Kellyv.Las Vegas Metro. Police Dep't

No. 15-16175 (9th Cir. May. 24, 2018)

No. 15-16175


GREGORY KELLY, Plaintiff-Appellant, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, a Political Subdivision of the State of Nevada; et al., Defendants-Appellees.


D.C. No. 2:12-cv-02074-LRH-CWH MEMORANDUM Appeal from the United States District Court for the District of Nevada
Larry R. Hicks, District Judge, Presiding Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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 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).