FILED
NOT FOR PUBLICATION DEC 10 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ESTATE OF ZAIM BOJCIC; AJNIJA No. 07-17343
BOJCIC; NURKO BADETA; NURKO
MITHAT; NURKO ANZDA; NURKO D.C. No. CV-05-03877-RS
AMELA; TUCAKOVIC LARIFA;
TUCAKOVIC SMAZL; TUCAKOVIC
HIHAD; TECAKOVIC BELMA, MEMORANDUM *
PREJLOBAC SEJAD;,
Plaintiffs - Appellants,
v.
CITY OF SAN JOSE; SAN JOSE
POLICE DEPT; DONALD GUESS
individually and in his official capacity;
STARBUCKS; MANAGER
STARBUCKS, individually and in her
official capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, Magistrate Judge, Presiding
Argued and Submitted December 8, 2009
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: O’SCANNLAIN, RAWLINSON and BEA, Circuit Judges.
Plaintiffs appeal the district court’s (1) order granting summary judgment to
the City of San Jose and the San Jose Police Department, (2) decision to preclude
one of Plaintiffs’ expert witnesses from testifying on an issue not mentioned in his
expert witness report, and (3) refusal to give Plaintiffs’ proposed jury instruction.
We affirm.
The district court did not abuse its discretion when it precluded Plaintiffs’
expert from testifying about police officers’ obligation to approach an encounter
with an emotionally disturbed individual differently than they would approach an
encounter with other individuals. Rule 26(a)(2)(B)(i) of the Federal Rules of Civil
Procedure requires expert witnesses to prepare a written report that contains “a
complete statement of all opinions the witness will express and the basis and
reasons for them.” “If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use that information or
witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The burden is
on the party facing discovery sanctions to show that its failure to comply with Rule
26 was substantially justified or harmless. Torres v. City of Los Angeles, 548 F.3d
1197, 1213 (9th Cir. 2008).
2
The Rule 26 report provided by Plaintiffs’ expert did not include his opinion
on the issue of police encounters with emotionally disturbed individuals. Further,
the exceptions to Rule 37 do not apply because Plaintiffs have not satisfied their
burden of showing that their discovery violation was substantially justified or
harmless.
The district court did not abuse its discretion when it refused to instruct the
jury that Bojcic’s mental health was a factor the jury must consider in determining
whether Defendant Officer Guess’s use of force was reasonable because the district
court instructed the jury to consider “all of the circumstances known to Officer
Guess on the scene.” A district court does not abuse its discretion when it refuses
to give a proposed jury instruction if the instruction given to the jury leaves a party
with “ample room to argue his theory of the case to the jury.” Brewer v. City of
Napa, 210 F.3d 1093, 1097 (9th Cir. 2000). In an excessive force case, a district
court’s use of a general “totality of the circumstances” instruction is not an abuse
of discretion, even if the plaintiff requests a “more detailed instruction[] addressing
the specific factors to be considered in the reasonableness calculus.” Id. (citing
Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995)). A general instruction
leaves the party that requested a more specific instruction “free to argue” other
factors to the jury. Fikes, 47 F.3d at 1014. Here, Officer Guess testified he
3
recognized Bojcic was not “mentally stable” before he fired his Taser at Bojcic; the
jury was free to consider this fact when it determined whether the use of force was
reasonable.
We need not address whether the district court erred when it granted
summary judgment to the City of San Jose and the San Jose Police Department on
Plaintiffs’ 42 U.S.C § 1983 claim because such error would be harmless. “If no
constitutional violation occurred, the municipality cannot be held liable and
whether ‘the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.’” Long v. City and
County of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007) (quoting City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986)). The jury found Officer Guess did
not violate Bojcic’s constitutional rights, and we do not disturb that finding on
appeal. Therefore, neither the City of San Jose nor the San Jose Police Department
can be held liable under § 1983.
AFFIRMED.
4