                                                                         FILED
                           NOT FOR PUBLICATION
                                                                          AUG 31 2015
                    UNITED STATES COURT OF APPEALS                    MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSEPH R. PULLIAM,                              No. 13-17632

              Plaintiff - Appellant,            D.C. No. 1:07-cv-00964-MJS

 v.
                                                MEMORANDUM*
M. LOZANO, C.O.; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court**
                       for the Eastern District of California
                   Michael J. Seng, Magistrate Judge, Presiding

                           Submitted August 26, 2015***
                             San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

      Joseph Pulliam, an inmate with the California Department of Corrections and

Rehabilitation, appeals pro se a jury verdict in favor of Officers Lozano and Mason

         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
          Tried by consent before a United States Magistrate Judge pursuant to 28
U.S.C. § 636(c)(1).
       ***
          The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
(collectively, the “Defendants”), on his 42 U.S.C. § 1983 claim, alleging that the

Defendants used excessive force against Pulliam when he resisted an order to move

to a different cell. Pulliam contends that he is entitled to a new trial because the

district court erroneously denied his requests for the appointment of counsel, failed

to adequately address allegations of juror misconduct, gave a misleading jury

instruction, and erroneously excluded a witness and a potential defendant. Because

Pulliam failed to provide the trial transcript as required under Federal Rule of

Appellate Procedure 10(b), we limit our review and address the issues raised to the

extent possible without the transcript. Portland Feminist Women’s Health Ctr. v.

Advocates for Life, Inc., 877 F.2d 787, 789 (9th Cir. 1989). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     As a civil litigant in a § 1983 action, Pulliam does not have a

constitutional right to appointed counsel, and the district court did not abuse its

discretion in determining that Pulliam’s case does not present “exceptional

circumstances” that would warrant the appointment of counsel. Cano v. Taylor, 739

F.3d 1214, 1218 (9th Cir. 2014).        The record supports the district court’s

determination that, even assuming a likelihood of success, Pulliam was able to

articulate his position considering the complexity of the issues involved. Indeed,

Pulliam propounded comprehensive discovery requests and effectively defeated the


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Defendants’ motion for summary judgment, which involved analyzing several issues

of law. The fact that a lawyer may have been better able to examine witnesses and

present evidence at trial is insufficient to demonstrate the presence of “exceptional

circumstances” in this case. Cf. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

1986).

      2.      The district court similarly did not err in its response to allegations of

potential juror misconduct. Upon receiving information that a juror may have

discussed the contents of the trial with his wife, the district court had discretion to

determine the proper course of action. Hard v. Burlington N. R.R. Co., 870 F.2d 1454,

1462 (9th Cir. 1989). The district court acted within its discretion by questioning the

juror’s wife in open court, outside the presence of the jury, and we defer to its

determination that no misconduct occurred. See Rinker v. Napa Cnty., 724 F.2d 1352,

1354 (9th Cir. 1983); see also United States v. Decoud, 456 F.3d 996,1017 n.9 (9th

Cir. 2006).

      3.      The jury instruction on the use of de minimis force accurately conveyed

the law that the “Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments

necessarily excludes from constitutional recognition de minimis uses of physical

force,” Hudson v. McMillian, 503 U.S. 1, 9–10 (1992), such that not every “push or

shove” amounts to a constitutional violation, Wilkins v. Gaddy, 559 U.S. 34, 38


                                           3
(2010). When read in conjunction with the other instructions, the de minimis force

instruction does not suggest that Pulliam was required to show significant injury.

Accordingly, the district court did not err by giving the instruction as formulated. See

Harrington v. Scribner, 785 F.3d 1299, 1304 (9th Cir. 2015).

      4.     The district court denied Pulliam’s request to compel the appearance of

a fellow inmate as a witness at trial because Pulliam failed to demonstrate that the

inmate possessed relevant, personal knowledge of the underlying events. Even

assuming the district court’s denial was erroneous, any such error was harmless, as

Pulliam himself concedes that the inmate’s testimony would have been cumulative to

that of another witness that did testify at trial. See Harper v. City of Los Angeles, 533

F.3d 1010, 1030 (9th Cir. 2008) (reversible only if error “more probably than not”

tainted verdict).

      5.     Finally, the district court did not err by denying Pulliam’s request to join

Officer Gomez as a defendant. Pulliam’s request was effectively a motion for leave

to amend his complaint to add an additional party. The district court acted within its

discretion by denying the request on the bases that Pulliam failed to make out a

cognizable claim against Officer Gomez and joining Officer Gomez as a party would

be prejudicial given the proximity to trial. See Drew v. Equifax Info. Servs., LLC, 690

F.3d 1100, 1111 (9th Cir. 2012).

      AFFIRMED.

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