FILED
NOT FOR PUBLICATION
DEC 12 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL E. CLARK, No. 14-16730
Plaintiff-Appellant, D.C. No.
2:09-cv-02272-JAD-GWF
v.
JOHN THOMAS, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted December 8, 2017**
Before: GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.
Former Nevada state prisoner Michael E. Clark appeals pro se from the
district court’s judgment following a jury trial in Clark’s 42 U.S.C. § 1983 action
alleging that Correctional Officer John Thomas failed to protect Clark from assault
by another inmate. We have jurisdiction under 28 U.S.C. § 1291. We review for
*
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).
an abuse of discretion. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384
(2008) (evidentiary rulings); Preminger v. Peake, 552 F.3d 757, 768 n.10 (9th Cir.
2008) (discovery). We affirm.
The district court did not abuse its discretion in denying Clark’s motions to
compel the production of photographs and for sanctions because the record
contains no evidence that the photographs existed. See Fed. R. Civ. P. 34(a)(1)
(allowing discovery of items in a responding party’s “possession, custody, or
control”); Dunn v. Trans World Airlines, Inc., 589 F.2d 408, 415 (9th Cir. 1978)
(concluding that the district court did not abuse its discretion by declining to
impose sanctions for failure to produce records that no longer existed).
The district court did not abuse its discretion in denying on grounds of
relevance Clark’s requests to introduce into evidence his motion for discovery
sanctions and to testify that he had seen the photographs because neither was
relevant to the disputed issues at trial. See Fed. R. Evid. 401 (evidence is relevant
if “it has any tendency to make a fact more or less probable” and “the fact is of
consequence in determining the action”); Fed. R. Evid. 402 (“Irrelevant evidence is
not admissible.”).
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We reject Clark’s contention that the district court was biased against him.
See Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion”).
We decline to consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Clark’s “Special Request for the Clerk and this Court” seeking relief against
the pro bono attorney appointed to represent him (Dkt. No. 39) is denied.
AFFIRMED.
3