Allen Shay v. County of Los Angeles ( 2021 )

FILED
NOT FOR PUBLICATION
MAR 19 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALLEN BERNARD SHAY, No. 19-56482
Plaintiff-Appellant, D.C. No.
2:15-cv-04607-CAS-RAO
v.
COUNTY OF LOS ANGELES; LOS MEMORANDUM*
ANGELES COUNTY SHERIFF’S
DEPARTMENT; CHRISTOPHER
DERRY, Deputy; DOES, 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted March 17, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
Allen Shay appeals pro se the judgment after a jury verdict on his 42
U.S.C. § 1983 claims against Detective Christopher Derry, the County of Los
*
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).
Angeles, and the Los Angeles County Sheriff’s Department for violating his
Fourteenth Amendment rights. He also appeals the district court’s grant of
summary judgment for Derry, the County, and the Sheriff’s Department on his
other claims. We affirm.1
The district court’s failure to instruct the jury that it should inform the court
about any confusing, ambiguous, or unclear language in the instructions was not
error, let alone plain error. Shay did not ask for that instruction in the district
court. Nor was the court otherwise required to give it. See Skidmore v. Led
Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (en banc); Erickson Prods., Inc. v.
Kast, 921 F.3d 822, 832 (9th Cir. 2019). It was enough for the district court to
instruct the jury that if it needed to communicate with the court or ask a question
during its deliberations, it could contact the court by sending a note through the
bailiff. As a result, the omission of a specific instruction telling the jury to inform
the court about any ambiguity was not error. Reviewing the instructions as a
whole, we conclude that they adequately covered the issues presented, correctly
1
We grant Shay’s motion (9th. Cir. Dkt. 23) to file a late reply brief.
2 19-56482
stated the law, and were not confusing. See Erickson Prods., 921 F.3d at 828.2
Thus, the jury instructions as formulated were not erroneous and do not warrant
reversal of the verdict.
We decline to review Shay’s other claims on appeal. Because a prior panel
of this court has already reviewed and affirmed the district court’s grant of
summary judgment for Derry, the County, and the Sheriff’s Department on Shay’s
other claims, the law of the case doctrine precludes our review of those claims
here. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc);
Shay v. County of Los Angeles, 762 F. App’x 416, 417–18 (9th Cir. 2019). Nor do
we consider arguments raised for the first time on appeal. See Baccei v. United
States, 632 F.3d 1140, 1149 (9th Cir. 2011); Nitco Holding Corp. v. Boujikian, 491
F.3d 1086, 1089–90 (9th Cir. 2007). As a result, none of Shay’s other arguments
on appeal warrant reversal.
AFFIRMED.
2
We will not permit Shay to impeach the verdict by using juror statements
about their mental processes. See Fed. R. Evid. 606(b)(1); United States v. Leung,
796 F.3d 1032, 1036 (9th Cir. 2015).
3 19-56482