Gregory Kelly v. Lvmpd

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2018
• Docket: 15-16175
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GREGORY KELLY, No. 15-16175

Plaintiff-Appellant, D.C. No. 2:12-cv-02074-LRH- CWH v.

LAS VEGAS METROPOLITAN POLICE MEMORANDUM* DEPARTMENT, a Political Subdivision of the State of Nevada; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted May 22, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Gregory Kelly appeals pro se from the district court’s judgment following a

jury verdict in his 42 U.S.C. § 1983 action alleging excessive force during his

arrest. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of

* 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). discretion the district court’s decision to admit or exclude expert testimony. Estate

of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 460 (9th Cir. 2014) (en banc). We

affirm.

The district court did not abuse its discretion by excluding the expert

testimony of Dr. Quesada because the testimony would not assist the jury to

understand or determine a fact in issue. See City of Pomona v. SQM N. Am. Corp.,

750 F.3d 1036, 1043-44 (9th Cir. 2014) (setting forth legal standards for exclusion

of expert testimony). Dr. Quesada did not treat Kelly until two years and four

months after the incident allegedly causing his injuries, and Dr. Quesada was

unable to testify that Kelly’s injuries were caused by his arrest and handcuffing.

Moreover, the jury found that the arresting officers did not use excessive force in

arresting the appellant.

The district court did not abuse its discretion by allowing Dr. Peters to

testify as an expert concerning police practices, and did not err by failing to hold a

separate hearing to review Dr. Peters’s qualifications. See Millenkamp v. Davisco

Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009) (“The district court has

discretion whether to hold a Daubert hearing in determining whether to admit

expert testimony.”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

2 15-16175 AFFIRMED.

3 15-16175