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.