                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 10 2015

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



                            FOR THE NINTH CIRCUIT


JIMMY MCDONALD,                                  No. 13-17006

              Plaintiff - Appellant,             D.C. No. 1:09-cv-00730-SKO

 v.
                                                 MEMORANDUM*
GREG CLARK, Correctional Officer; et
al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                        for the Eastern District of California
                   Sheila K. Oberto, Magistrate Judge, Presiding

                        Argued and Submitted May 13, 2015
                             San Francisco, California

Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.

      Jimmy McDonald appeals the district court’s judgment following a jury

verdict in favor of Greg Clark, Adam Cano, Howard Roberts, and Robert

Rodriguez (collectively, “Clark”). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1. The district court did not abuse its discretion in denying McDonald’s

motions for appointment of counsel.1 “The abuse of discretion standard requires us

to uphold a district court determination that falls within a broad range of

permissible conclusions in the absence of an erroneous application of law.” Grant

v. City of Long Beach, 315 F.3d 1081, 1091 (9th Cir. 2002), amended by 334 F.3d

795 (9th Cir. 2003) (order). In the context of a motion for appointment of counsel

under 28 U.S.C. § 1915, the district court must evaluate “at least . . . the likelihood

of the plaintiff’s success on the merits and . . . the plaintiff’s ability to articulate his

claims ‘in light of the complexity of the legal issues involved.’” Agyeman v. Corr.

Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). There were

three issues at stake in McDonald’s Eighth Amendment deliberate indifference

claim: 1) whether assigning McDonald to an upper bunk presented a substantial

risk of serious harm, 2) whether Clark knew of and disregarded that risk, and 3)

whether Clark’s actions or inaction caused harm to McDonald. Clark conceded the

first issue as part of the summary judgment proceedings, and the court found that

there was a genuine factual dispute as to the second and third. Given McDonald’s

response to Clark’s summary judgment motion and the nature of the remaining

triable issues—primarily, ones of witness credibility—we affirm the court’s

       1
           On appeal, this court appointed pro bono counsel on behalf of McDonald.

                                             2
denials of McDonald’s motions for appointment of counsel. See Wilborn v.

Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

      2. McDonald next argues that the district court committed reversible error in

sustaining Clark’s objection to the DeFrance Chrono. Even assuming the chrono

was relevant under Federal Rules of Evidence 401 and 402, we conclude that the

court’s error was not prejudicial. See Boyd v. City & Cnty. of San Francisco, 576

F.3d 938, 943 (9th Cir. 2009). Had the court admitted the DeFrance Chrono for

more than the limited purpose of showing why prison officials transferred

McDonald in August 2005, the jury still would have needed to evaluate each

witness’s credibility. And although housing transfers required a sergeant’s

approval, such evidence would show a chain of communication from guard to

sergeant rather than from sergeant to guard, as reflected in the DeFrance Chrono.

Thus, no prejudice occurred.

      3. Finally, McDonald argues that the trial court plainly erred in permitting

Clark’s counsel to vouch for Clark’s witnesses’ credibility. Assuming for the

purposes of this disposition that counsel’s statements constituted improper

vouching, an issue we do not decide, those statements do not call the fairness of the

trial into question to a sufficient degree to warrant a new trial. See Hemmings v.

Tidyman’s Inc., 285 F.3d 1174, 1192 (9th Cir. 2002). McDonald cites one brief


                                          3
instance of alleged misconduct during counsel’s closing argument. See id. at 1194

(considering “an isolated, short comment during a closing statement that covered

66 pages when transcribed”). And Clark otherwise presented evidence of prison

protocols, stressed McDonald’s lack of documentation to support his claim, and

presented an alternative theory of causation. See id. at 1195 (considering the

strength of a party’s case). Thus, McDonald fails to meet his burden of showing

prejudice on this record.

      AFFIRMED.




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