NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAULA GARCIA RIVERA, individually No. 22-55461 and in her capacity as successor-in-interest; ESTATE OF GERARDO CRUZ- D.C. No. 3:17-cv-00569-AJB-NLS SANCHEZ, by and through his successor-in- interest Paula Garcia Rivera, MEMORANDUM* Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
DAVID LANDIN, C.O., in his individual and official capacities; et al.,
Defendants.
PAULA GARCIA RIVERA, individually No. 22-55462 and in her capacity as successor-in-interest; ESTATE OF GERARDO CRUZ- D.C. No. 3:17-cv-00569-AJB-NLS SANCHEZ, by and through his successor-in- interest Paula Garcia Rivera,
Plaintiffs-Appellants,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.
DAVID LANDIN, C.O., in his individual and official capacities; CORECIVIC, INC., FKA Corrections Corporation of America,
Defendants-Appellees,
UNITED STATES OF AMERICA; DOES, 1-20, inclusive,
Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding
Submitted December 7, 2023** Pasadena, California
Before: BEA, M. SMITH, and VANDYKE, Circuit Judges.
After Gerardo Cruz-Sanchez died of pneumonia during a stay in a federal
detention facility, his wife and estate sued the United States, the owner and operator
of the facility, CoreCivic, and one of the detention officers, David Landin. A jury
returned a verdict for CoreCivic and Landin on all the claims against them, and the
district judge found the United States not liable for the claims against it. Plaintiffs
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 now argue that the district court erred by instructing the jury as to California’s Bane
Act claim against Landin and CoreCivic, and by preventing their expert witness from
testifying as to Cruz-Sanchez’s appearance in the days before he died. The district
court had jurisdiction under 28 U.S.C. §§ 1332 and 1346 and this court has
jurisdiction under 28 U.S.C. § 1291. We affirm.
Gerardo Cruz-Sanchez was detained as a material witness in an 8 U.S.C
§ 1324 prosecution in early February 2016. He was brought to the Otay Mesa
Detention Center, owned and operated by CoreCivic, on February 11. Between
February 11 and February 21, Cruz-Sanchez was seen by medical staff on six
different days for an intake evaluation, for headaches, sore throat, and a cough, and
for an initial examination. On February 26, Cruz-Sanchez was taken to a hospital
where he died of complications from pneumonia. Cruz-Sanchez’s estate and his
widow, Paula Garcia Rivera, brought a lawsuit against CoreCivic, one of its guards,
David Landin, and the United States. Relevant to this appeal, Plaintiffs claimed
negligence, wrongful death, and violations of the Bane Act by CoreCivic and
Landin.1 They argued that Landin was deliberately indifferent to Cruz-Sanchez’s
serious medical needs, causing his death.
At trial, the core issue was whether Landin was negligent or deliberately
1 Plaintiffs’ complaint alleged six counts including Federal Tort Claims Act counts against the United States, but Plaintiffs concede that they have not addressed those counts in this appeal.
3 indifferent to Cruz-Sanchez’s medical needs between his last medical visit on
February 21 and his hospitalization on February 26. Plaintiffs presented deposition
testimony from Cruz-Sanchez’s roommate in the detention facility, Alejandro
Chavez-Lopez. Chavez testified that he asked Landin for help for Cruz-Sanchez
between February 22 and 26, but Landin mocked him, told him not to ask for help,
and told him that nobody was going to help unless Cruz-Sanchez was dying.
But CoreCivic presented Landin’s testimony, the detention facility’s shift
roster, and the logbook for Cruz-Sanchez’s pod, which evinced that Landin did not
work in the facility at all from February 18 to February 21, and did not work in
Cruz-Sanchez’s pod from February 22 to February 25. Landin also testified that he
“would never conduct [him]self in that manner or speak to any individual” as
claimed by Chavez, and that the comments Chavez claimed Landin made “did not
occur.” CoreCivic also presented evidence that significantly discredited Chavez.
First, Plaintiff Rivera, Cruz-Sanchez’s wife, testified that Chavez told her to file the
lawsuit and demanded a portion of the judgment if she won. Second, Chavez
admitted to pleading guilty to felony fraud in 2005.
Plaintiffs also called a medical expert, Dr. Todd Wilcox, to testify that, based
on Cruz-Sanchez’s medical condition, he would have appeared gravely ill to the
detention officers and others who saw him. In Wilcox’s expert report, he explained
that based on Cruz-Sanchez’s oxygenation level on February 26, “he would have
4 appeared gravely ill even to a lay person.” But during trial, Plaintiffs failed to elicit
that opinion from Dr. Wilcox during direct examination. Instead, during redirect,
Plaintiffs’ counsel asked Wilcox, “[I]n the days before February 26th, how would
Mr. Cruz have appeared to just a lay person?” CoreCivic objected, arguing that the
question was “beyond the scope of cross.” The court sustained the objection and
said that “[i]t lacks foundation. Calls for speculation. Outside the scope of the
report.”
The jury returned a verdict for CoreCivic and Landin on all counts and
Plaintiffs have timely appealed. They argue that the district court erred by (1)
excluding Wilcox’s testimony, and (2) instructing the jury as to the elements of the
Bane Act claim.
First, the district court did not abuse its discretion in excluding the expert’s
testimony. “The practice is uniform that redirect examination is normally limited to
answering any new matter drawn out in the next previous examination,” and the
district court did not abuse its discretion by following this general rule. Murray v.
Toyota Motor Distrib., Inc., 664 F.2d 1377, 1380 (9th Cir. 1982) (alterations
omitted). Here, Plaintiffs do not dispute that the question was beyond the scope of
cross, instead arguing that while CoreCivic’s objection was on that basis, the district
court’s ruling was not. But even assuming the district court sustained the objection
on only the other bases, this court may affirm a ruling excluding evidence “on any
5 basis supported by the record.” United States v. Gonzalez-Rincon, 36 F.3d 859, 866
(9th Cir. 1994).
Second, any error in the Bane Act jury instruction was harmless. California’s
Bane Act provides a civil remedy when a person “interferes by threat, intimidation,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PAULA GARCIA RIVERA, individually No. 22-55461 and in her capacity as successor-in-interest; ESTATE OF GERARDO CRUZ- D.C. No. 3:17-cv-00569-AJB-NLS SANCHEZ, by and through his successor-in- interest Paula Garcia Rivera, MEMORANDUM* Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
and
DAVID LANDIN, C.O., in his individual and official capacities; et al.,
Defendants.
PAULA GARCIA RIVERA, individually No. 22-55462 and in her capacity as successor-in-interest; ESTATE OF GERARDO CRUZ- D.C. No. 3:17-cv-00569-AJB-NLS SANCHEZ, by and through his successor-in- interest Paula Garcia Rivera,
Plaintiffs-Appellants,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. v.
DAVID LANDIN, C.O., in his individual and official capacities; CORECIVIC, INC., FKA Corrections Corporation of America,
Defendants-Appellees,
UNITED STATES OF AMERICA; DOES, 1-20, inclusive,
Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding
Submitted December 7, 2023** Pasadena, California
Before: BEA, M. SMITH, and VANDYKE, Circuit Judges.
After Gerardo Cruz-Sanchez died of pneumonia during a stay in a federal
detention facility, his wife and estate sued the United States, the owner and operator
of the facility, CoreCivic, and one of the detention officers, David Landin. A jury
returned a verdict for CoreCivic and Landin on all the claims against them, and the
district judge found the United States not liable for the claims against it. Plaintiffs
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 now argue that the district court erred by instructing the jury as to California’s Bane
Act claim against Landin and CoreCivic, and by preventing their expert witness from
testifying as to Cruz-Sanchez’s appearance in the days before he died. The district
court had jurisdiction under 28 U.S.C. §§ 1332 and 1346 and this court has
jurisdiction under 28 U.S.C. § 1291. We affirm.
Gerardo Cruz-Sanchez was detained as a material witness in an 8 U.S.C
§ 1324 prosecution in early February 2016. He was brought to the Otay Mesa
Detention Center, owned and operated by CoreCivic, on February 11. Between
February 11 and February 21, Cruz-Sanchez was seen by medical staff on six
different days for an intake evaluation, for headaches, sore throat, and a cough, and
for an initial examination. On February 26, Cruz-Sanchez was taken to a hospital
where he died of complications from pneumonia. Cruz-Sanchez’s estate and his
widow, Paula Garcia Rivera, brought a lawsuit against CoreCivic, one of its guards,
David Landin, and the United States. Relevant to this appeal, Plaintiffs claimed
negligence, wrongful death, and violations of the Bane Act by CoreCivic and
Landin.1 They argued that Landin was deliberately indifferent to Cruz-Sanchez’s
serious medical needs, causing his death.
At trial, the core issue was whether Landin was negligent or deliberately
1 Plaintiffs’ complaint alleged six counts including Federal Tort Claims Act counts against the United States, but Plaintiffs concede that they have not addressed those counts in this appeal.
3 indifferent to Cruz-Sanchez’s medical needs between his last medical visit on
February 21 and his hospitalization on February 26. Plaintiffs presented deposition
testimony from Cruz-Sanchez’s roommate in the detention facility, Alejandro
Chavez-Lopez. Chavez testified that he asked Landin for help for Cruz-Sanchez
between February 22 and 26, but Landin mocked him, told him not to ask for help,
and told him that nobody was going to help unless Cruz-Sanchez was dying.
But CoreCivic presented Landin’s testimony, the detention facility’s shift
roster, and the logbook for Cruz-Sanchez’s pod, which evinced that Landin did not
work in the facility at all from February 18 to February 21, and did not work in
Cruz-Sanchez’s pod from February 22 to February 25. Landin also testified that he
“would never conduct [him]self in that manner or speak to any individual” as
claimed by Chavez, and that the comments Chavez claimed Landin made “did not
occur.” CoreCivic also presented evidence that significantly discredited Chavez.
First, Plaintiff Rivera, Cruz-Sanchez’s wife, testified that Chavez told her to file the
lawsuit and demanded a portion of the judgment if she won. Second, Chavez
admitted to pleading guilty to felony fraud in 2005.
Plaintiffs also called a medical expert, Dr. Todd Wilcox, to testify that, based
on Cruz-Sanchez’s medical condition, he would have appeared gravely ill to the
detention officers and others who saw him. In Wilcox’s expert report, he explained
that based on Cruz-Sanchez’s oxygenation level on February 26, “he would have
4 appeared gravely ill even to a lay person.” But during trial, Plaintiffs failed to elicit
that opinion from Dr. Wilcox during direct examination. Instead, during redirect,
Plaintiffs’ counsel asked Wilcox, “[I]n the days before February 26th, how would
Mr. Cruz have appeared to just a lay person?” CoreCivic objected, arguing that the
question was “beyond the scope of cross.” The court sustained the objection and
said that “[i]t lacks foundation. Calls for speculation. Outside the scope of the
report.”
The jury returned a verdict for CoreCivic and Landin on all counts and
Plaintiffs have timely appealed. They argue that the district court erred by (1)
excluding Wilcox’s testimony, and (2) instructing the jury as to the elements of the
Bane Act claim.
First, the district court did not abuse its discretion in excluding the expert’s
testimony. “The practice is uniform that redirect examination is normally limited to
answering any new matter drawn out in the next previous examination,” and the
district court did not abuse its discretion by following this general rule. Murray v.
Toyota Motor Distrib., Inc., 664 F.2d 1377, 1380 (9th Cir. 1982) (alterations
omitted). Here, Plaintiffs do not dispute that the question was beyond the scope of
cross, instead arguing that while CoreCivic’s objection was on that basis, the district
court’s ruling was not. But even assuming the district court sustained the objection
on only the other bases, this court may affirm a ruling excluding evidence “on any
5 basis supported by the record.” United States v. Gonzalez-Rincon, 36 F.3d 859, 866
(9th Cir. 1994).
Second, any error in the Bane Act jury instruction was harmless. California’s
Bane Act provides a civil remedy when a person “interferes by threat, intimidation,
or coercion” with an individual’s constitutional rights. Cal. Civ. Code § 52.1(b), (c).
The Act also provides that “[s]peech alone is not sufficient to support an action”
under the Act unless three conditions are met. Id. § 52.1(k). Plaintiffs argue that it
was error for the district court to instruct the jury that speech alone is insufficient
because it required them “to prove ‘threats, intimidation, or coercion beyond that
inherent in the constitutional violation itself.’” But even assuming arguendo that
there was error, reversal from an erroneous jury instruction “is not warranted if ‘the
error is more probably than not harmless.’” Skidmore as Tr. for Randy Craig Wolfe
Tr. v. Led Zeppelin, 952 F.3d 1051, 1065 (9th Cir. 2020) (quoting Swinton v.
Potomac Corp., 270 F.3d 794, 805 (9th Cir. 2001)).
Here, the jury was unlikely to have found Landin liable even if it were not
instructed as to the speech requirement. CoreCivic and Landin presented evidence
showing that Landin was not working in Cruz-Sanchez’s pod during the relevant
time and discrediting the only evidence to the contrary: Chavez’s testimony. The
jury also found that Landin was not negligent based on the same evidence, which
indicates that it credited CoreCivic and Landin’s evidence that Landin was not in
6 Cruz-Sanchez’s pod over Chavez’s testimony that he was. Thus, any error in the
jury instruction on the Bane Act claim was harmless.
AFFIRMED.