                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 31 2010

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



                           FOR THE NINTH CIRCUIT


ELROY W. BROWNING,                               No. 08-15839

             Plaintiff - Appellant,              D.C. No. 1:05-CV-00342-AWI-
                                                 GSA
  v.

JEANNE S. WOODFORD; et al.,                      MEMORANDUM *

             Defendants - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                           Submitted January 20, 2010**
                             San Francisco, California

Before: HUG, BEEZER and HALL, Circuit Judges.

       Plaintiff-appellant Elroy W. Browning (“Browning”) appeals pro se from a

jury verdict in favor of defendants-appellees Sergeant Castro, Officer Jackson and

Officer Lopez (collectively “the Defendants”). The Defendants prevailed at trial


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
when the jury determined that Browning’s constitutional rights had not been

violated when the Defendants sprayed Browning with pepper spray while he was

incarcerated.

      We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We

affirm the rulings of the district court and deny Browning’s motion for

reconsideration of the jury verdict.

      The facts of this case are known to the parties. We repeat them only as

necessary.

                                             I

      We review a district court’s rulings concerning discovery for an abuse of

discretion. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1084 (9th Cir. 2003). A

district court’s decision “to deny discovery will not be disturbed except upon the

clearest showing that the denial of discovery results in actual and substantial

prejudice to the complaining litigant.” Id. at 1093.

      We also review evidentiary rulings for an abuse of discretion. Geurin v.

Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002). We will only reverse a

district court’s evidentiary rulings if the alleged errors would “have, more probably

than not, tainted the jury’s verdict.” Id.




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      We review issues raised for the first time on appeal only under certain

narrow circumstances: “(1) to prevent a miscarriage of justice; (2) when a change

in law raises a new issue while an appeal is pending; and (3) when the issue is

purely one of law.” Kimes v. Stone, 84 F.3d 1121, 1126 (9th Cir. 1996) (citation

omitted).

                                          II

      The district court acted within its discretion by declining to order the

issuance of subpoenas for the production of operational procedures concerning the

pepper spray training that California prison officials receive and personnel records

regarding prior allegations of prisoner mistreatment by the defendants. Browning

was given additional time to demonstrate his entitlement to the requested

documents and failed to do so within that extension. Browning has not shown that

the district court abused its discretion in refusing to order the subpoenas. See

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992).

                                         III

      The district court acted within its discretion by excluding Exhibit 1 (“Health

Care Services Policy of Chronic Lung Disease”) as irrelevant because the exhibit is

not probative of whether Browning suffered harm from the pepper spray and




                                          3
Browning made no other allegation as to how the guide for registered nurses bore

upon the Defendants. See Fed. R. Evid. 402.

      The district court acted within its discretion by excluding Exhibits 2 (“Rule

Violation Report and I.E.”), 4 (“Declaration of A. Parra”), 7 (“Inmate Stephens

602 Complaint”) and 15 (“602 Complaint”) as inadmissible hearsay pursuant to

Federal Rule of Evidence 802. All four exhibits contain out-of-court statements

that were offered into evidence to prove the truth of the matters asserted in them.

      The district court acted within its discretion by excluding Exhibit 9

(“Memorandum Door Kicking Policy Warden A.K. Scribner”) because the exhibit

was offered in an attempt to introduce evidence of a subsequent remedial measure

to prove culpable conduct in violation of Federal Rule of Evidence 407.

      The district court acted within its discretion by excluding Exhibit 10 (“Title

15 California Code of Regulation Policy”) as irrelevant. See Fed. R. Evid. 402. To

the extent that Title 15 of the California Code of Regulation Policy bore upon

Browning’s § 1983 claim, it could have been included in the jury instructions.

      The district court acted within its discretion by excluding Exhibits 16

(“Medical Profile of Plaintiff’s Injuries”), 21 (“602 Complaint of Plaintiff’s

Injuries”), 28 (“Medical Injuries of Breathing Issues”), 29 (“Medical Records (part

2)”) and 30 (“Medical Records (part 3)”). The exhibits were not probative of


                                          4
whether Browning suffered any injury from the pepper spray because the exhibits

concern his health condition during a time period more than a year after he was

sprayed. The only exception is the June 22, 2004, Health Care Services Request

form, which is inadmissible hearsay. The other exhibits are also filled with

inadmissible hearsay and are generally irrelevant to Browning’s case. See Fed. R.

Evid. 402, 802.

      The district court acted within its discretion by excluding Exhibit 31

(“Plaintiff’s Pretrial Dispositive Motion”) because the exhibit is inadmissible

hearsay. Fed. R. Evid. 403.

                                         IV

      We do not review Browning’s contention that the district court should have

appointed an expert witness to testify about his exposure to the pepper spray.

Browning raises the issue for the first time on appeal because there is no indication

in the record that he ever requested such expert witness testimony during his trial.

No “miscarriage of justice,” Kimes, 84 F.3d at 1126, resulted from the district

court’s failure to sua sponte appoint an expert witness.

                                          V

      The district court acted within its discretion by not admitting new evidence

containing a diagram of Browning’s cell door. The record does not show that this


                                          5
evidence was ever offered to the district court after the trial. Even if it was

properly offered, Browning has not satisfied the criteria for post-trial newly

discovered evidence because the diagram could have been made before or during

the trial and Browning makes no showing that the diagram would “likely have

changed the outcome of the case.” Defenders of Wildlife v. Bernal, 204 F.3d 920,

929 (9th Cir. 2000).

                                          VI

      To the extent that Browning moves for reconsideration of the jury’s verdict

pursuant to Federal Rule of Civil Procedure 60(b), we deny that motion.

Browning’s motion is made for the first time on appeal and Browning has failed to

show that the jury verdict was not supported by “substantial evidence.” Hangarter

v. Provident Life and Accident Ins. Co., 373 F.3d 998, 1008 (9th Cir. 2004).

                                          VII

      Browning’s assertion that he is entitled to an award of damages despite the

jury verdict in favor of the Defendants is frivolous. Browning is not entitled to

damages in the complete absence of a determination of liability by the fact finder.

See Smith v. Wade, 461 U.S. 30, 52 (1983).

      AFFIRMED; Browning’s Rule 60(b) motion is DENIED.




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