FILED
NOT FOR PUBLICATION JAN 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BERLAN LYNELL DICEY, No. 11-16190
Plaintiff - Appellant, D.C. No. 2:06-cv-00482-KJN
v.
MEMORANDUM *
S. PICKENS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted November 5, 2012 **
San Francisco, California
Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.
We understand and are sympathetic with one who slips and falls resulting in
injury, but to grant the relief sought we must find constitutional violations or errors
on the part of the trial court. Here, there are none.
*
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).
The rejection of a judicial notice request is not itself error. We must
examine the basis for the request. See Lee v. City of L.A., 250 F.3d 668, 689-90
(9th Cir. 2001). Dicey sought to have the documents complained of admitted for
the truth of the facts contained therein. Those facts are not the proper subject of
judicial notice, and the district court properly denied the request. Id.
Dicey alleges that he was irreparably prejudiced by defense counsel’s
closing argument and that the district court erred in not granting him a new trial. It
is not the province of the court on appeal to try to measure the effect of counsel’s
closing argument. In a proper situation, objection would be made and we would
consider the trial court’s response to the objection. When no objection is made, as
here, our inquiry is limited to a search for plain error, “those errors that reach the
pinnacle of fault.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1192-93 (9th Cir.
2002). Even under a de novo review, we find no such error. Isolated comments
whose prejudicial effect is debatable, when examined within the totality of the trial,
do not result in a miscarriage of justice. Id. at 1193-94; Settlegoode v. Portland
Pub. Schs., 371 F.3d 503, 518-20 (9th Cir. 2004). The trial court did not plainly
err in refusing to grant a new trial. Hemmings, 285 F.3d at 1192-93.
Dicey also claims that the failure to procure the testimony of Dr. Cox, due to
his inability to pay the witness fees, violated his due process rights and 28 U.S.C. §
2
1915. Whether a court abuses its discretion in failing to waive witness fees under
28 U.S.C. § 1915 in these circumstances is a question this Court has already
answered in the negative and cannot revisit here. Miller v. Gammie, 335 F.3d 889,
899-900 (9th Cir. 2003) (en banc); Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir.
1989).
While we have previously left open the possibility that a due process claim
might be successful where an indigent plaintiff cannot pay the required witness
fees, Hadsell v. Comm’r, 107 F.3d 750, 753 (9th Cir. 1997), we need not reach this
issue here. We refuse to speculate on the possible effect of testimony that was
never offered to conclude that the inability to produce said testimony because of
witness fees results in a due process violation. The record shows that Dicey has
offered nothing but mere allegations to demonstrate the content and necessity of
and inability to obtain Dr. Cox’s testimony. In the absence of any factual basis to
support such claims, it would be imprudent to examine and decide whether the
Constitution is violated when witness fees prevent a litigant from offering such
testimony.
Although the jury unanimously decided for all defendants on all claims,
Dicey argues that the verdict on his retaliation claim against Defendant Harrison
was against the weight of the evidence. Dicey failed to raise either a Federal Rule
3
of Civil Procedure 50(a) or 50(b) motion, which was necessary to preserve his
ability to appeal based on the weight of the evidence. Unitherm Food Sys., Inc. v.
Swift-Exkrich, Inc., 546 U.S. 394, 399-407 (2006); Nitco Holding Corp. v.
Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007). But, regardless, we have reviewed
the record in consideration of this claim. One who merely recites his arguments
without addressing the response to those arguments is asking the court of appeal to
retry the issues. Our task is to review the case that was before the trial court.
Dicey fails to acknowledge, much less address, why we should discredit the
substantial evidence that supports the jury’s verdict, and his claim must therefore
fail. Harper v. City of L.A., 533 F.3d 1010, 1021 (9th Cir. 2008)
Dicey’s final claim is that the district court abused its discretion in requiring
him to lay a proper foundation for documents and exhibits that he contends should
have been admitted forthwith. There is no basis to reverse the district court’s
decision as Dicey cannot show that it is more probable than not that the error
tainted the verdict. Id.
All pending motions are denied as moot.
AFFIRMED.
4
FILED
Dicey v. Pickens, No. 11-16190 JAN 31 2013
MOLLY C. DWYER, CLERK
NOONAN, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
This case was begun by Dicey, a prison inmate, acting pro
se. Five days before trial including Thanksgiving, counsel was
appointed for him. The case was tried before a magistrate judge.
On appeal, the law firm of Orrick, Herrington & Sutcliffe
volunteered to act as pro bono counsel and has rendered superior
service to its client and the court.
The magistrate judge excluded in its entirety a report by the
Inspector General of California on state prisons. Doing so, the
magistrate judge misread Lee v. City of Los Angeles, 250 F.3d
668 (9th Cir. 2001).
Lee stands for the proposition that a court may take judicial
notice of the fact that a hearing was held, the fact that a waiver
of a right was signed by the plaintiff, and the fact that the waiver
was signed under as alias. Lee at 690. Applying Lee, the court
should have permitted the admission of the Inspector General’s
report establishing that an audit had been made of High Desert
1
Prison, signed by the Inspector General and by the Warden and
Health Care Manager of the prison.
Dicey could then have cross-examined the warden on the
audit’s criticism of High Desert, criticism disputed by the
defense. It is true, as the defense might have argued, that the
audit had taken place in 2001 and could have been out-of-date
by the time of Dicey’s falls. But the audit’s timeliness was not
to be determined by the magistrate judge. In a case where a
prisoner was seeking to persuade a jury of mistreatment by his
custodians, any confirmation of his claims coming from
impartial state officials was precious. Dicey is entitled to a new
trial with opportunity to use the audit.
2