Eugene Forte v. Timothy Schwartz

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 28, 2020
• Docket: 18-15619
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 28 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EUGENE FORTE, No. 18-15619

Plaintiff-Appellant, D.C. No. 1:13-cv-01980-LJO-MJS v.

TIMOTHY SCHWARTZ, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, District Judge, Presiding

Submitted January 28, 2020**

Before: FARRIS, D.W. NELSON, and SILVERMAN, Circuit Judges.

Eugene Forte appeals pro se the district court’s judgment after a jury trial in

his civil rights action alleging that police officer Timothy Schwartz violated his

Fourth Amendment rights by using excessive force in an arrest. 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). The district court properly exercised its discretion in denying Forte’s motion

for leave to amend his complaint to add a First Amendment retaliation claim. See

Branch Banking & Trust Co. v. D.M.S.I., LLC, 871 F.3d 751, 760 (9th Cir. 2017)

(standard of review). Given Forte’s delay in moving to amend and the imminence

of trial, the district court properly concluded that adding the new claim would

prejudice defendant and cause undue delay in the proceedings. See Zivkovic v. S.

Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). The district court also did

not abuse its discretion in denying Forte’s motion for reconsideration. See

Havensight Capital, LLC v. Nike, Inc., 891 F.3d 1167, 1171 (9th Cir. 2018).

We affirm the district court’s evidentiary and discovery rulings. The district

court properly exercised its discretion in quashing a subpoena of a witness whose

testimony would not have been relevant to Forte’s excessive force claims. See

Fed. R. Evid. 401 (defining relevant evidence); Erickson Prods., Inc. v. Kast, 921

F.3d 822, 829 (9th Cir. 2019) (standard of review); Felarca v. Birgeneau, 891 F.3d

809, 816 (9th Cir. 2018) (stating elements of Fourth Amendment excessive force

claim). The district court properly admitted evidence that Forte had filed another

lawsuit and excluded as irrelevant detailed information about the other suit. See

Fed. R. Evid. 401; Erickson Prods., Inc., 891 F.3d at 816. The district court also

properly exercised its discretion in denying Forte’s requests for subpoenas without

prejudice on the ground that the materials he sought were not relevant and would

2 impose an undue burden. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093

(9th Cir. 2003) (a district court has broad discretion to permit or deny discovery).

The district court did not abuse its discretion in refusing to extend the

deadline for filing a judicial disqualification motion at a time when trial was set for

less than two months in the future. See United States v. Mikhel, 889 F.3d 1003,

1027 (9th Cir. 2018) (a recusal motion may be denied as untimely), petition for

cert. filed (U.S. Feb. 7, 2019) (No. 18-7835). Further, District Judge O’Neill was

not required to disqualify himself. See 28 U.S.C. § 455(a) (a judge must disqualify

himself “in any proceeding in which his impartiality might reasonably be

questioned”). Judge O’Neill’s rulings at trial did not provide grounds for

disqualification. See United States v. McChesney, 871 F.3d 801, 807 (9th Cir.

2017) (judicial rulings almost never provide a valid basis for recusal, and

expressions of impatience or annoyance do not establish bias or partiality). The

judge’s imposition of a Fed. R. Civ. P. 11 sanction for filing a request “filled with

offensive commentary” and the referral of Forte for criminal contempt proceedings

also were rulings on matters before the court and did not show that the judge’s

impartiality might reasonably be questioned. See id.; Marshall v. Marshall (In re

Marshall), 721 F.3d 1032, 1042-43 (9th Cir. 2013) (judge’s decision to impose

sanction did not warrant recusal).

3 The district court properly exercised its discretion in refusing to reopen the

time for Forte to object to the magistrate judge’s findings and recommendations to

dismiss certain claims. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807 (9th

Cir. 2002) (litigation management decisions are reviewed for an abuse of

discretion). Forte has waived any argument regarding the dismissal of any

particular claim. He neither objected to the magistrate judge’s findings and

recommendations nor raised such an argument in his opening brief. See Miranda

v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012).

Appellant’s motion for judicial notice (Docket Entry No. 8) is GRANTED.

We deny appellant’s request for an investigation of the judges of the District Court

for the Eastern District of California. Appellant’s filing dated January 9, 2020

(Docket Entry No. 31), which we construe as a motion for judicial notice, is

DENIED.

AFFIRMED.