Dennison v. James , 356 F. App'x 68 ( 2009 )

FILED
NOT FOR PUBLICATION NOV 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDRE ALMOND DENNISON, No. 07-16338
Plaintiff - Appellant, D.C. No. CV-03-02373-SRB
v.
MEMORANDUM *
VINCE JAMES, sued in his individual &
official capacities; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted October 20, 2009 **
Before: SKOPIL, LEAVY, and T.G. NELSON, Circuit Judges.
Andre Dennison, an Arizona state prisoner, appeals pro se from a judgment
entered after a jury trial in his 42 U.S.C. § 1983 action alleging that prison officials
retaliated against him for filing a lawsuit in violation of his First Amendment
rights. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
DISCUSSION
1. Summary Judgment
Dennison contends the district court erred by granting summary judgment to
one defendant when it became evident at trial that she filed a false incident report.
We disagree. There is no evidence that the report was filed in retaliation for
Dennison’s prior lawsuit against another prison official. See Rhodes v. Robinson,
408 F.3d 559, 567-68 (9th Cir. 2005) (listing elements of a retaliation claim in the
prison context).
2. Stipulations
Dennison contends that during summary judgment proceedings, former
defense counsel made certain oral stipulations that should have been admitted as
undisputed facts at trial. The district court refused, reasoning the alleged
stipulations were not reduced to writing as required by a local rule and that facts
“presumed for purposes of the summary judgment are not binding as stipulated
facts for purposes of the trial even if they were assumed true for purposes of the
summary judgment.” We agree and conclude the trial court did not abuse its
discretion. See Kaiser Found. Health Plan, Inc. v. Abbott Labs., Inc., 552 F.3d
1033, 1042 (9th Cir. 2009) (“We review the trial court’s evidentiary rulings for
abuse of discretion.”).
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3. Trial Testimony
Dennison contends he was denied a fair trial because one of the defense
witnesses erroneously believed she was a defendant in the action. We disagree.
Dennison’s claim that the witness’s testimony and demeanor were influenced by
that mistake is pure speculation. Moreover, the jury was informed the witness was
not a defendant and Dennison argued to the jury that her testimony was tainted and
not credible. The jury therefore had the evidence before it to make credibility
determinations and weigh the evidence. See Murray v. Laborers Union Local No.
324, 55 F.3d 1445, 1452 (9th Cir. 1995) (“The credibility of witnesses and the
weight of the evidence are issues for the jury that are generally not subject to
appellate review.”).
4. Videotape
Dennison submits that a videotape of the incident between him and prison
officials that would have supported his version of the facts was erased. Although
defendants denied doing so, Dennison offered considerable evidence of the alleged
alteration and he made substantial closing arguments to the jury regarding the
possibility that the videotape was purposely altered. The jury was thus fully
informed of the dispute and entitled to draw its own conclusions from the
evidence. See id.3
5. Jury Questions
Dennison filed post-trial motions contending the district court erred when it
responded to questions from the jury regarding Dennison’s burden of proof.
Although Dennison agreed to the responses given to the jury, he contends the
district court should have also sua sponte instructed the jury that it was entitled to
draw inferences from the evidence rather than relying on direct testimony or
documents. The district court rejected that contention, noting the jury had already
been instructed that it may consider circumstantial evidence as proof of facts. We
agree and conclude there was no abuse of discretion in denying Dennison’s post-
trial motions. See Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1344 (9th
Cir. 1987) (“In evaluating jury instructions, this court . . . will not reverse a
judgment . . . if the instructions fairly and adequately cover the issues.”); see also
Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1046 (9th Cir.) (“We
review for abuse of discretion the denial of a motion for a new trial.”), cert denied,
130 S. Ct. 299 (2009).
AFFIRMED.
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