FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER L. WATTS,

Plaintiff-Appellee,

v. No. 03-16665

J. MCKINNEY, D.C. No.

Defendant-Appellant, CV-98-03328-SI

and OPINION

S. J. STEINBERG,

Defendant.

Appeal from the United States District Court

for the Northern District of California

Susan Yvonne Illston, District Judge, Presiding

Submitted November 3, 2004*

San Francisco, California

Filed January 10, 2005

Before: Betty B. Fletcher, John T. Noonan, and

Sidney R. Thomas, Circuit Judges.

Opinion by Judge Noonan

_________________________________________________________________

*The panel unanimously finds this case suitable for submission without

oral argument pursuant to Fed. R. App. P. 34(a)(2).

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COUNSEL

Jennifer G. Perkell, Deputy Attorney General, San Francisco, California, for the defendant-appellant.

Christopher Watts, in pro per.

_________________________________________________________________

OPINION

NOONAN, Circuit Judge:

In his handwritten declaration under oath in his opposition

as plaintiff to defendant John McKinney's motion for summary judgment, Christopher Watts stated the following:

 During the course of October 10, 1995, the plaintiff was escorted from his cell in punitive segregation

and was interrogated by defendant McKinney and

other officers at Pelican Bay State Prison (Here after

P.B.S.P.). During this interrogation plaintiff stated

he did not know of any officers bringing in drugs or

knives into the prison and plaintiff repeatedly stated

he wanted his attorney present during this interrogation. Defendant McKinney repeatedly threatened

plaintiff and his family for not cooperating and

stated plaintiff will be sorry. Defendant McKinney

immediately escorted plaintiff to a holding cell, and

without warning slammed plaintiff face into the wall

causing a nose bleed, and swollen eye, and kicked

plaintiff in his penis and several times in his back

while plaintiff was lying on the cell floor with cuffs

on and with his hands behind his back. During these

events, plaintiff did not resist or threaten the defendant McKinney in any fashion or break any prison

rules.

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In the light of this declaration, the district court held that a

triable issue of fact was raised, i.e., whether McKinney had

applied force "maliciously and sadistically to cause harm" in

violation of the Eighth Amendment. Hudson v. McMillian,

503 U.S. 1, 7 (1992). As to McKinney's claim of qualified

immunity, the district court followed Saucier v. Katz, 533

U.S. 194 (2001). The act attributed to McKinney violated a

clearly established constitutional right "of which a reasonable

person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1981).

McKinney, represented by the attorney general of California, appeals, contending that Watts' declaration if accepted as

true states no violation of the Eighth Amendment and that "a

reasonable officer in defendant McKinney's position would

not necessarily have believed" that his conduct was unlawful.

McKinney blunts Watts' precise delineation of the assault

upon him by describing it as a kick in "the groin."

A lawyer must be zealous on behalf of his client. But

zeal needs to be tempered by commonsense. The Supreme

Court in Hudson proscribed the use of force for the malicious

and sadistic purpose of causing harm. Watts' declaration,

describing the vengeful acts of a frustrated investigator, identifies the unconstitutional purpose and deeds. To suppose that

any reasonable person, let alone a trained prison officer,

would not know that kicking a helpless prisoner's genitals

was cruel and unusual conduct is beyond belief. The Supreme

Court did not need to create a catalogue of all the acts by

which cruel and sadistic purpose to harm another would be

manifest; but if it had, such act would be near the top of the

list. The case must go to trial.

AFFIRMED.

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