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 2022-08

Jose Tapia-Fierro v. Leon Wilmot ( 2022 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                        AUG 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS TAPIA-FIERRO, AKA Jose                No.    21-15782
Tapia,
D.C. No. 2:19-cv-03096-JAT
Plaintiff-Appellant,
v.                                             MEMORANDUM*
LEON N. WILMOT, Yuma County Sheriff,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted August 17, 2022**
Before:      S.R. THOMAS, PAEZ, and LEE, Circuit Judges.
Jose Luis Tapia-Fierro appeals pro se from the district court’s judgment
entered after a bench trial in his
    42 U.S.C. § 1983
     action alleging that he was
wrongfully detained. We have jurisdiction under
    28 U.S.C. § 1291
    . We affirm.
Tapia-Fierro’s challenge to the district court’s probable cause determination
*
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).
is unreviewable because Tapia-Fierro has failed to provide this court with a trial
transcript. See Fed. R. App. P. 10(b); Syncom Capital Corp. v. Wade,
    924 F.2d 167
    , 169 (9th Cir. 1991) (when an appellant fails to provide a transcript of the
district court proceeding this court may dismiss the appeal or refuse to consider the
appellant’s argument).
The district court did not err in holding a bench trial because Tapia-Fierro
did not make a demand for a jury trial in compliance with Federal Rule of Civil
Procedure 38, and the record provided does not indicate that Tapia-Fierro moved to
reconsider the district court’s order setting the matter for a bench trial or objected
at trial. See Cal. Scents v. Surco Products, Inc.,
    406 F.3d 1102
    , 1105 (9th Cir.
2005) (standard of review); White v. McGinnis,
    903 F.2d 699
    , 703 (9th Cir. 1990)
(en banc) (knowing participation in a bench trial without objection is sufficient to
constitute a jury waiver).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright,
    587 F.3d 983
    , 985 n. 2 (9th Cir. 2009).
Tapia-Fierro’s motion for appointment of counsel (Docket Entry No. 2) is
denied.
AFFIRMED.
2                                     21-15782