                                                                           FILED
                            NOT FOR PUBLICATION                            AUG 15 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DARNELL DUKES,                                   No. 13-55025

              Plaintiff - Appellant,             D.C. No. 3:09-cv-01463-MMA-
                                                 WVG
  v.

TIM STRICKLIN, Correctional Sergeant;            MEMORANDUM*
MICHELLE BLAKEE, Correctional
Officer; DARIN CLEGG, Correctional
Officer,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                            Submitted August 12, 2014**
                              San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.

       California state prisoner Darnell Dukes appeals pro se from the district

court’s judgment following a jury verdict in favor of correctional facility Sergeant

        *
             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).
Tim Stricklin and Officers Michelle Blakee and Darin Clegg, and a directed verdict

in favor of Officer Bruce Jones. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm.

      The district court did not err in entering judgment in favor of Jones. No

evidence or witness testimony indicates that Jones was in any way involved in the

incident, aside from Dukes’s own testimony about the fistfight during which he

admits he could not see. Evidence suggesting that Jones was in the vicinity is

insufficient to draw “reasonable inferences” of his involvement. LVRC Holdings

LLC v. Brekka, 581 F.3d 1127, 1136 (9th Cir. 2009). Because Dukes’s claim of

excessive use of force against Jones is “based solely on speculation,” the district

court committed no error by entering judgment in favor of Jones.1 Id.

      Dukes claims that he is entitled to a new trial because defense counsel

referred to him as a “serious violent offender[],” mentioned his felony convictions,

and questioned him about his rules violation record for indecent exposure is

unavailing. Dukes’s attorneys had already made disclosures of his criminal history

and status in their opening statement, which likely explains why they did not object



      1
        Dukes’s related claim that he was prejudiced by the fact that, after the court
granted a directed verdict in favor of Jones, Jones remained seated next to counsel
“lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S.
25, 31 (1992) (internal quotation marks omitted).

                                          2
to defense counsel’s statements. Given this disclosure by Dukes’s own counsel,

the asserted errors were not “highly prejudicial,” nor did they affect Dukes’s

“substantial rights.” Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1015–16 (9th

Cir. 1999). As for the indecent exposure report, defense counsel asked about it

only after Dukes denied that his time in administrative segregation had been

extended due to a rules violation. Such character evidence is admissible on cross

examination so long it is “probative of the character for truthfulness or

untruthfulness” of the witness, as explained in the district court’s in limine order.

Fed. R. Evid. 608(b). Nonetheless, the district court sustained Dukes’s counsel’s

objection to the question and instructed the jury to disregard both the question and

answer, thus curing any possible prejudice. See Doe v. Glanzer, 232 F.3d 1258,

1270 (9th Cir. 2000) (noting the “strong presumption that the curative instructions

given by the district court were followed by the jury”).

      The district court did not abuse its discretion by ordering Dukes to wear leg

restraints during trial. Given Dukes’s conviction history and his “violent

encounters with inmates and correctional staff,” the court was “persuaded by

compelling circumstances that some measure was needed to maintain the security

of the courtroom.” Morgan v. Bunnell, 24 F.3d 49, 51 (9th Cir. 1994) (internal

quotation marks omitted); Duckett v. Godinez, 67 F.3d 734, 749 (9th Cir. 1995)


                                           3
(stating that “[a] defendant’s status as a convicted felon,” coupled with evidence of

violent or defiant behavior while incarcerated, may justify restraints at trial). The

court also “weigh[ed] the benefits and burdens of shackling against other possible

alternatives.” Spain v. Rushen, 883 F.2d 712, 721 (9th Cir. 1989). Also, the

instructions to the jury on this point, which favored Dukes, mitigated any claimed

prejudice. See Glanzer, 232 F.3d at 1270.

      Dukes’s assertion that he is entitled to a new trial because of ineffective

assistance of counsel is no more availing. “Generally, a plaintiff in a civil case has

no right to effective assistance of counsel,” and Dukes provides no basis to rebut

this presumption. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985).

      We lack jurisdiction to consider Dukes’s claim that Stricklin committed

perjury because Dukes failed to file a supplemental or amended notice of appeal of

the order denying relief from judgment pertaining to that claim. See Fed. R. App.

P. 4(a)(4)(B)(ii).

      AFFIRMED.




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