Kaimi v. Hawaii Department of Public Safety ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA LYNN KAIMI, No. 16-15045
Plaintiff-Appellant, D.C. No. 1:13-cv-00483-JMS-BMK
v.
MEMORANDUM*
STATE OF HAWAII DEPARTMENT OF
PUBLIC SAFETY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Hawaii state prisoner Donna Lynn Kaimi appeals pro se the district court’s
judgment following a bench trial in her 42 U.S.C. § 1983 action alleging excessive
force. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of
discretion the district court’s evidentiary rulings. Janes v. Wal-Mart Stores Inc.,
*
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).
279 F.3d 883, 886 (9th Cir. 2002). We affirm.
The district court did not abuse its discretion in excluding evidence of
defendant Anderson’s prior acts because it was “not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1).
The district court did not abuse its discretion in admitting defendant
Anderson’s testimony concerning what could be seen when standing atop tables in
the dining room because this was relevant evidence and Kaimi failed to establish
that its probative value was substantially outweighed by the risk that it would be
unfairly prejudicial. See Fed. R. Evid. 401 (standard for relevance); Fed. R. Evid.
403 (allowing relevant evidence to be excluded where its probative value is
substantially outweighed by potential for prejudice).
The district court did not abuse its discretion in admitting Visitacion’s
testimony after non-party Visitacion had listened to the trial testimony of Kaimi
because, even if Kaimi had invoked Federal Rule of Evidence 615 to exclude
Visitacion from the courtroom, the record does not support a finding that
Visitacion’s testimony prejudiced Kaimi. See Fed. R. Evid. 615 (rule of exclusion
of witnesses); Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th
2 16-15045
Cir. 2014) (evidentiary rulings are not reversed absent a showing of prejudice).
The district court did not clearly err in its credibility determinations because
its determinations were “plausible in light of the record viewed in its entirety.”
Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002) (“[I]f the district
court’s findings are plausible in light of the record viewed in its entirety, the
appellate court cannot reverse even if it is convinced it would have found
differently”).
We reject as unsupported by the record Kaimi’s contentions concerning
evidence of her medical condition and that the district court was biased against her.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 16-15045