                                                                           FILED
                            NOT FOR PUBLICATION                            FEB 06 2015

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



                            FOR THE NINTH CIRCUIT


GEORGE E. JACOBS, IV,                            No. 13-15451

              Plaintiff - Appellant,             D.C. No. 1:08-cv-00369-JLT

  v.
                                                 MEMORANDUM*
JEANNE S. WOODFORD, et al.,

              Defendants,

  and

J. MASIEL, et al.

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Jennifer L. Thurston, Magistrate Judge, Presiding

                     Argued and Submitted February 4, 2015
                            San Francisco, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TALLMAN and RAWLINSON, Circuit Judges, and MURPHY, District
Judge.**

      George E. Jacobs, IV appeals from the district court’s judgments entered in

this civil rights action. Jacobs makes three assignments of error. He claims the

district court abused its discretion by denying his motion to subpoena documents

and his request to recall Defendant Martinez for impeachment, and erred in

instructing the jury regarding his excessive force claim. We have jurisdiction under

28 U.S.C. § 1291 (2012). Because we find no reversible error, we affirm.

1.    District court rulings concerning discovery issues are reviewed for abuse of

discretion. Kulas v. Flores, 255 F.3d 780, 783 (9th Cir. 2001). “Pro se litigants

must follow the same rules of procedure that govern other litigants.” King v.

Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987), overruled on other grounds by Lacey v.

Maricopa Cnty., 693 F.3d 896, 925 (9th Cir. 2012). In light of Jacobs’s lack of

diligence throughout the eight-month discovery period, we find the district court

did not abuse its discretion by declining to re-open discovery. See Cal. Union Ins.

Co. v. Am. Diversified Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990). Similarly,

the district court did not abuse its discretion by evaluating Jacobs’s request as one

for a trial subpoena and denying his motion on the ground that there would be


        **
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
                                           2
insufficient time to order incarcerated witnesses transported to the courthouse. Fed.

R. Civ. P. 45(d)(3)(A)(i).

2.    We review a district court’s evidentiary rulings for abuse of discretion.

Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013). We agree that

the district court’s explanation of its decision was based on an inaccurate

recollection of Martinez’s testimony. Even so, the decision to permit a party to

recall a witness is discretionary, and we do not find the district court’s decision

erroneous. See Rodella v. United States, 286 F.2d 306, 309 (9th Cir. 1960).

Furthermore, the district court’s decision was not prejudicial, as Jacobs had two

opportunities to impeach Martinez—during direct examination and re-direct—and

failed to do so.

3.    “Jury instructions must fairly and adequately cover the issues presented,

must correctly state the law, and must not be misleading.” Dang v. Cross, 422 F.3d

800, 804 (9th Cir. 2005) (internal quotation omitted). Jacobs failed to preserve an

objection to the district court’s jury instructions, so we review for plain error only.

C.B. v. City of Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (en banc). We consider

“whether (1) there was an error; (2) the error was obvious, and (3) the error

affected substantial rights.” Id. at 1018. The district court’s excessive force




                                           3
instruction drawn from Ninth Circuit Model Jury Instructions correctly stated the

law. For this reason, we find no error.

      AFFIRMED.




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