                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 23 2012

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




                            FOR THE NINTH CIRCUIT



ELDRIDGE PAYNE,                                  No. 11-55501

              Plaintiff - Appellant,             D.C. No. 8:09-cv-00193-JST-AN

  v.
                                                 MEMORANDUM *
COUNTY OF ORANGE; BRAD L.
GATES; MICHAEL S. CARONA;
HARALD BAELLA; VON MUSE;
JOSEPH ANTHONY BULL; BUFFONG,
Deputy, #6805; PEDRO PEREZ-
ESTRADA; TIM HORNER;
ARCHAMBAULT, Deputy, #2656,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                 Josephine Staton Tucker, District Judge, Presiding

                       Argued and Submitted July 10, 2012
                              Pasadena, California




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

      Eldridge Payne (“Payne”) appeals the district court’s grant of summary

judgment in favor of the County of Orange (“County”) in his 42 U.S.C. § 1983

(“§ 1983”) action against the County alleging that in 2007, when Payne was an

inmate of the County Men’s Central jail, he was brutally beaten by other inmates

and paralyzed from the waist down. He alleges that the deficient policies and

customs of the County Sheriff’s Department caused or contributed to the violence

he suffered at the hands of other inmates and deprived him of his constitutional

rights. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court did not abuse its discretion in refusing to consider: (1) the

County District Attorney’s Investigative Report from the 2007 Special Criminal

Grand Jury Inquiry into the death of John Derek Chamberlain; and (2) the

Declaration of Ronnie Williams, a former Chief of the Los Angeles County

Sheriff’s Department. See General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)

(holding that “abuse of discretion is the proper standard of review of a district

court’s evidentiary rulings”); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th

Cir. 2002) (the district court’s exclusion of evidence in a summary judgment


        **
             The Honorable Dee V. Benson, United States District Judge for the
District of Utah, sitting by designation.

                                           2
motion is reviewed for abuse of discretion and the district court’s ruling must be

affirmed unless the “evidentiary ruling was manifestly erroneous and prejudicial.”

(emphasis in original)); Medrano v. City of Los Angeles, 973 F.2d 1499, 1507 (9th

Cir. 1992) (holding that the district court’s evidentiary rulings did not constitute

abuse of discretion because “[a]lthough reasonable minds could have reached

different conclusions, the district court’s rulings [were] not manifestly erroneous”).

Consequently, because the district court’s evidentiary rulings in this case were not

manifestly erroneous, there was no abuse of discretion.

      Without the findings of the Investigative Report or the unsupported opinions

of Payne’s expert, Payne fails to raise an issue of material fact as to whether the

practices or customs of the County Sheriff’s Department deprived him of his

Fourteenth Amendment constitutional right to protection from assault by other

inmates and he similarly fails to meet the “deliberate indifference” requirement

necessary to establish a § 1983 claim under Monell v. Department of Social

Services, 436 U.S. 658 (1978). See Levine v. City of Alameda, 525 F.3d 903, 907

(9th Cir. 2008) (“[T]o establish [§ 1983] liability, a plaintiff must establish that he

was deprived of a constitutional right and that the city had a policy, practice, or

custom which amounted to ‘deliberate indifference’ to the constitutional right and

was the ‘moving force’ behind the constitutional violation.” (quoting Van Ort v.


                                            3
Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996))). The district court did not

err in granting summary judgment for the County.

      AFFIRMED.




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