NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CASH JEROME FERGUSON-CASSIDY, No. 15-56573
Plaintiff-Appellant, D.C. No. 2:14-cv-06768-SVW-JPR
v.
MEMORANDUM*
CITY OF LOS ANGELES; LOS ANGELES
POLICE DEPARTMENT; JACOB
MAYNARD, Police Officer II, LAPD Serial
No. 34820, in his official capacity and in his
individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted November 14, 2017
Pasadena, California
Before: NGUYEN and HURWITZ, Circuit Judges, and EATON,** Judge.
Cash Jerome Ferguson-Cassidy appeals a judgment in favor of the
defendants in this 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
§ 1291 and affirm.
1. Ferguson-Cassidy argues that the district court erred with respect to a
jury instruction concerning the use of excessive force and another relating to his
burden of proof. Because Ferguson-Cassidy failed to object to these instructions at
the time they were given, we review for plain error. See Hunter v. Cty. of
Sacramento, 652 F.3d 1225, 1230 (9th Cir. 2011). The district court has
“substantial latitude” in tailoring jury instructions, see Mockler v. Multnomah Cty.,
140 F.3d 808, 812 (9th Cir. 1998), and its instructions were, far from being clearly
erroneous, correct statements of the law.
2. We review for abuse of discretion the district court’s decision to exclude
evidence of the Board of Police Commissioners’ report on Officer Jacob
Maynard’s use of force. See Harper v. City of L.A., 533 F.3d 1010, 1030 (9th Cir.
2008). The district court excluded this report due to concern that it would confuse
the jury and divert the jury’s attention away from the evidence presented at trial
regarding Maynard’s use of force. The court’s ruling was not an abuse of
discretion, particularly because Ferguson-Cassidy’s counsel was in no way
restricted from introducing any evidence relevant to the shooting and the court also
excluded two other reports with contrary conclusions.
3. Ferguson-Cassidy also argues that the jury’s verdict should be
overturned because Maynard’s use of force was objectively unreasonable. “A
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jury’s verdict must be upheld if it is supported by substantial evidence.” Johnson
v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001) (citation
omitted). Here, a reasonable jury crediting as true Maynard’s testimony could
have concluded that Maynard’s use of force was an objectively reasonable
response to an immediate threat to his own safety. See Graham v. Connor, 490
U.S. 386, 396–97 (1989) (describing the factors to be considered in light of the
totality of the circumstances). Whatever inconsistencies there may have been in
Maynard’s testimony, “[i]t was within the province of the jury to resolve[.]”
United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002).
4. Ferguson-Cassidy also challenges the district court’s denial of his motion
for a new trial. We review this ruling for abuse of discretion. Molski v. M.J.
Cable, Inc., 481 F.3d 724, 728 (9th Cir. 2007). Here, the district court properly
denied the motion for a new trial because there was no showing that “the verdict
[was] contrary to the clear weight of the evidence, [was] based upon false or
perjurious evidence, or [that there was] a miscarriage of justice.” Id. at 729
(quoting Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 510 n.
15 (9th Cir. 2000)).
5. Finally, we review for abuse of discretion a district court’s denial of a
motion for leave to file an amended complaint. Desertrain v. City of L.A., 754
F.3d 1147, 1154 (9th Cir. 2014). Here, in light of Ferguson-Cassidy’s extreme
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delay in seeking leave to amend, the district court did not err in denying his request
to add new defendants and claims on the eve of trial.
AFFIRMED.
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