Steve Kassab v. S Skinner ( 2018 )

FILED
NOT FOR PUBLICATION
APR 25 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KASSAB, No. 15-55553
Plaintiff-Appellant, D.C. No.
3:07-cv-01071-BAS-JLB
v.
S SKINNER, Officer, I.D. 5019, an MEMORANDUM*
individual; RUBEN HERNANDEZ,
Officer, I.D. 5056, an individual,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted April 20, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Steve Kassab appeals pro se from the district court’s denial of his post-
judgment motion for a new trial in his 42 U.S.C. § 1983 action alleging excessive
*
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).
force following a jury verdict for defendants. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion by denying Kassab’s motion
for a new trial. Kassab failed to set forth any basis for relief. See Molski v. M.J.
Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (grounds for a new trial under Fed.
R. Civ. P. 59(a)).
The district court’s finding that there was sufficient evidence to support the
jury’s verdict was correct. See Harper v. City of Los Angeles, 533 F.3d 1010, 1021
(9th Cir. 2008) (“A jury's verdict must be upheld if it is supported by substantial
evidence, which is evidence adequate to support the jury's conclusion, even if it is
also possible to draw a contrary conclusion.” (citation omitted)).
The district court did not err by denying the motion for a new trial based on
its evidentiary rulings, all of which were well within the court’s discretion. See
Wagner v. Cty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013) (setting forth
standard of review).
First, because motive is irrelevant to an inquiry into whether any use of force
was excessive, the district court did not abuse its discretion by excluding evidence
concerning defendants’ alleged motive behind Kassab’s arrest. See Fed. R. Evid.
402 (“Irrelevant evidence is not admissible.”); Graham v. Connor, 490 U.S. 386,
2 15-55553
397 (1989) (“[T]he question [in an excessive force inquiry] is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.”
(citation omitted)).
Second, because Kassab provided inaccurate and misleading testimony
regarding his prior conviction, the district court did not abuse its discretion by
permitting defendants to introduce clarifying evidence regarding it. See United
States v. Osazuwa, 564 F.3d 1169, 1175-76 (9th Cir. 2009) (if a party “opens the
door by introducing potentially misleading testimony,” the opposing party “may
introduce evidence on the same issue to rebut any false impression that might have
resulted from the earlier admission” (emphasis in original; citations and internal
quotation marks omitted)).
Third, the district court did not abuse its discretion by excluding Kassab’s
questions to defense witnesses regarding specific acts of alleged misconduct.
Kassab’s questions would not have led to testimony probative of these witnesses’
character for truthfulness and thus were irrelevant to Kassab’s excessive force
claim. See United States v. Olsen, 704 F.3d 1172, 1184 n.4 (9th Cir. 2013)
(Federal Rule of Evidence 608(b) permits inquiry during cross-examination into
specific acts of conduct “if they are probative of the character for untruthfulness of
3 15-55553
the witness . . . .”). Moreover, Kassab failed to demonstrate that any such ruling
substantially prejudiced him. See Ruvalcaba v. City of Los Angeles, 64 F.3d 1323,
1328 (9th Cir. 1995) (“A new trial is only warranted when an erroneous
evidentiary ruling substantially prejudiced a party.” (internal quotation marks and
citation omitted)).
Fourth, the district court did not abuse its discretion in permitting the
testimony of defendants’ expert, Dr. Gary Vilke, a board-certified emergency
department physician with experience in heat-related illnesses. Dr. Vilke’s
testimony was directly relevant to the issue of whether the alleged use of force was
excessive. See Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196-97 (9th
Cir. 2014) (“The relevancy bar is low, demanding only that the evidence logically
advances a material aspect of the proposing party’s case.” (citation and internal
quotation marks omitted)).
Finally, the district court did not abuse its discretion in excluding the
testimony and report of Kassab’s expert Dr. Jacqueline Acevedo Gonzalez. Kassab
failed to designate Dr. Gonzalez as an expert witness as required under Federal
Rule of Civil Procedure 26(a)(2). Furthermore, he did not provide her report until
the first day of trial. See Quevedo v. Trans-Pac. Shipping, Inc., 143 F.3d 1255,
4 15-55553
1258 (9th Cir. 1998) (affirming the exclusion of plaintiff’s expert because plaintiff
designated the expert and disclosed the report in an untimely manner).
The district court did not abuse its discretion by denying the motion for a
new trial based on its denial of Kassab’s request to re-open discovery because
Kassab failed to show that the denial of requested discovery caused him actual and
substantial prejudice. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002)
(providing standard of review for district court’s discovery rulings, and explaining
that the district court’s discretion to deny discovery “will not be disturbed except
upon the clearest showing that denial of discovery results in actual and substantial
prejudice” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion by denying the motion for a
new trial based on its denial of Kassab’s request for a trial continuance. See United
States v. Flynt, 756 F.2d 1352, 1358-59 (9th Cir. 1985) (setting forth standard of
review and factors courts consider when reviewing a denial of a request for a
continuance).
The district court did not abuse its discretion by denying the motion for a
new trial based on its decision to allot ten hours for trial. Kassab failed to
demonstrate that this time limit was unreasonable. See Amarel v. Connell, 102
F.3d 1494, 1513 (9th Cir. 1996), as amended (Jan. 15, 1997) (setting forth standard
5 15-55553
of review and explaining that “[a] district court is generally free to impose
reasonable time limits on a trial.”).
Appellee’s motion (Docket #8) to take judicial notice of documents in
support of Appellees’ opposition to Appellant’s motion to exceed the page limit for
his opening brief is hereby DENIED.
AFFIRMED.
6 15-55553