Emelito Exmundo v. Bell

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 6, 2018
• Docket: 14-16757
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 6 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMELITO EXMUNDO, No. 14-16757

Plaintiff-Appellant, D.C. No. 1:06-cv-00205-AWI-DLB

v. MEMORANDUM* BELL, C/O; B. JOHNSON,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Submitted [PLACEHOLDER], 2018**

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

California state prisoner Emelito Exmundo appeals pro se from the judgment

entered following an adverse jury verdict in this 42 U.S.C. § 1983 action. We have

jurisdiction under 28 U.S.C. § 1291, and 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). 1. It was not error to deny Exmundo’s challenge for cause regarding several

jurors, who indicated that they knew persons involved in law enforcement. The

district court specifically questioned those jurors, and all responded that they could

be impartial. The record does not demonstrate that the district court’s finding that

these jurors could be impartial was manifestly erroneous. See Skilling v. United

States, 561 U.S. 358, 396–99 (2010) (no manifest error by finding that juror who

stated she thought she could be impartial was fit for trial); see also Tinsley v. Borg,

895 F.2d 520, 529 (9th Cir. 1990) (jurors are not presumed to be biased solely because

they work in law enforcement).

2. Nor did the district court abuse its discretion in its supervision of the trial.

See Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1102 (9th Cir. 1998).

Exmundo was granted additional time to prepare his closing argument. Although

Exmundo contends on appeal that he should have been granted a longer continuance,

he made no such request to the district court and has not demonstrated a clear abuse

of discretion. See id. Similarly, it was not an abuse of discretion to inform the jury

about Exmundo’s missing exhibit rather than continuing the trial indefinitely. See id.

Exmundo did not suggest during the trial that he could obtain a replacement copy of

the document or that he would otherwise be able to find the document if the court

continued the trial.

2 14-16757 3. Exmundo next argues, for the first time, that the jury instruction regarding

excessive force was inadequate because it did not define the terms “sadistically” and

“maliciously.” We review this contention for plain error, see Chess v. Dovey, 790

F.3d 961, 970 (9th Cir. 2015), and determine there was none. The instruction “fairly

and adequately cover[ed] the issues presented, correctly state[d] the law, and [was]

not misleading.” Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). The terms

“sadistically” and “maliciously” are commonly understood terms, and the instruction

informed the jurors of the specific factors to consider when determining whether the

officers’ conduct constituted excessive force. See United States v. McCaleb, 552 F.3d

1053, 1059 (9th Cir. 2009). Under the circumstances, there was no plain instructional

error. See id.

4. We reject as unsupported by the record Exmundo’s allegations of judicial

bias.

5. Exmundo’s remaining contentions regarding the jury venire and prejudicial

errors during the trial are vague, unsupported by the record, and were not specifically

and distinctly raised and argued before the district court or in the briefing on appeal.

Therefore, we do not consider them. See Padgett v. Wright, 587 F.3d 983, 985 n.2

(9th Cir. 2009).

Exmundo’s motion to strike the answering brief (Docket Entry No. 34) is

denied.

3 14-16757 AFFIRMED.

4 14-16757