DAVID J. PRYOR, AKA Latiya Pryor v. City

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID J. PRYOR, AKA Latiya Pryor,
Plaintiff - Appellant,
v.
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.
No. 14-15210
D.C. No. 3:12-cv-02696-EDL
MEMORANDUM*
FILED
JAN 05 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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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
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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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