NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT CARRASCO GAMEZ, Jr., 

Plaintiff-Appellant, 

 v. 

UNKNOWN NORRIS, CO II, at ASPC 

Florence and WESLEY VALENTINE, 

AKA Unknown Valentine, CO II at ASPC 

Florence, 

Defendants-Appellees.

No. 17-15367 

D.C. No. 2:12-cv-00760-JJT 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

John Joseph Tuchi, District Judge, Presiding

Submitted October 15, 2018**

San Francisco, California

Before: THOMAS, Chief Judge, KLEINFELD, Circuit Judge, and WU,*** District 

Judge.

 

* 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).

*** The Honorable George H. Wu, United States District Judge for the 

Central District of California, sitting by designation.

FILED

NOV 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-15367 

Plaintiff-Appellant Robert Gamez appeals the district court’s denial of his 

proposed additional language to a jury instruction. He argues that the instruction 

as-given was an incomplete statement of the law. We have jurisdiction pursuant to 

28 U.S.C. § 1291 and AFFIRM.

Gamez, an inmate in the custody of the Arizona Department of Corrections,

sued Corrections Officers Shilo Norris and Wesley Valentine, pursuant to 42 

U.S.C. § 1983, claiming that they had violated his Eighth Amendment rights by 

using excessive force against him. At trial, the district court gave the following as 

Jury Instruction 12:

While a violation of Department of Corrections policy may also 

constitute a violation of an inmate’s constitutional rights, you may 

not simply conclude one follows the other. The plaintiff has the 

burden of proof to show that each officer violated the plaintiff’s 

constitutional right regardless of any alleged violation of a 

Department of Corrections policy.

Gamez sought to highlight Defendants’ alleged violation of a prison policy by 

proposing the following additional language to the instruction: “Department of 

Corrections use-of-force policies may be relevant to whether force was applied and 

[sic] a good-faith effort to maintain or restore discipline or maliciously and 

sadistically for the very purpose of causing harm.” The district court declined 

Gamez’s proposal as superfluous.1 The district court also gave a general Eighth 

 

1 Plaintiff preserved his right to appeal the instruction. Even though Gamez’s 

reason for challenging the instruction shifted after his initial objection, he distinctly 
3 17-15367 

Amendment instruction as Jury Instruction 11. 

We review de novo whether a jury instruction was “an incomplete, and 

therefore incorrect, statement of the law . . . .” See Norwood v. Vance, 591 F.3d 

1062, 1066 (9th Cir. 2010). “In evaluating jury instructions, prejudicial error 

results when, looking to the instructions as a whole, the substance of the applicable 

law was [not] fairly and correctly covered.” Dang v. Cross, 422 F.3d 800, 805 (9th 

Cir. 2005) (quoting Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001)).

Jury Instruction 12 already notified the jury that it could consider a violation 

of prison policy for multiple purposes by stating that a violation of policy “may 

also constitute a violation of an inmate’s constitutional rights.” (Emphasis added). 

Additionally, in Jury Instruction 11, the district court told the jury to consider, inter 

alia, “whether the defendant applied the force in a good faith effort to maintain or 

restore discipline.” Jury Instruction 11 continued, “[i]n considering [this] factor[],

you should give deference to prison officials in the adoption and execution of 

policies.” (Emphasis added). Reviewing the given instructions as a whole, we 

conclude that they (1) already included the concepts/points in Plaintiff’s proposed 

language, and (2) accurately stated the law.

AFFIRMED.

 

raised the issue to the district court by proposing the additional language. See Fed. 

R. Civ. P. 51(c); Hunter v. Cty. of Sacramento, 652 F.3d 1225, 1231 (9th Cir. 

2011).