                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 03 2010

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




                             FOR THE NINTH CIRCUIT



NATHANIEL JEROME WILLINGHAM,                       No. 08-17387

               Plaintiff - Appellant,              D.C. No. 3:06-cv-03744-MMC

  v.
                                                   MEMORANDUM *
CITY OF SAN LEANDRO, a public
entity; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Maxine M. Chesney, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

       Nathaniel Jerome Willingham appeals pro se from the district court’s

judgment after a jury trial in his 42 U.S.C. § 1983 action alleging, inter alia, that

          *
             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).

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police officers lacked probable cause to arrest him for public intoxication. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo an order for

judgment as a matter of law. Torres v. City of L.A., 548 F.3d 1197, 1205 (9th Cir.

2008). We review for prejudice the denial of requested jury instructions. Criswell

v. Western Airlines, Inc., 709 F.2d 544, 552 (9th Cir. 1983). We review for

sufficiency of evidence a jury’s verdict. Watec Co., Ltd. v. Liu, 403 F.3d 645, 651

n.5 (9th Cir. 2005). We review for an abuse of discretion evidentiary rulings.

Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2004). We affirm.

      Willingham contends in error that the district court dismissed counts three

and four of his Amended Complaint; it did not.

      The district court properly denied Willingham’s motion for judgment as a

matter of law. Under California Penal Code section 647(f), officers may arrest a

suspect whenever they have probable cause to believe he violated the statute

regardless of whether or not the arrestee could have been properly convicted of a

violation. See In re R.K., 160 Cal. App. 4th 1615, 1624 (2008) (recognizing that

“regardless of how an intoxicated person comes to be in a public place, the police

must necessarily have the authority to arrest and remove that person” even if a




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subsequent conviction might be improper.) (citations and internal quotation marks

omitted).

      Willingham’s remaining challenges to this ruling are unavailing as they

concern the facts properly found by the jury. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury

functions, not those of a judge, whether he is ruling on a motion for summary

judgment or for a directed verdict.”).

      The jury’s verdict was supported by “substantial evidence.” Watec Co.,

Ltd., 403 F.3d at 651, n 5.

      Willingham failed to demonstrate that he was prejudiced by the district

court’s decision not to provide certain proposed instructions to the jury. Criswell,

709 F.2d at 552.

      The district court did not abuse its discretion either by admitting

impeachment evidence of Willingham’s disbarment, see U.S. v. Jackson, 882 F.2d

1444, 1448 (9th Cir. 1989) (affirming introduction of defendant’s 12-year-old

disbarment as impeachment evidence in criminal case), or by excluding evidence

of alleged misconduct by a police officer, see Fed. R. Evid. 404(b) (“Evidence of



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other crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show action in conformity therewith.”).

      The district court did not abuse its discretion by denying Willingham’s

motion to disqualify the district court judge. See Liteky v.United States, 510 U.S.

540, 555 (1994) (“judicial rulings alone almost never constitute a valid basis for a

bias or partiality motion.”).

      We affirm summary judgment for defendants on Willingham’s claims under

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). See Fisher v. City of San

Jose, 558 F.3d 1069, 1085 (9th Cir. 2009) (en banc) (holding jury’s verdict against

plaintiff on Fourth Amendment claim mooted his Monell claim).

      We do not consider Willingham’s contention that the district court

improperly denied his motion to continue the trial because he has not provided us

with a record concerning this ruling. See Syncom Capital Corp. v. Wade, 924 F.2d

167, 169 (9th Cir. 1991) (dismissing appeal of pro se appellant who did not ensure

that the court had a complete trial transcript to enable review of his contentions).

      Willingham’s remaining contentions are unpersuasive.

      AFFIRMED.




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