                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 07 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FERDINAND REYNOLDS,                              No. 13-17197

              Plaintiff - Appellant,             D.C. No. 1:09-cv-00680-SAB

              v.
                                                 MEMORANDUM*
DR. KIRK GERSTEL, D.D.S.,

              Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Stanley A. Boone, Magistrate Judge, Presiding

                    Argued and Submitted November 19, 2015
                            San Francisco, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and SCHEINDLIN,**
Senior District Judge.

      Ferdinand Reynolds appeals the district court’s denial of a motion for a

continuance. We affirm. As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our disposition.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Shira Ann Scheindlin, Senior District Judge for the
U.S. District Court for the Southern District of New York, sitting by designation.
      We review the decision to deny a request for a continuance for abuse of

discretion. United States v. Kloehn, 620 F.3d 1122, 1126-27 (9th Cir. 2010). To

determine if the district court abused its discretion, we consider four factors

established in United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir. 1985):

      1.     “[t]he extent of appellant’s diligence in his efforts to ready his defense
             prior to the date set for hearing”;
      2.     “[h]ow likely it is that the need for a continuance could have been met
             if the continuance had been granted”;
      3.     “[t]he extent to which granting the continuance would have
             inconvenienced the court and the opposing party, including its
             witnesses”;
      4.     “[t]he extent to which the appellant might have suffered harm as a
             result of the district court’s denial.”

The test is not “mechanical,” but an appellant must, at minimum, show prejudice in

order to succeed. Kloehn, 620 F.3d at 1127.

      In denying the motion, the district court found that prison correction officers

gave Reynolds “ample opportunity” to retrieve his legal materials “both personally

and the officer agreed to get it for him” before they transported Reynolds to court.

Reynolds declined these opportunities to collect his legal materials because he

believed that under California law he was entitled to retrieve both his personal and

legal property when being transported to court. The district court determined that,

even if he was correct, Reynolds placed “form over substance” when he refused the




                                           2
opportunity to retrieve only his legal materials, and this refusal constituted “a

waiver [of their use] by the plaintiff.”

      There is no clear error in these factual findings, and as such they are

dispositive. Reynolds chose not to bring his legal materials with him to trial and

because of this decision any resulting prejudice was of his own doing. In any

event, Reynolds has failed to articulate how his materials would have aided him in

overcoming the testimony of numerous expert witnesses presented by Gerstel.

While the inconvenience to the court would have been minor and a continuance

surely would have been useful in allowing Reynolds to collect his legal materials,

Reynolds has not demonstrated either diligence or prejudice.

      For these reasons, we conclude that the district court’s denial of a

continuance was not an abuse of discretion.

AFFIRMED.




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