Terrence BROWNLEE, Plaintiff-Appellant, v. MURPHY; Lytle, Sergeant; Snyder, C/O; Prado, C/O, Defendants-Appellees, 231 F. App'x 642

MEMORANDUM Appellant Terrence Brownlee, a California state prisoner, filed suit pro se under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment in connection with a physical altercation with prison guards and the subsequent disciplinary proceedings. He now appeals (1) the district court’s grant of

summary judgment on the Eighth Amendment claim to the defendant prison guards and (2) its dismissal of his due process claim against prison officials involved in the disciplinary proceeding. We have jurisdiction under 28 U.S.C. § 1291 and we reverse and remand for further proceedings. The Eighth Amendment Claim Brownlee’s Eighth Amendment claim alleged that prison guards applied excessive force to his leg and back. The court below granted

summary judgment to the prison guards on this claim, but in doing so, it engaged in an improper weighing of the evidence and failed to recognize that Brownlee’s deposition testimony and other evidence in the record raised a genuine issue of material fact regarding whether the force applied to his leg and back was either necessary or excessive under Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

Summary judgment under the first prong of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), was therefore inappropriate. We reverse the grant of

summary judgment to the defendant prison guards and remand for further proceedings to (1) determine whether, under Brownlee’s description of the facts, the guards are eligible for qualified immunity under Saucier’s second prong, and (2) if they are not so eligible, to resolve this genuine issue of material fact. The Due Process Claim In addition to his Eighth Amendment claim, Brownlee’s pro se complaint includes a due process challenge to the subsequent disciplinary proceedings. The district court dismissed this claim under the mistaken assumption that under the “favorable termination rule” of Heck v.

Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), a challenge to a disciplinary conviction under 42 U.S.C. § 1983 cannot proceed before that conviction is overturned, reversed, or expunged through a writ of habeas corpus. As the Court has since made clear, however, Heck only bars a § 1983 claim that necessarily challenges the fact or duration of confinement. Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005); Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584,137 L.Ed.2d 906 (1997).

Brownlee’s pro se complaint may be read to challenge the revocation of good-time credits on procedural grounds. If, under the applicable scheme of state law and regulation, this revocation directly and necessarily increased the duration of Brownlee’s confinement, and if Brownlee’s due process claim challenges nothing else, the district court’s dismissal would be proper. However, we cannot be sure on the record before us of the effect of any such revocation under the applicable legal regime.

Moreover, Brownlee’s pro se complaint may also be read to challenge Brownlee’s “confinement in segregation” on due process grounds. To the extent the § 1983 claim challenges only the manner of confinement, rather than its duration, Heck would not bar it from proceeding.

Accordingly, we reverse the district court’s dismissal of Brownlee’s due process claim and remand for the following determinations: (1) whether Brownlee’s due process claim, if successful, would necessarily affect the fact or duration of his confinement under the applicable legal regime, and (2) whether Brownlee brings a separate due process challenge to the manner of his confinement, rather than its fact or duration. The parties are to bear their own costs. REVERSED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. .

Because the facts are familiar to the parties, we do not recite them further here.