NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS GARCIA, No. 15-35557
Plaintiff-Appellant, D.C. No. 2:10-cv-00349-TOR
v.
MEMORANDUM*
SPOKANE COUNTY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Submitted December 14, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Nicholas Garcia appeals pro se from the district court’s judgment following
a jury verdict against Garcia in his 42 U.S.C. § 1983 action alleging constitutional
violations during Garcia’s confinement as a pretrial detainee. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
*
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).
The district court properly granted summary judgment in favor of defendants
Spokane County, Ozzie Knezovich, and John McGrath on Garcia’s Fourth
Amendment claims because Garcia failed to raise a genuine dispute of material
fact as to (1) whether any constitutional deprivations resulted from an official
county custom or policy, (2) whether Knezovich and McGrath were personally
involved in any constitutional violation, or (3) whether there was a causal
connection between Knezovich’s and McGrath’s conduct and any such violation.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978) (requirements for
municipal liability); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)
(requirements for supervisory liability); see also Sanchez v. Vild, 891 F.2d 240,
242 (9th Cir. 1989) (party opposing summary judgment must present “significant
probative evidence tending to support its claim that material, triable issues of fact
remain” (citations and internal quotation marks omitted)).
The district court did not abuse its discretion by dismissing a juror after
thoroughly questioning the juror on the record and, based on the juror’s answers
and demeanor, concluding that the juror was unable to be impartial or follow the
court’s instructions. See Fed. R. Civ. P. 47(c) (“[A] court may excuse a juror for
good cause” during trial); Image Tech. Servs., Inc. v. Eastman Kodak Co., 125 F.3d
1195, 1220–21 (9th Cir. 1997) (setting forth standard of review and noting that the
trial judge, who observed juror’s demeanor and credibility, is best suited to
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determine juror’s impartiality).
The district court did not abuse its discretion by declining to enforce
Garcia’s subpoenas because, among other defects, Garcia failed to properly serve
the witnesses or pay the required fees. See Fed. R. Civ. P. 45(b)(1); Tedder v.
Odel, 890 F.2d 210, 211 (9th Cir. 1989) (“Fees must be tendered concurrently with
the subpoena.”); see also Mabe v. San Bernardino Cty., Dept. of Pub. Soc. Serv.,
237 F.3d 1101, 1112 (9th Cir. 2001) (standard of review).
We reject as unsupported by the record Garcia’s contention that the district
court prohibited Garcia from introducing his medical records into evidence at trial
because of his failure to comply with discovery requests. The court excluded these
records not because of Garcia’s discovery delays, but because of a complete failure
on his part to authenticate the records by calling a witness to establish that the
records were what they claimed to be, as required by Fed. R. Evid. 901(a), (b)(1).
The court’s ruling was correct.
We reject as unsupported by the record Garcia’s contentions that (1) the
district court or unidentified individuals tampered with evidence during the trial,
and (2) that the district court provided the jury with inaccurate jury instructions.
We do not consider arguments raised for the first time on appeal or 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).
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We deny Garcia’s renewed motion to have his appeal heard by the panel that
originally heard the matter in his first appeal (Docket Entry No. 52).
AFFIRMED.
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