Jose Tapia-Fierro v. Leon Wilmot

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2022
• Docket: 21-15782
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS TAPIA-FIERRO, AKA Jose No. 21-15782 Tapia, D.C. No. 2:19-cv-03096-JAT Plaintiff-Appellant,

v. MEMORANDUM*

LEON N. WILMOT, Yuma County Sheriff,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted August 17, 2022**

Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.

Jose Luis Tapia-Fierro appeals pro se from the district court’s judgment

entered after a bench trial in his 42 U.S.C. § 1983 action alleging that he was

wrongfully detained. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

Tapia-Fierro’s challenge to the district court’s probable cause determination

* 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). is unreviewable because Tapia-Fierro has failed to provide this court with a trial

transcript. See Fed. R. App. P. 10(b); Syncom Capital Corp. v. Wade, 924 F.2d

167, 169 (9th Cir. 1991) (when an appellant fails to provide a transcript of the

district court proceeding this court may dismiss the appeal or refuse to consider the

appellant’s argument).

The district court did not err in holding a bench trial because Tapia-Fierro

did not make a demand for a jury trial in compliance with Federal Rule of Civil

Procedure 38, and the record provided does not indicate that Tapia-Fierro moved to

reconsider the district court’s order setting the matter for a bench trial or objected

at trial. See Cal. Scents v. Surco Products, Inc., 406 F.3d 1102, 1105 (9th Cir.

2005) (standard of review); White v. McGinnis, 903 F.2d 699, 703 (9th Cir. 1990)

(en banc) (knowing participation in a bench trial without objection is sufficient to

constitute a jury waiver).

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

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

Tapia-Fierro’s motion for appointment of counsel (Docket Entry No. 2) is

denied.

AFFIRMED.

2 21-15782