                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 09 2011

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




                            FOR THE NINTH CIRCUIT



MARK STEPHEN WICKLUND,                           No. 10-35613

              Plaintiff - Appellant,             D.C. No. 1:09-cv-00673-CWD

  v.
                                                 MEMORANDUM *
ADA COUNTY; JOHN/JANE DOE 1-5,

              Defendants - Appellees.



                    Appeal from the United States District Court
                              for the District of Idaho
                    Candy W. Dale, Magistrate Judge, Presiding

                              Submitted May 5, 2011 **
                                Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Mark Wicklund filed a 42 U.S.C. § 1983 action alleging that prosecutors

from the Ada County District Attorney’s office (“Ada County”) violated his due

process rights by removing documents from his court file, thereby requiring him to


        *
             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).
resubmit the documents to the court. Wicklund appeals the district court’s denial

of his motions for expedited discovery and the court’s grant of summary judgment

on his due process claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and

we affirm.

       The district court did not abuse its discretion in denying Wicklund’s Motion

for Expedited Discovery pursuant to Federal Rule of Civil Procedure 26(d).

Wicklund provided no reasonable explanation as to why expedited discovery was

necessary to permit him to refute Ada County’s motion. See Fed. R. Civ. P. 26(d);

Laub v. U.S. Dept. of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (“[A] decision

to deny discovery will not be disturbed except upon the clearest showing that the

denial of discovery results in actual and substantial prejudice to the complaining

litigant.”).

       Similarly, the district court’s denial of Wicklund’s Motion for Relief

pursuant to Rule 56(f) was not an abuse of discretion. Wicklund did not specify

the information he was seeking through discovery or provide any basis for

believing that any information sought was in Ada County’s possession. See

Emp’rs Teamsters Local Nos. 175 and 505 Pension Trust Fund v. Clorox Co., 353

F.3d 1125, 1129 (9th Cir. 2004).




                                          2                                     10-35613
      The district court properly granted summary judgment on Wicklund’s due

process claim. Wicklund provides no support for his contention that there is a due

process violation where a party has to resubmit to the court evidence in the party’s

possession. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 930 (9th Cir.

2003) (“It is [the appellant’s] burden on appeal to present the court with legal

arguments to support its claims.”). To the extent that Wicklund is arguing that Ada

County suppressed materially exculpatory evidence, his claim is barred because it

implicates the validity of his underlying conviction, which has not been

invalidated. See Heck v. Humphrey, 512 U.S. 477, 486 (1994); Brady v. Maryland,

373 U.S. 83, 87 (1963). Even if the documents were only potentially exculpatory,

Wicklund has failed to state a due process claim because the documents were

reasonably available to him—they were in his possession and he resubmitted them

to the court. See United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir. 1977)

(suppression of potentially exculpatory evidence violates due process only if the

defendant was “unable to obtain comparable evidence by other reasonably

available means”).

      AFFIRMED.




                                          3                                    10-35613
