DAVID EDWARDS V. D. SISTO, No. 13-15824 (9th Cir. 2014)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 20 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS No. 13-15824 DAVID E. EDWARDS, Plaintiff - Appellant, D.C. No. 2:08-cv-00620-CMK v. MEMORANDUM* D. K. SISTO, Warden; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Craig Kellison, Magistrate Judge, Presiding Submitted August 12, 2014** San Francisco, California Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges. David Edwards appeals the district court s judgment entered following a jury verdict in favor of prison officials. We affirm. Because the parties are familiar with the history of this case, we need not recount it here. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo whether [jury] instructions misstated the law. Fireman s Fund Ins. Cos. v. Alaskan Pride P ship, 106 F.3d 1465, 1469 (9th Cir. 1997). If an error in the jury instruction is harmless, it does not warrant reversal. Dang v. Cross, 422 F.3d 800, 805 (9th Cir. 2005). Because we presume prejudice where civil trial error is concerned, the burden shifts to the defendant to demonstrate that it is more probable than not that the jury would have reached the same verdict had it been properly instructed. Clem v. Lomeli, 566 F.3d 1177, 1182 (9th Cir. 2009) (internal quotation marks and citation omitted). Any misstatement of the law as part of Jury Instruction No. 11 was harmless. The first element Edwards had to prove under Jury Instruction No. 11 is that he faced a substantial risk of serious harm. The jury answered in the Special Verdict Form that Edwards did not prove this element. Thus, it is more probable than not that the jury would have reached the same conclusion even if the instruction had not included the challenged element. See Clem, 566 F.3d at 1182-83; Dang, 422 F.3d at 811. AFFIRMED.
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