target of his shots was a
participant in the fight in which two prisoners were kicking
one prisoner who was defenseless on the ground. Id. The
court acknowledged “that the law governing prison officials’
conduct was clearly established” when the Supreme Court
decided Whitley, but it granted qualified immunity to the
prison guard under the view that his mistaken belief in the
circumstances he confronted entitled him to qualified
immunity. Id. at 692–93.
Finding Marquez of little relevance, the majority
interprets it to suggest “that a prison guard should not shoot
a fighting inmate with live rounds and should instead take
efforts to temper the severity of his response and use less-
lethal force.” The majority concludes Marquez is also
2
The majority characterizes the dispute as, in part, about whether
Officer Arnett acted with the requisite malice. Of course, this dispute is
relevant to the merits question of Officer Arnett’s state of mind, but,
independently, its relevance bears on the reasonableness inquiry integral
to the qualified immunity analysis as well.
30 SIMMONS V. ARNETT
distinguishable from this case. First, it finds that “Arnett did
not fire at an inmate who was passively standing near a
fight.” I agree. A credible view of the record reflects that
Simmons was passively falling from an attack from another
prisoner. That Simmons was also grabbing at the other
prisoner does not end the inquiry; rather, it evidences a
dispute of fact about whether a reasonable observer would
have viewed Simmons as a threat. Second, the majority
underscores Officer Arnett’s use of sponge bullets, rather
than live rounds. But the fact that Officer Arnett shot
Simmons three times, severely injuring him, is relevant to
whether the force used was unreasonable even if it was not
fatal.
The proposition that, under Marquez, a prison guard does
not violate clearly established law, so long as that prison
guard uses less than lethal force to maintain order is not
supported by Ninth Circuit precedent. The officers in
Martinez used plastic bullets, tasers, and their fists, the
officers in Furnace pepper-sprayed the prisoner, and the
officer in Hughes beat the prisoner. In all of those cases, this
court found a dispute of fact relevant to the qualified
immunity analysis despite the use of “less-lethal” force.
Marquez itself offers little insight into why prison officers’
methods of abuse would categorically entitle them (or not)
to qualified immunity. Nor can Marquez be read to compel
a grant of qualified immunity every time a prison officer uses
force against a prisoner because that officer could have
perceived a threat, without regard to facts that demonstrate
otherwise. That formulation of the law is in direct conflict
with Martinez, Furnace, and Hughes. 3 Indeed, this court has
3
Notably, the Ninth Circuit has held that disputed facts preclude a
qualified immunity analysis in Fourth Amendment excessive force cases
as well. See Estate of Lopez v. Gelhaus, 871 F.3d 998, 1022 (9th Cir.
SIMMONS V. ARNETT 31
never published an opinion citing to Marquez on that
premise.
To be sure, qualified immunity affords prison officers
grace to make reasonable mistakes under pressure. But the
dispute between Simmons’s set of facts, which would
demonstrate that he was a passive victim, and Officer
Arnett’s facts, which would establish that he perceived
Simmons as a combatant, requires trial resolution. While
both accounts could potentially coexist in theory, their
divergence raises legitimate doubts about the reasonableness
of Officer Arnett’s claimed perception of mutual combat as
the justification for shooting Simmons three times. 4 That
2017) (citing Martinez for the proposition that summary judgment on a
Fourth Amendment excessive force claim is not appropriate when an
officer’s entitlement to qualified immunity ultimately depends on
disputed factual issues); Lolli v. Cnty. of Orange, 351 F.3d 410, 421 (9th
Cir. 2003) (also citing Martinez); see also Curnow v. Ridgecrest Police,
952 F.2d 321, 325 (9th Cir. 1991) (holding that officers were not entitled
to qualified immunity at the summary judgment stage where there was a
triable dispute as to whether they were reasonable in shooting a suspect
who was not facing or pointing his gun at them). Recently, the Ninth
Circuit applied the same reasoning in a First Amendment case. See
Ballentine v. Tucker, 28 F.4th 54, 63–64, 67 (9th Cir. 2022) (holding that
an officer was not entitled to summary judgment on his qualified
immunity claim where there was a factual dispute as to whether the
officer arrested the plaintiff because of his anti-police speech, which
would be a violation of plaintiff’s First Amendment rights under clearly
established law, or for legitimate, non-retaliatory reasons).
4
The notions that Officer Arnett had no other recourse and his
actions served to protect Simmons from serious injury or death betray
the factual record. There is no dispute that Officer Arnett caused serious
leg fractures and nerve damage. Shooting Simmons three times in the
forty-five seconds it took for other prison staff to arrive while Simmons
was a cowering victim arguably put him in more danger, not less. Thus,
it remains unclear whether Officer Arnett’s response was reasonable.
32 SIMMONS V. ARNETT
dispute needs to be resolved before considering qualified
immunity for Officer Arnett because it is centrally relevant
to the question of whether a reasonable prison guard would
know that he or she violated clearly established law by
shooting Simmons in that situation. See Martinez, 323 F.3d
at 1184–85; cf. Rodriguez v. Cnty. of Los Angeles, 891 F.3d
776, 796 (9th Cir. 2018) (affirming denial of qualified
immunity to prison officers after construing the facts in the
light most favorable to the prisoners and considering a jury
finding that the officers knowingly violated the law).
III.
In sum, I would find that the record before us shows:
(1) Nurse Lopez’s conduct did not rise to the level of
deliberate indifference; (2) under Simmons’s account of the
facts, Officer Arnett violated Simmons’s constitutional
rights by using excessive force against him to quell an
altercation in which he was the victim; (3) that right was
clearly established; and (4) whether Officer Arnett acted
reasonably such that he was not on notice that his actions
violated that clearly established right depends on a trial
determination of the factual disputes. Accordingly, I would
remand the claims against Officer Arnett to the district court
for trial.