Steve Cox v. Richard Falge ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 1 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
STEVE MICHAEL COX, No. 10-15507
Plaintiff - Appellant, D.C. No. 3:03-cv-00651-VPC
v.
MEMORANDUM *
RICHARD FAGLE; TONY JONES,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Valerie P. Cooke, Magistrate Judge, Presiding **
Submitted June 15, 2011 ***
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Steve Michael Cox, a Nevada state prisoner, appeals pro se from the district
court’s judgment following a jury trial in his 42 U.S.C. § 1983 action alleging that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
defendants violated his due process rights. We have jurisdiction under 28 U.S.C.
§ 1291. We review for an abuse of desertion a district court’s evidentiary rulings.
United States v. Tran, 568 F.3d 1156, 1162 (9th Cir. 2009). We affirm.
The district court did not abuse its discretion by excluding Cox’s exhibits
because they were irrelevant and contained hearsay. See Fed. R. Evid. 401, 402,
802. Cox has waived any argument that the district court abused its discretion by
admitting defendants’ exhibits because Cox does not explain on appeal why the
exhibits should have been excluded and did not object to them before the district
court. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam)
(we do not consider matters not distinctly argued in the opening brief); Marbled
Murrelet v. Babbitt, 83 F.3d 1060, 1066 (9th Cir. 1996) (“By failing to object to
evidence at trial and request a ruling on such an objection, a party waives the right
to raise admissibility issues on appeal.”).
Contrary to Cox’s contention, the district court did not abuse its discretion
with respect to nonparty witness Daniel Kalisz because Cox did not properly
request a subpoena. See Fed. R. Civ. P. 45; Tedder v. Odel, 890 F.2d 210, 211-12
(9th Cir. 1989) (per curiam) (28 U.S.C. § 1915 does not entitle a plaintiff
proceeding in forma pauperis to a waiver of witness fees for subpoenas).
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Cox’s remaining contentions are unpersuasive.
AFFIRMED.
3 10-15507