Robert Hackworth, Jr. v. P Rangel

FILED
NOT FOR PUBLICATION MAY 03 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HACKWORTH, Jr., No. 13-17203
Plaintiff - Appellant, D.C. No. 1:06-cv-00850-BAM
v.
MEMORANDUM*
P. RANGEL, Correctional Officer,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding**
Submitted April 26, 2016***
Before: McKEOWN, WARDLAW and PAEZ, Circuit Judges.
Robert Hackworth, Jr., a California state prisoner, appeals pro se from the
district court’s judgment in favor of defendant following a jury trial in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Hackworth’s 42 U.S.C. § 1983 action alleging an Eighth Amendment excessive
force claim. We have jurisdiction under 28 U.S.C. § 1291. We review for an
abuse of discretion. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1110 (9th Cir.
2011) (evidentiary rulings); United States v. Romero-Avila, 210 F.3d 1017, 1024
(9th Cir. 2000) (district court’s response to a question from the jury). We affirm.
The district court did not abuse its discretion in excluding the emergency
room report, investigative report, and audio in the interview video as hearsay. See
United States v. Romo-Chavez, 681 F.3d 955, 959 (9th Cir. 2012) (“When an out-
of-court statement is offered to prove the truth of the matter asserted, it is hearsay
and generally inadmissible.”). Contrary to Hackworth’s contention, this evidence
did not qualify as a present sense impression or statement of then-existing physical
condition. See Fed. R. Evid. 803(3) (statement of then-existing physical condition
does not include “a statement of memory or belief to prove the fact remembered or
believed”); Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir. 1995) (“We have held
that to qualify [as a present sense impression], an out-of-court statement must be
nearly contemporaneous with the incident described and made with little chance
for reflection.”). We reject Hackworth’s contentions that the exclusion of this
evidence denied him a fair trial or violated his due process rights.
2 13-17203
The district court did not abuse its discretion in declining to further define
the term “sadistically,” and instead referring the jury to similar terms defined in the
jury instructions and instructing the jury to use its common sense. See United
States v. Solomon, 825 F.2d 1292, 1295 (9th Cir. 1987) (“Although the trial court
is obliged to ‘eliminate confusion when a jury asks for clarification of a particular
issue,’ the ‘necessity, extent and character’ of supplemental instructions, lies
within the discretion of the trial court.”).
Because the jury issued a verdict for defendant, Hackworth was not entitled
to nominal damages.
AFFIRMED.
3 13-17203