                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             DEC 06 2013

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

JAMES BAILEY, a single man,                      No. 12-35990

              Plaintiff - Appellant,             D.C. No. 2:11-cv-00461-RHW

  v.
                                                 MEMORANDUM*
CHELAN COUNTY, a Municipal Corp.;
et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                     Argued and Submitted November 4, 2013
                              Seattle, Washington

Before: SCHROEDER, PAEZ, and BERZON, Circuit Judges.

       Plaintiff James Bailey appeals the district court’s judgment following a jury

verdict in favor of Defendants Mike Lamon and Lee Risdon (“Defendants”), two

Chelan County Sheriff deputies. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.      Bailey argues that the district court erred by failing to give his

Proposed Jury Instruction No. 3. The proposed instruction elaborated on the

definition of “actively resisting” as that term is used in the excessive force

instruction given by the district court. We disagree. There was no error in the

district court’s jury instruction on the elements of Bailey’s Fourth Amendment

excessive force claim. See Graham v. Connor, 490 U.S. 386, 396 (1989); Ninth

Circuit Model Jury Instruction No. 9.22. The district court’s instruction allowed

Bailey’s counsel to argue her theory of the case. See Brewer v. City of Napa, 210

F.3d 1093, 1097 (9th Cir. 2000). The district court therefore did not abuse its

discretion in declining to give Bailey’s proposed instruction defining “actively

resisting.”

      2.      Bailey also argues that the district court erred in excluding the

testimony of two of his treating physicians, Drs. Wall and Travers. Even

assuming that the district court erred or abused its discretion in excluding the

doctors’ testimony, the error was harmless. See Matter of Yagman, 796 F.2d 1165,

1176 (9th Cir. 1986) opinion amended on denial of reh’g sub nom. In re Yagman,

803 F.2d 1085 (9th Cir. 1986). First, there was no dispute that the officers used

force to arrest Bailey, and second, the jury’s special verdict found that the officers

did not use excessive force.


                                            2
AFFIRMED.




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