Lenin Garcia v. Cluck

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 3, 2020
• Docket: 14-56631
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED SEP 3 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LENIN GARCIA, No. 14-56631

Plaintiff-Appellant, D.C. No. 3:12-cv-00718-BAS-NLS

v. MEMORANDUM* CLUCK; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted September 3, 2020** San Francisco, California

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

California state prisoner Lenin Garcia appeals pro se from the district court’s

judgment following a jury trial in his 42 U.S.C. § 1983 action alleging First

Amendment retaliation claims. 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 did not abuse its discretion by admitting evidence of

Garcia’s prior acts of refusing housing assignments. See Boyd v. City and County

of San Francisco, 576 F.3d 938, 943 (9th Cir. 2009) (district court’s evidentiary

rulings are reviewed for abuse of discretion). This evidence was admissible under

Federal Rule of Evidence 404(b)(2) because it was probative of Garcia’s plan to

refuse his housing reassignment, and it was not unfairly prejudicial. See United

States v. Cherer, 513 F.3d 1150, 1157 (9th Cir. 2008) (requirements for admitting

evidence of prior acts under Rule 404(b)(2)); United States v. Jotezki, 952 F.2d

1090, 1094 (9th Cir. 1991) (relevant evidence may be unfairly prejudicial under

Rule 403 “if it has an undue tendency to suggest a decision on an improper basis

such as emotion or character rather than evidence presented on the crime

charged”).

The district court did not abuse its discretion by excluding witness testimony

Garcia intended to elicit to lay foundation for the housing roster, because the

witnesses that Garcia sought to question about the roster lacked personal

knowledge of how it was generated. See United States v. Dibble, 429 F.2d 598,

602 (9th Cir. 1970) (“The foundation is laid for receiving a document in evidence

by the testimony of a witness with personal knowledge of the facts who attests to

the identity and due execution of the document and, where appropriate, its

delivery.”); Fed. R. Evid. 901.

2 14-56631 The district court did not abuse its discretion by excluding evidence

regarding Garcia’s commitment offenses. Initially, the district court did not

exclude Garcia’s proposed evidence that he was not a sex offender or child killer.

Moreover, the district court did not abuse its discretion in concluding that Garcia’s

proposed evidence would have opened the door for defendants to introduce

additional evidence regarding his commitment offenses. See United States v.

Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988) (discussing the “opening the door”

doctrine).

The district court did not abuse its discretion by excluding Garcia’s evidence

of prior grievances Garcia filed against prison officials. The district court allowed

Garcia to establish that the grievances had been filed, and the content of the

grievances and the grievance responses were not probative to Garcia’s retaliation

claims. Further, admitting the grievances risked confusing the jury. Because any

probative value of the grievances was substantially outweighed by the risk of

prejudice, the district court did not abuse its discretion by excluding the evidence

under Federal Rule of Evidence 403. See United States v. Haischer, 780 F.3d

1277, 1281 (9th Cir. 2015) (discussing Rule 403).

The district court did not abuse its discretion by refusing to allow Garcia to

question defendant Cobb about occasions on which Cobb allegedly refused to

process inmate grievances. To the extent Garcia argues that his proposed

3 14-56631 questioning should have been admitted under Federal Rule of Evidence 608(b),

such questioning was not probative of Cobb’s truthfulness. See United States v.

Colbert, 116 F.3d 395, 396 (9th Cir. 1997) (“Rule 608(b) prohibits the introduction

of specific acts of conduct for the purpose of impeaching a witness’s credibility

unless the district court finds such acts to be probative of truthfulness or

untruthfulness.” (citation and internal quotation marks omitted)).

The district court did not abuse its discretion by refusing to recall Lieutenant

Garza because Garcia should have been prepared to ask Lieutenant Garza about the

prison’s regulations while Lieutenant Garza was on the stand. See United States v.

Fields, 763 F.3d 443, 465 (9th Cir. 2014) (district court must consider a party’s

explanation for failing to introduce evidence earlier when deciding whether to

allow the party to recall a witness).

Garcia challenges the district court’s decision to shackle him during the jury

trial. Because Garcia did not object at trial to being shackled, this court reviews

for plain error. See Claiborne v. Blauser, 934 F.3d 885, 894 (9th Cir. 2019)

(reviewing for plain error whether a pro se civil-litigant’s shackling violated due

process, where the issue was not objected to at trial). The district court did not

make an individualized inquiry into the need for Garcia’s shackling. However, the

only claims before the jury were Garcia’s First Amendment retaliation claims, and

Garcia’s dangerousness was not at issue. See Rhodes v. Robinson, 408 F.3d 559,

4 14-56631 567–68 (9th Cir. 2005) (elements of a First Amendment retaliation claim in the

prison context). Because Garcia’s dangerousness was not an issue for the jury to

decide, the district court did not plainly error by shackling Garcia during trial. See

Claiborne, 934 F.3d at 898–99 (concluding that the district court committed plain

error by shackling a civil-litigant without first conducting an individualized inquiry

into the need for such restraints, where the issue at trial was an excessive force

claim and the litigant’s dangerousness was an express question for the jury to

decide).

Garcia argues that defense counsel misled the jury during closing arguments.

We reject as unsupported by the record Garcia’s contention that he raised this

objection in the district court, and we therefore review for plain error. See Bird v.

Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148 (9th Cir. 2001) (standard of

review). During closing arguments, defense counsel incorrectly told the jury that,

in order to return a verdict for Garcia, the jury had to find that Garcia’s speech had

actually been chilled by defendants’ retaliatory conduct. However, such error does

not warrant reversal, because Garcia failed to show by a preponderance of the

evidence that defendants had a retaliatory motive or that defendants’ conduct

lacked a legitimate, correctional goal. See Rhodes, 408 F.3d at 567–68. Thus,

even absent defense counsel’s misleading statements, the jury’s verdict in favor of

defendants was still supported. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174,

5 14-56631 1195 (9th Cir. 2002) (concluding that a new trial was not warranted where, absent

counsel’s misconduct, the jury likely would have returned the same verdict).

We reject as without merit Garcia’s contentions that the district court

provided erroneous jury instructions.

AFFIRMED.

6 14-56631