                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 10 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ESTATE OF ZAIM BOJCIC; AJNIJA                    No. 07-17343
BOJCIC; NURKO BADETA; NURKO
MITHAT; NURKO ANZDA; NURKO                       D.C. No. CV-05-03877-RS
AMELA; TUCAKOVIC LARIFA;
TUCAKOVIC SMAZL; TUCAKOVIC
HIHAD; TECAKOVIC BELMA,                          MEMORANDUM *
PREJLOBAC SEJAD;,

             Plaintiffs - Appellants,

  v.

CITY OF SAN JOSE; SAN JOSE
POLICE DEPT; DONALD GUESS
individually and in his official capacity;
STARBUCKS; MANAGER
STARBUCKS, individually and in her
official capacity,

             Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Richard Seeborg, Magistrate Judge, Presiding

                     Argued and Submitted December 8, 2009
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: O’SCANNLAIN, RAWLINSON and BEA, Circuit Judges.

      Plaintiffs appeal the district court’s (1) order granting summary judgment to

the City of San Jose and the San Jose Police Department, (2) decision to preclude

one of Plaintiffs’ expert witnesses from testifying on an issue not mentioned in his

expert witness report, and (3) refusal to give Plaintiffs’ proposed jury instruction.

We affirm.

      The district court did not abuse its discretion when it precluded Plaintiffs’

expert from testifying about police officers’ obligation to approach an encounter

with an emotionally disturbed individual differently than they would approach an

encounter with other individuals. Rule 26(a)(2)(B)(i) of the Federal Rules of Civil

Procedure requires expert witnesses to prepare a written report that contains “a

complete statement of all opinions the witness will express and the basis and

reasons for them.” “If a party fails to provide information or identify a witness as

required by Rule 26(a) or (e), the party is not allowed to use that information or

witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure

was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The burden is

on the party facing discovery sanctions to show that its failure to comply with Rule

26 was substantially justified or harmless. Torres v. City of Los Angeles, 548 F.3d

1197, 1213 (9th Cir. 2008).


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      The Rule 26 report provided by Plaintiffs’ expert did not include his opinion

on the issue of police encounters with emotionally disturbed individuals. Further,

the exceptions to Rule 37 do not apply because Plaintiffs have not satisfied their

burden of showing that their discovery violation was substantially justified or

harmless.

      The district court did not abuse its discretion when it refused to instruct the

jury that Bojcic’s mental health was a factor the jury must consider in determining

whether Defendant Officer Guess’s use of force was reasonable because the district

court instructed the jury to consider “all of the circumstances known to Officer

Guess on the scene.” A district court does not abuse its discretion when it refuses

to give a proposed jury instruction if the instruction given to the jury leaves a party

with “ample room to argue his theory of the case to the jury.” Brewer v. City of

Napa, 210 F.3d 1093, 1097 (9th Cir. 2000). In an excessive force case, a district

court’s use of a general “totality of the circumstances” instruction is not an abuse

of discretion, even if the plaintiff requests a “more detailed instruction[] addressing

the specific factors to be considered in the reasonableness calculus.” Id. (citing

Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995)). A general instruction

leaves the party that requested a more specific instruction “free to argue” other

factors to the jury. Fikes, 47 F.3d at 1014. Here, Officer Guess testified he


                                           3
recognized Bojcic was not “mentally stable” before he fired his Taser at Bojcic; the

jury was free to consider this fact when it determined whether the use of force was

reasonable.

      We need not address whether the district court erred when it granted

summary judgment to the City of San Jose and the San Jose Police Department on

Plaintiffs’ 42 U.S.C § 1983 claim because such error would be harmless. “If no

constitutional violation occurred, the municipality cannot be held liable and

whether ‘the departmental regulations might have authorized the use of

constitutionally excessive force is quite beside the point.’” Long v. City and

County of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007) (quoting City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986)). The jury found Officer Guess did

not violate Bojcic’s constitutional rights, and we do not disturb that finding on

appeal. Therefore, neither the City of San Jose nor the San Jose Police Department

can be held liable under § 1983.

      AFFIRMED.




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