                      FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 DENNIS GERALD CLAIBORNE,                    No. 16-16077
           Plaintiff-Appellant,
                                               D.C. No.
                 v.                       2:10-cv-02427-VAP

 BLAUSER, Correctional Officer;
 S. MARTIN, Correctional                       OPINION
 Officer,
          Defendants-Appellees.

       Appeal from the United States District Court
           for the Eastern District of California
    Virginia A. Phillips, Chief District Judge, Presiding

          Argued and Submitted February 6, 2019
                San Francisco, California

                       Filed June 28, 2019

Before: Sidney R. Thomas, Chief Judge, Richard A. Paez,
   Circuit Judge, and Gary Feinerman, * District Judge.

                      Opinion by Judge Paez


    *
     The Honorable Gary Feinerman, United States District Judge for
the Northern District of Illinois, sitting by designation.
2                    CLAIBORNE V. BLAUSER

                          SUMMARY **


                      Prisoner Civil Rights

    The panel reversed the district court’s denial of a motion
for a new trial and remanded in an action brought pursuant
to 42 U.S.C. § 1983 by a convicted state inmate who alleged
that he was shackled without justification during his three-
day trial on his Eighth Amendment excessive force and
deliberate indifference to medical needs claims.

    The panel first noted that although the inmate did not
object to the shackling during trial, he raised the issue in
support of his motion for a new trial. The panel applied plain
error review.

    The panel held that because the inmate’s dangerousness
and flight risk were central issues at the trial, the district
court plainly erred in allowing him to be visibly shackled
without any showing of a sufficient need for such restraints.
The panel held that on remand, the district court would have
discretion to impose shackling during the new trial, but it
could only do so after a full hearing at which officers showed
a compelling need for security and the court considered any
less restrictive alternatives.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      CLAIBORNE V. BLAUSER                  3

                             COUNSEL

Jeremy M. Christiansen (argued), Gibson Dunn & Crutcher
LLP, Washington, D.C.; J. Brett Bylund and Blaine H.
Evanson, Gibson Dunn & Crutcher LLP, Irvine, California;
for Plaintiff-Appellant.

Jaime Ganson (argued) and Arthur B. Mark III, Deputy
Attorneys General; Neah Huynh, Acting Supervising
Deputy Attorney General; Monica N. Anderson, Senior
Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, Sacramento,
California; for Defendants-Appellees.


                             OPINION

PAEZ, Circuit Judge:

     The law has long forbidden the routine use of visible
shackling during a criminal defendant’s trial. Deck v.
Missouri, 544 U.S. 622, 626 (2005). Visible shackling
undermines the presumption of innocence, impedes the
jury’s factfinding process, hampers presentation of a
defense, and affronts the dignity and decorum of judicial
proceedings. Id. at 630–32. In this civil rights case under
42 U.S.C. § 1983, we consider whether the unjustified
shackling of a convicted state inmate during his three-day
trial on Eighth Amendment excessive force and deliberate
indifference claims deprived him of a fair trial in violation
of the federal constitution. 1 Although the inmate did not
object to the shackling during trial, he raised the issue in


   1
       We have jurisdiction pursuant to 28 U.S.C. § 1291.
4                 CLAIBORNE V. BLAUSER

support of his motion for a new trial, which the district court
denied.

    We hold that the district court abused its discretion in
denying a new trial. Because the inmate’s dangerousness
and flight risk were central issues at the trial, the district
court plainly erred in allowing him to be visibly shackled
without any showing of a sufficient need for such restraints.
See Tyars v. Finner, 709 F.2d 1274, 1284–85 (9th Cir. 1983).
We therefore reverse and remand for a new trial.

                              I.

    This appeal arises out of a lawsuit filed by Dennis Gerald
Claiborne who, proceeding pro se, sued Correctional
Officers Jemini Blauser, Greg Martin, and other individual
officials under Section 1983 for the use of excessive force
and deliberate indifference to his medical needs.

                              A.

    Claiborne is a 63-year-old California state prison inmate
in the custody of the California Department of Corrections
and Rehabilitation (“CDCR”). He is serving a 60-years-to-
life sentence under California’s Three Strikes Law for
attempted burglary and receipt of stolen property. People v.
Claiborne, No. B260391, 2015 WL 5146746, at *1 (Cal. Ct.
App. Sept. 2, 2015).

    Claiborne is mobility impaired due to a right knee
replacement in 2007 and ensuing chronic problems with that
knee. Given his condition, Claiborne participates in the
CDCR Disability Placement Program and receives certain
accommodations in prison: he is allowed to use a cane; he is
restricted to housing on the lower level, with no stairs; and,
when escorting Claiborne within the institution, correctional
                  CLAIBORNE V. BLAUSER                      5

staff must use “waist chains” and choose “relatively level
terrain and no obstructions in the path of travel.” Waist
chains are different from traditional handcuffs; whereas the
latter are typically applied behind the back, the former allow
a mobility impaired inmate to keep his hands at his sides
during an escort, which lets him use any prescribed
accommodation devices like a cane. CDCR documents and
conveys information about Claiborne’s accommodations to
prison officials through physician orders known as medical
accommodation “chronos” in his file. Claiborne also wears
a green vest to alert officers that he is mobility impaired.

    The incident between Claiborne and Officers Blauser
and Martin took place on May 3, 2010, while Claiborne was
housed at California’s High Desert State Prison, a Level
Four security prison. As Claiborne was waiting for his
medication in the morning “pill line,” Correctional Officer
Daniel McBride, stationed in an observation tower, believed
he saw Claiborne socializing with other inmates in the line.
Officer McBride called Officer Blauser, who was working
in Claiborne’s housing unit along with her partner, Officer
Martin, and asked Blauser to counsel Claiborne for
unnecessarily lingering in the pill line. After waiting thirty
minutes in the pill line, Claiborne received his medication
and returned to his housing unit where he was admonished
by Officer Blauser. She decided to “put a cap” on
Claiborne’s door, meaning he would spend the rest of the
day locked up in his cell. Because Claiborne had intended
to present at a Bible study group later that day, he asked to
speak with the sergeant, Officer Blauser’s supervisor, to
contest the punishment and explain that he had been properly
waiting in line and not socializing.

   The account of the facts diverge drastically from there.
According to Claiborne, he was acting respectfully toward
6                 CLAIBORNE V. BLAUSER

Officer Blauser when she told him to “cuff up.” He
complied and, as Officers Blauser and Martin started to
escort him, Claiborne informed them that it was difficult for
him to walk and use his cane with his hands cuffed behind
his back. He mentioned his chrono for waist chains but
Officer Blauser told Officer Martin to take Claiborne’s cane.
Officer Martin said he would help hold Claiborne up as the
three of them walked to the program office to speak with the
sergeant. Claiborne, however, had difficulty walking with
Officers Blauser and Martin. They escorted him straight
across the yard, rather than along the sidewalk circling the
yard, despite Claiborne’s chrono providing for level terrain.
Because the yard was uneven, Claiborne hyperextended his
right leg, causing his knee to give out partway across the
yard. Claiborne lost balance and shifted rightward, causing
Officer Blauser to order him to stop resisting. Claiborne
tried to explain that he was not resisting and that his knee
was bothering him because the officers were pulling him too
quickly.

    When the three were almost at the program office,
Claiborne’s right leg hyperextended again as he tried to pick
the leg up three to five inches from the dirt yard onto the
pavement. Because he had no cane to catch himself,
Claiborne leaned to his right again, causing Officer Blauser
to shout “he’s resisting” and pull him down to the ground.
She jumped on his right side, including his replaced knee,
and pulled his hair and hit him in the face a few times. Other
officers quickly rushed to the scene and Claiborne heard
individuals ask, “Where’s his cane?” and “Why isn’t he in
waist chains?” Claiborne was eventually taken into a
holding cell and then interviewed by a sergeant, which was
recorded by a video camera. Before turning on the camera
to record the interview, the sergeant warned Claiborne that
if he reported excessive force, he would be taken to the
                  CLAIBORNE V. BLAUSER                      7

“hole,” in other words, administrative segregation, for an
unknown amount of time. Worried about whether his
medical needs would be met in the hole, Claiborne
eventually stated on camera, after extended back-and-forth
with the sergeant, that there was no excessive force used
against him.

     Officers Blauser and Martin presented a different
account. They were both aware of Claiborne’s mobility
impairment at the time of the incident. According to Officer
Blauser, while she counseled Claiborne for lingering in the
pill line, he became “really aggravated” and started raising
his voice at her, causing her to feel uncomfortable.
Claiborne then walked toward her while holding, not using,
his cane. Because she did not feel safe, Officer Blauser told
Claiborne to “cuff up,” and he immediately turned around
and complied. She asked her partner, Officer Martin, to
assist her with escorting Claiborne to the program office.
Officer Martin took Claiborne’s cane, and they each
supported him by holding onto his bicep or arm on each side.
Neither Officer Blauser nor Officer Martin recalled
Claiborne saying anything about needing to use waist chains.
Moreover, because it would have taken a few extra minutes
to obtain waist chains, Officer Blauser decided to use
handcuffs due to Claiborne’s aggression and defiance of her
order to return to his cell.

    According to Officers Blauser and Martin, they escorted
Claiborne straight across the yard because it was the quickest
and most direct path to the program office and avoided
walking amongst other inmates. They escorted him slowly
and did not perceive any problems with his walking. Rather,
they believed that Claiborne tried to break away from them
twice, once halfway across the yard, and a second time close
to the program office. At first, Officer Blauser ordered
8                 CLAIBORNE V. BLAUSER

Claiborne not to pull his arm away but he continued to act
aggressively, yelling and trying to pull away from her.
When Claiborne pulled his arm away from her a second
time, Officer Blauser decided to pull him down and called a
“code one” over the radio. Officers Blauser and Martin used
their weight to hold Claiborne down on the ground. They
denied that Officer Blauser jumped on Claiborne, pulled his
hair or punched him in the face. After other officers escorted
Claiborne away, Sergeant Officer Kenneth Gullion followed
protocol and conducted a video-recorded “use-of-force”
interview, asking Claiborne about what took place. Sergeant
Gullion did not remember what happened prior to
interviewing Claiborne on video. A separate officer wrote
Claiborne up for a rule violation, resisting a peace officer.

    Shortly after the incident, a nurse examined Claiborne
and completed a medical report, noting that he had two
abrasions, one each on his left knee and left cheek.
Afterward, Claiborne experienced more problems with his
right knee, and doctors determined that he had significant
injuries, including bursitis.      Following a series of
evaluations, Claiborne was assessed to have “[f]ailed right
total knee arthroplasty.” He underwent a revision procedure
in 2012, but was told that his knee did not respond properly
to the surgery and could not be fixed any more. Claiborne
also had surgery on one of his shoulders in July 2015, when
he was told that he waited too long to fix it.

                             B.

   After exhausting the prison’s administrative process,
Claiborne filed suit in district court. Proceeding pro se, he
sued Officers Blauser, Martin and other individual officers
under Section 1983 for various claims, including the use of
excessive force and deliberate indifference to his medical
needs in violation of his Eighth Amendment rights. The
                  CLAIBORNE V. BLAUSER                      9

other named defendant officers and other claims, including
battery, negligent infliction of emotional distress and
intentional infliction of emotional distress, were eventually
dismissed from the case. After the district court denied
cross-motions for summary judgment, the case proceeded to
trial on the two Eighth Amendment claims against Officers
Blauser and Martin.

    The trial lasted three days, at the start of which the
district court noted, outside of the jury’s presence, that
Claiborne was shackled. Claiborne testified on his own
behalf, and two fellow inmates also testified on his behalf.
The defense presented testimony from six officers including
Officers Blauser and Martin, the tower guard officer
(McBride), and Sergeant Gullion. The jury reached a verdict
for both defendants on both claims.

     Claiborne filed a timely motion for new trial and relief
from judgment, raising various arguments. Most relevant to
our analysis, Claiborne argued that he was entitled to a new
trial under Federal Rule of Civil Procedure 59(a) because he
was visibly shackled while litigating his case in front of the
jury. He also argued for relief from judgment under Federal
Rule of Civil Procedure 60(b) because the district court
barred his testimony about the Americans with Disabilities
Act (“ADA”), prevented him from introducing or testifying
about his medical records, and denied his request for a
medical expert. The district court dismissed all the
arguments and denied the motion.

                             II.

    When reviewing denial of a motion for new trial under
Federal Rule of Civil Procedure 59(a), our default is to
review for abuse of discretion. See Hung Lam v. City of San
Jose, 869 F.3d 1077, 1084 (9th Cir. 2017). But here,
10                    CLAIBORNE V. BLAUSER

Claiborne did not object to his shackling at trial so we must
address the appropriate standard of review.

    Errors not objected to at trial are generally subject to
waiver or forfeiture. “Forfeiture is the failure to make a
timely assertion of a right, whereas waiver is the intentional
relinquishment or abandonment of a known right.” United
States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc)
(internal quotation marks omitted); see also Crowley v.
EpiCept Corp., 883 F.3d 739, 748 (9th Cir. 2018) (per
curiam) (applying same standard in civil context).
“Forfeited rights are reviewable for plain error, while waived
rights are not.” Id.

    Under plain error review, we may reverse only where:
(1) there was an error; (2) the error was obvious; (3) the error
affected substantial rights; and, (4) the error seriously affects
the fairness, integrity, or public reputation of judicial
proceedings. See C.B. v. City of Sonora, 769 F.3d 1005,
1018–19 (9th Cir. 2014) (en banc). In other words, plain
error requires reversal where “review is necessary to prevent
a miscarriage of justice.” Draper v. Rosario, 836 F.3d 1072,
1085 (9th Cir. 2016) (internal quotation marks omitted).

    Defendants argue that Claiborne forfeited the error
because he failed to object to his shackling at trial, and so,
his claim should be subject to plain error review. 2 Claiborne

     2
        We find no merit to defendants’ alternative argument that
Claiborne invited the error. We impose a high standard for applying the
invited error doctrine. See United States v. Lindsey, 634 F.3d 541, 555
(9th Cir. 2011) (noting that “in order for the invited error doctrine to
apply, a [party] must both invite the error and relinquish a known right”
(citing Perez, 116 F.3d at 845)). Claiborne’s mention of his shackles in
his opening statement, read in context, suggests that he was trying to
introduce himself to the jury and not hide the fact that he is incarcerated.
                      CLAIBORNE V. BLAUSER                             11

contends that plain error is inapplicable because he timely
raised the shackling issue in his motion for a new trial, and
the district court addressed the claim on the merits, holding
that it would have imposed shackling over any objection
because Claiborne is a convicted felon serving a lengthy
prison sentence.

    The district court’s denial of a motion for a new trial is
reversible if the court made a mistake of law. Molski v. M.J.
Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007). As we
elaborate below, we agree that the district court disregarded
the law on shackling. However, in prior cases involving
legal claims that were not raised during trial, we still
undertook plain error review when reviewing a denial of a
motion for a new trial. 3 See, e.g., Settlegoode v. Portland
Pub. Sch., 371 F.3d 503, 517 (9th Cir. 2004) (“There is an
even ‘high[er] threshold’ for granting a new trial where, as
here, [the moving party] failed to object to the alleged
misconduct during trial.” (first alteration in original)
(quoting Kaiser Steel Corp. v. Frank Coluccio Constr. Co.,
785 F.2d 656, 658 (9th Cir. 1986))); Hemmings v. Tidyman’s
Inc., 285 F.3d 1174, 1193 (9th Cir. 2002) (“We will review
for plain or fundamental error, absent a contemporaneous
objection . . .”).


There is no indication in the record that Claiborne, who was pro se in the
district court, “both invited the error, and relinquished a known right” to
a fair trial without shackling. Perez, 116 F.3d at 845.
    3
      This is analogous to our review of instructional error claims when
there was no objection at trial. 11 Charles A. Wright et al., Federal
Practice and Procedure § 2805 (3d ed. 2012). Under Federal Rule of
Civil Procedure 51(d)(2), we review a challenge to civil jury instructions
for plain error in the absence of a timely objection. C.B., 769 F.3d
at 1017–19.
12                    CLAIBORNE V. BLAUSER

    The policy behind plain error review is to ensure that the
parties and district court are on notice as to any alleged errors
so that the court may address the objection, correct any error,
and create a proper record for appeal. See Hemmings,
285 F.3d at 1193 (observing that “the trial judge is in a
superior position to evaluate the likely effect of the alleged
misconduct and to fashion an appropriate remedy”); see also
United States v. $11,500.00 in U.S. Currency, 869 F.3d
1062, 1075 (9th Cir. 2017).

    Here, the district court’s holding on the merits—that it
would have imposed shackling over any timely objection—
does give us some pause as to the standard of review. 4 We
have recognized one limited exception to plain error review
in the civil context, the “pointless formality” exception.
Chess v. Dovey, 790 F.3d 961, 970–72 (9th Cir. 2015); see
also Shorter v. Baca, 895 F.3d 1176, 1182–83 (9th Cir.
2018). In Chess, we declined to apply plain error where the
plaintiff was pro se and “the district court and opposing party
were fully aware of the potential problem with, and would-
be objection to, [a jury] instruction,” even though the
plaintiff did not raise the issue himself. 790 F.3d at 964.
Because the district court and defendants were on notice, we
concluded that “any objection by Chess would have been
‘superfluous and futile,’” id. at 972 (quoting Obsidian Fin.

     4
       The district court’s ruling distinguishes Claiborne’s situation from
that in Hemmings, in which the defendant moved for a new trial based
on inappropriate comments made by the plaintiffs’ counsel in closing
argument. 285 F.3d at 1192. The district court noted that it remembered
the comment and “would have sustained an objection had one been made
because it was totally improper.” Id. at 1192–93. Because a timely
objection would have made a difference and changed the district court’s
actions, application of plain error review was appropriate under the
rationale of giving the trial judge an opportunity to cure any prejudice.
Id. at 1193. That concern does not apply here.
                   CLAIBORNE V. BLAUSER                       13

Grp. v. Cox, 740 F.3d 1284, 1289 (9th Cir. 2014)), and we
declined to “punish a pro se litigant with plain error rather
than de novo review simply because he failed to say the
words ‘I object,’” id. at 971.

     Claiborne, too, was pro se and the district court’s post-
trial ruling suggests that any timely objection would have
been futile. We recognize, however, the policy concerns
behind the plain error doctrine and therefore decline to
review for abuse of discretion. See Hemmings, 285 F.3d at
1193 (noting that “allowing a party to wait to raise the error
until after the negative verdict encourages that party to sit
silent in the face of claimed error”). Accordingly, we review
for plain error.

                              III.

     The district court must grant a motion for a new trial
where “the verdict is against the weight of the evidence,”
“the damages are excessive” or, “for other reasons, the trial
was not fair to the [moving] party.” Montgomery Ward &
Co. v. Duncan, 311 U.S. 243, 251 (1940). Here, we consider
an argument based on the latter. Claiborne, now represented
by pro bono counsel, argues that he was deprived of a fair
trial because he was visibly shackled in front of the jury
throughout the three-day trial, and that the district court erred
by denying his Rule 59(a) motion for a new trial. Even under
the more demanding plain error standard, we agree that the
district court erred in denying Claiborne’s motion for a new
trial.

                               A.

     To understand why the district court plainly erred, we
first review the case law on visible shackling.
14                 CLAIBORNE V. BLAUSER

     It is well established that due process “forbids the use of
visible shackl[ing] . . . during the guilt phase [of a criminal
trial], unless that use is ‘justified by an essential state
interest.’” Deck, 544 U.S. at 624 (citing Holbrook v. Flynn,
475 U.S. 560, 568–69 (1986); Illinois v. Allen, 397 U.S. 337,
343–44 (1970)). The Supreme Court has identified “three
fundamental legal principles” which are “undermined” or
“diminished” by the use of visible restraints. Id. at 630–31.
First, the accused enjoys a presumption of innocence, which
visible shackling undermines by suggesting that the
defendant need be restrained. Id. at 630. This in turn
“undermines . . . the related fairness of the factfinding
process.” Id. Second, the accused has a right to a
meaningful defense from counsel. Id. at 631. Restraints
might physically impair communication between a
defendant and his counsel, or impair the defendant’s
participation in his own defense. Id. “Third, judges must
seek to maintain a judicial process that is a dignified [one].”
Id. Because “[t]he courtroom’s formal dignity . . . includes
the respectful treatment of defendants,” “the use of shackles
at trial ‘affront[s]’ the ‘dignity and decorum of judicial
proceedings that the judge is seeking to uphold.’” Id.
(quoting Allen, 397 U.S. at 344).

    In Deck, the Court held that these considerations apply
with equal force to penalty proceedings in capital cases, even
though “the presumption of innocence no longer applies.”
Id. at 632. Hence, before imposing restraints on criminal
defendants, the trial court must take into account the
particular circumstances of each case, including “special
security needs or escape risks[] related to the defendant,” id.
at 633. Where the court orders visible shackling without
adequate justification, “the defendant need not demonstrate
actual prejudice to make out a due process violation,” and
the burden is on the government to “prove beyond a
                   CLAIBORNE V. BLAUSER                        15

reasonable doubt that the shackling error complained of did
not contribute to the verdict obtained.” Id. at 635 (alterations
and internal quotation marks omitted).

    Prior to Deck, we have long recognized that the
prohibition against routine visible shackling applies even
when the presumption of innocence does not, including in
the civil context. In Duckett v. Godinez, we anticipated Deck
by holding that “shackling a defendant during a [capital]
sentencing hearing before a jury is an inherently prejudicial
practice which comports with due process only when used
as a last resort to protect an essential state interest[,] such as
maintaining public safety or assuring the decorum of the
proceedings.” 67 F.3d 734, 747 (9th Cir. 1995). We have
thus long required trial courts to engage in a two-step process
before shackling a criminal defendant: “[f]irst, the court
must be persuaded by compelling circumstances” that the
measure is necessary to “maintain security[;]” and
“[s]econd, the court must ‘pursue less restrictive alternatives
before imposing physical restraints.” Id. at 748 (internal
quotation marks omitted). We held that it was error to permit
shackling solely on the basis that the defendant was a
convicted felon, and so remanded for the district court to
determine whether this constitutional error was harmless. Id.
at 749–50.

    Notably, we reached our holding in Duckett “by analogy
to the treatment of the shackling issue in civil cases.” Id.
at 748 (citing Tyars, 709 F.2d at 1284–85; Lemons v.
Skidmore, 985 F.2d 354, 356–58 (7th Cir. 1993); and
Holloway v. Alexander, 957 F.2d 529, 530 (8th Cir. 1992)).
As recounted below, this court has recognized the inherent
prejudice associated with unjustified shackling in civil
proceedings as early as 1983, and other circuits have relied
16                 CLAIBORNE V. BLAUSER

on our reasoning to expand the prohibition on routine
shackling to other civil contexts.

    In Tyars, the petitioner challenged the use of restraints to
bind him in the presence of the jury during his involuntary
civil commitment proceedings. 709 F.2d at 1276, 1284. We
observed that “[i]t requires no great extension of Supreme
Court precedent to conclude that this may have violated his
rights under the due process clause.” Id. at 1284. We
reasoned:

       Although the criminal case precedents do not
       necessarily apply in a civil proceeding, we
       find them persuasive. The likelihood of
       prejudice inherent in exhibiting the subject of
       a civil commitment hearing to the jury while
       bound in physical restraints, when the critical
       question the jury must decide is whether the
       individual is dangerous to himself or others,
       is simply too great to be countenanced
       without at least some prior showing of
       necessity. In the absence of any such
       demonstrable or articulable necessity, and in
       the absence of any showing that less
       restrictive means not embodying the same
       potential for prejudice could have maintained
       order in the courtroom, the circumstances
       deprived the proceeding of the appearance of
       evenhanded justice which is at the core of due
       process.

Id. at 1285 (emphasis added) (alterations, internal quotation
marks and citation omitted). We instructed the district court
on remand to “determine whether the State has any
justification . . . to support the necessity of physically
                   CLAIBORNE V. BLAUSER                      17

restraining Tyars in the presence of the jury.” Id. at 1285–
86.

     Since Tyars, at least four other circuits have adopted a
similar test when evaluating the use of shackling in civil
trials. In Lemons, the Seventh Circuit held that it was
impermissible to rely solely on the opinion of a state
corrections officer to shackle a plaintiff prison inmate in a
Section 1983 action alleging excessive force by corrections
officers. 985 F.2d at 356. The plaintiff claimed that
defendant officers attacked and beat him severely in his cell,
while defendants asserted that the plaintiff was “ranting and
raving,” and had to be subdued. Id. at 355. The Lemons
court cited with approval Tyars, id. at 356 n.2, and concluded
that, as in the criminal context, the appearance of a civil
plaintiff in handcuffs and leg irons “suggested to the jury that
the plaintiff was dangerous and violent, so that whatever
force the guards had used was probably necessary, and not
excessive,” id. at 359. “[S]hackles inevitably prejudiced the
jury” because “plaintiff’s tendency towards violence was at
issue.” Id. at 357. The court therefore remanded for a new
trial and required a hearing to determine what, if any,
restraints were necessary. Id. at 359.

    The Eighth Circuit in Holloway also recognized that, as
a general rule, inmate civil plaintiffs should not have to
appear in court in shackles unless there was a showing of
need and steps to mitigate any potential prejudice. 957 F.2d
at 530. The court found no prejudice in Holloway because
the plaintiff challenged the constitutionality of living
conditions in the state prison, which did not raise the
plaintiff’s dangerousness as a merits issue at trial. Id.
(noting that “[t]he fact that Holloway and his witnesses were
security risks inside the courtroom was simply not a factor
18                 CLAIBORNE V. BLAUSER

relevant to [the jury’s] decision” of whether the “living
conditions inside the prison were cruel and inhumane”).

     Relying on Tyars, Lemons and Holloway, the Second
Circuit held that the Supreme Court’s concerns with
shackling in criminal proceedings apply to parties in civil
suits, that physical restraints must be justified on the basis of
safety or security concerns, and that the court must take steps
to minimize prejudice resulting from the presence of the
restraints. See Davidson v. Riley, 44 F.3d 1118, 1122–23 (2d
Cir. 1995). Like the plaintiff in Lemons, Davidson was a pro
se state prisoner who appeared throughout his six-day trial
in his Section 1983 lawsuit in handcuffs and leg irons. Id.
at 1119.       Even though Davidson’s claim involved
correctional officers reading his legal mail, which did not
bear on “either a propensity toward violence or risk of
escape,” the court still found the potential for prejudice to be
significant because “the verdict apparently was to turn on
whether the jury would believe Davidson and his prisoner-
witnesses or the [prison] witnesses.” Id. at 1126. After
determining that the unnecessary imposition of restraints
was not harmless, the court vacated the judgment, remanded
for a hearing on the propriety of restraints, and ordered a new
trial. Id. at 1126–27.

    The Third Circuit most recently joined our court and the
Second, Seventh and Eighth Circuits to hold that “requiring
a party in a civil trial to appear in shackles ‘may well deprive
him of due process unless the restraints are necessary.’”
Sides v. Cherry, 609 F.3d 576, 581 (3d Cir. 2010) (quoting
Davidson, 44 F.3d at 1122). As in Davidson, “the core issue
in Sides’[s] case was credibility.” Id. at 584. The court
ultimately concluded that Sides’s shackling was harmless
because the trial court took multiple steps to mitigate any
prejudice. Id. at 584–85. Notably, however, the court
                      CLAIBORNE V. BLAUSER                             19

rejected an alternative argument that the shackling was
harmless “simply because [Sides’s] propensity for violence
was not directly at issue in the case.” Id. at 584.

    Thus, Tyars, Lemons and Holloway held that where a
plaintiff’s dangerousness is a merits issue, visible shackling
violates due process unless justified on a case-by-case basis
and steps are taken to mitigate prejudice. And, Davidson and
Sides recognized that prejudice may also arise where a core
issue in the civil action is credibility.

                                    B.

    Against this backdrop, we evaluate (1) whether there was
error, (2) whether the error was obvious, (3) whether the
error affected substantial rights, and (4) whether the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings. C.B., 769 F.3d at 1018–19. 5

                                    1.

    We readily conclude that the district court erred in
allowing Claiborne to appear before the jury while shackled
throughout his three-day trial without first determining
whether the shackles were necessary.



     5
       “We may also take into consideration the costs of correcting an
error and—in borderline cases—the effect that a verdict may have on
nonparties, although these considerations are by no means dispositive as
to whether we will exercise our discretion to correct forfeited errors.”
Hoard v. Hartman, 904 F.3d 780, 787 (9th Cir. 2018) (internal quotation
marks omitted). Here, unlike in Hoard, we are not reviewing civil jury
instructions and this is not a borderline case. Therefore, we do not
consider the costs of correcting the error or the effect a verdict may have
on nonparties. See id. at 792 n.11.
20                CLAIBORNE V. BLAUSER

    As in Duckett and Tyars, the record does not demonstrate
any particular reason why Claiborne had to be visibly
restrained in front of the jury. See Duckett, 67 F.3d at 749;
Tyars, 709 F.2d at 1284. His status as a convicted felon is
not sufficient. Duckett, 67 F.3d at 749 (noting that murder
conviction alone is not sufficient basis for shackling a
defendant at sentencing); cf. Lemons, 985 F.2d at 357
(stating that “not all convicted felons are so dangerous and
violent that they must be brought to court and kept in
handcuffs and leg irons”). Claiborne’s criminal record
consisted of nonviolent property and drug offenses.
Claiborne, 2015 WL 5146746, at *1. One of the defendant
officers testified that she never had a conflict with Claiborne
aside from the 2010 incident. It was uncontested at trial that
Claiborne was not considered a violent person in jail.
Finally, there is nothing in the record to indicate that
Claiborne disrupted court proceedings, acted disrespectfully
in court, or attempted to escape. See Duckett, 67 F.3d at 749.
Thus, the district court erred by concluding that it would
have kept Claiborne shackled on the basis that he is a
convicted felon serving a lengthy prison sentence. Such
reasoning fails to perform the particularized consideration of
necessity that we described in Duckett. Id. at 748.

                              2.

    The second prong of the plain error analysis requires the
error to be plain or obvious. Draper, 836 F.3d at 1085. Plain
error “is error that is so clear-cut, so obvious, a competent
district judge should be able to avoid it without benefit of
objection.” United States v. Gonzalez-Aparicio, 663 F.3d
419, 428 (9th Cir. 2011). We agree with Claiborne that the
district court’s failure to address Claiborne’s shackling, and
denial of a new trial based on the shackling, were plainly
erroneous.
                      CLAIBORNE V. BLAUSER                            21

    In 1983, we applied Supreme Court precedent to hold
that there was a due process violation where a civil litigant
“was exhibited to the jury in physical restraints when the
express question it was to decide was whether he was
dangerous to himself or others.” Tyars, 709 F.2d at 1284.
We concluded that this posed “an even greater potential for
juror bias than trying a criminal defendant in prison garb”
because the “‘constant reminder of the accused’s condition
implicit in such distinctive, identifiable [restraints]’ surely
could have had a significant, deleterious effect on the jury’s
judgment.” Id. at 1284–85 (alteration in original) (quoting
Estelle v. Williams, 425 U.S. 501, 504–05 (1976)). Thus, we
held that shackling must be justified by “at least some prior
showing of necessity” where “the critical question the jury
must decide is whether the individual is dangerous to himself
or others.” Id. at 1285.

    Defendants argue that our holding in Tyars is limited to
civil commitment proceedings, and cite to unpublished
dispositions characterizing Tyars as such. See Carpenter v.
Pfeil, 617 Fed. App’x 658, 660 (9th Cir. 2015); Hartman v.
McCarthy, 74 F.3d 1245, at *1 (9th Cir. 1996) (unpublished
table decision). We are unpersuaded by these assertions for
three reasons. 6

   First, our holding in Tyars hinged on the “express
question” that the jury was to decide—i.e., the petitioner’s
dangerousness—not the type of civil proceeding. 709 F.2d

    6
      Moreover, we of course are not bound by unpublished dispositions.
9th Cir. R. 36-3(a); Pedroza v. BRB, 624 F.3d 926, 931 (9th Cir. 2010)
(“[A]n unpublished decision is not precedent for our panel.”).
Nonetheless, we do not find them persuasive because Carpenter and
Hartman held in the alternative that even if Tyars and Duckett controlled,
there was no prejudice in those cases so any error was harmless.
Carpenter, 617 Fed. App’x at 660; Hartman, 74 F.3d 1245, at *1.
22                 CLAIBORNE V. BLAUSER

at 1284–85. The commitment proceedings required the jury
determine whether petitioner was dangerous to himself or
others. Id. That question is also core to Claiborne’s case.
Second, when describing the impact of Tyars in Duckett, we
observed generally that “courts have held that when an
individual’s level of dangerousness is a question the jury
must decide in a civil proceeding, it is a violation of the right
to a fair trial to compel that individual to appear before the
jury bound in physical restraints.” 67 F.3d at 748. Thus, our
dicta in Duckett is consistent with the broad nature of our
holding in Tyars. Finally, all other circuits that have
discussed Tyars in the shackling context treated it as support
for applying in civil cases the Supreme Court’s rationale
against routine shackling. See Lemons, 985 F.2d at 356–58
& n.2; Davidson, 44 F.3d at 1122–23; Sides, 609 F.3d at 581.

     For these reasons, we conclude that the error was plain.

                               3.

    “The third prong of the plain error analysis requires that
the district court’s plain error . . . prejudiced the complaining
party or otherwise affected his or her substantial rights.”
Hoard, 904 F.3d at 790. “In most cases it means that the
error must have . . . affected the outcome of the district court
proceedings. Id. at 791 (quoting United States v. Olano,
507 U.S. 725, 734 (1993)). We conclude that Claiborne has
also satisfied this factor.

    Claiborne’s dangerousness was the key issue at trial. See
Tyars, 709 F.2d at 1285. The defendant officers justified
their actions against Claiborne in the 2010 incident on the
basis that he presented a security risk. For instance, Officer
Blauser testified that she placed Claiborne in traditional
handcuffs rather than waist chains because she believed he
posed an immediate threat. She stated she did not honor
                  CLAIBORNE V. BLAUSER                      23

Claiborne’s accommodations because “[s]ecurity supersedes
everything.” Officer Blauser also explained that she and
Officer Martin escorted Claiborne straight across the yard
rather on the paved track area “because of his aggression.”
On cross-examination, when asked why she took him down
on the yard, Officer Blauser responded it was because
Claiborne presented a threat to her and her partner. In total,
Officer Blauser referred to Claiborne as “aggressive” or a
threat at least forty times during her testimony. In closing
arguments, the defense repeated Blauser’s testimony and
emphasized that “she perceived a threat” and “took the most
reasonable action under the circumstances.” In short, if the
jury believed that Claiborne posed a threat to the officers,
then defendants prevailed because their use of force was
justified.

    Not only did Claiborne’s case hinge on his alleged
dangerousness, the trial pitted his credibility against the
defendant officers’ credibility, and raised the issue of flight
risk as defendants claimed that he was trying to escape from
them during their escort in 2010. Claiborne’s visible
shackling was a “constant reminder” to the jury of his
condition as a potentially violent and unreliable person who
needed to be restrained. Tyars, 709 F.2d at 1284 (quoting
Estelle, 425 U.S. at 504); see also Lemons, 985 F.2d at 357.
We have also recognized that physical restraints “may
confuse and embarrass the [individual], thereby impairing
his mental faculties[,] and they may cause him pain.”
Duckett, 67 F.3d at 748 (quoting Spain v. Rushen, 883 F.2d
712, 720–21 (9th Cir. 1989) (collecting cases) (internal
quotation marks omitted)). No doubt, shackles likely
impaired Claiborne as a pro se litigant in the presentation of
his case to a jury over three days. Id. Although the district
court noted, ten months after the trial, that Claiborne’s hands
were not restrained, this is contradicted by Officer Blauser’s
24                 CLAIBORNE V. BLAUSER

contemporaneous observation at trial that Claiborne was
“wearing [waist chains] right now” and that these waist
chains were “big and bulky.”

    Defendants argue there was no prejudice because the
jury already knew Claiborne was a convicted felon. But the
Supreme Court and other circuit courts have uniformly
rejected the idea that a conviction alone could justify the use
of shackles because restraint “almost inevitably affects
adversely the jury’s perception of the character of the
defendant.” Deck, 544 U.S. at 633; see also Duckett, 67 F.3d
at 749 (noting that a defendant’s status as a convicted felon,
“[s]tanding alone, . . . is not a sufficient reason to impose
physical restraints”); Lemons, 985 F.2d at 357. We are also
not convinced by defendants’ insistence that the evidence
presented at trial overwhelmingly supported the jury’s
verdict. Crucially, the district court denied defendants’
motion for judgment as a matter of law at the close of
evidence, demonstrating that a reasonable jury had a legally
sufficient evidentiary basis to find in Claiborne’s favor. See
Fed. R. Civ. P. 50(a).

    Because of the inherent nature of visible shackles and its
interplay with the heart of Claiborne’s excessive force claim,
we conclude that Claiborne was prejudiced by the erroneous
use of shackling in the absence of any showing of a
compelling need for such restraints.

                              4.

    The final prong requires showing that “the district
court’s errors are so grave as to seriously impair the fairness,
integrity, or public reputation of judicial proceedings.”
Hoard, 904 F.3d at 791 (internal quotation marks and
alterations omitted). This is “undoubtedly the hardest
[prong] to meet.” Id. Because of the fundamental nature of
                   CLAIBORNE V. BLAUSER                        25

the error, however, we find that this last prong has also been
met.

    Shackling “must be limited to cases urgently demanding
that action,” and because there was no showing of necessity
in Claiborne’s case, he was unduly prejudiced in violation of
his due process right to a fair trial. Tyars, 709 F.2d at 1284;
see also Maus v. Baker, 747 F.3d 926, 927 (7th Cir. 2014)
(“The sight of a shackled litigant is apt to make jurors think
they’re dealing with a mad dog . . .”). Just as an erroneous
jury instruction could “place[] a heavy thumb on the scale in
favor of the [d]efendants,” the erroneous use of shackling
here also constituted a “grave injustice” in depriving
Claiborne of “a meaningful and fair opportunity to seek
redress for alleged violations of his constitutional right to be
free from cruel and unusual punishment.” Hoard, 904 F.3d
at 792.

    We also reiterate that shackling not only prejudices the
inmate litigant in a case like this, it presents an affront to the
dignity of the courtroom. Deck, 544 U.S. at 631 (citing
Allen, 397 U.S. at 344). The Supreme Court has stressed that
“[t]he routine use of shackles in the presence of juries would
undermine [the] symbolic yet concrete objective[]” of
“maintain[ing] a judicial process that is a dignified process.”
Id. Hence, shackling may only be used when there is an
“individualized security determination[]” that “take[s]
account of the circumstances of the particular case.” Id.
at 632. That individualized determination did not take place
here and the district court’s blanket assertion that it would
have ordered Claiborne shackled solely based on his status
as a convicted felon was plainly erroneous. We therefore
exercise our discretion on plain error review to reverse the
district court’s denial of the Rule 59(a) motion and remand
26                    CLAIBORNE V. BLAUSER

for a new trial on Claiborne’s claims against Officers
Blauser and Martin.

                                   IV.

     Claiborne was denied a fair trial when he was visibly
shackled before a jury that had to decide his dangerousness
as it determined whether the jury believed his or defendants’
version of the events that underlie his Section 1983 claims.
There was no individualized determination of the security
need for such restraints, yet this mobility impaired plaintiff
was presented to the jury in shackles, corroborating the
defense’s position that Claiborne was an insubordinate,
aggressive inmate and thereby undermining his case. On
remand, the district court has discretion to impose shackling
during the new trial, but it may only do so after a full hearing
at which officers show a compelling need for security and
the court considers any less restrictive alternatives. 7 See

     7
       Because we remand for a new trial on the shackling claim, we do
not address the merits of Claiborne’s evidentiary claims that the district
court erred in barring his testimony about the ADA, preventing him from
introducing or testifying about his medical records, and denying his
request for a medical expert. Claiborne may raise these claims with the
district court if they should arise again at the new trial.

     We note, however, that the district court misstated the law when it
denied Claiborne’s request for a medical expert on the basis that the in
forma pauperis statute does not authorize expenditure of public funds for
such witnesses. In fact, we have interpreted Federal Rule of Evidence
706(a) to permit a “district court to apportion all the cost [of an expert
witness] to one side” in an appropriate case, as “when[] one of the parties
in an action is indigent” and “the expert would significantly help the
court.” McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991),
vacated on other grounds sub nom. Helling v. McKinney, 502 U.S. 903
(1991), judgment reinstated, 959 F.2d 853 (9th Cir. 1992), aff’d,
509 U.S. 25 (1993). We express no views on whether the appointment
of an expert under Rule 706(a) is warranted in this case.
                  CLAIBORNE V. BLAUSER                    27

Duckett, 67 F.3d at 748; Tyars, 709 F.2d at 1285; see also
Davidson, 44 F.3d at 1126.

   For the foregoing reasons, we reverse the district court’s
denial of Claiborne’s Rule 59(a) motion and remand for a
new trial.

   REVERSED AND REMANDED.
