                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 16 2011

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




                            FOR THE NINTH CIRCUIT



GARY B. MEEKS,                                   No. 10-15612

              Plaintiff - Appellant,             D.C. No. 1:03-cv-06700-OWW-
                                                 GSA
  v.

JOHN PARSONS,                                    MEMORANDUM *

              Defendant - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Oliver W. Wanger, Senior District Judge, Presiding

                             Submitted May 11, 2011 **
                              San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and GERTNER, District Judge.***

       After suffering a serious jaw injury, former Centinela State Prison inmate

Gary Meeks brought a 42 U.S.C. § 1983 suit against John Parsons, the prison

        *
             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 Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
doctor who oversaw his medical care, alleging deliberate indifference to his

medical needs in violation of his Eighth Amendment rights. After a five-day trial,

the jury returned a verdict for Parsons. Meeks appeals three of the district court’s

trial decisions: (1) excluding evidence of Parsons’s prior terminations for slow

patient care; (2) excluding evidence of the statewide Medical Services Delivery

Plan; and (3) instructing the jury to give deference to prison security policies and

practices. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      The district court did not abuse its discretion in excluding from evidence,

pursuant to Federal Rule of Evidence 403, both Parsons’s prior terminations and

the Medical Services Delivery Plan. “‘As long as it appears from the record as a

whole that the trial judge adequately weighed the probative value and prejudicial

effect of proffered evidence before its admission, we conclude that the demands of

Rule 403 have been met.’” Boyd v. City & Cnty. of S.F., 576 F.3d 938, 948 (9th

Cir. 2009) (quoting United States v. Verduzco, 373 F.3d 1022, 1029 n.2 (9th Cir.

2004)). The district court reasonably concluded that Parsons’s prior terminations,

which arose from circumstances unrelated to this case, might give an unwarranted

suggestion of misconduct on all of Parsons’s treatment decisions. Also, the district

court reasonably concluded that admission of the Medical Services Delivery Plan

as a trial exhibit might give rise to the unfair inference that Parsons knew of and


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understood the document but ignored its recommendations. For this reason, the

district court, though excluding the document itself, permitted Meeks to cross-

examine Parsons on his understanding of its contents. This decision was well

within the district court’s “broad discretion in controlling the conduct of a trial . . .

[and in] exercis[ing] reasonable control over the presentation of evidence and

interrogation of witnesses.” Penk v. Or. State Bd. of Higher Educ., 816 F.2d 458,

465 (9th Cir. 1987) (internal citations and quotations omitted).

       The district court did not err by instructing the jury to give deference to

prison security policies and practices. In Norwood v. Vance, we held that juries

should be instructed to give deference to prison officials’ adoption and execution

of policies and practices for discipline and security when those policies and

practices are at issue in prisoner “conditions of confinement” cases. 591 F.3d

1062, 1066–67 (9th Cir. 2010). Because this is a “conditions of confinement”

case, see Wilson v. Seiter, 501 U.S. 294, 303 (1991) (“[T]he medical care a

prisoner receives is just as much a ‘condition’ of his confinement as the food he is

fed, the clothes he is issued, the temperature he is subjected to in his cell, and the

protection he is afforded against other inmates.”), the district court’s instruction

properly applied Norwood. Even if we were to distinguish Norwood to exclude

cases about medical care from the scope of its holding, as Meeks urges, the district


                                            3
court’s error would have been harmless. Given the jury’s rejection of Meeks’s

main argument that Parsons delayed and protracted Meeks’s care to avoid the hard

work required to treat Meeks effectively, the wisdom of Centinela’s security

policies and Parsons’s execution of those policies was more probably than not

irrelevant to the jury’s verdict and thus harmless. See Clem v. Lomeli, 566 F.3d

1177, 1182 (9th Cir. 2009).

      AFFIRMED.




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