Thomas John HEILMAN, Plaintiff-Appellant, v. C. CHERNISS, Correctional Officer; et al., Defendants-Appellees, 699 F. App'x 693

MEMORANDUM Thomas Heilman appeals the district court’s order granting Cherniss’s and Le-sane’s motion for

summary judgment. We have jurisdiction under 28 U.S.C. § 1291. Cherniss and Lesane concede that the district court: (1) erred when it disregarded material disputes of fact that bear on whether the defendants violated the Fourth and Eighth Amendments; and (2) abused its discretion by excluding the declarations of Oliver Overton, Victor Corde-ro, and Daniel Patillo without considering their admissibility under Rule 416 of the Federal Rules of Evidence. The district court therefore erred in granting

summary judgment in favor of Cherniss and Lesane. Heilman failed to “specifically and distinctly” argue in his opening brief on appeal that the searches that occurred prior to May 17, 2010 were unconstitutional and that the declarations of Overton, Cordero, and Patillo were admissible under Rule 404(b)(2) of the Federal Rules of Evidence. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994). These claims are therefore waived on appeal. See id, Issues waived on appeal, however, can be raised on remand in light of our reversal of the

summary judgment, See Kelson v. City of Springfield, 767 F.2d 661, 667 (9th Cir. 1986). REVERSED AND REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.