Amando Sanders v. M. York , 446 F. App'x 40 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMANDO G. SANDERS, No. 09-16206
Plaintiff - Appellant, D.C. No. 2:05-cv-01989-GEB-
GGH
v.
M. YORK; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted July 13, 2011**
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Amando Sanders, a California prisoner, appeals pro se in his 42 U.S.C. §
1983 action alleging deliberate indifference to his serious medical needs in
connection with his hernia operation. The district court granted partial summary
*
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).
judgment to one defendant, Dr. M. Penner, and a jury found in favor of the
remaining defendants, Correctional Officer M. York and Medical Technical
Assistant Rubio. Sanders appeals a number of decisions: the partial summary
judgment, the district court’s refusal to appoint counsel to Sanders, the district
court’s refusal to appoint an expert to Sanders, and some of the district court’s
evidentiary rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
affirm.
A. Partial Summary Judgment
We review a grant of partial summary judgment de novo, and we view the
evidence in the light most favorable to Sanders, the non-movant. See Charles
Schwab & Co. v. Debickero, 593 F.3d 916, 918 (9th Cir. 2010). Sanders alleges
that Dr. Penner’s decisions not to place Sanders in a medical observation room
after his surgery and not to give him new dressings resulted in him being denied
pain medication, clean clothes, and showers, and being forced to sleep in his own
blood, urine, and vomit. Sanders also claims that Dr. Penner’s decisions caused
him to get a stomach infection. He argues that Dr. Penner’s refusals amount to
deliberate indifference to Sanders’s serious medical needs. “Deliberate
indifference” has been defined as disregard of a known excessive risk of harm.
Farmer v. Brennan, 511 U.S. 825, 837–38 (1994).
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Sanders’s arguments are without merit. Even assuming these problems
existed, Sanders offered no evidence to show that Dr. Penner was aware that not
placing Sanders in a medical observation room or cleaning his dressings would
result in the alleged injuries. Sanders merely alleges that, in the days following his
visit to Dr. Penner, he was denied meals, medication, and other things while being
forced to sleep in blood, vomit, and urine. Because Sanders does not also allege
that Dr. Penner was directly involved, this allegation alone does not raise a fact
question regarding Dr. Penner’s alleged deliberate indifference.
B. Refusal to Appoint Counsel
“A district court’s refusal to appoint counsel pursuant to 28 U.S.C. §
1915(e)(1) is reviewed for an abuse of discretion.” See Palmer v. Valdez, 560 F.3d
965, 970 (9th Cir. 2009). Sanders argues that the district court should have
appointed counsel pursuant to § 1915, which gives a court the discretion to appoint
counsel to a civil litigant in “exceptional circumstances.” See Aldabe v. Aldabe,
616 F.2d 1089, 1093 (9th Cir. 1980). To determine 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.’” Palmer, 560 F.3d at 970 (quoting
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).
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We agree with the district court that Sanders failed to demonstrate the
requisite exceptional circumstances. First, it was not likely that Sanders would
succeed on the merits of his claims given that he offered very little evidence in
support of his allegations and that he failed entirely to connect some of the
defendants to any alleged wrongdoing. Second, although Sanders is a layman with
little education, he was able to explain his arguments adequately throughout the
litigation. While Sanders might have fared better with the assistance of counsel,
this is not the standard used in reviewing denials of appointment of counsel. See
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997).
C. Refusal to Appoint an Expert
The district court’s refusal to appoint an expert pursuant to Federal Rule of
Evidence 706(a) is reviewed for an abuse of discretion. See Walker v. Am. Home
Shield Long Term Disability Plan, 180 F.3d 1065, 1070–71 (9th Cir. 1999).
Courts have broad discretion to appoint expert witnesses. See Fed. R. Evid. 706(a).
A district court may abuse its discretion, however, by declining to appoint experts
in actions that involve scientific evidence or complex issues. See McKinney v.
Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated on other grounds
sub.nom., Helling v. McKinney, 502 U.S. 903, 112 S. Ct. 291, 116 L. Ed. 2d 236(1991); see also Gupta v. Terhune, 262 Fed. Appx. 772, 773 (9th Cir. 2007).
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With regard to Sanders’s allegations against Dr. Penner, the district court
assumed, for the purpose of partial summary judgment, that all of Sanders’s factual
allegations were true. Therefore, expert testimony regarding the facts of Sanders’s
alleged injuries and treatment would not have given Sanders any benefit regarding
his claims against Dr. Penner. With regard to the claims against York and Rubio,
Sanders has not demonstrated that expert testimony would have been helpful, much
less important or necessary to explain complex scientific issues or evidence.
Sanders needed to prove that the defendants were deliberately indifferent to his
medical needs. Expert testimony about the effects of the defendants’ alleged
deliberate indifference was not necessary. Thus, it was within the district court’s
discretion to deny appointment of an expert witness.
D. Evidentiary Rulings
The district court’s evidentiary rulings are reviewed for an abuse of
discretion and must be shown to have been prejudicial before they amount to
reversible error. See Tritchler v. Cnty. of Lake, 358 F.3d 1150, 1155 (9th Cir.
2004). Sanders argues that many of his trial exhibits were improperly excluded by
the district court for being classified as inadmissible hearsay. However, Sanders
does not show that the exclusions were erroneous or that they were prejudicial.
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Hearsay evidence is inadmissible unless an exception applies. The district
court gave Sanders two opportunities to explain why his exhibits – which consisted
of documents containing out-of-court statements by prison personnel – were not
hearsay. Both times, Sanders claimed that the exhibits were records of a regularly
conducted activity, but offered no evidence to show that they satisfied the hearsay
exception for such records. See Fed. R. Evid. 803(6).
Furthermore, Sanders has not shown that the exclusions prejudiced his case.
Sanders vaguely argues that the exclusions were “unfair,” but does not explain how
the exclusions more probably than not caused his trial to result in a tainted verdict.
See McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).
AFFIRMED.1
1
Appellant’s motion to withdraw complaints against opposing counsel,
filed February 14, 2011, is granted. Accordingly, appellant’s previous motion for
“investigation of a lawyer,” filed December 30, 2010, is denied as moot.
6