                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JAN 26 2016

                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS




FLINOYD BROWN,                                   No. 13-56503

              Plaintiff - Appellant,             D.C. No. 2:06-cv-04169-SJO-JC

 v.
                                                 MEMORANDUM*
ANTONIO VILLARAIGOSA, Mayor; et
al.,

              Defendants - Appellees,

      And

HEIM, Sergeant, #21887, Erroneously
Sued As Beth Heim; et al.,

              Defendants.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                          Submitted December 10, 2015**
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              On consent of pro bono counsel, the panel unanimously concludes this
case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON, CALLAHAN, and HURWITZ, Circuit Judges.

      Plaintiff-appellant Flinoyd Brown, a California state prisoner, appeals from

the judgment of the district court, following a jury verdict, entered on his 42 U.S.C.

§ 1983 complaint in favor of the defendant-appellees, members of the Los Angeles

Police Department (“LAPD”) and the Los Angeles Fire Department. We have

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

      1. Brown challenges the district court’s refusal to appoint counsel. In

Palmer v. Valdez, we stated:

      A district court’s refusal to appoint counsel pursuant to 28 U.S.C. §
      1915(e)(1) is reviewed for an abuse of discretion. Generally, a person
      has no right to counsel in civil actions. However, a court may under
      “exceptional circumstances” appoint counsel for indigent civil
      litigants pursuant to 28 U.S.C. § 1915(e)(1). When determining
      whether “exceptional circumstances” exist, a court must 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.” Neither of these considerations is
      dispositive and instead must be viewed together.

560 F.3d 965, 970 (9th Cir. 2009) (internal citations omitted). Nothing in the

record indicates that Brown had a likelihood of success on his claims; he had been

convicted of four counts of the assault that gave rise to his arrest. Moreover, there

was nothing particularly complex about the factual and legal issues presented by

the complaint. The district court did not abuse its discretion in denying the request

for appointed counsel under these circumstances.
      2. Brown claims that the district court abused its discretion by denying his

motions to continue the trial. “The decision to grant or deny a requested

continuance lies within the broad discretion of the district court, and will not be

disturbed on appeal absent clear abuse of that discretion.” United States v. Flynt,

756 F.2d 1352, 1358 (9th Cir. 1985). Here, the court reasonably moved forward

with a trial date of August 13, 2013, after having stayed the case for one of the

defendant LAPD officers to fulfill his reserve duties in Afghanistan. Brown made

no showing why he needed extra time beyond the seven years that the case was

pending. Although on appeal he contends that he needed the time to serve

subpoenas, he did not raise this issue before the district court.1

      3. Brown argues that the prison did not comply with the court’s order to

provide him access to his legal documents. On the eve of trial, the court denied

Brown’s motion for an order of contempt against the prison officials.

      We review a district court’s denial of a motion for contempt for an abuse of

discretion. See Ballo v. Idaho State Bd. of Corr., 869 F.2d 461, 464 (9th Cir.

1989). A district court “has, and should have, wide latitude in making a

determination of whether there has been contemptuous defiance of its own orders.”

Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48 (9th Cir. 1971). The

      1
           The plaintiff’s response to a question on cross-examination that “he was
not in the position to [subpoena anyone]” did not sufficiently raise the issue before
the court for preservation purposes.
district court did not abuse its discretion in this case. The court reviewed a sworn

declaration from a ranking prison official that documented the efforts made by the

prison to provide Brown more than the usual access to “legal property.” The

declaration also documented the few times Brown took advantage of this

arrangement.

      4. The district court did not abuse its discretion in arranging Brown’s

appearance by video feed. “A plaintiff in a civil suit who is confined in state

prison at the time of a hearing has no absolute right to appear personally.”

Demoran v. Witt, 781 F.2d 155, 158 (9th Cir. 1985). A court may deny a

prisoner’s request to appear at a civil trial for any number of reasons, including

“whether the prisoner’s presence will substantially further the resolution of the

case, the security risks presented by the prisoner’s presence, the expense of the

prisoner’s transportation and safekeeping, and whether the suit can be stayed until

the prisoner is released without prejudice to the cause asserted.” Wiggins v.

Alameda Cty., 717 F.2d 466, 468 n.1 (9th Cir. 1983) (quoting Ballard v. Spradley,

577 F.2d 476, 480 (5th Cir. 1977)).

      5. For the first time on appeal, Brown challenges the court’s formulation of

the jury instructions used to explain excessive force.2 “We review the language

and formulation of a jury instruction for an abuse of discretion.” United States v.

      2
          He does not argue that the instruction was a misstatement of law.
Garcia, 768 F.3d 822, 827 (9th Cir. 2014) (quoting United States v. Cortes, 757

F.3d 850, 857 (9th Cir. 2014)).

      Nothing about the challenged instructions, which quote substantively

verbatim Model Instructions 9.18, 9.20 and 9.22, was inaccurate or misleading.

Ninth Circuit Manual of Model Civil Jury Instructions §§ 9.18, 9.20, 9.22 (2007).

Moreover, the assertion that Brown “had very little input in drafting the

instructions” is belied by the record.

      6. Brown claims that the district court “should have sua sponte excluded all

witnesses from the courtroom pursuant to Federal Rules of Evidence, Rule 615.”

However, the rule that a “court must order witnesses excluded so that they cannot

hear other witnesses’ testimony” does not apply to a “party who is a natural

person.” Fed. R. Evid. 615. Here, the testifying witnesses were the defendants

themselves.

      7. Brown did not substantiate his claim that he was in need of, but was

denied, medication that would keep him awake and functional during trial. The

judge was in the best position to determine the credibility of Brown’s medical

complaint and was evidently convinced that a recess was not necessary under the

circumstances. The decision to deny a recess was well within the court’s

discretionary power.
         8. Brown claims that, having handled the habeas writ arising from his

criminal trial, the trial judge held a bias against him and could not fairly try his §

1983 action. The argument is waived because it was not raised below, and, in any

event, entirely speculative.

         9. Brown claims that he was denied due process because he did not receive

the defense exhibits until after the trial was over. The record does not bear out this

claim, which in any event is waived because it was not raised before the district

court.

          The judgment is AFFIRMED.
