NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 24 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TION ALONZO HILL, Sr., No. 15-16468
Plaintiff-Appellant, D.C. No. 3:09-cv-05434-TEH
v.
MEMORANDUM*
JOSHUA ARNOLD, Deputy, and
VICTOR SANCHEZ, Sergeant,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Submitted April 19, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and FERNANDEZ and MURGUIA, Circuit
Judges.
On July 13, 2009, a fight broke out between inmates at San Francisco
County Jail #5. Standing nearby, but not directly involved, was pretrial detainee
*
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).
Tion Hill. Deputy Joshua Arnold and Sergeant Victor Sanchez (collectively,
“Defendants”) responded to the incident, contained the situation, and ordered all
the inmates back to their cells. Hill returned to his cell as instructed. Hill alleges
that Defendants then entered his cell, cuffed him, and violently transported him to
administrative segregation. Defendants present a different version of events,
claiming that they cuffed and escorted Hill to administrative segregation without
any undue violence.
Hill filed a lawsuit alleging excessive force in violation of his Fourteenth
Amendment rights as a pretrial detainee. During discovery, Defendants produced
two prior grievances alleging excessive force against Deputy Arnold and two prior
inmate grievances alleging excessive force against Sergeant Sanchez. Before trial,
Defendants filed a motion in limine to exclude evidence of these inmate grievances
as improper character evidence under Federal Rule of Evidence 404.
In his opposition, Hill did not discuss the substance of these inmate
grievances, nor did he attach copies of these inmate grievances for the district court
to evaluate. The district court granted Defendants’ motion and excluded the inmate
grievances. The case then proceeded to trial where Hill and Defendants presented
conflicting versions of the incident. After a five-day trial, the jury rendered a
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verdict in favor of Defendants. Hill timely appeals, challenging the district court’s
evidentiary ruling. We affirm.
A district court’s exclusion of evidence is reviewable on appeal only if “a
party informs the [district] court of [the] substance by an offer of proof, unless the
substance [of the evidence] was apparent from the context.” Fed. R. Evid.
103(a)(2); Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 887 (9th Cir. 1991)
(stating that a party challenging exclusion of evidence “must have attempted to
introduce the evidence [that] was improperly excluded to preserve the[] right to
appeal”).
Hill acknowledges that he failed to make an offer of proof, but he argues that
his failure should be excused because the substance of the inmate grievances was
sufficiently obvious from his opposition to Defendants’ motion in limine. Not so.
Hill’s opposition did nothing more than reference the existence of inmate
grievances against Defendants without providing any detail. Such a cursory
description poses a problem because a court reviewing admissibility of prior acts
must determine whether the prior acts are sufficiently similar to the conduct
complained of in the present case. See United States v. Ayers, 924 F.2d 1468, 1473
(9th Cir. 1991). Without a more specific description, or an offer of proof, both the
district court and this Court are left in the dark and cannot adequately assess the
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admissibility of these inmate grievances. Therefore, Hill forfeited his evidentiary
appeal by failing to make an offer of proof.
AFFIRMED.
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