                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



PAUL L. BROWNING,                                No. 10-16823

               Plaintiff - Appellant,            D.C. No. 3:00-cv-00633-ECR-
                                                 VPC
  v.

BILL DONAT, ESP Associate Warden; et             MEMORANDUM *
al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Edward C. Reed, Jr., District Judge, Presiding

                              Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Nevada state prisoner Paul L. Browning appeals pro se from the district

court’s judgment enforcing a settlement agreement with defendants Donat and

McDaniel (the “State Defendants”) regarding his 42 U.S.C. § 1983 action arising


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
from the prison recording Browning’s telephone calls with his attorney. We have

jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion,

Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003), and we affirm.

      The district court did not abuse its discretion in enforcing the settlement

agreement because, despite delays that did not prejudice Browning and the

substitution of terms due to the impossibility of performance, the State Defendants

substantially complied with the agreement. See Ahern v. Cent. Pac. Freight Lines,

846 F.2d 47, 48 (9th Cir. 1988) (the finding that a party consented to a settlement

and intended to be bound by it must be affirmed unless clearly erroneous); see also

Nebaco, Inc. v. Riverview Realty Co., 482 P.2d 305, 307 (Nev. 1971) (defense of

impossibility applies where performance of a contract term is made impossible or

highly impractical by the occurrence of unforeseen contingencies).

      Browning’s remaining contentions are unpersuasive.

      AFFIRMED.




                                          2                                    10-16823
