Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

MEMORANDUM^** 

Norman Tedder, pro se, brought a 42 U.S.C. § 1983 action against various prison guards at the Oregon State Penitentiary alleging the defendants denied him access to the courts by removing from his cell legal papers related to an appeal before the United States Supreme Court. At the close of Tedder's case in chief, the magistrate ordered a directed verdict in the defendants' favor. Tedder appeals this ruling as well as various rulings before, during and after trial. We affirm.

The trial was held before a United States Magistrate pursuant to the district court's order. The record shows that Tedder consented to trial before a magistrate at the pretrial conference. The right to a trial of a civil case before an Article III judge may be waived. Pacemaker Diagnostic Clinic of America v. Instromedix, 725 F.2d 537, 543 (9th Cir. 1984). Tedder now contends his consent to the magistrate's jurisdiction was involuntary. He failed to raise this issue before the district court and we decline to consider it. Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986).

Tedder argues he was denied a fair trial because (1) some inmate witnesses he had subpoenaed were not produced at trial; (2) venue for trial was changed from Salem to Eugene only three days before the start of trial; and (3) he and other inmate witnesses allegedly appeared before the jury in leg irons and/or shackles.

It is not clear why all of Tedder's subpoenaed witnesses were not produced from the penitentiary, but the record does show the absence of the witnesses did not prejudice Tedder's case. Six of the seven witnesses named in Tedder's brief were offered to testify that the guards had removed legal materials from their cells on other occasions (CR 101). The district court ruled in chambers that such testimony would not be relevant to Tedder's claim that the guards removed legal materials from his cell (RT 264). The seventh witness, William Grissom, allegedly would have testified that a prison guard had bribed him with marijuana to assault Tedder. This testimony also would have been irrelevant to Tedder's claim.

The district court did not give a reason for the change in venue. Tedder's objection to the change was that it prevented Mr. LaBrun from testifying. Tedder admitted he did not tender a witness fee with his subpoena to Mr. LaBrun, as is required for its enforcement, but argued Mr. LaBrun had waived the fee. In any event, Tedder was not prejudiced by Mr. LaBrun's failure to appear. LaBrun's testimony would have been cumulative. Tedder's pretrial witness list indicates LaBrun would have testified that he saw one of the guards walking away with "a large armload of papers." Witness Kelsey testified to the same fact during trial.

If Tedder and his inmate witnesses were kept in restraints or shackles, Tedder raised no objection to this procedure during his trial. In any event, Tedder could not have been prejudiced since Tedder's claims were not submitted to the jury.

Tedder made two motions to bar Assistant Attorney General McAllister from serving as defense counsel. In the first motion, Tedder argued McAllister had a conflict of interest because he was a named defendant. Any conflict of interest was eliminated when McAllister was dismissed from the suit. In the second motion, Tedder claimed that McAllister led the conspiracy to steal Tedder's legal documents, attempted to intimidate some of Tedder's trial witnesses, and failed to prosecute a guard who allegedly bribed an inmate to attack Tedder. Tedder offered no support for his general allegations that McAllister had actually engaged in such improprieties.

The district court refused to allow Tedder to call McAllister as a witness. The district court held that McAllister's testimony, which would have related to Tedder's allegations that McAllister had intimidated one of Tedder's witnesses, was irrelevant to the only issue on trial: whether Tedder's legal materials had been taken. The court's ruling was not an abuse of the court's wide discretion to control the trial. Geders v. United States, 425 U.S. 80, 87 (1976); United States v. Weiner, 578 F.2d 757, 766 (9th Cir. 1978). The district court invited Tedder to make a post-trial motion on this issue, but he declined to do so.

In determining whether to grant a motion for a directed verdict, the district court must determine whether there is substantial evidence, viewed in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, to support a verdict in that party's favor. Morta v. Korea Ins. Corp., No. 86-2643, slip op. at 2340 (9th Cir. Feb. 26, 1988). This court applies the same standard in reviewing the district court's decision. Id.

To prevail on his Sec. 1983 claim, Tedder was required to show that (1) the defendants acted under color of state law, and (2) their conduct deprived him of a constitutional right. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc). Tedder did not present substantial evidence that the defendants violated his constitutional right of access to the courts.

Viewing all the evidence Tedder presented at trial, the most a jury could reasonably conclude was that, on the day Tedder's cell was searched, guards handed the prison's property officer a stack of manila folders containing papers and the officer left the cell area with these papers. Tedder presented no evidence to substantiate his claim that the folders contained legal materials related to an appeal before the United States Supreme Court. Without such evidence, the jury could not conclude that Tedder's right of access to the courts had been infringed. The directed verdict was therefore proper.

Contrary to Tedder's contention, the change of venue did not create additional costs. Tedder mistakenly believes the district court required him to pay transportation costs. The cost bill did not include transportation costs, but only time costs for the security officers. These costs were not increased by the change of venue.

Tedder also argues the district court erred when it failed to consider his indigency in awarding costs. Since the award of fees was pursuant to a stipulation between Tedder and the defendants, we decline to find the court abused its discretion.

AFFIRMED.