Mahone

Opinion by Judge ALARCÓN; Dissent by Judge CLIFTON.

In this civil rights action, filed pursuant to 42 U.S.C. § 1983 , Sylvester James Ma-hone seeks reversal of the judgment entered in favor of each of the Appellees following a trial by jury. In his pro se complaint, Mr. Mahone alleged that, while an inmate at Washington State’s Clallam Bay Correctional Center (“CBCC”) prison, he was placed in solitary confinement in a bare strip cell, without clothing, property, or regular access to running water in violation of the Eighth Amendment. Mr. Mahone contends that the district court committed prejudicial error in admitting hearsay evidence, and in failing to correct defense counsel’s misstatements in her closing argument regarding the proof required to demonstrate deliberate indifference to an inmate’s health and safety.

We reverse because we conclude that admission of hearsay testimony was prejudicial. We also hold that defense counsel misstated the standard for deliberate indifference.

I

On February 2, 1998, Mr. Mahone, then an inmate at CBCC, extracted a piece of steel rebar from a cement partition in his cell and used it to cause substantial damage to his maximum custody…

dissenting.

I concur in the conclusion of the majority that the testimony in question was hearsay and should have been excluded from the evidence at trial. With respect, though, I part company with the majority on the issue of actual prejudice. As properly noted by the majority, ante at 1172, we should reverse a jury verdict for evi-dentiary error only if “more probably than not, the lower court’s error tainted the verdict.” Tennison v. Circus Circus Enters., 244 F.3d 684, 688 (9th Cir.2001); see also McEuin v. Crown Equipment Corp., 328 F.3d 1028, 1032 (9th Cir.2003). My review of the record suggests that it is highly unlikely that the evidentiary error had any impact on the jury’s verdict. Thus, I would affirm.

To put it into context, I note that the offending testimony consists of one brief exchange — one question and one response — on day 3 of a 6-day trial. It was recorded in a few lines on one page of a trial transcript of 849 pages. Crucial testi *1175 mony need not be lengthy, of course, but there is nothing to suggest that this single answer was a smoking gun. To the contrary, it appears that it was never mentioned again during the trial. The psychiatrist was never…