Jude Nwandu v. v. Bach , 513 F. App'x 642 ( 2013 )

FILED
NOT FOR PUBLICATION MAR 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUDE P. NWANDU, No. 11-56361
Plaintiff - Appellant, D.C. No. 3:06-cv-00999-WMC
v.
MEMORANDUM*
V. BACH, Sergeant; A. CASTILLO,
Correctional Officer; A CORRECTIONAL
OFFICER,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
William McCurine, Magistrate Judge, Presiding
Submitted December 12, 2012**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Jude P. Nwandu (“Nwandu”) appeals pro se a district court judgment
following a jury trial in which the jury returned a special verdict denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claims for excessive force under the Eighth Amendment. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.1
Nwandu argues that the district court erred by allowing the jury to view
Exhibit G, the video-taped interview in which he alleges he was beaten by prison
officials. A district court’s evidentiary decisions are reviewed for abuse of
discretion. Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008).
The district court did not abuse its discretion when it admitted the recorded
interview because the person who operated the camera authenticated the recording
and testified that a proper chain of custody was followed after the interview
concluded. Nwandu failed to rebut the testimony authenticating the recording and
has offered no argument or evidence to support the conclusion that the district
court abused its discretion in admitting the recording. Admitting the recording was
not an abuse of discretion. See Harper, 533 F.3d at 1030.
Nwandu argues that the district court erred by granting defendants’ motions
in limine excluding medical testimony, medical documents, and reference to a
prior incident involving one of the defendants.
1
Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
2
Nwandu could not establish that the prior incident was relevant to his current
claims. He could not authenticate his medical records, establish their relevance, or
overcome hearsay objections to allow their admission. Nwandu also failed to
establish the relevance of his proposed medical testimony and did not submit
expert reports as required by F.R.C.P. 26(a)(2). Therefore, the district court did
not abuse its discretion by granting defendants’ motions in limine. See Harper,
533 F.3d at 1030.
Nwandu argues that the district court erred when it denied his motions for
appointment of counsel. A district court’s denial of appointment of counsel is
reviewed for abuse of discretion. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009). A district court is granted the discretion to appoint counsel in exceptional
circumstances. Id. The exceptional circumstances analysis requires the district
court to 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.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983)).
The district court analyzed each of Nwandu’s motions for appointment of
counsel under the proper standard and found no exceptional circumstances to
justify the appointment. Nwandu’s case was not so complex that he required legal
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assistance to help present his claims. Moreover, Nwandu had participated in oral
argument and had succeeded in getting his claims through the summary judgment
stage. Since Nwandu was capable of handling his claims effectively and because
his claims were not complex, the district court did not abuse its discretion in
denying his requests for appointment of counsel. See Palmer, 560 F.3d at 970.
Nwandu argues that the district court erred by allowing him only thirty
minutes in order to re-draft documents and prepare jury instructions. Federal
judges are granted broad discretion in the way they supervise their trials. United
States v. Marks, 530 F.3d 799, 806 (9th Cir. 2008). A district court judge’s
decision regarding the supervision of trial is reviewed for abuse of discretion. Id.Although Nwandu claims in his opening brief that the district court gave him
only a lunch break to prepare for trial, the record clearly illustrates that he was
given more time. After the district court was informed that Nwandu was not given
his documents, the court gave him a continuance until nine the next morning, gave
him a legal pad and pen, ordered the government to give him a copy of their
exhibits, and ordered the court’s staff to print out copies of documents related to
trial. The district court did not abuse its discretion by giving Nwandu a one day
continuance to prepare for trial. See Marks, 530 F.3d at 806.
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Nwandu argues that the district court erred by refusing to modify the pretrial
order after submitting his motion for reconsideration. A district court’s decision to
modify a pretrial order is reviewed for abuse of discretion. Hoffman v.
Tonnemacher, 593 F.3d 908, 912 (9th Cir. 2010). “A district court may modify a
pretrial order only to prevent manifest injustice.” Id. at 913. (internal quotation
marks omitted).
The district court analyzed Nwandu’s motion for reconsideration to see if
granting it would be appropriate in order to prevent manifest injustice. The district
court concluded that Nwandu’s motion was based on a misunderstanding of the
kinds of facts included in Section III of the Pretrial Order. Nwandu wanted to
include disputed facts in a section that included only admitted facts. The Pretrial
Order contained a fair list of admitted facts and the district court did not abuse its
discretion by refusing to allow Nwandu to include disputed facts. Manifest
injustice did not result from the failure to include Nwandu’s disputed facts. See
Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012).
Finally, Nwandu argues that the district court erred by failing to include a
state tort claim in the pretrial order. “The district court ‘is given broad discretion
in supervising the pretrial phase of litigation, and its decisions regarding the
preclusive effect of a pretrial order . . . will not be disturbed unless they evidence a
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clear abuse of discretion.’” C.F. ex rel. Farnan v. Capistrano Unified School Dist.,
654 F.3d 975, 984 (9th Cir. 2011) (quoting Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 607 (9th Cir. 1992)).
Because the record does not reflect that Nwandu exhausted his
administrative remedies, the district court did not clearly abuse its discretion by
refusing to include his state tort claim in the pretrial order. See Woodford v. Ngo,
548 U.S. 81, 93 (2006).
AFFIRMED.
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