                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 20 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

JOHN OLIVER SNOW,                                No. 13-16468

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00046-RCJ-VPC

 v.
                                                 MEMORANDUM*
E.K. MCDANIEL, Warden, in his official
capacity as Warden @ ESP; ROBERT
BANNISTER; STEVEN MACARTHUR;
MAX CARTER,

              Defendants - Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                     Argued and Submitted October 22, 2015
                            San Francisco, California

Before: WALLACE, SILVERMAN, and CHRISTEN, Circuit Judges.

      Snow appeals from the district court’s judgment entered after a jury verdict

denying Snow relief under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We dismiss Snow’s claim for injunctive relief as moot since Snow’s counsel

indicated at oral argument that the hip surgery Snow sought as relief has been

performed. NASD Dispute Resolution, Inc. v. Judicial Council of Cal., 488 F.3d

1065, 1068 (9th Cir. 2007) (“ A case is moot on appeal if no live controversy

remains at the time the court of appeals hears the case”).

      We affirm the district court’s pretrial evidentiary rulings as within its wide

discretion. Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1110 (9th Cir. 2011)

(holding that a district court’s evidentiary rulings are reviewed for an abuse of

discretion). In addition, as to evidence Snow is on death row, the district court

judge encouraged Snow’s counsel to propose a limiting instruction—which he did

not do. Snow’s opening brief fails to show any prejudice.

      Finally, we decline to reach Snow’s argument that the district court abused

its discretion in its discussions of the case with the jury since Snow failed to object

at the time of the alleged errors and has not argued plain error on appeal. Rothman

v. Hosp. Serv. of S. Cal., 510 F.2d 956, 960 (9th Cir. 1975) (“The rule in this

circuit is that appellate courts will not consider arguments that are not properly

raise[d] in the trial courts”); see Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738

(9th Cir. 1986) (“We review only issues which are argued specifically and

distinctly in a party’s opening brief”).


                                           2
AFFIRMED.




            3
                                                                                FILED
Snow v. McDaniel, 13-16468
                                                                                NOV 20 2015
CHRISTEN, Circuit Judge, dissenting:                                         MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS


      I agree with my colleagues that Snow’s claim for injunctive relief is moot1

and that the district court did not abuse its discretion in the challenged statements it

made to the jury. I write separately because, in my view, the district court did

abuse its discretion by allowing introduction of the wholly irrelevant evidence that

Snow was a death row prisoner. Because we “must not shrink from [our]

obligation to ‘enforce the constitutional rights of all “persons,” including

prisoners,’”2 and because it is clear Snow’s allegation of Eighth Amendment

violations was not tried on a level playing field, I respectfully dissent.

      Snow’s original trial theory was that the Department of Corrections had a

pattern of ignoring the medical needs of inmates, and that it was particularly

indifferent to the medical needs of death row inmates. But in a pre-trial ruling, the

district court excluded evidence of medical treatment and care provided or denied

to other inmates. This narrowed the trial’s focus to defendants’ treatment of Snow,



      1
             At oral argument, Snow’s counsel indicated that Snow’s hip
replacement surgery was performed after our court remanded this case to the trial
court following Snow’s first appeal. OA Audio Recording at 00:35–00:48.
      2
            Brown v. Plata, 131 S. Ct. 1910, 1928–29 (2011) (quoting Cruz v.
Beto, 405 U.S. 319, 321 (1972) (per curiam)).

                                            1
making his status as a death row inmate legally irrelevant: after the sole issue

became whether defendants had been indifferent to Snow’s need for surgery, his

status as a death row prisoner did nothing to make defendants’ indifference more

or less probable.3

      Over defense counsel’s objection, the district court allowed the prosecutor to

inform the jury of Snow’s death row status, explaining only that Snow’s status was

“context” or “background.” The court offered no further explanation, and none can

be gleaned from the record. Indeed, in oral argument to our panel, even counsel

for the State could not muster a plausible answer to the question: how did Snow’s

status make any fact at issue more or less likely to be true?4

      If Snow’s death row status were innocuous, a court might appropriately

admit it as “background” or “context,” much as a witness’s name, age or

occupation. But Snow’s status is not innocuous. The jury did not have to be told

that death row is reserved for the most egregious offenders or that any damages

awarded Snow would be paid to a man awaiting his execution. Defense counsel

predictably focused on Snow’s status as a death row prisoner, leading his closing

argument by saying: “I’ve got to tell you I’m a little offended at the notion that a


      3
             Fed. R. Evid. 401.
      4
             See OA Audio Recording at 17:50–20:26, 25:36–27:25.

                                           2
death row prisoner con man comes before you . . . .”

       We generally afford wide discretion to a district court’s evidentiary rulings,

but discretion ends where, as here, “the reviewed decision lies beyond the pale of

reasonable justification.”5 With no probative value to support admitting evidence

of Snow’s status, its prejudicial weight clearly required exclusion.6 The majority

faults defense counsel for failing to request a curative instruction, but that would

only have reinforced the prejudicial nature of Snow’s status by highlighting it to

the jury.7

       Under the applicable standard, the district court’s error was not harmless.

Snow was diagnosed in early 2006 with severe degenerative changes in his hips.

Multiple physicians recommended surgery during the following three years before

the Department of Corrections finally authorized it. The medical records reflect

care providers’ notes that Snow “can barely walk,” that “[t]here is no option here

other than surgery for relief,” that Snow’s condition was an “emergency,” and that


       5
             See Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).
       6
             Fed. R. Evid. 403.
       7
              See Chaffin v. Stynchcombe, 412 U.S. 17, 41 (1973) (Marshall, J.,
dissenting) (recognizing that “curative instructions may serve only to highlight the
problem”); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1105–06 (9th Cir. 2002)
(“[N]o matter what the instruction, it was impossible to dispel the effect of [the]
lurid and prejudicial testimony.”).

                                           3
Snow’s creatinine levels were rapidly increasing because of the pain medication he

was forced to take. During that same period, the NDOC denied surgery three

times.

         In light of this record, I cannot say it is “more probable than not the jury

would have reached the same verdict” and would have failed to award at least

nominal damages had it not known Snow was on death row.8 For these reasons, I

would reverse and remand for a new trial.9




         8
               Microsoft Corp. v. Motorola, Inc., 795 F.3d 1024, 1052 (9th Cir.
2015) (quoting Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 465 (9th
Cir.), cert. denied, 135 S. Ct. 55 (2014)).
         9
               Id.

                                             4
