                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 02 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ROBERT MORRIS,                                   No. 12-17105

              Plaintiff - Appellant,             D.C. No. 1:08-cv-01422-AWI-
                                                 MJS
  v.

CHRISTOPHER LONG, Officer, Fresno                MEMORANDUM*
Police Department,

              Defendant - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                     Argued and Submitted December 8, 2014
                            San Francisco, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and NAVARRO, Chief
District Judge.**

       Plaintiff-Appellant Robert Morris (Morris) appeals the district court’s entry

of judgment in favor of Defendant-Appellee Officer Christopher Long (Long)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Gloria M. Navarro, Chief District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
following a jury verdict rejecting Morris’ claim that Long engaged in excessive

force in violation of the Fourth Amendment. We affirm.



      1.     The district court acted within its discretion when it denied Morris’

proposed theory of the case jury instruction because the instructions given by the

court “fairly” covered Morris’ Fourth Amendment excessive force claim and

enabled the jury to consider Morris’ theory of the case. Gantt v. City of Los

Angeles, 717 F.3d 702, 707 (9th Cir. 2013) (“In evaluating jury instructions,

prejudicial error results when, looking to the instructions as a whole, the substance

of the applicable law was not fairly and correctly covered. . . .”) (citation and

alteration omitted); Dang v. Cross, 422 F.3d 800, 809 (9th Cir. 2005) (“It is not

error to reject a theory-of-the-case instruction if the other instructions in their

entirety cover the case theory . . .”) (citation and alteration omitted).



      2.     The district court acted within its discretion when it excluded

evidence of Long’s alleged dishonest conduct because, assuming the evidence fell

within the scope of Federal Rule of Evidence 608(b), the district court could

properly conclude under Federal Rule of Evidence 403 that the evidence was more




                                            2
prejudicial than probative and risked confusing the issues and misleading the jury.

See United States v. Espinoza-Baza, 647 F.3d 1182, 1189-90 (9th Cir. 2011).



      3.     The district court acted within its discretion when it excluded “other

acts” evidence Morris sought to introduce under Federal Rule of Evidence 404(b).

At best, the proffered evidence tended only slightly “to prove a material point,”

United States v. Ramos-Atondo, 732 F.3d 1113, 1123 (9th Cir. 2013), and the

district court could have properly concluded under Federal Rule of Evidence 403

that the limited probative value of the evidence was outweighed by the potential

undue prejudice, consumption of time, and risk of misleading the jury. See United

States v. Wiggan, 700 F.3d 1204, 1213 (9th Cir. 2012) (“Where the evidence is of

very slight (if any) probative value, it’s an abuse of discretion to admit it if there’s

even a modest likelihood of unfair prejudice or a small risk of misleading the

jury.”) (citation omitted).



      4.     The district court acted within its discretion when it excluded the

ambulance record Morris sought to admit under Federal Rule of Evidence 803(7)

because Morris failed to lay an adequate foundation. See United States v. Regner,

677 F.2d 754, 762 (9th Cir. 1982) (explaining that “testimony as to the nature of


                                            3
recordkeeping . . . is required before evidence may be received [under Federal Rule

of Evidence 803(7)]”) (citations omitted).

      AFFIRMED.




                                         4
