Allen v. Clark

23 F. App'x 827

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2001
• Docket: No. 00-15354; D.C. No. CV-93-05629-DLB
• Status: Published

Opinion

MEMORANDUM

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California state prisoner Cedric R. Allen' appeals pro se the district court’s judgment following a jury trial and orders denying his motions for a new trial and relief from judgment in his civil rights action, which alleged retaliation and excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether a jury instruction misstates elements of a constitutional violation, Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992), and review for abuse of discretion a denial of a request for a continuance, United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir.1985) (per curiam). We affirm.

The district court did not abuse its discretion by denying Allen’s request for a continuance because Allen did not show that he was prejudiced by the denial of the request, and further delay would have inconvenienced the court and the opposing parties. See 2.61 Acres of Land, 791 F.2d at 671.

We reject Allen’s contention that the closing argument of defense counsel constituted misconduct which warrants a new trial because Allen did not object to the closing argument at trial. See Kaiser Steel Corp. v. Frank Coluccio Constr. Co., 785 F.2d 656, 658 (9th Cir.1986).

Allen’s contention that the jury instructions were flawed lacks merit. See Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

Allen’s contention that the clear weight of the evidence did not support the verdict lacks merit because there is evidence in the record to support the jury’s verdict. See Patel v. Penman, 103 F.3d 868, 878 (9th Cir.1996) (review limited to whether any evidence exists in the record to support jury’s verdict where appellant failed to move for judgment as a matter of law at the close of evidence).

Allen’s remaining contentions lack merit.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.