The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2016
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FLINOYD BROWN, No. 13-56503
Plaintiff - Appellant, D.C. No. 2:06-cv-04169-SJO-JC
v.
MEMORANDUM*
ANTONIO VILLARAIGOSA, Mayor; et
al.,
Defendants - Appellees,
And
HEIM, Sergeant, #21887, Erroneously
Sued As Beth Heim; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted December 10, 2015**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
On consent of pro bono counsel, the panel unanimously concludes this
case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON, CALLAHAN, and HURWITZ, Circuit Judges.
Plaintiff-appellant Flinoyd Brown, a California state prisoner, appeals from
the judgment of the district court, following a jury verdict, entered on his 42 U.S.C.
§ 1983 complaint in favor of the defendant-appellees, members of the Los Angeles
Police Department (“LAPD”) and the Los Angeles Fire Department. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Brown challenges the district court’s refusal to appoint counsel. In
Palmer v. Valdez, we stated:
A district court’s refusal to appoint counsel pursuant to 28 U.S.C. §
1915(e)(1) is reviewed for an abuse of discretion. Generally, a person
has no right to counsel in civil actions. However, a court may under
“exceptional circumstances” appoint counsel for indigent civil
litigants pursuant to 28 U.S.C. § 1915(e)(1). When determining
whether “exceptional circumstances” exist, a court must consider “the
likelihood of success on the merits as well as the ability of the
petitioner to articulate his claims pro se in light of the complexity of
the legal issues involved.” Neither of these considerations is
dispositive and instead must be viewed together.
560 F.3d 965, 970 (9th Cir. 2009) (internal citations omitted). Nothing in the
record indicates that Brown had a likelihood of success on his claims; he had been
convicted of four counts of the assault that gave rise to his arrest. Moreover, there
was nothing particularly complex about the factual and legal issues presented by
the complaint. The district court did not abuse its discretion in denying the request
for appointed counsel under these circumstances.
2. Brown claims that the district court abused its discretion by denying his
motions to continue the trial. “The decision to grant or deny a requested
continuance lies within the broad discretion of the district court, and will not be
disturbed on appeal absent clear abuse of that discretion.” United States v. Flynt,
756 F.2d 1352, 1358 (9th Cir. 1985). Here, the court reasonably moved forward
with a trial date of August 13, 2013, after having stayed the case for one of the
defendant LAPD officers to fulfill his reserve duties in Afghanistan. Brown made
no showing why he needed extra time beyond the seven years that the case was
pending. Although on appeal he contends that he needed the time to serve
subpoenas, he did not raise this issue before the district court.1
3. Brown argues that the prison did not comply with the court’s order to
provide him access to his legal documents. On the eve of trial, the court denied
Brown’s motion for an order of contempt against the prison officials.
We review a district court’s denial of a motion for contempt for an abuse of
discretion. See Ballo v. Idaho State Bd. of Corr., 869 F.2d 461, 464 (9th Cir.
1989). A district court “has, and should have, wide latitude in making a
determination of whether there has been contemptuous defiance of its own orders.”
Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48 (9th Cir. 1971). The
1
The plaintiff’s response to a question on cross-examination that “he was
not in the position to [subpoena anyone]” did not sufficiently raise the issue before
the court for preservation purposes.
district court did not abuse its discretion in this case. The court reviewed a sworn
declaration from a ranking prison official that documented the efforts made by the
prison to provide Brown more than the usual access to “legal property.” The
declaration also documented the few times Brown took advantage of this
arrangement.
4. The district court did not abuse its discretion in arranging Brown’s
appearance by video feed. “A plaintiff in a civil suit who is confined in state
prison at the time of a hearing has no absolute right to appear personally.”
Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985). A court may deny a
prisoner’s request to appear at a civil trial for any number of reasons, including
“whether the prisoner’s presence will substantially further the resolution of the
case, the security risks presented by the prisoner’s presence, the expense of the
prisoner’s transportation and safekeeping, and whether the suit can be stayed until
the prisoner is released without prejudice to the cause asserted.” Wiggins v.
Alameda Cty., 717 F.2d 466, 468 n.1 (9th Cir. 1983) (quoting Ballard v. Spradley,
577 F.2d 476, 480 (5th Cir. 1977)).
5. For the first time on appeal, Brown challenges the court’s formulation of
the jury instructions used to explain excessive force.2 “We review the language
and formulation of a jury instruction for an abuse of discretion.” United States v.
2
He does not argue that the instruction was a misstatement of law.
Garcia, 768 F.3d 822, 827 (9th Cir. 2014) (quoting United States v. Cortes, 757
F.3d 850, 857 (9th Cir. 2014)).
Nothing about the challenged instructions, which quote substantively
verbatim Model Instructions 9.18, 9.20 and 9.22, was inaccurate or misleading.
Ninth Circuit Manual of Model Civil Jury Instructions §§ 9.18, 9.20, 9.22 (2007).
Moreover, the assertion that Brown “had very little input in drafting the
instructions” is belied by the record.
6. Brown claims that the district court “should have sua sponte excluded all
witnesses from the courtroom pursuant to Federal Rules of Evidence, Rule 615.”
However, the rule that a “court must order witnesses excluded so that they cannot
hear other witnesses’ testimony” does not apply to a “party who is a natural
person.” Fed. R. Evid. 615. Here, the testifying witnesses were the defendants
themselves.
7. Brown did not substantiate his claim that he was in need of, but was
denied, medication that would keep him awake and functional during trial. The
judge was in the best position to determine the credibility of Brown’s medical
complaint and was evidently convinced that a recess was not necessary under the
circumstances. The decision to deny a recess was well within the court’s
discretionary power.
8. Brown claims that, having handled the habeas writ arising from his
criminal trial, the trial judge held a bias against him and could not fairly try his §
1983 action. The argument is waived because it was not raised below, and, in any
event, entirely speculative.
9. Brown claims that he was denied due process because he did not receive
the defense exhibits until after the trial was over. The record does not bear out this
claim, which in any event is waived because it was not raised before the district
court.
The judgment is AFFIRMED.