Thomas John Heilman v. C. CHERNISS, Correctional Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS JOHN HEILMAN,
Plaintiff-Appellant,
v.
C. CHERNISS, Correctional Officer; et al.,
Defendants-Appellees.
No. 15-15912
D.C. No.
2:11-cv-00042-JAM-EFB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted October 19, 2017
San Francisco, California
Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,** District Judge.
FILED
OCT 24 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 Ninth Circuit Rule 36-3.
** The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.

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Thomas Heilman appeals the district court’s order granting Cherniss’s and
Lesane’s motion for summary judgment. We have jurisdiction under 28 U.S.C.
§ 1291.
Cherniss and Lesane concede that the district court: (1) erred when it
disregarded material disputes of fact that bear on whether the defendants violated
the Fourth and Eighth Amendments; and (2) abused its discretion by excluding the
declarations of Oliver Overton, Victor Cordero, and Daniel Patillo without
considering their admissibility under Rule 415 of the Federal Rules of Evidence.
The district court therefore erred in granting summary judgment in favor of
Cherniss and Lesane.
Heilman failed to “specifically and distinctly” argue in his opening brief on
appeal that the searches that occurred prior to May 17, 2010 were unconstitutional
and that the declarations of Overton, Cordero, and Patillo were admissible under
Rule 404(b)(2) of the Federal Rules of Evidence. See Greenwood v. F.A.A., 28
F.3d 971, 977 (9th Cir. 1994). These claims are therefore waived on appeal. See
id. Issues waived on appeal, however, can be raised on remand in light of our
reversal of the summary judgment. See Kelson v. City of Springfield, 767 F.2d
651, 657 (9th Cir. 1985).
REVERSED AND REMANDED.
2

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