                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               AUG 20 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVID E. EDWARDS,                                 No. 13-15824

              Plaintiff - Appellant,              D.C. No. 2:08-cv-00620-CMK

  v.
                                                  MEMORANDUM*
D. K. SISTO, Warden; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Craig Kellison, Magistrate Judge, Presiding

                            Submitted August 12, 2014**
                              San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

       David Edwards appeals the district court’s judgment entered following a

jury verdict in favor of prison officials. We affirm. Because the parties are

familiar with the history of this case, we need not recount it here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      “We review de novo whether [jury] instructions misstated the law.”

Fireman’s Fund Ins. Cos. v. Alaskan Pride P’ship, 106 F.3d 1465, 1469 (9th Cir.

1997). If an “error in the jury instruction is harmless, it does not warrant reversal.”

Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005). “Because we presume prejudice

where civil trial error is concerned, the burden shifts to the defendant to

demonstrate that it is more probable than not that the jury would have reached the

same verdict had it been properly instructed.” Clem v. Lomeli, 566 F.3d 1177,

1182 (9th Cir. 2009) (internal quotation marks and citation omitted).

      Any misstatement of the law as part of Jury Instruction No. 11 was harmless.

The first element Edwards had to prove under Jury Instruction No. 11 is that he

faced a substantial risk of serious harm. The jury answered in the Special Verdict

Form that Edwards did not prove this element. Thus, it is more probable than not

that the jury would have reached the same conclusion even if the instruction had

not included the challenged element. See Clem, 566 F.3d at 1182-83; Dang, 422

F.3d at 811.

AFFIRMED.
