                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 28 2015
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CEDRIC R. ALLEN,                                 No. 13-17467

              Plaintiff - Appellant,             D.C. No. 1:05-cv-00146-SAB

 v.
                                                 MEMORANDUM*
J. RIVERA, et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                 Stanley Albert Boone, Magistrate Judge, Presiding

                     Argued and Submitted September 16, 2015
                             San Francisco, California

Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.

      Following an incident on June 4, 2004, petitioner Cedric Allen filed a pro se

complaint under 42 U.S.C. § 1983 alleging excessive force and deliberate

indifference to serious medical needs in violation of the Eighth Amendment on the

part of various staff members of California State Prison-Corcoran. The district



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court dismissed some claims and granted judgment as a matter of law to the

defendant on another; a jury returned a verdict for the defendants on the remaining

claims. Allen raises several issues on appeal.

      1. The district court properly dismissed Allen’s deliberate indifference

claim against Dr. Felin for failure to state a claim. To state a claim, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief

that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Id.

      Allen’s bare allegation that Felin removed his stitches early for the purpose

of causing pain does not clear this plausibility threshold. Allen alleges no facts

supporting the assertion that Felin was deliberately indifferent to the infliction of

pain, nor does he explain how removal of his stitches earlier than another doctor

recommended demonstrates deliberate indifference rather than medical

disagreement or, at most, negligence. Similarly, the manner in which the stitches

were removed may indicate negligence, but does not give rise to a plausible




                                            2
inference of deliberate indifference to the infliction of pain. Without more, the

district court did not err in concluding that this allegation failed to state a claim.

      2. The district court properly granted judgment as a matter of law to Battles

with respect to Allen’s excessive force claim, although not for the reason it gave.1

The district court granted judgment as a matter of law to Battles after incorrectly

asserting that there had been no evidence whatsoever that Battles was involved in

the incident. We may, however, affirm on any ground supported by the record.

City Solutions Inc. v. Clear Channel Commc’ns, Inc., 365 F.3d 835, 842 (9th Cir.

2004).

      Allen testified that his lip was bleeding and his nose was running prior to the

application of the spit mask. The defendants presented uncontradicted testimony

that a spit mask is properly applied not only to prevent spitting but whenever there

is a threat of transmission of bodily fluid. Allen admitted that he had assaulted one

of the officers. Although Allen was otherwise incapacitated through restraints, the

officers escorting him had reason to protect themselves from purposeful or



      1
         Allen also claims on appeal that the district court erred in dismissing a
claim against Battles for deliberate indifference to serious medical needs. It is not
clear from the record that Allen ever alleged a deliberate indifference claim against
Battles. In any case, because the facts underlying any such claim were the same as
those underlying the excessive force claim, our discussion of the latter suffices to
dispose of the former.
                                            3
inadvertent transmission of bodily fluids. Even though Allen had some difficulty

breathing with the spit mask on, there is no evidence that the impact on his

breathing affected his ability to function, caused him pain, or had any effect on his

health once the mask was removed. There was therefore not substantial evidence

from which a jury could have concluded that Battles applied the spit mask

“maliciously and sadistically for the very purpose of causing harm,” as is required

for an Eighth Amendment excessive force claim. Whitley v. Albers, 475 U.S. 312,

320–21 (1986) (citation and internal quotation marks omitted).

      3. Finally, Allen contends that the district court abused its discretion in

admitting prejudicial evidence relating to the general character and disciplinary

violations of other inmates of the prison’s Security Housing Unit (SHU). Allen

argues that this evidence was unfairly prejudicial within the meaning of Federal

Rule of Evidence 403 in that it invited the jury to impute to him violations

committed by other inmates.2

      “The decision to admit potentially prejudicial evidence under Rule 403 is

‘committed to the sound discretion of the trial court.’” Boyd v. City & Cnty. of San



      2
        Allen also argues that the evidence constituted improper character evidence
under Federal Rule of Evidence 404. Because the evidence referred only to the
character and past acts of other inmates, however, it is properly evaluated under
Rule 403.
                                          4
Francisco, 576 F.3d 938, 948 (9th Cir. 2009) (quoting United States v. Blitz, 151

F.3d 1002, 1008 (9th Cir. 1998)). Allen never objected to the evidence at trial, and

his pretrial motion in limine sought to exclude only evidence relating to his own

disciplinary record. Where a party fails to raise a specific objection to the evidence

in question, “we review . . . only for plain error affecting substantial rights.”

United States v. Campos, 217 F.3d 707, 712 (9th Cir. 2000). Because the officers’

perception of the threat posed by Allen as a SHU inmate was indisputably relevant

to the question whether the force they employed was excessive, we cannot

conclude that the district court’s decision to admit this evidence was so severe an

abuse of discretion as to constitute plain error. See Harman v. Apfel, 211 F.3d

1172, 1175 (9th Cir. 2000) (“Normally, the decision of a trial court is reversed

under the abuse of discretion standard only when the appellate court is convinced

firmly that the reviewed decision lies beyond the pale of reasonable justification

under the circumstances.”).

      AFFIRMED.




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