                                                                             FILED
                              NOT FOR PUBLICATION                             JAN 10 2012

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




                              FOR THE NINTH CIRCUIT



SCOTT E. STEARNS,                                 No. 07-16719

                Plaintiff - Appellant,            D.C. No. CV-00-06331-DLB

  v.
                                                  MEMORANDUM *
PHILLIP FLORES; et al.

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Dennis L. Beck, Magistrate Judge, Presiding **

                            Submitted December 19, 2011 ***

Before:         GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Scott E. Stearns, a California state prisoner, appeals pro se from the district

court’s summary judgment and judgment following a jury verdict in his 42 U.S.C.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **
            Stearns and Flores consented to proceed before a magistrate judge.
See 28 U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1983 action alleging that defendants violated his constitutional rights by

validating him as an associate of a gang and failing to protect him from an assault

by the gang. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

summary judgment. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We

review for manifest error a district court’s findings concerning juror impartiality.

Skilling v. United States, 130 S. Ct. 2896, 2923 (2010). We affirm.

      The district court properly granted summary judgment on Stearns’s due

process claim because there was “some evidence” to validate Stearns as a gang

associate. See Bruce, 351 F.3d at 1287-88 (affirming summary judgment on due

process claim where “‘some evidence’” supported the gang validation, and

explaining that the “‘some evidence’” standard is met where “‘there is any

evidence in the record that could support the conclusion’” (citation omitted)).

      We are not persuaded by Stearns’s challenges to the jurors who were seated

at trial on his failure-to-protect claim because the record shows at most that several

jurors had acquaintances or relatives in law enforcement, and those jurors stated

that they could be impartial. See Skilling, 130 S. Ct. at 2924 (the district court did

not commit manifest error by finding that juror who stated that she thought she

could be impartial was fit for trial); Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir.




                                           2                                      07-16719
1990) (jurors are not presumed to be biased solely because they are in law

enforcement or related to someone in law enforcement).

      Stearns’s remaining contentions, including those concerning discovery, are

unpersuasive.

      Stearns’s “Motion for Review En Banc on Original Petition Filed,” filed on

December 15, 2011, is denied.

      AFFIRMED.




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