Antwoine Bealer v. R. Brannum ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTWOINE MARQUISE BEALER, No. 16-16582
Plaintiff-Appellant, D.C. No. 1:12-cv-01516-DAD-EPG
v.
MEMORANDUM*
R. BRANNUM; S. RIOS,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted April 2, 2019**
Before: WALLACE, FARRIS, and TROTT, Circuit Judges.
Antwoine Marquise Bealer, a California state prisoner, appeals pro se from
the district court’s judgment following a jury verdict against Bealer in his 42
U.S.C. § 1983 action alleging claims related to defendants’ alleged use of
excessive force. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
*
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 district court properly screened and dismissed Bealer’s claims against
the warden, the associate warden, nurse Torricer, and Sergeant Epperson because
Bealer failed to state a claim upon which relief may be granted. See 28 U.S.C.
§ 1915A; Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (court reviews de
novo dismissals under 28 U.S.C. § 1915A); see also Mendiola–Martinez v. Arpaio,
836 F.3d 1239, 1248 (9th Cir. 2016) (requirements for deliberate indifference
claim); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (requirements for
cruel and unusual punishment claim); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.
2011) (requirements for supervisory liability).
The district court did not abuse its discretion by denying Bealer’s motions
for injunctive relief related to Bealer’s allegations that he had limited access to the
law library and his legal materials because Bealer failed to establish that absent
such relief he is likely to suffer irreparable harm. See Winter v. Nat. Res. Def.
Council, 555 U.S. 7, 20 (2008) (setting forth standard for issuance of preliminary
injunction).
The district court did not abuse its discretion in its discovery orders. See
Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (district courts
are vested with “broad discretion to permit or deny discovery”). Contrary to
Bealer’s contention, the district court afforded him multiple and ample
opportunities to participate in discovery, including depositions.
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We reject, as unsupported by the record, Bealer’s allegations regarding juror
bias. Bealer contends that certain jurors were biased against him based solely on
the fact that the jurors had friends or relatives who were employed in law
enforcement at some time. However, this is insufficient to demonstrate bias. Cf.
Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir. 1990) (“We will not presume bias
merely because a juror works in law enforcement[.]”); see also Fields v. Brown,
503 F.3d 755, 767 (9th Cir. 2007) (en banc) (“The determination of whether a juror
is actually biased is a question of fact, that we review for manifest error or abuse of
discretion.” (internal citations and quotations omitted)).
We reject Bealer’s contentions that he was prejudiced by the requirement to
wear ankle restraints during trial because the district court took appropriate
measures to conceal the restraints from the jury, and Bealer does not contend that
the jury was aware of the restraints. See Williams v. Woodford, 384 F.3d 567, 592-
93 (9th Cir. 2004) (no prejudice resulting from shackles not visible to jury).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments raised for the first time on appeal. See Padgett
v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); see also Greenwood v. FAA, 28
F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an
appellant, and a bare assertion does not preserve a claim, particularly when, as
here, a host of other issues are presented for review.”).
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All pending motions are denied.
AFFIRMED.
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