NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DAVID E. EDWARDS, No. 13-15824
Plaintiff - Appellant, D.C. No. 2:08-cv-00620-CMK
v.
MEMORANDUM*
D. K. SISTO, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Craig Kellison, Magistrate Judge, Presiding
Submitted August 12, 2014**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
David Edwards appeals the district court’s judgment entered following a
jury verdict in favor of prison officials. We affirm. Because the parties are
familiar with the history of this case, we need not recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
“We review de novo whether [jury] instructions misstated the law.”
Fireman’s Fund Ins. Cos. v. Alaskan Pride P’ship, 106 F.3d 1465, 1469 (9th Cir.
1997). If an “error in the jury instruction is harmless, it does not warrant reversal.”
Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005). “Because we presume prejudice
where civil trial error is concerned, the burden shifts to the defendant to
demonstrate that it is more probable than not that the jury would have reached the
same verdict had it been properly instructed.” Clem v. Lomeli, 566 F.3d 1177,
1182 (9th Cir. 2009) (internal quotation marks and citation omitted).
Any misstatement of the law as part of Jury Instruction No. 11 was harmless.
The first element Edwards had to prove under Jury Instruction No. 11 is that he
faced a substantial risk of serious harm. The jury answered in the Special Verdict
Form that Edwards did not prove this element. Thus, it is more probable than not
that the jury would have reached the same conclusion even if the instruction had
not included the challenged element. See Clem, 566 F.3d at 1182-83; Dang, 422
F.3d at 811.
AFFIRMED.