                                                                               FILED
                            NOT FOR PUBLICATION                                APR 19 2010

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


                            FOR THE NINTH CIRCUIT

JOHNNY L. SLOAN, Jr.,                            No. 08-16018

              Plaintiff - Appellant,             D.C. No. 4:00-cv-04117-CW

  v.
                                                 MEMORANDUM *
OAKLAND POLICE DEPARTMENT; et
al.,

              Defendants - Appellees.

                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                            Submitted January 21, 2010**

Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.

       Johnny Sloan, a California state prisoner, alleges that police officers used

excessive force against him and that prison doctors and nurses were deliberately

indifferent to his medical needs. A jury rejected Sloan’s Fourth Amendment

claims against the police officers. The district court granted summary judgment

for the medical staff on the Eighth Amendment claims. We affirm.

        *
             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).
                                    DISCUSSION

A.    Excessive Force

      As a threshold matter, the police officers argue we lack jurisdiction because

Sloan failed to file a timely notice of appeal from the district court’s Fed. R. Civ. P.

54(b) judgment order. Rule 54(b) provides, however, that such a judgment may be

entered “only if the court expressly determines that there is no just reason for

delay.” Because the court did not make that requisite finding, its order is not final

for purposes of appellate review until “[t]hat portion of the case remaining before

the district court . . . has been reduced to final judgment.” See Baker v. Limber,

647 F.2d 912, 916 (9th Cir. 1981). Here, a final judgment was entered after the

dismissal of the remaining defendants and Sloan’s notice of appeal was timely as

to that judgment.

      Sloan contends he did not receive a fair trial on his claims of excessive

force. We disagree. Most of his claims regarding discovery, jury instructions, and

verdict forms are not reviewable because his attorneys either did not object or they

agreed with the district court’s rulings. See, e.g., Affordable Housing Dev. Corp. v.

City of Fresno, 433 F.3d 1182, 1196 (9th Cir. 2006); Yeti by Molly, Ltd. v. Deckers

Outdoor Corp., 259 F.3d 1101, 1109-10 (9th Cir. 2001). To the extent there were

objections, we conclude there was no reversible error.



                                          -2-
      Evidence of Sloan’s prior convictions was properly admitted as

impeachment. See Brewer v. City of Napa, 210 F.3d 1093, 1096 (9th Cir. 2000).

The credibility of the officers’ testimony is a jury determination not reviewable on

appeal. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000).

Although the judge took an active role in the trial, including questioning witnesses,

we discern no bias or partiality. See Price v. Kramer, 200 F.3d 1237, 1252 (9th

Cir. 2000). Finally, there is no constitutional right to effective assistance of

counsel in a civil action. Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir.

1985).

B.    Deliberate Indifference

      Sloan contends the district court erred by granting summary judgment on his

Eighth Amendment claims. We disagree. All of Sloan’s contentions against the

doctors – that he should have received surgery, been given stronger pain

medication, and should not have been forced to walk – are differences of medical

opinions that do not give rise to an Eighth Amendment violation. See Toguchi v.

Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). His claim that prison nurses refused

to treat his injuries also fails because he submitted no evidence they were present

that night in the infirmary. Thus, he failed to produce “sufficient probative

evidence to create a triable issue.” See Long v. County of Los Angeles, 442 F.3d

1178, 1191 (9th Cir. 2006).

                                          -3-
      Sloan complains the district court refused to appoint counsel or an expert to

aid him in presenting his Eighth Amendment claims. Given the paucity of his

claims, the court properly exercised its discretion in denying those requests. See

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (counsel), cert. denied, 130 S.

Ct. 1282 (2010); Students of California Sch. for the Blind v. Honig, 736 F.2d 538,

549 (9th Cir. 1984) (expert), vacated on other grounds, 471 U.S. 148 (1985);

      Finally, we deny Sloan’s pending motions to strike appellees’ briefs and to

impose sanctions. Appellees’ motion to supplement the record is moot because the

transcripts at issue are now part of the district court’s record.

      AFFIRMED.




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