                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 5 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MIKE NEWCASTLE,                                 No.    15-16679

                Plaintiff-Appellant,            D.C. No.
                                                3:13-cv-0091-RCJ-VPC
 v.

L.C. ADAMS, et al.,                             MEMORANDUM *

                Defendants-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Robert C. Jones, District Judge, Presiding

                            Submitted April 17, 2017**
                             San Francisco, California

Before: FERNANDEZ and MURGUIA, Circuit Judges, and CURIEL,*** District
Judge.

      Plaintiff Mike Newcastle appeals the district court’s grant of summary

judgment in favor of Defendants Renee Baker and James Bruffy on Newcastle’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
Eighth Amendment claim under 42 U.S.C. § 1983. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we reverse and remand for further proceedings consistent

with this disposition.

      1.     We review de novo a district court’s legal ruling on exhaustion.

Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014). We also review de novo a

district court’s grant of summary judgment. Blankenhorn v. City of Orange, 485

F.3d 463, 470 (9th Cir. 2007). “Summary judgment is proper only if no material

facts are in dispute and one party is entitled to prevail as a matter of law.”

McKenzie v. Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984). Meanwhile, we review a

district court’s exclusion of evidence in a summary judgment motion for an abuse

of discretion. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).

We affirm a district court’s evidentiary ruling unless it is erroneous and prejudicial.

Id.

      2.     The district court properly concluded that Newcastle failed to exhaust

his administrative remedies for his Eighth Amendment claim against Baker. The

grievance Newcastle lodged with the prison did not complain that Baker subjected

Newcastle to humiliation and deprived him of his property, clothing, and sleep.

See Griffin v. Arpaio, 557 F.3d 1117, 1121 (9th Cir. 2009). Nor did Newcastle

plead in his complaint a supervisory liability claim premised on Baker’s failure to

intercede. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th


                                           2
Cir. 1982) (“[A] liberal interpretation of a civil rights complaint may not supply

essential elements of the claim that were not initially pled.”). The district court did

not err by granting summary judgment to Baker on this ground.

      3.     The district court abused its discretion in excluding Newcastle’s

criminal trial transcripts, offered in opposition to Defendants’ motion for summary

judgment, as inadmissible hearsay. First, the district court erred by sua sponte

excluding the trial transcripts without objection from Defendants. See Fonseca v.

Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 846–47 (9th Cir. 2004). Second,

the district court’s exclusion of Palczewski and Drummond’s testimony was

prejudicial to Newcastle, because the testimony provided some corroboration for

Newcastle’s version of events.

      4.     The district court erred by granting summary judgment in favor of

Bruffy. The district court failed to view the evidence in the light most favorable to

Newcastle and, in doing so, erroneously concluded that Newcastle’s version of

events was uncorroborated and wholly implausible. First, the video recording of

the incident does not contain footage of the minutes surrounding Newcastle’s

restraint, and thus does not “blatantly contradict[]” Newcastle’s testimony

regarding Bruffy’s use of excessive force during that time period, Scott v. Harris,

550 U.S. 372, 380 (2007); c.f. Young v. Cty. of Los Angeles, 655 F.3d 1156, 1161

n.6 (9th Cir. 2011). Second, the nurse’s medical report shows that Newcastle


                                           3
sustained injuries which, when viewed in the light most favorable to Newcastle,

were consistent with excessive force, including abrasions on his head and neck,

pain in his hands, and a laceration on his forearm near his wrist. Third, Palczewski

provided some corroboration for Newcastle’s claim that he was lying on the

ground and nonresistant after he was restrained. Newcastle presented sufficient

evidence to create a genuine dispute of material fact regarding whether Bruffy

subjected Newcastle to excessive force after Newcastle was restrained.

      Accordingly, we reverse the district court’s grant of summary judgment to

Bruffy and remand for further proceedings.

      REVERSED AND REMANDED.




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