Michael Clark v. John Thomas

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NOT FOR PUBLICATION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.”).

2
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.