NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LENROY McLEAN, 

Plaintiff-Appellant, 

 v. 

CONRAD HERNANDEZ, 

Defendant-Appellee, 

and 

PHILLIP GUTIERREZ, Warden; et al., 

Defendants.

No. 20-55410 

D.C. No. 5:15-cv-00275-RGK-SP 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Federal prisoner Lenroy McLean appeals pro se from the district court’s 

* 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).

FILED

MAY 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 20-55410 

summary judgment in his action brought under Bivens v. Six Unknown Named 

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging Eighth 

Amendment claims for excessive force and sexual assault. We have jurisdiction 

under 28 U.S.C. § 1291. We review de novo. Nunez v. Duncan, 591 F.3d 1217, 

1222 (9th Cir. 2010). We reverse and remand.

The district court granted summary judgment on McLean’s sexual assault 

claim because it concluded that McLean failed to raise a genuine dispute of 

material fact as to whether defendant Hernandez’s striking of McLean’s right 

testicle during a pat down search constituted sexual assault. However, McLean 

alleged in his verified complaint that Hernandez attacked his testicle to cause pain 

and humiliation. See Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020)

(providing requirements to establish a prisoner sexual assault claim). Resolving all 

factual disputes and drawing all reasonable inferences in McLean’s favor, we 

reverse the district court’s judgment on McLean’s sexual assault claim and remand 

for further proceedings. 

The district court granted summary judgment on McLean’s excessive force 

claim because it concluded that there is no evidence from which a reasonable juror 

could infer that Hernandez acted maliciously and sadistically to harm McLean

when Hernandez struck McLean’s right testicle during a pat down search. 

However, McLean submitted a declaration that provided a credible motive for 
3 20-55410 

Hernandez’s alleged assault, namely that Hernandez acted on behalf of another 

prison staff member who expressed a desire to retaliate against McLean for a 

reprimand the staff member received due to his failure to release prison account 

funds to pay McLean’s attorney. See Hudson v. McMillian, 503 U.S. 1, 7 (1992) 

(“[T]he core judicial inquiry” in resolving an Eighth Amendment excessive force 

claim is “whether force was applied in a good-faith effort to maintain or restore 

discipline, or maliciously and sadistically to cause harm[.]”). Resolving all factual 

disputes and drawing all reasonable inferences in McLean’s favor, we reverse the 

district court’s judgment on McLean’s excessive force claim and remand for 

further proceedings. 

Hernandez is not entitled to qualified immunity for the sexual assault or 

excessive force claims. See id. at 5 (noting the “settled rule that the unnecessary 

and wanton infliction of pain . . . constitutes cruel and unusual punishment 

forbidden by the Eighth Amendment” (internal quotation marks omitted)); 

Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000) (“In the simplest and 

most absolute of terms, the Eighth Amendment right of prisoners to be free from 

sexual abuse was unquestionably clearly established prior to the time of this 

alleged assault, and no reasonable prison guard could possibly have believed 

otherwise.”).

The district court did not abuse its discretion by denying McLean’s motions 
4 20-55410 

for appointment of counsel because McLean failed to demonstrate “exceptional 

circumstances” warranting the appointment of counsel. See Cano v. Taylor, 739 

F.3d 1214, 1218 (9th Cir. 2014) (setting forth standard of review and “exceptional 

circumstances” standard for appointment of counsel).

The district court did not abuse its discretion by denying McLean’s motion 

for a protective order with regard to his medical records because McLean’s remedy 

for an alleged violation of the Privacy Act of 1974 was damages, not exclusion of 

evidence. See 5 U.S.C. § 552a(g)(1)(D) & (g)(4)(A) (providing the remedy of a 

civil action for damages); Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210 (9th 

Cir. 2002) (standard of review); see also United States v. Lombera-Camorlinga, 

206 F.3d 882, 886 (9th Cir. 2000) (en banc) (“[A]n exclusionary rule is typically 

available only for constitutional violations, not for statutory or treaty violations.”).

We do not consider matters not specifically and distinctly raised and argued 

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). 

REVERSED and REMANDED.