                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                              FILED
                            FOR THE NINTH CIRCUIT                               SEP 15 2010

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

ROBERT D. GIBSON,                                No. 09-16271

              Plaintiff - Appellant,             D.C. No. 1:03-cv-05445-LJO-DLB

  v.
                                                 MEMORANDUM *
BEERS; J. M. GONZALES; W.
HAYWARD,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                             Submitted May 4, 2010**

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Robert D. Gibson appeals pro se from an adverse jury verdict in his civil

rights action alleging that prison guards used excessive force against him in

retaliation for filing grievances in violation of his First and Eighth Amendment


        *
             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).
rights. He contends he did not receive a fair trial because the district court

dismissed some of his claims and eliminated defendants, excluded most of his

proposed exhibits and inmate witnesses, allowed the defendants to hear each

others’ testimony, and condoned defense counsel’s tampering with a witness.

Gibson also contends the judge was biased and prejudiced, made irrational and

inconsistent rulings, and tampered with the evidence and rigged the jury. We have

carefully reviewed the record and we reject Gibson’s contentions. Accordingly,

we affirm.

      The district court rejected Gibson’s motion to amend his complaint to

resurrect dismissed claims and add defendants. The former claims were correctly

dismissed because Gibson failed to exhaust his administrative remedies. See

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (holding that “proper exhaustion” is

required, including “compliance with an agency’s deadlines and other critical

procedural rules”). The additional defendants were properly excluded because

Gibson failed to show they had knowledge of the underlying events. Accordingly,

the proposed amendments would have been futile. See Ventress v. Japan Airlines,

603 F.3d 676, 680 (9th Cir. 2010) (noting a district court acts within its discretion

to deny leave to amend when the amendment would be futile).




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      The court appropriately excluded exhibits not identified in the pretrial order.

See Swinton v. Potomac Corp., 270 F.3d 794, 809 (9th Cir. 2001) (noting a trial

court is “well within its discretion to exclude an exhibit not identified in the

pretrial order”). Similarly, the court did not err by excluding certain exhibits that

were listed in the pretrial order but were not relevant to Gibson’s allegations

against the prison guards. See Baker v. Delta Air Lines, Inc., 6 F.3d 632, 639 (9th

Cir. 1993) (noting exhibits must not only be relevant but the party must also

demonstrate that exclusion of the evidence was prejudicial).

      The trial court did not abuse its discretion by limiting Gibson’s request for

inmate witnesses because it properly considered whether “the inconvenience and

expense of transporting [an inmate witness] . . . outweigh any benefit he would

provide.” See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). Gibson also

failed to show the inmates had relevant testimony to offer or their exclusion was

prejudicial to his case.

      The trial court also did not abuse its discretion by refusing to compel the

attendance of non-incarcerated witnesses. Those proposed witnesses – high

ranking state officials – had no personal knowledge of Gibson’s case. See Konop

v. Hawaiian Airlines, Inc., 302 F.3d 868, 886 (9th Cir. 2002) (affirming district




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court’s decision to quash subpoenas because plaintiff failed to indicate what

relevant evidence the proposed witnesses might provide).

      The district court did not err by refusing Gibson’s request to exclude the

defendants from the courtroom. Federal Rule of Evidence 615 permits the court to

exclude witnesses, but it specifically does not authorize exclusion of a party.

      Gibson contends that defendants’ counsel “tampered” with an inmate

witness by meeting with him before trial. There is no prohibition, however, on a

party’s ability to interview a consenting witness. See Wharton v. Calderon, 127

F.3d 1201, 1204 (9th Cir. 1997). Moreover, there is no prejudice because Gibson

later agreed to “let that witness go because . . . [t]here is nothing relevant he could

possibly add to the trial.”

      Finally, we reject Gibson’s allegation of judicial misconduct because it is

not supported by specific references to the record. See In re Complaint of Judicial

Misconduct, 584 F.3d 1230, 1231 (9th Cir. 2009) (noting vague accusations do not

provide objective evidence of judicial misconduct). Moreover, complaints

regarding a judge’s adverse rulings alone are insufficient to demonstrate bias,

prejudice or misconduct. See Rhoades v. Henry, 598 F.3d 511, 519 (9th Cir.

2010).

      AFFIRMED.


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