                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 25 2013

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



                             FOR THE NINTH CIRCUIT


DERRICK LEE BILLUPS,                             No. 12-17016

               Plaintiff - Appellant,            D.C. No. 1:06-cv-01014-LJO

  v.
                                                 MEMORANDUM*
LOMELI,

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                            Submitted October 15, 2013**

Before:        FISHER, GOULD, and BYBEE, Circuit Judges.

       California state prisoner Derrick Lee Billups appeals pro se from the district

court’s judgment following a jury trial in his 42 U.S.C. § 1983 action alleging that

defendant violated his Eighth Amendment rights. We have jurisdiction under 28

U.S.C. § 1291. We review for an abuse of discretion evidentiary rulings and will

          *
             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).
reverse only if an erroneous ruling was prejudicial. Allstate Ins. Co. v. Herron,

634 F.3d 1101, 1110 (9th Cir. 2011). We affirm.

      Billups’s contention that his trial exhibits were improperly excluded by the

district court is unavailing as Billups has not shown that the exclusions “more

probably than not” caused his trial to result in a tainted verdict. McEuin v. Crown

Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).

      Billups’s contention that the district court did not allow him to subpoena

witnesses is unsupported by the record.

      AFFIRMED.




                                          2                                   12-17016
