Paul Browning v. Bill Donat , 473 F. App'x 702 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL L. BROWNING, No. 10-16823
Plaintiff - Appellant, D.C. No. 3:00-cv-00633-ECR-
VPC
v.
BILL DONAT, ESP Associate Warden; et MEMORANDUM *
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Nevada state prisoner Paul L. Browning appeals pro se from the district
court’s judgment enforcing a settlement agreement with defendants Donat and
McDaniel (the “State Defendants”) regarding his 42 U.S.C. § 1983 action arising
*
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).
from the prison recording Browning’s telephone calls with his attorney. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion,
Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir. 2003), and we affirm.
The district court did not abuse its discretion in enforcing the settlement
agreement because, despite delays that did not prejudice Browning and the
substitution of terms due to the impossibility of performance, the State Defendants
substantially complied with the agreement. See Ahern v. Cent. Pac. Freight Lines,
846 F.2d 47, 48 (9th Cir. 1988) (the finding that a party consented to a settlement
and intended to be bound by it must be affirmed unless clearly erroneous); see also
Nebaco, Inc. v. Riverview Realty Co., 482 P.2d 305, 307 (Nev. 1971) (defense of
impossibility applies where performance of a contract term is made impossible or
highly impractical by the occurrence of unforeseen contingencies).
Browning’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-16823