                                                                           FILED
                           NOT FOR PUBLICATION                             OCT 26 2016

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



                           FOR THE NINTH CIRCUIT


LAMONT SHEPARD,                                  No. 13-15554

              Plaintiff - Appellant,             D.C. No. 1:09-cv-00809-BAM

 v.
                                                 MEMORANDUM*
T. QUILLEN; J. WISE,

              Defendants - Appellees.


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

                      Argued and Submitted August 12, 2015
                            San Francisco, California

Before:       KOZINSKI and TALLMAN, Circuit Judges, and RAYES,** District
              Judge.


      Shepard had to prove both subjective and objective elements to succeed on

his Eighth Amendment excessive force claim. See Hudson v. McMillian, 503 U.S.


          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
          The Honorable Douglas L. Rayes, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
                                                                                  page 2
1, 7–8 (1992). The evidence introduced at trial tended to show that Quillen used

little, if any, force against Shepard. It’s thus more likely than not that the jury

found Quillen didn’t use objectively excessive force. Accordingly, even if the

district court erred in instructing on Quillen’s subjective intent, “it is more

probable than not that the jury would have reached the same verdict had it been

properly instructed.” Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009).

Because we find that Shepard suffered no prejudice even under de novo review, we

need not decide whether the district court violated Federal Rule of Civil Procedure

51 by not asking Shepard whether he objected to the proposed instructions.

      We resolve Shepard’s appeal against Wise in an opinion filed concurrently

herewith.

      AFFIRMED in part, REVERSED in part and REMANDED.

      Costs to Shepard against Wise and to Quillen against Shepard.
