FILED
NOT FOR PUBLICATION MAY 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARK STEPHEN WICKLUND, No. 10-35613
Plaintiff - Appellant, D.C. No. 1:09-cv-00673-CWD
v.
MEMORANDUM *
ADA COUNTY; JOHN/JANE DOE 1-5,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding
Submitted May 5, 2011 **
Seattle, Washington
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.
Mark Wicklund filed a 42 U.S.C. § 1983 action alleging that prosecutors
from the Ada County District Attorney’s office (“Ada County”) violated his due
process rights by removing documents from his court file, thereby requiring him to
*
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).
resubmit the documents to the court. Wicklund appeals the district court’s denial
of his motions for expedited discovery and the court’s grant of summary judgment
on his due process claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and
we affirm.
The district court did not abuse its discretion in denying Wicklund’s Motion
for Expedited Discovery pursuant to Federal Rule of Civil Procedure 26(d).
Wicklund provided no reasonable explanation as to why expedited discovery was
necessary to permit him to refute Ada County’s motion. See Fed. R. Civ. P. 26(d);
Laub v. U.S. Dept. of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“[A] decision
to deny discovery will not be disturbed except upon the clearest showing that the
denial of discovery results in actual and substantial prejudice to the complaining
litigant.”).
Similarly, the district court’s denial of Wicklund’s Motion for Relief
pursuant to Rule 56(f) was not an abuse of discretion. Wicklund did not specify
the information he was seeking through discovery or provide any basis for
believing that any information sought was in Ada County’s possession. See
Emp’rs Teamsters Local Nos. 175 and 505 Pension Trust Fund v. Clorox Co., 353
F.3d 1125, 1129 (9th Cir. 2004).
2 10-35613
The district court properly granted summary judgment on Wicklund’s due
process claim. Wicklund provides no support for his contention that there is a due
process violation where a party has to resubmit to the court evidence in the party’s
possession. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 930 (9th Cir.
2003) (“It is [the appellant’s] burden on appeal to present the court with legal
arguments to support its claims.”). To the extent that Wicklund is arguing that Ada
County suppressed materially exculpatory evidence, his claim is barred because it
implicates the validity of his underlying conviction, which has not been
invalidated. See Heck v. Humphrey, 512 U.S. 477, 486 (1994); Brady v. Maryland,
373 U.S. 83, 87 (1963). Even if the documents were only potentially exculpatory,
Wicklund has failed to state a due process claim because the documents were
reasonably available to him—they were in his possession and he resubmitted them
to the court. See United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir. 1977)
(suppression of potentially exculpatory evidence violates due process only if the
defendant was “unable to obtain comparable evidence by other reasonably
available means”).
AFFIRMED.
3 10-35613