NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 06 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMES BAILEY, a single man, No. 12-35990
Plaintiff - Appellant, D.C. No. 2:11-cv-00461-RHW
v.
MEMORANDUM*
CHELAN COUNTY, a Municipal Corp.;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted November 4, 2013
Seattle, Washington
Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.
Plaintiff James Bailey appeals the district court’s judgment following a jury
verdict in favor of Defendants Mike Lamon and Lee Risdon (“Defendants”), two
Chelan County Sheriff deputies. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Bailey argues that the district court erred by failing to give his
Proposed Jury Instruction No. 3. The proposed instruction elaborated on the
definition of “actively resisting” as that term is used in the excessive force
instruction given by the district court. We disagree. There was no error in the
district court’s jury instruction on the elements of Bailey’s Fourth Amendment
excessive force claim. See Graham v. Connor, 490 U.S. 386, 396 (1989); Ninth
Circuit Model Jury Instruction No. 9.22. The district court’s instruction allowed
Bailey’s counsel to argue her theory of the case. See Brewer v. City of Napa, 210
F.3d 1093, 1097 (9th Cir. 2000). The district court therefore did not abuse its
discretion in declining to give Bailey’s proposed instruction defining “actively
resisting.”
2. Bailey also argues that the district court erred in excluding the
testimony of two of his treating physicians, Drs. Wall and Travers. Even
assuming that the district court erred or abused its discretion in excluding the
doctors’ testimony, the error was harmless. See Matter of Yagman, 796 F.2d 1165,
1176 (9th Cir. 1986) opinion amended on denial of reh’g sub nom. In re Yagman,
803 F.2d 1085 (9th Cir. 1986). First, there was no dispute that the officers used
force to arrest Bailey, and second, the jury’s special verdict found that the officers
did not use excessive force.
2
AFFIRMED.
3