Gregory Kelly v. Lvmpd ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY KELLY, No. 15-16175
Plaintiff-Appellant, D.C. No. 2:12-cv-02074-LRH-
CWH
v.
LAS VEGAS METROPOLITAN POLICE MEMORANDUM*
DEPARTMENT, a Political Subdivision of
the State of Nevada; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 22, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Gregory Kelly appeals pro se from the district court’s judgment following a
jury verdict in his 42 U.S.C. § 1983 action alleging excessive force during his
arrest. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
*
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).
discretion the district court’s decision to admit or exclude expert testimony. Estate
of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en banc). We
affirm.
The district court did not abuse its discretion by excluding the expert
testimony of Dr. Quesada because the testimony would not assist the jury to
understand or determine a fact in issue. See City of Pomona v. SQM N. Am. Corp.,
750 F.3d 1036, 1043-44 (9th Cir. 2014) (setting forth legal standards for exclusion
of expert testimony). Dr. Quesada did not treat Kelly until two years and four
months after the incident allegedly causing his injuries, and Dr. Quesada was
unable to testify that Kelly’s injuries were caused by his arrest and handcuffing.
Moreover, the jury found that the arresting officers did not use excessive force in
arresting the appellant.
The district court did not abuse its discretion by allowing Dr. Peters to
testify as an expert concerning police practices, and did not err by failing to hold a
separate hearing to review Dr. Peters’s qualifications. See Millenkamp v. Davisco
Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009) (“The district court has
discretion whether to hold a Daubert hearing in determining whether to admit
expert testimony.”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
2 15-16175
AFFIRMED.
3 15-16175