                                                                            FILED
                             NOT FOR PUBLICATION                             APR 27 2011

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




                             FOR THE NINTH CIRCUIT



JESSE WASHINGTON,                                 No. 09-17530

               Plaintiff - Appellant,             D.C. No. 2:04-cv-01317-MCE-
                                                  GGH
  v.

J. FANNON; et al.,                                MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                  Morrison C. England, Jr., District Judge, Presiding

                               Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Jesse Washington, a California state prisoner, appeals pro se from the district

court’s judgment following a jury trial in his 42 U.S.C. § 1983 action alleging

excessive force and deliberate indifference to his medical needs. We have


          *
             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, and therefore denies Washington’s request for oral
argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion a

district court’s evidentiary rulings. Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1155

(9th Cir. 2004). We affirm.

      The district court did not abuse its discretion by excluding witnesses who

were not identified in Washington’s original pretrial statement because the topics

upon which he alleged they would testify were not relevant. See Fed. R. Evid 402

(“Evidence which is not relevant is not admissible.”). To the extent that Dr.

Rosenberg’s testimony may have been relevant, the district court properly

exercised its discretion because the nature of that testimony should have been

anticipated prior to the pretrial conference, and therefore should have been

included in Washington’s pretrial statement pursuant to the court’s previous order.

See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002) (“‘Trial

courts have broad authority to impose reasonable time limits.’” (citation omitted)).

      Contrary to Washington’s contention, defendants were not judicially

estopped from denying the use of excessive force based on testimony by another

person in another case concerning different events. See Hamilton v. State Farm

Fire & Cas. Co., 270 F.3d 778, 782-83 (9th Cir. 2001) (explaining doctrine of

judicial estoppel).




                                          2                                     09-17530
Washington’s remaining contentions are unpersuasive.

AFFIRMED.




                                 3                     09-17530
