                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 21 2015

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



                            FOR THE NINTH CIRCUIT


LAMONT SHEPARD,                                  No. 13-15985

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00023-BAM

 v.
                                                 MEMORANDUM*
R. PEREZ et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Barbara McAuliffe, Magistrate Judge, Presiding

                         Argued and Submitted July 9, 2015
                             San Francisco, California

Before: GILMAN,** GRABER, and WATFORD, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
                                                                           Page 2 of 2
      Even if Lamont Shepard did not abandon his failure-to-intervene claim

against Officer Garcia, and even if Shepard was not required to plead a separate

failure-to-intervene claim in addition to his claim for excessive force, see Lolli v.

Cnty. of Orange, 351 F.3d 410, 418 (9th Cir. 2003), any error in the district court’s

decision to grant Officer Garcia’s Rule 50(a) motion was harmless. A failure-to-

intervene claim requires an underlying constitutional violation. The jury, however,

found that the defendants who were directly involved did not use excessive force in

violation of the Eighth Amendment during the incident in question. Shepard does

not challenge that verdict. Thus, Shepard cannot prove that Officer Garcia failed

to intervene in violation of the Eighth Amendment.

      The fact that Officer Garcia’s name was left on the verdict form even though

he had been dismissed from the case does not provide a ground for reversal.

Shepard cites no authority supporting the proposition that such a ministerial

oversight may revive an otherwise invalid claim, and we are aware of none.

      AFFIRMED.
