Saul Perez v. Dill

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAUL BARRIOS PEREZ, No. 16-15558
Plaintiff-Appellant, D.C. No. 1:07-cv-01794-BAM
v.
MEMORANDUM*
DILL, Assistant Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding**
Submitted May 8, 2017***
Before: REINHARDT, LEAVY, and NGUYEN, Circuit Judges.
California state prisoner Saul Barrios Perez appeals pro se from the district
court’s judgment following a jury verdict in favor of defendants in his 42 U.S.C.
§ 1983 action alleging conditions of confinement claims. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 1291. We review “independently and non-deferentially a
challenge to the composition of grand and petit juries,” Thomas v. Borg, 159 F.3d
1147, 1149 (9th Cir. 1998) (citation and internal quotation marks omitted), and for
an abuse of discretion a district court’s sanctions under Federal Rule of Civil
Procedure 16(f). We affirm.
Contrary to Perez’s arguments that the composition of his civil jury violated
the Sixth and Fourteenth Amendments, there is no evidence in the record showing
that there was a discriminatory intent in composing the jury or that there was a
distinctive group in the community that was systemically excluded from the jury
process. See Thomas, 159 F.3d at 1149-50 (requirements for Sixth and Fourteenth
Amendment challenges to a jury composition).
The district court did not plainly err in failing to deny sua sponte defendants’
peremptory challenges as improperly motivated by race because there were race-
neutral reasons for the exclusion of those jurors. See United States v. Contreras-
Contreras, 83 F.3d 1103, 1104-06 (9th Cir. 1996) (standard of review and
explanation of plain error standard).
The district court did not abuse its discretion in sanctioning Perez for failing
to comply with its scheduling order because Perez failed to file his pretrial
statement in a timely manner. See Fed. R. Civ. P. 16(f) (permitting court to sua
sponte issue sanctions based on party’s failure to comply with pretrial order); see
2 16-15558
also Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1060 (9th Cir. 2005)
(standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or 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 16-15558