FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY L. SLOAN, Jr., No. 08-16018
Plaintiff - Appellant, D.C. No. 4:00-cv-04117-CW
v.
MEMORANDUM *
OAKLAND POLICE DEPARTMENT; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted January 21, 2010**
Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.
Johnny Sloan, a California state prisoner, alleges that police officers used
excessive force against him and that prison doctors and nurses were deliberately
indifferent to his medical needs. A jury rejected Sloan’s Fourth Amendment
claims against the police officers. The district court granted summary judgment
for the medical staff on the Eighth Amendment claims. 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
DISCUSSION
A. Excessive Force
As a threshold matter, the police officers argue we lack jurisdiction because
Sloan failed to file a timely notice of appeal from the district court’s Fed. R. Civ. P.
54(b) judgment order. Rule 54(b) provides, however, that such a judgment may be
entered “only if the court expressly determines that there is no just reason for
delay.” Because the court did not make that requisite finding, its order is not final
for purposes of appellate review until “[t]hat portion of the case remaining before
the district court . . . has been reduced to final judgment.” See Baker v. Limber,
647 F.2d 912, 916 (9th Cir. 1981). Here, a final judgment was entered after the
dismissal of the remaining defendants and Sloan’s notice of appeal was timely as
to that judgment.
Sloan contends he did not receive a fair trial on his claims of excessive
force. We disagree. Most of his claims regarding discovery, jury instructions, and
verdict forms are not reviewable because his attorneys either did not object or they
agreed with the district court’s rulings. See, e.g., Affordable Housing Dev. Corp. v.
City of Fresno, 433 F.3d 1182, 1196 (9th Cir. 2006); Yeti by Molly, Ltd. v. Deckers
Outdoor Corp., 259 F.3d 1101, 1109-10 (9th Cir. 2001). To the extent there were
objections, we conclude there was no reversible error.
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Evidence of Sloan’s prior convictions was properly admitted as
impeachment. See Brewer v. City of Napa, 210 F.3d 1093, 1096 (9th Cir. 2000).
The credibility of the officers’ testimony is a jury determination not reviewable on
appeal. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000).
Although the judge took an active role in the trial, including questioning witnesses,
we discern no bias or partiality. See Price v. Kramer, 200 F.3d 1237, 1252 (9th
Cir. 2000). Finally, there is no constitutional right to effective assistance of
counsel in a civil action. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.
1985).
B. Deliberate Indifference
Sloan contends the district court erred by granting summary judgment on his
Eighth Amendment claims. We disagree. All of Sloan’s contentions against the
doctors – that he should have received surgery, been given stronger pain
medication, and should not have been forced to walk – are differences of medical
opinions that do not give rise to an Eighth Amendment violation. See Toguchi v.
Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). His claim that prison nurses refused
to treat his injuries also fails because he submitted no evidence they were present
that night in the infirmary. Thus, he failed to produce “sufficient probative
evidence to create a triable issue.” See Long v. County of Los Angeles, 442 F.3d
1178, 1191 (9th Cir. 2006).
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Sloan complains the district court refused to appoint counsel or an expert to
aid him in presenting his Eighth Amendment claims. Given the paucity of his
claims, the court properly exercised its discretion in denying those requests. See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (counsel), cert. denied, 130 S.
Ct. 1282 (2010); Students of California Sch. for the Blind v. Honig, 736 F.2d 538,
549 (9th Cir. 1984) (expert), vacated on other grounds, 471 U.S. 148 (1985);
Finally, we deny Sloan’s pending motions to strike appellees’ briefs and to
impose sanctions. Appellees’ motion to supplement the record is moot because the
transcripts at issue are now part of the district court’s record.
AFFIRMED.
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