Robert Gibson v. Beers ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERT D. GIBSON, No. 09-16271
Plaintiff - Appellant, D.C. No. 1:03-cv-05445-LJO-DLB
v.
MEMORANDUM *
BEERS; J. M. GONZALES; W.
HAYWARD,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 4, 2010**
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Robert D. Gibson appeals pro se from an adverse jury verdict in his civil
rights action alleging that prison guards used excessive force against him in
retaliation for filing grievances in violation of his First and Eighth Amendment
*
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).
rights. He contends he did not receive a fair trial because the district court
dismissed some of his claims and eliminated defendants, excluded most of his
proposed exhibits and inmate witnesses, allowed the defendants to hear each
others’ testimony, and condoned defense counsel’s tampering with a witness.
Gibson also contends the judge was biased and prejudiced, made irrational and
inconsistent rulings, and tampered with the evidence and rigged the jury. We have
carefully reviewed the record and we reject Gibson’s contentions. Accordingly,
we affirm.
The district court rejected Gibson’s motion to amend his complaint to
resurrect dismissed claims and add defendants. The former claims were correctly
dismissed because Gibson failed to exhaust his administrative remedies. See
Woodford v. Ngo, 548 U.S. 81, 90 (2006) (holding that “proper exhaustion” is
required, including “compliance with an agency’s deadlines and other critical
procedural rules”). The additional defendants were properly excluded because
Gibson failed to show they had knowledge of the underlying events. Accordingly,
the proposed amendments would have been futile. See Ventress v. Japan Airlines,
603 F.3d 676, 680 (9th Cir. 2010) (noting a district court acts within its discretion
to deny leave to amend when the amendment would be futile).
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The court appropriately excluded exhibits not identified in the pretrial order.
See Swinton v. Potomac Corp., 270 F.3d 794, 809 (9th Cir. 2001) (noting a trial
court is “well within its discretion to exclude an exhibit not identified in the
pretrial order”). Similarly, the court did not err by excluding certain exhibits that
were listed in the pretrial order but were not relevant to Gibson’s allegations
against the prison guards. See Baker v. Delta Air Lines, Inc., 6 F.3d 632, 639 (9th
Cir. 1993) (noting exhibits must not only be relevant but the party must also
demonstrate that exclusion of the evidence was prejudicial).
The trial court did not abuse its discretion by limiting Gibson’s request for
inmate witnesses because it properly considered whether “the inconvenience and
expense of transporting [an inmate witness] . . . outweigh any benefit he would
provide.” See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Gibson also
failed to show the inmates had relevant testimony to offer or their exclusion was
prejudicial to his case.
The trial court also did not abuse its discretion by refusing to compel the
attendance of non-incarcerated witnesses. Those proposed witnesses – high
ranking state officials – had no personal knowledge of Gibson’s case. See Konop
v. Hawaiian Airlines, Inc., 302 F.3d 868, 886 (9th Cir. 2002) (affirming district
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court’s decision to quash subpoenas because plaintiff failed to indicate what
relevant evidence the proposed witnesses might provide).
The district court did not err by refusing Gibson’s request to exclude the
defendants from the courtroom. Federal Rule of Evidence 615 permits the court to
exclude witnesses, but it specifically does not authorize exclusion of a party.
Gibson contends that defendants’ counsel “tampered” with an inmate
witness by meeting with him before trial. There is no prohibition, however, on a
party’s ability to interview a consenting witness. See Wharton v. Calderon, 127
F.3d 1201, 1204 (9th Cir. 1997). Moreover, there is no prejudice because Gibson
later agreed to “let that witness go because . . . [t]here is nothing relevant he could
possibly add to the trial.”
Finally, we reject Gibson’s allegation of judicial misconduct because it is
not supported by specific references to the record. See In re Complaint of Judicial
Misconduct, 584 F.3d 1230, 1231 (9th Cir. 2009) (noting vague accusations do not
provide objective evidence of judicial misconduct). Moreover, complaints
regarding a judge’s adverse rulings alone are insufficient to demonstrate bias,
prejudice or misconduct. See Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir.
2010).
AFFIRMED.
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