                                                                              FILED
                           NOT FOR PUBLICATION                                    MAR 13 2013

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



                            FOR THE NINTH CIRCUIT


JUDE P. NWANDU,                                  No. 11-56361

              Plaintiff - Appellant,             D.C. No. 3:06-cv-00999-WMC

  v.
                                                 MEMORANDUM*
V. BACH, Sergeant; A. CASTILLO,
Correctional Officer; A CORRECTIONAL
OFFICER,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Southern District of California
                  William McCurine, Magistrate Judge, Presiding

                          Submitted December 12, 2012**

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

       Jude P. Nwandu (“Nwandu”) appeals pro se a district court judgment

following a jury trial in which the jury returned a special verdict denying his



        *
             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).
claims for excessive force under the Eighth Amendment. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.1

      Nwandu argues that the district court erred by allowing the jury to view

Exhibit G, the video-taped interview in which he alleges he was beaten by prison

officials. A district court’s evidentiary decisions are reviewed for abuse of

discretion. Harper v. City of Los Angeles, 533 F.3d 1010, 1030 (9th Cir. 2008).

      The district court did not abuse its discretion when it admitted the recorded

interview because the person who operated the camera authenticated the recording

and testified that a proper chain of custody was followed after the interview

concluded. Nwandu failed to rebut the testimony authenticating the recording and

has offered no argument or evidence to support the conclusion that the district

court abused its discretion in admitting the recording. Admitting the recording was

not an abuse of discretion. See Harper, 533 F.3d at 1030.

      Nwandu argues that the district court erred by granting defendants’ motions

in limine excluding medical testimony, medical documents, and reference to a

prior incident involving one of the defendants.




      1
       Because the parties are familiar with the facts underlying this appeal, we do
not recount the facts here.
                                          2
      Nwandu could not establish that the prior incident was relevant to his current

claims. He could not authenticate his medical records, establish their relevance, or

overcome hearsay objections to allow their admission. Nwandu also failed to

establish the relevance of his proposed medical testimony and did not submit

expert reports as required by F.R.C.P. 26(a)(2). Therefore, the district court did

not abuse its discretion by granting defendants’ motions in limine. See Harper,

533 F.3d at 1030.

      Nwandu argues that the district court erred when it denied his motions for

appointment of counsel. A district court’s denial of appointment of counsel is

reviewed for abuse of discretion. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.

2009). A district court is granted the discretion to appoint counsel in exceptional

circumstances. Id. The exceptional circumstances analysis requires the district

court to consider “the likelihood of success on the merits as well as the ability of

the petitioner to articulate his claims pro se in light of the complexity of the legal

issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

1983)).

      The district court analyzed each of Nwandu’s motions for appointment of

counsel under the proper standard and found no exceptional circumstances to

justify the appointment. Nwandu’s case was not so complex that he required legal


                                           3
assistance to help present his claims. Moreover, Nwandu had participated in oral

argument and had succeeded in getting his claims through the summary judgment

stage. Since Nwandu was capable of handling his claims effectively and because

his claims were not complex, the district court did not abuse its discretion in

denying his requests for appointment of counsel. See Palmer, 560 F.3d at 970.

      Nwandu argues that the district court erred by allowing him only thirty

minutes in order to re-draft documents and prepare jury instructions. Federal

judges are granted broad discretion in the way they supervise their trials. United

States v. Marks, 530 F.3d 799, 806 (9th Cir. 2008). A district court judge’s

decision regarding the supervision of trial is reviewed for abuse of discretion. Id.

      Although Nwandu claims in his opening brief that the district court gave him

only a lunch break to prepare for trial, the record clearly illustrates that he was

given more time. After the district court was informed that Nwandu was not given

his documents, the court gave him a continuance until nine the next morning, gave

him a legal pad and pen, ordered the government to give him a copy of their

exhibits, and ordered the court’s staff to print out copies of documents related to

trial. The district court did not abuse its discretion by giving Nwandu a one day

continuance to prepare for trial. See Marks, 530 F.3d at 806.




                                           4
      Nwandu argues that the district court erred by refusing to modify the pretrial

order after submitting his motion for reconsideration. A district court’s decision to

modify a pretrial order is reviewed for abuse of discretion. Hoffman v.

Tonnemacher, 593 F.3d 908, 912 (9th Cir. 2010). “A district court may modify a

pretrial order only to prevent manifest injustice.” Id. at 913. (internal quotation

marks omitted).

      The district court analyzed Nwandu’s motion for reconsideration to see if

granting it would be appropriate in order to prevent manifest injustice. The district

court concluded that Nwandu’s motion was based on a misunderstanding of the

kinds of facts included in Section III of the Pretrial Order. Nwandu wanted to

include disputed facts in a section that included only admitted facts. The Pretrial

Order contained a fair list of admitted facts and the district court did not abuse its

discretion by refusing to allow Nwandu to include disputed facts. Manifest

injustice did not result from the failure to include Nwandu’s disputed facts. See

Hunt v. County of Orange, 672 F.3d 606, 616 (9th Cir. 2012).

      Finally, Nwandu argues that the district court erred by failing to include a

state tort claim in the pretrial order. “The district court ‘is given broad discretion

in supervising the pretrial phase of litigation, and its decisions regarding the

preclusive effect of a pretrial order . . . will not be disturbed unless they evidence a


                                           5
clear abuse of discretion.’” C.F. ex rel. Farnan v. Capistrano Unified School Dist.,

654 F.3d 975, 984 (9th Cir. 2011) (quoting Johnson v. Mammoth Recreations, Inc.,

975 F.2d 604, 607 (9th Cir. 1992)).

      Because the record does not reflect that Nwandu exhausted his

administrative remedies, the district court did not clearly abuse its discretion by

refusing to include his state tort claim in the pretrial order. See Woodford v. Ngo,

548 U.S. 81, 93 (2006).

      AFFIRMED.




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