F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J

. R. W I L K

E R S O N , AKA Adonai ElShaddai, AKA J ames W ilkerson,

Plaintiff-Appellant

,

v.

B

. W H E E L E R ; N. A L B O N I C O ; D. L

. T H O M P S O

N ; G. T U

R N E R , Defendants-Appellees. No. 11-17911

D.C. No. 2:06-cv-01898- KJ M-EF B

OPI NI O N

A ppeal from the United States District Court for the Eastern District of California Kimberly J . Mueller, District J u dg e, Presiding

Arg ued and Submitted September 9, 2014—San F rancisco, California

F iled November 18, 2014

B efore: Stephen Reinhardt, Ronald M. Gould, and Marsha S. B erz on, Circuit J udg es.

O pinion by

J udg e GouldW I L K E R S O N V

. W H E E L E R 2

SUMMARY *

P risoner Civil Rights

The panel reversed the district court’s summary judg ment and v acated a judg ment, e n t ered following a jury trial, in an action broug ht under 42 U.S.C. § 1983 al leg ing that correctional officers u sed ex cessiv e f orce in restraining plaintiff while h e w a s i ncarcerated at Hig h D esert State Prison in California.

Rejecting the g overnment’s arg ument that p laintiff waived his rig ht to appeal the mag istrate judg e ’s finding s reg arding e x haustion o f administrative remedies, t h e panel held that plaintiff ex hausted his administ rative remedies
ag ainst d efendant Serg e ant Gary Turner. The panel held that plainti ff ’ s gr ievance alerted the prison to the nature of the
wrong for which redress w as soug h t by (1) describing the use of force; (2) identify ing Turner a s one of t h e r e s p onding officers; and, (3) specifically describing T u rner’s use o f force.

The panel h eld that p laintiff was p rejudiced by the district court’s jury instructions that plaintiff had been disciplined for resisting the officers. T he panel concluded that He c k v

. Humphrey

, 512 U. S

. 477 ( 1994), did not require the challeng ed jury instruction because the duration of plaintiff’s indefinite life sentence w as not at stake. The pane l f urther held that the instruction was misleading and prejudicial

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W I L K E R S O N V

. W H E E L E R 3

because it contradicted plaintiff’s testimony that he had n ot resisted the prison g uards.

The p anel reversed the award of s u m m ary judg ment to T u rner, vacated the judg ment as to the other officers

, a n d remanded for a new trial. B ecause the panel vacated the j u d gm e nt on the basis that the jury instructions wer e improper, it d id not reach any of plaintiff’s other arg uments.

COUNSEL

Su-Han W ang (argu e d ), Mark R.S. F oster, and Samuel S. Song
, Morrison & F o erster L L P, San F r anci sco, California, for Plaintiff-Appellant Adonai El-Shaddai.

J aime M. Ganson (arg ued), D ep u t y Attorney General; Kamala D. Harris, Attorney General of California; J onathan L

. W olff, Senior Assistant Attorney General; and Thomas S. P a t t e r s o n , S u p ervising Deputy Attorney G ene r a l

, S a c r a m e n t o , California, for De f

endants-Appellees B

. W h eeler, N

. Albonico, and G. Turner.W I L K E R S O N V

. W H E E L E R 4

OP INION

GOUL D, Circuit J udg e :

Adonai El-Shaddai 1 (“El-Shaddai”) alleg es t h at correctional officers u sed ex c e ssive force in restraining him while h e was incarcerated at Hig h Desert State Prison in Califo r nia. El-Shaddai sued the officers and the prison librarian under 42 U.S.C. § 1983, c laiming that they v iolated his federal constitutional rig hts. D efendants prevailed at trial. El-Shad d a i a

ppeals, contending that: (1) the district court

er r e d by instructing the jury that it was established that ElShaddai resisted the correctional officers; (2) the district court abused its d iscretion in ex cluding certain witnesses a nd evidence; (3) the failure to a ppoint counsel for El-Sh ad d ai

was an abuse of discretion ; a nd (4) the order g ranting

su m mary judg ment to Serg e ant Turner, one of the correctional o fficers, for El-Shaddai’s failure to ex haust administrative remedies was error. 2 W e h ave jurisdiction under 28 U.S.C. § 1291. B ecause the distr i ct court erred in
g ranting summary judg ment to T urner, and because the jury instructions were misleading, w e reverse the award o f
summary judg ment to Turner, vacate the jud g ment as to the other officers, and remand f or a new trial. B ecause we vacate the judg ment on the basis that the jury inst r uctions were

1 T h e a p p e l l a nt ’ s l eg al n am e is J a m e s W i l ke r s o n

. B u t t o m a i n t a i n

co n sisten cy w ith t

h e p ractice o f th e d i strict co u rt, w e u se h is ch o sen n am e th ro u g h ou t th i s o p in io n

.

2 T h e s a m e o rd er al s o d i sm i s s e d t h e p r i s o n l i b r a r i a n fo r fa i l u r e t o

ex h au st ad m in istr a t i v e rem ed ies, b u t El- S h ad d ai d o es n o t ch allen g e th at

ru lin g o n ap peal an d w e d o n ot ad d ress it.W I L K E R S O N V

. W H E E L E R 5

improper, w e do not reach any of El-Shaddai’ s other
arg uments.

I

El-Shaddai alleg e s that while incarcerated at Hig h Desert State Prison in California, three prison g u ards used e x cessive force to restrain him. According to El-Shaddai, he was in the prison law library under the e scort of two g uards

, O fficer B obby Wheeler ( “W heeler”) and L ieutenant Nickol u s Albonic o (“Albonico”). El-Shaddai g ave his leg a l documents
to the p rison librarian to copy

. W hen W heeler and Albonico attempted to bring El-Shaddai back to his cel l

, E l -Shaddai said that he w ould n ot leave without his documents and that he needed to use a stapler located in a nother office, and b eg an to w a lk away f

rom the officers. The officers viewed this a s resistance, and tackled and restrained El-Shadda i

. A third officer, Serg eant G ary Turner ( “Turner”), assisted in restraining El-Shaddai. The officers test i f i e d that, while

r e s trained, El-Shaddai kicked and twisted. During the strug g le, El-Shaddai y elled that his leg was broken. As a result of this incident, El- S h a ddai received a Prison Disciplinary Rules Violation Report for willfully resisting an officer, and was found g uilty in a prison disciplinary hearing

. The outcome of the hearing was upheld in state habeas corpus proceeding s.

E l -Shaddai filed suit ag a inst the three correctional o f f i c e r s and the prison librarian. On J u ne 7, 2007, defendants filed a motion to d ismiss, arg uing that El-Shaddai failed to ex haust his administrative remedies. The mag istrate judg e construed the motion as one for s u mmary judg ment, and, on F ebruary 12, 2008, recommended that the motion b e gr anted as to Turner, based on the co ntents of El-Shaddai’s prisonW I L K E R S O N V

. W H E E L E R 6

g rievance. The district court adopted the mag istrate judg e’s recommendations in their entirety

. El-Shaddai’s g rievan c e had stated that he suffered injuries “[ a] s a result of the assault

on my person by C/O W heele r a nd C/O A lbonico a

nd responding officers.” He spec ifically identifies Turner as a responding officer, say ing that Turner aided the other officers by “ continuing to apply p ressure o n [El-Shaddai’s] ankle despite [ h is] screams of p ain.” I n records from the g rievance and prison discipline p rocess, El-Shaddai say s that T urner “assisted C / O Albonico in taking control of [ his] f e et” a nd “mainta ined control of [his] leg s u tiliz ing [ his] hands a nd lower leg to apply pressure to k n o w ing ly and deliberately inflict pain w ith f

ull k nowledg e t h at [El-Shaddai] was in pain”. The district court held that the g ri e v a n ce did not sug g est that officers o ther than W heeler and Albonico joined in the alleg ed abuse, thereby f ailing to put Turner and the librarian on notice of their nee d t o d efend ag ainst ElShaddai’s claims.

After the case was set for trial, El-Shaddai f iled a motion requesting appointment of counsel on the g rounds that he was

an indig ent prisoner and his incarcerated status m a d e it difficult or impossible to locate o r compel testimony from witnesses who were incarcerated in other fa c i l i t i es. The

m a gi strate judg e denied the motion, stating that n o

ex c e ptional circumstances w arranting a request for volunteer counsel ex isted in this case. E l-Shaddai raised similar

concerns shortly before trial about his ability to l o c a t e a nd subpoena incarcerated witnesses, in a request that the district
court con s t r u e d as a motion for appointment of counsel. I t found that these circumstances warranted appoin t ment o f counsel if volunteer c o u nsel were available, but no such counsel came forward.W I L K E R S O N V

. W H E E L E R 7

During pre-trial pro ceeding s, the district c ourt ex cluded several of E l-Shaddai’s incarcerated witnesses, a s well a s certain d ocuments on which E l-Shaddai wanted to rely

, from use at trial.

After the evidence was in, the judg e instructed the jury that “[ i] t is estab l ished that plaintiff resisted defendant W h eeler, and that plaintiff was disciplined by prison officials fo r t hat resistance. Plaintiff does not seek to ex pung e that d i s ciplinary record and y ou are directed to assume t h at disciplinary record will remain unchang ed.” The court g ave this instruction after d efendants made a motion for judg ment

as a matter o f law under F ederal Rule o f Civil Procedure 50,
arg uing that a jury finding of ex cessive force would undermine the priso n d i sciplinary decision and thereby violate Heck v. Humphrey

, 5 12 U .S. 477 (1994). Althoug h the district court declined to take the case away from the jury

, it ag reed to the instruction. The instruction was refined a fter objections from defense counsel, who were concerned that it potentially violated Simpson v

. Thomas

, 5 2 8 F .3d 685 (9th Cir. 2008), which holds that Heck may not be used to ex clude relevant evide n c e. The dispute on the instruction was resolve d b y stating that El-Shaddai was f ound g uilty o f

“ r esisting ” without specify ing the conduct in the pris o n d i s c i p l i n a r y r e p o r t , a n d w i t h o u t h i g h l i g h t i n g a n y inconsistencies betwee n El-Shaddai’s testimony a nd that report.

The jury returned a verdict in favor of defendan ts on all claims. El-Shaddai f

iled a timely not i c e o f a ppeal, and this appeal followed.W I L K E R S O N V

. W H E E L E R 8

II

W e r eview questions of law related to ex h a ustion de n ovo , but we a ccept the judg e’s f a c tual finding s on disputed issues of material fact absent clear e r ror. Albino v. Baca , 747 F .3d 1162, 1171 (9th Cir. 2014) (en banc).

W e review a district court’s denial o f counsel to indig ent civil plaintiffs under 28 U.S.C. § 1915 for an a b u se o f discretion. W

ilborn v

. Escalderon

, 789 F .2d 1328, 1331 (9th Cir. 1986).

Evidentiary ruling s are reviewed for abuse of discretion. Engquist v. Or. Dep’t of

Agric.
, 4 78 F .3d 985, 1008 ( 9th Cir. 2007). Errors will only support reversal i f t h e error was prejudicial, o r i n the civil contex t, “more probably than not tainted the verdict.” I

d. at 1009.

W e r eview a district court’s formulation of civ i l j u ry instructions for a

n abuse o f discretion

, but we consider de

novo w hether the challeng ed instructi o n c o rrectly states the law. “J ury instructions must be s u p p o r t ed by the evidence, fairly and adequately c over th e issues presented, correctly
state the law, and not be misleading .” P eralta v. Dillard

, 744 F .3d 1076, 1082 (9th Cir. 2014) (en banc). B u t if any error relating to the jury instructions w as harmles s , w e d o not

r e v erse. “I n e valuating jury instructions, prejudicial e rr o r results when, looking to the instructions as a w h ole, the substance of the applicable law was not fairly and correc tly covered. Harmless error review f or a civil jury trial

. . . shifts [ the burden] to the defendant to demonstrate th a t i t is more probable than n ot that the jury would have reached the same verdict had it been properly instructed.” G antt v. City of L.A.
,W I L K E R S O N V

. W H E E L E R 9

717 F

. 3d 702, 707 (9th Cir. 2013) (internal quotation marks, citations, and alterations omitted).

III

A. G ranting Sum m a ry Judgm ent to Turner Was Error

At the outset, we reject the g overnment’s arg um e n t t h at El-Shaddai waived his rig ht to appeal t h e mag istrate’s finding s o n ex h a ustion because El-Shaddai did not specifically object to them. 3 “[ P] a rties who do not object to

a mag istrate’s report waive their rig h t to challeng e the
mag istrate’s factual finding s but retain their r ig ht to appeal the mag istrate’s conclusions of law.” Baxter v. Sullivan

, 923 F .2d 1391, 1394 (9th Cir. 1991). Here, El-Shaddai does not challeng e the mag istrate’s factual f i n ding s on w hether he filed the g rievance or its c o ntents. Rather, he challeng es the leg al c onclusion as to whether the g rie v a nce g ave adequate notice with reg ard to Turner, which we review de novo

. See Josephs v. Pac. Bell

, 443 F .3d 1050, 1061 (9th Cir. 2006); c f. Vinieratos v. U.S., Dep’t o f Air Force Through Aldridge

, 939 F .2d 762, 768 (9th Cir. 1991). Th e question of whether the district c ourt e rred in g r anting summary judg ment in favor o f Turner is properly

before us.

As to the merits of the issue, the Prison L itig ation Reform Act (“PL RA”) r equires inmates to b o th substantively a nd

3 On A pril 9
, 20 0 8
, n early tw o m o n th s af t er th e m ag istrate j u d g e issu ed h is p ro p o sed Fin d in g s an d Reco m m en d atio n s, a n d n i n e d ay s af t er th e d i s t r i c t co u rt ad o p ted t

h em in f u ll, El- Sh ad d ai f

iled an o b j ectio n to th e

m ag istrate j u d g e’ s Fin d in g s an d R eco m m en datio n s s t atin g on ly th at

“ Plain tif f m ak e[s] th is o b

j ectio n in o rd er to p reserv e h is rig h t to ap p eal.”W I L K E R S O N V

. W H E E L E R 10

procedurally ex haust all claims throug h administrative

avenues before filing a suit in court. 42 U.S.C. § 1997e(a); W oodford v. Ngo , 548 U.S. 81, 9 0–91 ( 2006). The scope o f this requirement depen d s o n the scope of administrative remedies that the state provides. J o nes v. Bock

, 549 U.S. 199, 218 (2007) ( “[ I ] t is t h e p r ison’s requirements, and not the PL RA, that define the boundaries of proper ex haustion.”).

I n California, inmate g rievances must “ describ e the problem an d the action r equested.” Cal. Code Reg
., tit. 15 § 3084.2. We have said that “when a prison’s g rievance procedures do not specify the requisite level of detail” needed
to ex haust a claim, the standard e nunciated i n t h e Seventh Circuit applies. Griffin v. Arpaio
, 557 F .3d 1117, 1120 (9th Cir. 2009). That standard provides:

[ w] hen the administrative rulebook is silent, a g rievance suffices if it alerts the prison to the
nature of the wrong for whi c h r e dress is
soug h t

. As in a notice-pleading sy stem, the
g rievant n e e d not lay out the facts, articulate leg al theories, or demand particular relief. All the g rievance need do is object intellig ibly to some asserted shortcoming

. Strong v. David , 297 F .3d 646, 650 (7th Cir. 2002).

I n recent decisions, we h a v e applied the Strong standard
to California p risoner c laims. Sapp v

. Kimbrell held tha t a prisoner who alleg ed that ey e problems and denial s o f his requests for surg ery or med i c al appointments ex hausted his claim ag ainst a prison doctor, even thoug h the p risoner never

s p e cifically identified the d octor in h is g rievance. 623 F .3 d 813 (9th Cir. 2010). W e r easoned that “Sapp was notW I L K E R S O N V

. W H E E L E R 11

required to identify [ the d octor] by name t o ex haust the
g rievance aga i n s t him. Neither the PL RA itself nor the California reg ulations require an inmate to identify responsible parties o r otherwise to sig n al who ultimately may be sued.” Id. at 824.

Here, El-Shaddai’s g rievance g ave g reater notice than Sapp’s g rievances. El-Shaddai described not only the nature of the wrong but a l s o i d entified Turner by name. ElShaddai’s g rievance states that he suffered injuries “[ a] s a result of the assault o n my person by C/O W heeler and C/O Albonico and respo n d i n g officers.” I t names Turner as a

r e s p o n ding officer and say s that T urner applied pressure to h i s ankle despite his screams of p ain and that Turner act e d deliberately to infli c t pain. B ecause El-Shaddai’s g rievance describes the use of force ag ainst E l

- S haddai by W heeler, Albonico, and “responding officers,” identifies Turner as o ne of those responding officers and spec i f ically describes Turner’s use of force, it “alerts the prison to the nature of the
wrong for which redress is soug ht.” Sa p p , 6 23 F .3d at 824. W e conclude that El-Shaddai ex h austed his adm i nistrative remedies ag ainst Turner.

B. The Jury Instructions Were Erroneous

El-Shaddai raises two a

r g u ments ag ainst th e c h alleng ed jury instruction. 4 F irst, he contends that, althoug h the district

4 W e rej ect th e o f

f icers’ arg u m en t th at th e j u ry in stru ctio n s sh o u ld b e

rev iew ed f

o r p l ain erro r becau se, th e o f f i cers claim , El- Sh ad d ai f

ailed to p ro p erly o b

j ect to th e in stru ctio n

. El- Sh ad d ai, w h o w as w ith o u t co u

n sel, d i d o b j ect at oth er p o in ts in th e p ro ceed i n g s th at Heck v. Hu mp h r e y d i d

n o t b ar h is claim b ecau se it w o u ld n o t af f ect h is sen ten ce. A lso

, th e

o f f icers’ o w n co u n s el’ s co n tem

p oran eo u s o b

j ect i o n t o t

h e in stru ctio n ,W I L K E R S O N V

. W H E E L E R 12

c ourt thoug ht the instruction was required by Heck v. Humphrey

, that case does not apply w h ere, as here, the duration of an inmate’s sentence is not at s t a k e

. Second, he

c ontends that the instruction “had the effect of b a r r i n g relevant testimony in vi o l a t i on of Simpson v. Thomas

, 528 F .3d 685 ( 9 t h Cir. 2008),” b e c ause it contradicted ElShaddai’s testimony that he had not r e s i s ted the prison
g uards.

As to El-Shaddai’s first c o n tention, we conclude that Heck did n ot require the jury instruction g iven here. I n Heck

, the Supreme Court ruled that an in m a t e may not seek damag es in a § 1983 claim when establishing the basis f or the claim necessarily involves demonstrating that the conviction, sentence, or leng th o f i n c arceration is invalid. 512 U.S. at 480–82; see also Edwards v. Balisok , 520 U.S. 641, 643–47 (1997) (ex tending H

eck rule to § 198 3 claims that, if successful, would imply the invalidit y o f deprivations o f
go o d

- time credits provided f or b y prison disciplinary proceeding s). B ut the Supreme Court has clarified that Heck does not b ar a § 1983 claim that “thr ea tens no consequence for [ an inmate’s] conviction or t h e duration of [ his o r her sentence.] ” Muhammad v. Close

, 540 U.S. 749, 751 ( 2 0 0 4). W e have also held that appl i c a t i o n of Heck “turns solely on whether a successful § 1983 a c tion would necessarily render invalid a conviction, sentence, o r administrative sanction that affected the leng th of the prisoner’s confinement.” Ramirez v. Galaza , 334 F .3d 850, 856 (9th Cir. 2003).

Here, El-Shaddai i s serving an indefinite life sentence. Any loss of g ood-time credits could not ex tend his potential

arg u in g th at i t w o u ld v io late S imp so n v. Th o ma s , p u t th e d istrict co u rt on

n o tice o f p o ten tial erro r.W I L K E R S O N V

. W H E E L E R 13

t e r m , which is life in prison. F urther, as the Californi a Attorney G eneral’s office arg ued in E l-Shaddai’s h abeas
corpus proceeding s ch a l l e n g i n g t he prison disciplinary action, the loss of g ood-time c r edits for a prisoner, such as ElShaddai, whose date at which he is initially elig ible f or parole has already p a ssed, do e s n ot a f fect the leng th of sentence. W e conclude that Heck v. Humphrey did not require th e challeng ed jury

instruction.

Of course, even if Heck did not require the dist r i c t court to g ive the instruction, it would no t b e e r r or for the district
court to do so unless the instruction contained some other

error of f act or law. So long as an instruction c orrectly states the law and is n ot misleading or inadequate, a district court’s decision to g ive an instruc t i o n is r eviewed for abuse o f di s cretion. Oglesby v. S. P ac. Transp. Co.
, 6 F .3d 603, 606 (9th Cir. 1993). B ut the instruction h ere was misleading

, a nd defendants have not carried their bur d e n to show that any error was harmless.

I n Simpson v. Thomas

, we reversed a d i s trict court’s

ex c lusion o f a § 1983 plaintiff’s testimony

. 5 28 F .3d a t 696. The district court had held that, because Heck b arred the use of § 1983 suits to collaterally at t ack prison disciplinary proceeding s, and a disciplinary proceeding had found inmate Simpson responsible f

or instig ating t h e use of force challeng ed in the § 1983 suit, Simpson w as not permitted to testify that a gu a r d h ad punched him first. Id. at 688–89. However, we h eld that Heck is not an evidentiary bar, but a claims bar, and so long as the § 1983 suit did not impact the disciplinary p roceeding s, the plaintiff was “entitled to tell the jury the entire story .” Id. at 696.W I L K E R S O N V

. W H E E L E R 14

Here, the district c ourt’s instruction, thoug h it d id not directly ex cl u d e a ny testimony

, was in tension with ElShaddai’s trial testimony in a wa y that likely confused the jury

. E l-Shaddai testified: “I didn ’ t refuse to comply with him. I just t o l d h i m I ’m g etting my leg al stuff first. I never said that I was—I ’ m not leaving the law library

. I just said let me—I ’m not leaving wit h o u t my material.” Even if, a s defendants contend, El-Shaddai’s statements that he did not immediately obey the officer constitu t e r esistance under the relevant California penal reg u lations, the instruction that ElShaddai d i d resist and was disciplined for that resistance, with out clarify

ing for the jury that r esistance need not be phy sical, posed a s e v e r e risk of prejudice. I n lig ht of the instruction, the jurors may well h ave u nders t o o d that they

were to disbelieve E l-Shaddai’s testimony in whole or in part. Even if such an instruction did not actual l y b a r testimony within the meaning of S impson
, we c o n c l u de that it was misleading and therefore error.

W e conclude that E l-S h ad d ai was prejudiced b y the instruction that he had resisted the officers. B ecause his o wn testimony was the central component of El

- S h addai’s c ase, the likelihood of prejudice here is difficult to overcome. ElShaddai testified that h e was handcuffed and i n w aist restraints in the library

. There was no evidence that ElShaddai tried to a ssault any of the officers or posed a similar phy sica l threat. The jury

, without the instruction that ElShadai resisted the officers, or even with that instruction if it had b een adequately clarified o n the n a t ure of his “resistance,” mig ht w ell h ave decided that the fo r c e used
ag ainst El-Shaddai was ex c essive.W I L K E R S O N V

. W H E E L E R 15

The crux of this appeal is this: T he d i s t r i ct court g ave a ge n eral instruction on ex c e ssive force telling the jury t o consider:

the need to use force, the r elationship b etween that need and the amount o f force u sed, whether defendants applied the for c e i n a g o od faith e f

fort to maintain or r estore discipline, any threat reasonably perceived b y the defendants, a

n y efforts made to temper the severity of a f

orceful response, and the ex tent of the injury suffered. I n consideri n g t hese factors, y ou should g ive deference to prison officials in the adoption and ex ecution o f policies and p ractices t h at in their judg ment

ar e n e eded to p reserve discipline a nd to maintain internal security in a prison.

B eing told that El-Shaddai had r esisted the officers without

more clarification would probably lead a r e a s onable jury to think that his r esistance h ad a phy si cal component, a nd that in turn would justify the u se o f phy sical force b y the officers
to restrain him. B ut if in fa c t , as he testified, his only resistance w as briefly to d elay comply ing with a command to

come back to his cell and to say that he w ould a wait h is leg al
papers f rom the copier, a jury would not necessarily have determined that phy sical fo r ce used ag ainst him was not

ex c e s sive. The instruction that El-Shaddai had r esisted the officers, as determined in a prison discipline proceeding that wasn’t a ppealed, was likely to lead th e jury to conclude that he h a d used phy sical force in resisting

, rendering u se o f phy sical force ag ainst him not e x cessive. Yet, if El-Shaddai’s testimony was credited by a jury

, the jurors mig ht have concluded that the officers did use ex c essive force, as E l

-W I L K E R S O N V

. W H E E L E R 16

S h a d d ai had not phy sically resisted. To level the play in g field in a f

air w ay required e i t her not g iving the instruction that he had resisted the officers, or g iving an a dequate

ex p lanation o f the nature of his resistance consistent with his testimony

.

W e hold that the c h al l eng ed instruction was misleading and that there was r esulting prejudice. B ecause we vacate the district cour t ’s j udg ment and remand for a new trial on the basis of the f

lawed jury instruc t i o n s , w e do not address ElShaddai’s arg uments about his f i r s t request for appointed counsel or the evidentiary issues. W e note, however, that at oral a rg ument, El-Shaddai’s p ro bono attorney s indicated that they would continue to represent him on remand.

IV

The judg ment is vacated and this case is remanded to the district court for new trial and proceeding s consistent with this opinion.

REVERSED as to Sum m ary Judgm ent f or Turner, VACATED and REMANDED.