Gregory Brown v. County of Riverside , 565 F. App'x 658 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY BROWN, No. 10-56202
Plaintiff - Appellant, D.C. No. 5:07-cv-00491-RBL-OP
v.
MEMORANDUM*
COUNTY OF RIVERSIDE,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald B. Leighton, District Judge, Presiding
Submitted February 6, 2014**
Before: LEAVY, GRABER, and W. FLETCHER, Circuit Judges.
Plaintiff-Appellant Gregory Brown brought this action against his former
employer, Defendant-Appellee County of Riverside, alleging racial discrimination
in violation of 42 U.S.C. § 1981 and California state law. Brown appeals from a
*
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).
jury verdict in the County’s favor. We have jurisdiction pursuant to 28 U.S.C. §
1291, and we affirm.
In May 2006, Brown was terminated from his employment with the
Riverside County Waste Management Department, a subdivision of the County of
Riverside, after allowing his minor child to ride a motorcycle at a waste dump
facility owned and operated by his employer. Brown brought racial discrimination
and retaliatory discharge claims related to his employment and subsequent
termination. Brown’s lawyer voluntarily dismissed his retaliation claims before
trial.
Brown raises numerous claims on appeal, including (1) that the district judge
was biased, (2) that the district court improperly allowed extensions, (3) that
prospective jurors were challenged on account of their race in violation of Batson
v. Kentucky, 476 U.S. 79 (1986), and (4) that the district court improperly excluded
certain testimony. Brown also brings what appear to be claims challenging the
litigation strategy of his trial counsel. Finally, Brown claims that the evidence
warrants reversal of the jury verdict.
Brown provides little in the way of factual or legal support for his claims.
Brown’s allegation of bias on the part of the district judge is wholly unsupported
by the record. He does not identify any particular extensions as improper, and it
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does not appear from the record that the court granted an inordinate number of
extensions or continuances.
Brown’s trial counsel failed to raise any objection to defense counsel’s
peremptory challenges, and the record on appeal does not indicate which jurors
were stricken as a result of defense counsel’s challenges. We therefore cannot say
that the district court plainly erred in allowing these challenges. See United States
v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996) (applying plain error
analysis to a Batson claim where no objection was raised at trial).
The district court did not abuse its discretion in excluding evidence of an
unrelated incident involving Brown’s former supervisor and two County of
Riverside employees. Nor did it abuse its discretion in excluding testimony
relating to an alleged incident of misconduct by County personnel that occurred
after Brown’s termination.
Brown’s remaining claims are similarly unavailing.
Brown appears to be dissatisfied with his trial counsel’s decision to
voluntarily dismiss his retaliation claims. Because those claims were not presented
to the trial court, we cannot review them here. See Padgett v. Wright, 587 F.3d
983, 986 n.2 (9th Cir. 2009) (per curiam).
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Finally, the jury’s verdict was supported by substantial evidence.
“Substantial evidence is such relevant evidence as reasonable minds might accept
as adequate to support a conclusion even if it is possible to draw two inconsistent
conclusions from the evidence.” Landes Constr. Co. v. Royal Bank of Can., 833
F.2d 1365, 1371 (9th Cir. 1987).
County of Riverside asserts that Brown’s appeal was frivolous, and seeks an
award of attorney’s fees as a sanction. Although we have discretion to award
attorney’s fees as a sanction against frivolous appeals, see Fed. R. App. P. 38, “we
are reluctant to impose penalties against any litigant, particularly one appearing pro
se.” Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981) (per curiam). We decline
to do so here.
AFFIRMED.
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