                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 20 2013

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




                             FOR THE NINTH CIRCUIT



KEITH EDWARD BERRY,                              No. 12-35507

               Plaintiff - Appellant,            D.C. No. 3:10-cv-05078-BHS

  v.
                                                 MEMORANDUM *
CCO RUSSELL ALFARO,

               Defendant - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Washington state prisoner Keith Edward Berry appeals pro se from the

district court’s judgment following a jury verdict in his 42 U.S.C. § 1983 action

alleging a due process violation in connection with his community custody release.

We have jurisdiction under 28 U.S.C. § 1291. Because Berry failed to object to the

          *
             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).
jury instructions, we review for plain error. Hunter v. County of Sacramento, 652

F.3d 1225, 1230 (9th Cir. 2011). We affirm.

      Berry’s challenge to the district court’s exclusion of his proposed jury

instructions fails because Berry did not object to their exclusion before the district

court and our review of the record reveals that there was no plain error. See id. at

1230 (“If a party does not properly object to jury instructions before the district

court, we may only consider ‘a plain error in the instructions that . . . affects

substantial rights.’” (citation omitted)); Swinton v. Potomac Corp., 270 F.3d 794,

802 (9th Cir. 2001) (in evaluating whether a particular jury instruction was plainly

erroneous, we consider the jury instructions as a whole).

      Contrary to his contention on appeal, Berry has no right to an ineffective

assistance of counsel claim in a civil case. See Friedman v. Arizona, 912 F.2d 328,

333 (9th Cir. 1990).

      AFFIRMED.




                                            2                                       12-35507
