SHERYL MCCARTY V. LOGAN EGNOR, ET AL, No. 21-15918 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED NOV 23 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT SHERYL DENISE McCARTY, personal representative of JYLES JON DALE McCARTY, U.S. COURT OF APPEALS No. 21-15918 D.C. No. 2:21-cv-00473-MTLMTM Plaintiff-Appellant, MEMORANDUM* v. LOGAN JEFFREY EGNOR, #09594; SANJO SABU, #10423; A. BRANVITS, #10640; PHOENIX POLICE DEPARTMENT; EMILY HUSKISSON, #10512, Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding Submitted November 15, 2022** Before: CANBY, CALLAHAN, and BADE, Circuit Judges. Sheryl Denise McCarty, as personal representative of Jyles Jon Dale * 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). McCarty’s request for oral argument, set forth in the opening brief, is denied. McCarty, appeals from the district court’s judgment dismissing Jyles Jon Dale McCarty’s 42 U.S.C. § 1983 action alleging excessive force and other constitutional claims in connection with his arrest. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012). We affirm in part, vacate in part, and remand. The district court dismissed McCarty’s excessive force claim because it concluded that McCarty did not allege sufficient facts concerning his arrest. However, McCarty alleged that defendant Egnor shot him five times with beanbag rounds from a shotgun and then hogtied him, despite the fact that McCarty was not committing a crime, was not resisting arrest, and was not a threat to the police or public. Liberally construed, these allegations are sufficient to warrant ordering Egnor to file an answer. See Byrd v. Phx. Police Dep’t, 885 F.3d 639, 642 (9th Cir. 2018) (setting forth elements for claim of excessive force during an arrest and explaining that courts have an obligation to construe pro se pleadings liberally); Young v. County of Los Angeles, 655 F.3d 1156, 1163-65 (9th Cir. 2011) (explaining that the government has “no reasonable safety concern” justifying the use of significant force where an individual poses no immediate threat to police or the public). We therefore vacate the district court’s dismissal of McCarty’s excessive force claim only and remand for further proceedings. 2 21-15918 Because McCarty does not challenge the district court’s dismissal of any claims other than his claim for excessive force, we affirm the district court’s judgment in all other respects. AFFIRMED in part; VACATED in part; and REMANDED. 3 21-15918
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