Antwoine Bealer v. R. Brannum

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 4, 2019
• Docket: 16-16582
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 4 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTWOINE MARQUISE BEALER, No. 16-16582

Plaintiff-Appellant, D.C. No. 1:12-cv-01516-DAD-EPG

v. MEMORANDUM* R. BRANNUM; S. RIOS,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted April 2, 2019**

Before: WALLACE, FARRIS, and TROTT, Circuit Judges.

Antwoine Marquise Bealer, a California state prisoner, appeals pro se from

the district court’s judgment following a jury verdict against Bealer in his 42

U.S.C. § 1983 action alleging claims related to defendants’ alleged use of

excessive force. 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 screened and dismissed Bealer’s claims against

the warden, the associate warden, nurse Torricer, and Sergeant Epperson because

Bealer failed to state a claim upon which relief may be granted. See 28 U.S.C.

§ 1915A; Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (court reviews de

novo dismissals under 28 U.S.C. § 1915A); see also Mendiola–Martinez v. Arpaio,

836 F.3d 1239, 1248 (9th Cir. 2016) (requirements for deliberate indifference

claim); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (requirements for

cruel and unusual punishment claim); Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir.

2011) (requirements for supervisory liability).

The district court did not abuse its discretion by denying Bealer’s motions

for injunctive relief related to Bealer’s allegations that he had limited access to the

law library and his legal materials because Bealer failed to establish that absent

such relief he is likely to suffer irreparable harm. See Winter v. Nat. Res. Def.

Council, 555 U.S. 7, 20 (2008) (setting forth standard for issuance of preliminary

injunction).

The district court did not abuse its discretion in its discovery orders. See

Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (district courts

are vested with “broad discretion to permit or deny discovery”). Contrary to

Bealer’s contention, the district court afforded him multiple and ample

opportunities to participate in discovery, including depositions.

2 16-16582 We reject, as unsupported by the record, Bealer’s allegations regarding juror

bias. Bealer contends that certain jurors were biased against him based solely on

the fact that the jurors had friends or relatives who were employed in law

enforcement at some time. However, this is insufficient to demonstrate bias. Cf.

Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir. 1990) (“We will not presume bias

merely because a juror works in law enforcement[.]”); see also Fields v. Brown,

503 F.3d 755, 767 (9th Cir. 2007) (en banc) (“The determination of whether a juror

is actually biased is a question of fact, that we review for manifest error or abuse of

discretion.” (internal citations and quotations omitted)).

We reject Bealer’s contentions that he was prejudiced by the requirement to

wear ankle restraints during trial because the district court took appropriate

measures to conceal the restraints from the jury, and Bealer does not contend that

the jury was aware of the restraints. See Williams v. Woodford, 384 F.3d 567, 592-

93 (9th Cir. 2004) (no prejudice resulting from shackles not visible to jury).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments raised for the first time on appeal. See Padgett

v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009); see also Greenwood v. FAA, 28

F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments for an

appellant, and a bare assertion does not preserve a claim, particularly when, as

here, a host of other issues are presented for review.”).

3 16-16582 All pending motions are denied.

AFFIRMED.

4 16-16582