                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 08 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KAVIN MAURICE RHODES,                            No. 08-16363

              Plaintiff - Appellant,             DC No. CV 02-5018

  v.
                                                 MEMORANDUM *
M. ROBINSON; RON BLEVINS; SARA
MALONE; R&R OFFICER; R&R
SERGEANT; OMBUDSMAN; C.
NELSON; CORRECTIONAL OFFICER;
V. PAZO, Correctional Officer; B.
JONES, Sergeant; ROBERTSON,
Sergeant; J. TIDWELL, Correctional
Officer; A. LOPEZ, Facility Captain;
HUEBNER, Lieutenant,

              Defendants - Appellees.



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

                             Submitted June 15, 2010 **
                              San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      Before:       O’SCANNLAIN, TASHIMA, and BEA, Circuit Judges

      Kavin Rhodes (“Rhodes”) is a prisoner incarcerated in the California State

Prison system. He alleges that while a prisoner at the California Correctional

Institution in Tehachapi, California, several guards repeatedly illegally retaliated

against him for exercising his First Amendment right to file administrative inmate

grievances, grand jury complaints, and this federal civil rights lawsuit.

      The district court initially granted defendants’ motion to dismiss. On appeal,

we reversed, holding that Rhodes had alleged facts sufficient to state a claim for

First Amendment retaliation. See Rhodes v. Robinson (“Rhodes I”), 408 F.3d 559

(9th Cir. 2005). On remand, Rhodes amended his complaint to allege additional

claims arising from additional retaliation defendants allegedly inflicted on him in

response to the initial filing of this lawsuit. The district court sua sponte dismissed

claims thirteen through thirty-three of Rhodes’ second amended complaint

(“SAC”), and granted defendants’ motion for summary judgment on several of

Rhodes’ other claims. A jury found for defendants as to all remaining claims.

      Rhodes timely appealed. In this memorandum disposition, we address, and

affirm, the district court’s rulings on summary judgment, as well as its pretrial




                                           2
rulings, trial rulings, and instructions to the jury.1 The district court had

jurisdiction under 28 U.S. C. §§ 1331 and 1342. We have jurisdiction under 28

U.S.C. § 1291.

                           I. Summary Judgment Rulings

      We reject Rhodes’ challenge to the district court’s grant of summary

judgment to defendants Nelson, Blevins, Lopez, and Huebner on his First

Amendment retaliation claims. A claim of retaliation against a prisoner for the

exercise of his First Amendment rights has five elements: “(1) An assertion that a

state actor took some adverse action against an inmate (2) because of (3) that

prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise

of his First Amendment rights, and (5) the action did not reasonably advance a

legitimate correctional goal.” Rhodes I, 408 F.3d at 567-68 (footnote omitted).

      We affirm the district court’s grant of summary judgment to Nelson on this

claim because Rhodes failed to proffer facts from which a reasonable trier of fact

could conclude that Nelson took the allegedly retaliatory action because of

Rhodes’ exercise of his First Amendment rights. Nelson stated that he was

unaware that Rhodes had filed a grievance in November 2000, when he confiscated



      1
              We address Rhodes’ appeal of the dismissal of claims thirteen through
thirty-three in his SAC in an opinion filed concurrently with this disposition.

                                            3
Rhodes’ CD player on May 3, 2001. Rhodes offered no evidence contradicting

this assertion.

       We also affirm the grant of summary judgment to Blevins on this claim

because Rhodes offered no evidence to contradict Blevins’ contention that by

confiscating Rhodes’ CDs and lens cleaner, he was “reasonably advanc[ing] a

legitimate correctional goal,” by enforcing Operation Procedure #206, which

prohibits inmates from owning CDs if they do not possess a CD player. Id. at 568.

It is uncontroverted that Rhodes did not possess a CD player.

       Rhodes’ contentions that the district court erred in granting summary

judgment to Lopez on Rhodes’ claim of First Amendment retaliation likewise fail.

Rhodes first argues that Lopez retaliated against him by refusing to respond

personally to his complaints. Next, he contends that Lopez retaliated against him

by refusing to return to him a copy of his November 2000 grievance. Lopez’s

failure personally to address Rhodes complaints does not constitute retaliation.

Lopez permitted the inmate appeals process to address Rhodes’ complaints, which

were in fact fully processed through the inmate grievance system in accordance

with applicable regulations. Similarly, as the district court noted, “[e]ven assuming

defendant Lopez failed to return the documentary evidence as requested, this

conduct was not an adverse action sufficient to support a retaliation claim,”


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because it did not chill Rhodes’ exercise of his First Amendment rights. See id. at

568. Rhodes’ November 2000 grievance was fully processed, and his speech was

in no way chilled by Lopez’s failure to return a copy of it to him. We affirm the

district court’s grant of summary judgment to Lopez on this claim.

       We next affirm the district court’s grant of summary judgment to Huebner,

but on different grounds. Rhodes is correct that the district court misconstrued his

allegation against Huebner. The district court mistakenly believed that Rhodes was

complaining that Huebner failed to process a copy of an appeal from an earlier-

submitted grievance, when Rhodes actually alleged that Huebner had failed to

process the original of a new grievance. Nonetheless, this claim cannot survive

summary judgment, because Rhodes did not offer any evidence from which a

reasonable trier of fact could conclude that Hueber lost or destroyed the new

grievance in retaliation for filing earlier grievances. Rhodes submitted no evidence

to prove his allegations of wrongdoing by Huebner. In fact, Rhodes’ own

declaration states that Huebner actually offered to protect him from further

retaliation.

       The district court also correctly disregarded Rhodes’ motion for cross-

summary judgment because it did not “state with particularity the grounds for

seeking the order” as required by Federal Rule of Civil Procedure 7(b)(1)(B).


                                          5
Despite captioning the motion as one for cross-summary judgment, Rhodes did not

provide any argument or evidence supporting such a motion.

      We also reject Rhodes’ argument that the district court failed to provide him

with proper notice of the standard for summary judgment as required by Rand v.

Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en banc). The district court

provided notice to Rhodes of the standard for summary judgment in its Second

Information Order and Summary Judgment Notice, filed on May 17, 2002, at

paragraph three. The district court’s notice complies with the requirements of

Rand because it is written in “ordinary, understandable language,” describes

Rhodes’ right to file evidence in opposition to defendants’ summary judgment

motion, explains that his failure to respond will result in the opposing party’s

factual allegations being taken as true, and may result in the entry of judgment

against him. Id.

      Rhodes’ argument that the district court violated the law of the case doctrine

by making factual findings contrary to the statement of facts in our decision in

Rhodes I is meritless. For the purposes of Rhodes I, we accepted as true all factual

allegations contained in Rhodes’ complaint, because the case came to us on appeal

from a dismissal for failure to state a claim. See Fed. R. Civ. Proc. 12(b)(6).

Rhodes I, therefore, made no factual determinations. On remand, the case was


                                           6
before the district court in a very different procedural posture, and the district court

was correct to apply the standard for summary judgment.

                                 II. Pretrial Rulings

      Neither the district judge nor the magistrate judge abused his discretion in

declining to recuse themselves from Rhodes’ case. The only evidence of bias

Rhodes cites are decisions by the judges with which he disagrees; however,

“‘judicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.’” Focus Media, Inc., v. Nat’l Broad. Co., Inc. (In re Focus Media, Inc.),

378 F.3d 916, 930 (9th Cir. 2004) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)).

      Nor did the district court abuse its discretion by refusing to appoint counsel

to assist Rhodes under 28 U.S.C. § 1915(e). The district court acted well within its

discretion when it found that exceptional circumstances warranting appointment of

counsel were not present in this case. Rhodes obviously possesses the ability

clearly to articulate his case, having already won one appeal before us in Rhodes I.

See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986).

      Rhodes’s contention that the district court violated his due process rights by

failing to respond to his request to sanction Blevins for perjuring himself is




                                            7
meritless. Rhodes’ due process rights were not violated because the record

indicates that he never made such a request.

       Likewise, the district court did not abuse its discretion when it declined to

inform the U.S. Attorney that Rhodes wished to file an obstruction of justice claim

against defendants. Although there is some authority to support the notion that in

certain cases the district court may make such a referral sua sponte, it is not

required to do so at a litigant’s request. See United States ex. rel. Savage v.

Arnold, 403 F. Supp. 172, 175 (E.D. Pa. 1975). Only the U.S. Attorney can initiate

criminal proceedings in federal court, and Rhodes was free to contact him directly.

See Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964) (per curiam).

                                   III. Trial Rulings

       The district court did not abuse its discretion when it denied Rhodes’ motion

requesting the issuance of five subpoenas duces tecum. Because the motion was

made after the district court issued its pretrial order, it constituted a request for an

amendment to the pretrial order, and Rhodes bore the burden of demonstrating that

denying it would result in “manifest injustice.” Galdamez v. Potter, 415 F.3d

1015, 1020 (9th Cir. 2005). Rhodes offered no explanation as to how denying his

motion would result in manifest injustice, and therefore failed to satisfy his burden.




                                            8
      We also reject Rhodes’ challenges to various evidentiary rulings by the

district court. The district court was correct in refusing to admit documents into

evidence from the Kern County grand jury in order to prove the truth of the matter

asserted in the hearsay portions of the documents. See Fed. R. Evid. 807. The

district court’s denial of Rhodes’ request that defendant witnesses be excluded

from the courtroom also complied with the Federal Rules of Evidence. See Fed. R.

Evid. 615(1) (Although the rule authorizes a district court to exclude witnesses

from the courtroom, it “does not authorize exclusion of . . . a party who is a natural

person.”). Likewise, the district court acted properly in admitting a duplicate copy

of a cell-search log into evidence because Rhodes failed to raise a “genuine

question . . . as to the authenticity of the original,” and merely asserted without

support that it was “an obvious forged and fabricated copy.” See Fed. R. Evid.

1003. The district court was also within its discretion to hold that Nelson’s status

as a defendant in a prior suit brought by Rhodes was not relevant for impeachment

purposes. See Fed. R. Evid. 607. The district court did not err by refusing to take

judicial notice of Canell v. Lightner, 143 F.3d 1210 (9th Cir. 1998), as Rhodes

requested. A court may not (and need not) take judicial notice of judicial

precedent. See Fed. R. Evid. 201(a).




                                           9
      Rhodes also appeals the district court’s entry of zero damages against

defendant B. Jones, as to whom Rhodes had been granted a default judgment.

Rhodes was given notice that he would be required to provide evidence

establishing that B. Jones exists. Given that Rhodes offered no evidence of B.

Jones’ existence, the district court’s decision to enter a default judgment without

damages was not erroneous.

                                IV. Jury Instructions

      Finally, Rhodes’ challenges to the jury instructions given by the district

court also fail. The district court properly denied Rhodes’ request for a spoliation

of evidence instruction, based on defendants’ destruction of Rhodes’ CD player.

Rhodes was not entitled to an adverse inference due to spoliation because he

provided no proof that the party with control over the CD player had a duty to

preserve it at the time it was destroyed. See Idaho Potato Comm’n v. G & T

Terminal Packaging, Inc., 425 F.3d 708, 720 (9th Cir. 2005).

      We will not consider Rhodes’ challenge to the district court’s refusal to

instruct the jury on the issue of psychological damages. Rhodes has waived his

right to challenge it by failing to make a timely objection in the district court. See

Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001). For




                                           10
the same reason, we also decline to review the district court’s failure to give a jury

instruction on Rhodes’ obstruction of justice claim. See id.

                                     Conclusion

      For the foregoing reasons, the above portions of the district court’s judgment

and its summary judgment rulings are AFFIRMED.




                                          11
