Unpublished Disposition, 845 F.2d 1029 (9th Cir. 1988)
Annotate this CaseMark James COLBY, Plaintiff-Appellant,v.Andrew E. D'ENTREMONT, et al., Defendants-Appellees.
No. 86-2336.
United States Court of Appeals, Ninth Circuit.
Submitted March 16, 1988.* Decided April 20, 1988.
Before SCHROEDER and FLETCHER, Circuit Judges, and LAUGHLIN E. WATERS,** District Judge.
MEMORANDUM**
Mark Colby appeals in propria persona the district court's entry of judgment for the defendants in this 42 U.S.C. § 1983 action. The essence of his claim as pleaded was that police used excessive force following his arrest. The district court entered findings of fact and conclusions of law, finding that the force defendants used was not excessive, but instead was appropriate restraining conduct reasonably calculated to keep the plaintiff under control.
On appeal, Colby argues that he was entitled to a jury trial. The record does not reflect any timely jury trial demand as required by Fed. R. Civ. P. 38.
Appellant was properly denied access to the defendant officers' personnel files in the absence of articulated, specific reasons underlying the motion to compel. See 4A J. Moore, J. Lucas & D. Epstein, Moore's Federal Practice p 34.01, 34.07 (2d ed. 1987) (requiring "reasonable particularity").
Colby also claims that the court should have permitted him to amend his complaint to include a claim under 42 U.S.C. § 1985(3). Under Rule 15, after a responsive pleading has been filed, a party may amend only by leave of the court. The district court did not abuse its discretion when the request was made on the day of the trial.
Appellant claims that the district court erred when it denied him assistance in obtaining a deposition from a possible witness. Appellant made this request on the day of trial also. Colby maintains he did not realize that the scheduled evidentiary hearing was in fact the date of trial. However, appellant did not then, nor has he yet, explained what evidence the witness could have provided. See Fed.R.Evid. 103(a) (2); see also Driscoll v. Schmitt, 649 F.2d 631, 632 (8th Cir. 1981) (in section 1983 action alleging police officers' use of excessive force, trial court did not err in refusing to allow testimony of witness when no offer of proof was made).
Colby's next claim is that the district court abused its discretion in declining to request an attorney for him under 28 U.S.C. § 1915(d). Such appointments are limited to exceptional circumstances. Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). No exceptional circumstances have been demonstrated here.
Finally, appellant argues that the district court erred in accepting the defense's proposed findings of fact and conclusions of law. Fed. R. Civ. P. 52 does not preclude that practice. See 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2578 (1971).
AFFIRMED.
The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Honorable Laughlin E. Waters, Senior United States District Judge for the Central District of California, sitting by designation
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