Jean Miller v. County of Butte

FILED
NOT FOR PUBLICATION OCT 07 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JEAN MILLER, No. 09-15365

Plaintiff - Appellant, D.C. No. 2:00-cv-01733-EJG-JFM

v.
MEMORANDUM *
COUNTY OF BUTTE; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding

Submitted September 27, 2011 **

Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

Jean Miller appeals pro se from the district court’s judgment for defendants

after a jury trial in Miller’s 42 U.S.C. § 1983 action alleging excessive force during

her arrest. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse

of discretion the trial court’s conduct during trial. Price v. Kramer, 200 F.3d 1237,

*
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).
1252 (9th Cir. 2000). We affirm.

To the extent that Miller seeks to challenge the sufficiency of the evidence

used by the jury in reaching its decision, she forfeited the right to do so by failing

to file a motion under Fed. R. Civ. P. 50(a) or (b). See Nitco Holding Corp. v.

Boujikian, 491 F.3d 1086, 1088-89 (9th Cir. 2007) (holding that “a party

procedurally defaults a civil appeal based on the alleged insufficiency of the

evidence to support the verdict if it fails to file a post-verdict motion for judgment

notwithstanding the verdict”).

We do not consider Miller’s contention that a member of the jury was biased

because it was raised for the first time on appeal, and its consideration is not

“necessary to prevent manifest injustice.” Travelers Prop. Cas. Co. of Am. v.

ConocoPhillips Co., 546 F.3d 1142, 1146 (9th Cir. 2008).

Miller’s remaining contentions, including allegations of incompetence and

bias by the district court judge and fraud upon the court, are unpersuasive.

Miller’s motions for a further extension of time to file a supplemental reply

brief are denied.

AFFIRMED.

2 09-15365