                                                                               FILED
                             NOT FOR PUBLICATION                               MAY 03 2016

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



                              FOR THE NINTH CIRCUIT


ROBERT HACKWORTH, Jr.,                            No. 13-17203

                Plaintiff - Appellant,            D.C. No. 1:06-cv-00850-BAM

 v.
                                                  MEMORANDUM*
P. RANGEL, Correctional Officer,

                Defendant - Appellee.


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

                              Submitted April 26, 2016***

Before:         McKEOWN, WARDLAW and PAEZ, Circuit Judges.

      Robert Hackworth, Jr., a California state prisoner, appeals pro se from the

district court’s judgment in favor of defendant following a jury trial in



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hackworth’s 42 U.S.C. § 1983 action alleging an Eighth Amendment excessive

force claim. We have jurisdiction under 28 U.S.C. § 1291. We review for an

abuse of discretion. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1110 (9th Cir.

2011) (evidentiary rulings); United States v. Romero-Avila, 210 F.3d 1017, 1024

(9th Cir. 2000) (district court’s response to a question from the jury). We affirm.

      The district court did not abuse its discretion in excluding the emergency

room report, investigative report, and audio in the interview video as hearsay. See

United States v. Romo-Chavez, 681 F.3d 955, 959 (9th Cir. 2012) (“When an out-

of-court statement is offered to prove the truth of the matter asserted, it is hearsay

and generally inadmissible.”). Contrary to Hackworth’s contention, this evidence

did not qualify as a present sense impression or statement of then-existing physical

condition. See Fed. R. Evid. 803(3) (statement of then-existing physical condition

does not include “a statement of memory or belief to prove the fact remembered or

believed”); Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995) (“We have held

that to qualify [as a present sense impression], an out-of-court statement must be

nearly contemporaneous with the incident described and made with little chance

for reflection.”). We reject Hackworth’s contentions that the exclusion of this

evidence denied him a fair trial or violated his due process rights.




                                           2                                     13-17203
       The district court did not abuse its discretion in declining to further define

the term “sadistically,” and instead referring the jury to similar terms defined in the

jury instructions and instructing the jury to use its common sense. See United

States v. Solomon, 825 F.2d 1292, 1295 (9th Cir. 1987) (“Although the trial court

is obliged to ‘eliminate confusion when a jury asks for clarification of a particular

issue,’ the ‘necessity, extent and character’ of supplemental instructions, lies

within the discretion of the trial court.”).

       Because the jury issued a verdict for defendant, Hackworth was not entitled

to nominal damages.

       AFFIRMED.




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