                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 24 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


THOMAS JOHN HEILMAN,                             No.   15-15912

              Plaintiff-Appellant,               D.C. No.
                                                 2:11-cv-00042-JAM-EFB
 v.

C. CHERNISS, Correctional Officer; et al.,       MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                     Argued and Submitted October 19, 2017
                            San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.


      **
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Thomas Heilman appeals the district court’s order granting Cherniss’s and

Lesane’s motion for summary judgment. We have jurisdiction under 28 U.S.C.

§ 1291.

      Cherniss and Lesane concede that the district court: (1) erred when it

disregarded material disputes of fact that bear on whether the defendants violated

the Fourth and Eighth Amendments; and (2) abused its discretion by excluding the

declarations of Oliver Overton, Victor Cordero, and Daniel Patillo without

considering their admissibility under Rule 415 of the Federal Rules of Evidence.

The district court therefore erred in granting summary judgment in favor of

Cherniss and Lesane.

      Heilman failed to “specifically and distinctly” argue in his opening brief on

appeal that the searches that occurred prior to May 17, 2010 were unconstitutional

and that the declarations of Overton, Cordero, and Patillo were admissible under

Rule 404(b)(2) of the Federal Rules of Evidence. See Greenwood v. F.A.A., 28

F.3d 971, 977 (9th Cir. 1994). These claims are therefore waived on appeal. See

id. Issues waived on appeal, however, can be raised on remand in light of our

reversal of the summary judgment. See Kelson v. City of Springfield, 767 F.2d

651, 657 (9th Cir. 1985).

      REVERSED AND REMANDED.


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