Jeremy Braulick v. Cca

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2022
• Docket: 20-35278
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 16 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JEREMY JOHN BRAULICK, No. 20-35278

Plaintiff-Appellant, D.C. No. 4:17-cv-00122-JTJ

v. MEMORANDUM* CORRECTIONS CORPORATION OF AMERICA; JENNIE DIDIER,

Defendants-Appellees,

and

MIKE BATISTA; CONNIE WINNER; SARAH PHIPPS; DOUGLAS FENDER, Warden; ACEL THACKER; HEATHER SAND; KYLE NASREEN; CHRISTOPHER ROST; JOSEPH BERDECIA; JOSEPH BERDECIA; MARTHA DOBBINS- ODEGARD; WILLIAM PEARSON; STEPHEN GLEIM; TRISTAN KOHUT; PAUL REES; LANCE GRIFFIN; BRIAN ROBINSON; REGINALD MICHAEL; LORAINE WODNIK; CINDY HINER; SANDY JACKE; MICHAEL FLETCHER,

Defendants.

Appeal from the United States District Court for the District of Montana

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. John T. Johnston, Magistrate Judge, Presiding

Argued and Submitted March 8, 2022 Portland, Oregon

Before: GRABER, BEA, and VANDYKE, Circuit Judges.

Jeremy Braulick, appearing pro se, brought a First Amendment retaliation

claim against Nurse Jennie Didier which he lost at a jury trial, and a Monell claim

against Corrections Corporation of America (“CCA”) which he lost at summary

judgment. Represented by pro bono counsel, Braulick appeals on three grounds: (1)

the district court erred when it denied his motion for appointment of counsel, (2) the

district court erred when it instructed him not to object during closing arguments at

trial, and (3) the district court erred when it granted summary judgment. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

1. Appointment of Counsel

We review a district court’s refusal to appoint counsel in a civil case for abuse

of discretion. Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). The district court

may appoint counsel only upon a showing of “exceptional circumstances.” Palmer

v. Valdez, 560 F.3d. 965, 970 (9th Cir. 2009). Exceptional circumstances do not exist

if the pro se litigant is able to “articulate his claims . . . in light of the complexity of

the legal issues involved.” Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997)

(internal quotation marks omitted), rev’d en banc on other grounds, 154 F.3d 952,

954 n.1 (9th Cir. 1998). The district court did not abuse its discretion when it

2 concluded that Braulick was able to articulate his claims, relying on the quality of

his detailed pleadings and the simplicity of his case.

2. The Closing Argument Instruction

A trial court’s decision to limit objections during closing arguments is

reviewed for abuse of discretion. United States v. Patel, 762 F.2d 784, 794-95 (9th

Cir. 1985). It was an abuse of discretion for the district court to instruct Braulick that

he was not permitted to object at all during closing arguments because

contemporaneous objections are the method by which litigants preserve error for

appeal. See Puckett v. United States, 556 U.S. 129, 134-35 (2009). But the error was

harmless, as the argument to which Braulick claims he would have objected was a

short, isolated comment he refuted on rebuttal.

3. The Monell Claim

To establish Monell liability, a plaintiff must show that the defendant had a

policy of deliberate indifference to the plaintiff’s constitutional rights. Miranda v.

City of Cornelius, 429 F.3d 858, 868 (9th Cir. 2005). Braulick pointed to three

unrelated occurrences over the course of his three-year incarceration during which

he missed doses of his thyroid medication. But these “isolated or sporadic” incidents

do not amount to a policy of deliberate indifference. Trevino v. Gates, 99 F.3d 911,

918 (9th Cir. 1996). Reviewing de novo, Gordon v. County of Orange, 6 F.4th 961,

967 (9th Cir. 2021), summary judgment was proper.

3 AFFIRMED.