                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              APR 24 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
MICHAEL T. HAYES,             )              No. 13-35306
                              )
      Plaintiff - Appellant,  )              D.C. No. 1:09-cv-00122-BLW
                              )
      v.                      )              MEMORANDUM*
                              )
CORRECTIONS CORPORATION )
OF AMERICA; JOHN FERGUSON; )
STEVE GARETT; SUSAN           )
BAJOVICH; JANET STANGER,      )
LPN at ICC Medical; JOHN/JANE )
DOES, Members SMU Placement   )
Committee ICC; BRIAN DOSER,   )
Unit Manager; BRENT           )
ARCHIBALD, ICC Investigation  )
Officer,                      )
                              )
      Defendants - Appellees. )
                              )

                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted April 8, 2015
                              Seattle, Washington

Before: FERNANDEZ, HAWKINS, and CALLAHAN, Circuit Judges.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Michael Hayes appeals from the judgment issued by the district court in

favor of Corrections Corporation of America (“CCA”) and a number of its

employees.1 The judgment issued after a jury verdict in a trial on the claims

against Doser and Acosta wherein the jury answered “NO” to the question: “While

incarcerated at the Idaho Correctional Center on K-Pod, did [Hayes] face a

substantial risk of serious harm?” Prior to that, the district court had granted

summary judgment against him on his claims against CCA, the Warden, and the

Committee. We affirm.

      Hayes brought a 42 U.S.C. § 1983 action in which he claimed that his rights

under the Eighth Amendment to the United States Constitution had been violated

during his incarceration. In order to prevail, he had to prove that CCA and the

employees had violated his constitutional rights because they were deliberately

indifferent when they allowed him to be subjected “to a substantial risk of serious

harm”2 from other inmates.

      Hayes asserts that the verdict must be overturned because the district court


      1
       “The employees” are Brian Doser, Justin Acosta, Phillip Valdez (the
Warden), Brandon Delaney, Dan Prado and April Chapman. The latter three
individuals were the members of the Segregation Housing Committee, and will be
referred to hereafter as the Committee.
      2
       Farmer v. Brennan, 511 U.S. 825, 828, 114 S. Ct. 1970, 1974, 128 L. Ed. 2d
811 (1994).

                                          2
excluded certain “concern forms” that other prisoners had sent to other prison

workers some time after the incident in question here. We disagree. The district

court did not abuse its “‘wide discretion,’”3 when it determined that those pieces of

evidence were not relevant4 to the case at hand. The district court did not

arbitrarily establish a rule that it would not admit any reports (or concern forms)

regarding incidents that occurred after Hayes’ incident;5 rather, it declared it would

remain flexible, and it did. Indeed, the district court did admit a good deal of

evidence regarding the concern forms. Moreover, any error in excluding the forms

in question was harmless. See Harper v. City of Los Angeles, 533 F.3d 1010, 1030

(9th Cir. 2008).

         Hayes then asserts that the district court erred when it granted summary

judgment to the Warden and the Committee. While we perceive no error, even if

there were error it was harmless because the jury’s determination that Hayes did




         3
       See United States v. Alvarez, 358 F.3d 1194, 1205 (9th Cir. 2004) (quoting
United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983)).
         4
       See Fed. R. Evid. 401; M2 Software, Inc. v. Madacy Entm’t, 421 F.3d
1073, 1088 (9th Cir. 2005).
         5
             See United States v. Hinkson, 585 F.3d 1247, 1262–63 (9th Cir. 2009) (en
banc).

                                             3
not face “a substantial risk of serious harm”6 necessitated that he could not prevail

against them — “there’s no way that the jury could have found that [they] were

liable.”7 Similarly, CCA could not be found liable8 in the absence of “a substantial

risk of serious harm” to Hayes.9

      AFFIRMED.




      6
          Farmer, 511 U.S. at 828, 114 S. Ct. at 1974.
      7
        See Peralta v. Dillard, 744 F.3d 1076, 1087 (9th Cir. 2014) (en banc)
(Federal Rule of Civil Procedure 50(a) judgment upheld), cert. denied, __ U.S. __,
135 S. Ct. 946, 190 L. Ed. 2d 829 (2015); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250–52, 106 S. Ct. 2505, 2511–12, 91 L. Ed. 2d 202 (1986)
(summary judgment “standard mirrors the standard for a directed verdict under
Federal Rule of Civil Procedure 50(a)”).
      8
      See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018,
2037–38, 56 L. Ed. 2d 611 (1978); Tsao v. Desert Palace, Inc., 698 F.3d 1128,
1138–39 (9th Cir. 2012).
      9
          Farmer, 511 U.S. at 828, 114 S. Ct. at 1974.

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