Jose Tapia-Fierro v. Leon Wilmot

NOT FOR PUBLICATION FILED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