FILED
NOT FOR PUBLICATION JUL 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY MCDONALD, No. 13-17006
Plaintiff - Appellant, D.C. No. 1:09-cv-00730-SKO
v.
MEMORANDUM*
GREG CLARK, Correctional Officer; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Sheila K. Oberto, Magistrate Judge, Presiding
Argued and Submitted May 13, 2015
San Francisco, California
Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.
Jimmy McDonald appeals the district court’s judgment following a jury
verdict in favor of Greg Clark, Adam Cano, Howard Roberts, and Robert
Rodriguez (collectively, “Clark”). We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not abuse its discretion in denying McDonald’s
motions for appointment of counsel.1 “The abuse of discretion standard requires us
to uphold a district court determination that falls within a broad range of
permissible conclusions in the absence of an erroneous application of law.” Grant
v. City of Long Beach, 315 F.3d 1081, 1091 (9th Cir. 2002), amended by 334 F.3d
795 (9th Cir. 2003) (order). In the context of a motion for appointment of counsel
under 28 U.S.C. § 1915, the district court must evaluate “at least . . . the likelihood
of the plaintiff’s success on the merits and . . . the plaintiff’s ability to articulate his
claims ‘in light of the complexity of the legal issues involved.’” Agyeman v. Corr.
Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). There were
three issues at stake in McDonald’s Eighth Amendment deliberate indifference
claim: 1) whether assigning McDonald to an upper bunk presented a substantial
risk of serious harm, 2) whether Clark knew of and disregarded that risk, and 3)
whether Clark’s actions or inaction caused harm to McDonald. Clark conceded the
first issue as part of the summary judgment proceedings, and the court found that
there was a genuine factual dispute as to the second and third. Given McDonald’s
response to Clark’s summary judgment motion and the nature of the remaining
triable issues—primarily, ones of witness credibility—we affirm the court’s
1
On appeal, this court appointed pro bono counsel on behalf of McDonald.
2
denials of McDonald’s motions for appointment of counsel. See Wilborn v.
Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).
2. McDonald next argues that the district court committed reversible error in
sustaining Clark’s objection to the DeFrance Chrono. Even assuming the chrono
was relevant under Federal Rules of Evidence 401 and 402, we conclude that the
court’s error was not prejudicial. See Boyd v. City & Cnty. of San Francisco, 576
F.3d 938, 943 (9th Cir. 2009). Had the court admitted the DeFrance Chrono for
more than the limited purpose of showing why prison officials transferred
McDonald in August 2005, the jury still would have needed to evaluate each
witness’s credibility. And although housing transfers required a sergeant’s
approval, such evidence would show a chain of communication from guard to
sergeant rather than from sergeant to guard, as reflected in the DeFrance Chrono.
Thus, no prejudice occurred.
3. Finally, McDonald argues that the trial court plainly erred in permitting
Clark’s counsel to vouch for Clark’s witnesses’ credibility. Assuming for the
purposes of this disposition that counsel’s statements constituted improper
vouching, an issue we do not decide, those statements do not call the fairness of the
trial into question to a sufficient degree to warrant a new trial. See Hemmings v.
Tidyman’s Inc., 285 F.3d 1174, 1192 (9th Cir. 2002). McDonald cites one brief
3
instance of alleged misconduct during counsel’s closing argument. See id. at 1194
(considering “an isolated, short comment during a closing statement that covered
66 pages when transcribed”). And Clark otherwise presented evidence of prison
protocols, stressed McDonald’s lack of documentation to support his claim, and
presented an alternative theory of causation. See id. at 1195 (considering the
strength of a party’s case). Thus, McDonald fails to meet his burden of showing
prejudice on this record.
AFFIRMED.
4