                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JAN 05 2017

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




DAVID J. PRYOR, AKA Latiya Pryor,                No. 14-15210

              Plaintiff - Appellant,             D.C. No. 3:12-cv-02696-EDL

 v.
                                                 MEMORANDUM*
CITY AND COUNTY OF SAN
FRANCISCO; SAN FRANCISCO
POLICE DEPARTMENT; GREG SUHR,
San Francisco Police Chief, individually
and in his official capacity; SAN
FRANCISCO SHERIFF DEPARTMENT;
MICHAEL HENNESSY, former San
Francisco Sheriff, individually and in his
official capacity; VICKI HENNESSY, San
Francisco Acting Sheriff, in her official
capacity; SUTTER, Deputy Sheriff;
MARTINEZ, Deputy Sheriff; ROSS
MIRKARIMI, Sasn Francisco Sheriff, in
his official capacity; CURLEY, Deputy
Sheriff; WILLIAM ROLD, Deputy
Sheriff; PERCY GRANT, Deputy Sheriff;
THOMAS P. MACMAHON; AARON
FOLTZ,

              Defendants - Appellees.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                       for the Northern District of California
                 Elizabeth D. Laporte, Magistrate Judge, Presiding

                       Argued and Submitted March 17, 2016
                            San Francisco, California

Before: W. FLETCHER, RAWLINSON, and HURWITZ, Circuit Judges.

      Plaintiff-Appellant Latiya Pryor appeals several district court rulings

following a jury verdict in favor of the sole defendant remaining in the case

following pretrial proceedings.

      1.     The district court did not err when it granted partial summary

judgment in favor of Deputy Grant because even taking Pryor’s version of events

as true, no reasonable jury could determine that Deputy Grant’s actions were

anything but “de minimis and thus constitutionally reasonable.” Fontana v.

Haskin, 262 F.3d 871, 880 (9th Cir. 2001). Pryor’s Bane Act claim also fails

because there was no constitutional violation. See King v. State, 242 Cal. App. 4th

265, 294 (2015) (requiring interference with a constitutional right).

      2.     Because Pryor failed to object to the expert testimony of defense

witness Michael Pickett on the same grounds that she raises on appeal, we review

her challenges to that testimony for plain error. United States v. Chang, 207 F.3d

1169, 1175 (9th Cir. 2000). The district court did not plainly err. Pickett



                                          2
permissibly testified that San Francisco Sheriff’s Department policy requires

officers to remove hairpieces that can be removed without injuring a prisoner and

that removing only several natural hairs would not constitute an injury for purposes

of the policy. Even if Pickett offered an impermissible legal conclusion about the

nature of “force,” that testimony did not “affect[] the outcome of the district court

proceedings.” United States v. Olano, 507 U.S., 735, 734 (1993).

      3.      The district court did not abuse its discretion in formulating the jury

instructions. See United States v. Lloyd, 807 F.3d 1128, 1165 (9th Cir. 2015).

“[L]ooking to the instructions as a whole, the substance of the applicable law” on

excessive force was “fairly and correctly covered,” even if the jury was not

separately instructed on Pryor’s alternative factual theory of the case. Gantt v. City

of L.A., 717 F.3d 702, 707 (9th Cir. 2013) (quotation marks omitted).

      AFFIRMED.




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