                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 24 2013

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




                            FOR THE NINTH CIRCUIT



MICHAEL IZELL SEALS,                             No. 11-16356

              Plaintiff - Appellant,             DC No. 1:04 cv-03764 NJV

  v.
                                                 MEMORANDUM *
RODNEY K. MITCHELL; et al.,

and

JOHN RYNHART, Officer; LYLE
THOMAS, Officer, Lake County Sheriff’s
Department,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Nandor J. Vadas, Magistrate Judge, Presiding

                      Argued and Submitted January 14, 2013
                            San Francisco, California

Before:       NOONAN, TASHIMA, and GRABER, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Michael Izell Seals claims that Lake County, California, Sheriff’s

Department Officers John Rynhart and Lyle Thomas used excessive force during

Seals’ arrest for cocaine possession. The officers maintain that they used

reasonable force to prevent Seals from swallowing a bag of cocaine. The arrest led

to Seals’ conviction, affirmed on appeal, for possession and transportation of

cocaine base. People v. Seals, 2006 WL 1613986, at *1 (Cal. Ct. App. 2006).

      Seals brought action under 42 U.S.C. § 1983, claiming that his right

shoulder sustained injury during the arrest. The officers’ medical expert, an

orthopaedic surgeon, reviewed Seals’ medical records and testified that Seals

suffered a congenital shoulder abnormality, documented in medical records

predating his arrest, that made him vulnerable to the condition he suffered: an

“impingement” of the shoulder. Accordingly, the physician opined that Seals’

shoulder pain was not caused by the arrest. Following a three-day trial during

which Seals was represented by appointed counsel, the jury returned a verdict in

favor of the officers. Seals’ motion for a new trial was denied.

      Seals now appeals. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      1.     The court discharged its duty under Daubert v. Merrell Dow Pharm.,

Inc., 509 U.S. 579, 597 (1993), by conducting a full gateway hearing – outside the


                                          2
jury’s presence – in which it considered the bases of the physician’s opinion and

the method by which he formed it. It is of no consequence that the physician was

unsure, at the time of his deposition, whether, in this particular lawsuit, Seals was

alleging injury arising from his arrest or from an incident that occurred two months

later while Seals was in prison. The physician’s opinion rested on a review of

Seals’ medical records – most of which predated both incidents – indicating that

Seals had complained of right shoulder pain before the arrest and that a congenital

condition made his shoulder susceptible to impingement. At the Daubert hearing,

the physician also testified that he understood the difference between the two

incidents. We conclude that the district court had ample reason to find this

testimony reliable under Daubert. See Mukhtar v. Cal. State Univ., 299 F.3d 1053,

1064 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).

      2.     The district court did not err in denying Seals’ motion for a new trial.

Whether Seals possessed cocaine on the night of his arrest was a question highly

relevant to the officers’ qualified immunity defense that their use of force was

reasonable, in part, because Seals was about to swallow a bag of narcotics.

Nothing in the district court’s order on the parties’ motions in limine prevented the

officers from introducing evidence concerning the facts and circumstances of the

arrest. Moreover, Seals opened the door to this line of questioning by denying that


                                           3
he possessed cocaine on the night of his arrest despite his admission, on direct

examination, that this arrest led to his conviction for cocaine possession and

transportation. We conclude that the court did not abuse its discretion in

permitting the challenged line of questioning and denying Seals’ Rule 59 motion

for a new trial.

       3.     Because there was not even a single evidentiary error, Seals’

contention of cumulative error must fail.

       AFFIRMED.




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