Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1988)

MEMORANDUM^** 

Patrick James Campbell appeals from the judgment of the district court granting him relief on two of his section 1983 claims and dismissing the remainder of his claims. Campbell seeks reversal on the following grounds: (1) The district court erred in accepting Flathead County Sheriff's "legally inferior" evidence and in disregarding his substantial evidence; (2) The district court erred in denying him punitive damages; (3) The district court erred in dismissing his equal protection claims; (4) The district court erred in denying him compensatory damages; (5) The district court erred in denying his request for a jury trial; (6) The district court erred in denying his request that the clerk of the court issue subpoenas for 29 non-prisoner witnesses; (7) The district court erred in denying his motion for discovery sanctions; and (8) The district court erred in denying his request for attorney's fees and expenses.

We affirm.

* BACKGROUND

Campbell filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 on September 13, 1983, alleging that the Flathead County Sheriff and the Flathead County Sheriff's Department (Flathead County) violated his constitutional rights, while he was incarcerated at the Flathead County Jail. Campbell's amended complaint alleged that:

defendants had denied him adequate law library access and case preparation materials as well as adequate alternative legal assistance, privacy in personal communications with attorneys, contact visits, outdoor exercise or recreation opportunities, receipt of publications of his own choosing such as Playboy and Penthouse Magazines, wage-earning employment, written rules and regulations for jail and its prisioners, particular hygiene items, adequate cell temperature and ventilation, indoor exercise and recreation opportunities, adequate and laundered bedding, adequate clothing, healthy and safe living conditions (i.e.--fire safety, adequate plumbing, adequate lighting, hygienic environment), reasonable incoming and outgoing mail delivery, prescribed medical care, and freedom from impermissible retaliatory consequences for filing his original complaint in federal court.

The district court assigned the case to Magistrate Jack Shanstrom. The magistrate held an evidentiary hearing on March 18, 1986. Following the hearing, the magistrate issued his findings and recommendation to the district court. The district court adopted the findings and recommendation of the magistrate on May 13, 1988. The district court's judgment and order (1) enjoined Flathead County from prohibiting receipt by inmates of publications such as Playboy and Penthouse magazines; (2) awarded Campbell nominal damages for deprivation of his right to adequate exercise and for unjustified censorship of mail; and (3) dismissed Campbell's remaining claims on the merits. Campbell filed a timely notice of appeal.

II

DISCUSSION

Campbell contends that the district court erred in dismissing most of his section 1983 claims because the district court accepted Flathead County's "legally inferior" evidence and disregarded his "substantial evidence in the record as a whole." Specifically, Campbell contends that the district court should not have accepted the affidavits submitted by Flathead County because the affidavits were hearsay and he had no opportunity to cross-examine the affiants. A district court's decision to admit evidence is reviewed for abuse of discretion. United States v. Turk, 722 F.2d 1439, 1441 (9th Cir.), cert. denied, 469 U.S. 818 (1984).

Flathead County submitted three affidavits in support of its motion for summary judgment. (CR 61, 62, 63). The district court filed an order stating that the summary judgment motion would be considered as part of the evidentiary hearing. (CR 70).

Campbell never objected to admission of the affidavits in the district court. Campbell objects for the first time on appeal. This court "does not review an issue not raised or objected to below except to prevent a manifest injustice." Professional Seminar Consultants v. Sino Am. Technology Exch. Council, 727 F.2d 1470, 1472 (9th Cir. 1984).

In the instant matter, there is no showing of manifest injustice. Federal Rule of Civil Procedure 56(e) specifically provides that a party may submit supporting and opposing affidavits made on personal knowledge which set forth admissible facts. All three affidavits were based on personal knowledge of the affiants and set forth admissible facts. The district court did not err in considering the affidavits in support of Flathead County's summary judgment motion.

Although the affidavits would have been hearsay if admitted into evidence at the evidentiary hearing, there is nothing in the record to indicate that the affidavits were "admitted" into evidence. The record indicates only that they were properly submitted in support of Flathead County's motion for summary judgment.

Campbell also argues that the testimony of Flathead County's sole witness, Theodore Stollfuss, must be "distrusted" because his in-court testimony regarding gas fumes in the jail is "diametrically opposed [to] his sworn testimony given in his affidavit." The record shows that Stollfuss' sworn testimony was consistent with his sworn affidavit. In the affidavit, Stollfuss stated:

I have never known the jail to be inundated with vehicle exhaust fumes. Upon occasion, when the gas tank adjacent to the jail facility is filled with gasoline, I have detected an odor of the gasoline inside the jail. I have never detected the odor of vehicle exhaust fumes in any part of the jail, including that portion of the jail in which the Plaintiff was incarcerated.

(CR 61). At the hearing Stollfuss testified that he had never smelled motor vehicle fumes in the jail and had never detected the odor of gasoline in the prisoners' cells. (R.T. 310).

In any event, Campbell's claim is essentially an attack on the credibility of the witness. On appeal, we must accept the magistrate's determination regarding credibility. See United States v. Kerr, 876 F.2d 1440, 1444 (9th Cir. 1989) (an appellate court "is not at liberty to disturb the credibility determinations made by the magistrate and the district court").

The district court properly considered the evidence presented.

Campbell contends that the district court erred in denying him punitive damages because the Sheriff was on notice of the constitutional violations through Campbell's complaint, and he failed to take any "remedial or corrective action" and he failed to testify.

The district court's decision to deny Campbell punitive damages was within the district court's discretion. See Professional Seminar Consultants, 727 F.2d at 1473 ("A fact finder has considerable discretion in fixing [punitive] damages").

In a section 1983 action punitive damages are appropriate if the plaintiff can show that the defendant acted with reckless or callous disregard for the plaintiff's rights or that the defendant intentionally violated federal law. Smith v. Wade, 461 U.S. 30. 51 (1983); see also Protectus Alpha Navigation Co. v. North Pac. Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir. 1985) (punitive damages are never awarded as of right, but may be imposed for conduct which manifests reckless or callous disregard for the right of others).

In the instant matter, the district court awarded Campbell nominal damages for deprivation of his right to adequate exercise and for unjustified censorship of his mail. The district court did not find that Flathead County acted in "reckless or callous" disregard for Campbell's rights and nothing in the record supports his claim. The district court did not err in denying Campbell punitive damages.

Campbell contends that the district court erred in dismissing his equal protection claim because he demonstrated that prisoners at the Flathead County Jail were "denied rights or privileges accorded to convicted felons confined in the Montana State Prison System." We review Campbell's equal protection claim de novo. See La Duke v. Nelson, 762 F.2d 1318, 1322 (9th Cir. 1985) (" [T]he district court's determinations on questions of law and on mixed questions or facts and law implicating constitutional rights are reviewed de novo."), amended on other grounds, 796 F.2d 309 (1986).

The gravamen of a complaint for denial of equal protection is that similarly situated individuals are treated unequally. Mlikotin v. City of Los Angeles, 643 F.2d 652, 654 (9th Cir. 1981). Campbell, as a prisoner at the Flathead County Jail, was not similarly situated to a prisoner in the Montana State Prison. Therefore, the Flathead County Sheriff is not required by the Constitution to grant the prisoners at the Flathead County Jail the same "privileges accorded to convicted felons confined in the Montana State Prison System." See id. at 653 ("The Constituion does not require that laws treat every individual exactly alike, ... and a government body may draw lines or make decisions which treat individuals or entities differently." (citations omitted)). The district court did not err in dismissing Campbell's equal protection claim.

Campbell contends that the district court erred in denying him "substantial compensatory damages" for "the totality of jail conditions and constitutional violations." The district court entered judgment for Campbell on his claims of deprivation of his right to adequate exercise and unjustified censorship of mail. The district court found that Campbell did not introduce any evidence of damages and awarded him nominal damages of $2.00.

A district court's award of compensatory damages is a finding of fact which we review for clear error. Vance v. American Hawaii Cruises, Inc., 789 F.2d 790, 793 (9th Cir. 1986).

In the instant matter, we have found no evidence supporting Campbell's claim of damages due to inadequate exercise and deprivation of Playboy and Penthouse magazines. Campbell directs us to portions of his direct examination where he complained about his medical treatment. The district court did not commit clear error in denying Campbell compensatory damages.

Campbell contends that the district court erred in denying his request for a jury trial. We review the district court's denial of Campbell's request for a jury trial for an abuse of discretion. See Blau v. Del Monte Corp., 748 F.2d 1348, 1357 (9th Cir. 1984) ("The trial judge's decision to strike plaintiff's demand for jury trial will be reversed upon a showing of abuse of discretion.").

Federal Rule of Civil Procedure 38 provides in pertinent part:

(b) Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.

* * *

* * *

(d) Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(d) constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

The last pleadings filed by the parties in this case were Campbell's supplemental complaint filed on March 20, 1985 (CR 26) and Flathead County's answer filed on April 9, 1985 (CR 34). Neither of these pleadings nor the previous pleadings contained a request for a jury trial. Campbell did not file a demand for a jury trial until August 1, 1985, well beyond the ten-day limit of Federal Rule of Civil Procedure 38(b).

A district court may in its discretion order a jury trial upon motion despite a party's untimely demand for a jury trial. Fed. R. Civ. P. 39(b); Blau, 748 F.2d at 1357. However, a district court should not exercise such discretion when a party fails to make a timely demand due to a party's oversight or inadvertence. Id. Campbell has failed to allege any reason for his untimely jury demand. Contrary to Campbell's contention, a pretrial memorandum is not a pleading. See Fed. R. Civ. P. 7(a). The district court did not abuse its discretion in denying Campbell's untimely demand for a jury trial.

Campbell contends that the district court erred in denying his request that the clerk of the court issue subpoenas for 29 non-prisoner witnesses. In the magistrate's order setting the date for the evidentiary hearing for March 18, 1986, the magistrate informed Campbell that if he requested subpoenas for non-prison personnel, he was required to submit appropriate witness fees and mileage for each non-prisoner or, "to secure some other satisfactory arrangement with said witness" in order for them to be subpoenaed. Campbell neither tendered such witness fees and mileage payments, nor demonstrated any attempt to arrange for the presence of non-prisoner witnesses without the payment of witness and mileage fees. Moreover, Campbell never objected to the fact that the 29 non-prisoner subpoenas were not issued until after the magistrate filed his findings and recommendations.

We review a district court's decision to deny a party's request for the issuance of subpoenas for abuse of discretion. McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987), cert. denied, 108 S. Ct. 1236 (1988).

Campbell contends that the district court was required to issue the requested subpoenas pursuant to Federal Rule of Civil Procedure 45(a) and 28 U.S.C. § 1915(c). Federal Rule of Civil Procedure 45(a) describes the required contents of a subpoena and provides that it shall be issued by the clerk of the court. Rule 45(a) must be read in conjunction with subsection (c). Rule 45(c) provides in pertinent part, " [s]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees for one day's attendance and the mileage allowed by law." In proceedings in forma pauperis, 28 U.S.C. § 1915, subsection (c) provides:

(c) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases.

We have not previously addressed the question whether 28 U.S.C. § 1915(c) authorizes a district court to waive or pay the fees of witnesses subpoenaed by indigent parties. Nevertheless, we need not reach this issue in the instant matter. Campbell never informed the district court nor this court of the proposed testimony of the 29 non-prisoner witnesses. We reject Campbell's contention that we must presume that he was prejudiced by the absence of these 29 witnesses. Moreover, he did not object until after the magistrate issued proposed findings of fact and conclusions of law. The district court did not abuse its discretion in denying Campbell's request that the court subpoena 29 non-prisoner witnesses.

Campbell also contends that because he prevailed on two of his claims, he was entitled to costs and because witness fees are costs pursuant to 28 U.S.C. § 1920(3), the government as the losing party was required to pay the fees for his witnesses. We reject this argument. Section 1920(3) provides for reimbursement of amounts spent for witness fees. Section 1920(3) does not provide for advance payment of witness fees.

Campbell contends that the district court erred in denying his motion for discovery sanctions pursuant to Federal Rule of Civil Procedure 37(a) because the interrogatories propounded upon Flathead County were signed by counsel for Flathead County instead of the person answering the interrogatories in violation of Federal Rule of Civil Procedure 33(a). We review a district court's refusal to impose sanctions under Federal Rule of Civil Procedure 37(b) for abuse of discretion. David v. Hooker, LTD, 560 F.2d 412, 418-19 (9th Cir. 1977).

The record indicates that Campbell purported to serve three sets of interrogatories upon Flathead County on September 14, 18, and 21, 1983, prior to the service of any summons or complaint upon Flathead County. Flathead County was served with a summons and complaint on September 29, 1983. Thereafter, Campbell did not attempt properly to serve the interrogatories and requests for documents upon Flathead County. See Fed. R. Civ. P. 33(a), 34(b) (interrogatories and requests for documents are to be served upon the defendant "with or after service of summons and complaint upon that party."). On February 1, 1984, Campbell filed a motion to compel discovery. (CR 16). The magistrate denied the motion after indicating that such a discovery order was not necessary because Campbell just needed to effect proper service of his discovery requests. (CR 18).

On November 5, 1985, Campbell filed a motion for discovery sanctions requesting that the district court preclude Flathead County from presenting any evidence at the evidentiary hearing because Flathead County had not complied with the district court's discovery order¹  and the Flathead County Sheriff failed to answer "the fifth set of interrogatories under oath or affirmation." Flathead County opposed the motion indicating that the Sheriff had not signed the interrogatories because most of the answers to the questions propounded were not within his personal knowledge. Counsel for Flathead County had compiled the answers with the assistance of the Flathead County prison staff and had signed them. Flathead County further stated that, " [i]n the event the court deems it required, verification of the responses to interrogatories directed to the Sheriff will be provided."

Prior to the magistrate's ruling, Flathead County filed a motion for summary judgment on January 31, 1986. Campbell filed a motion to strike Flathead County's motion for summary judgment claiming Flathead County had not complied with discovery. On February 26, 1986, the magistrate denied Campbell's motion for discovery sanctions and motion to strike Flathead County's motion for summary judgment finding that the motions were without merit.

Federal Rule of Civil Procedure 37(b) authorizes sanctions when a party fails to comply with an order compelling discovery. In the instant matter, the district court never issued an order compelling discovery because the district court found Campbell's allegations of discovery abuse to be without merit. Thus, Flathead County never failed to comply with an order compelling discovery. The district court did not abuse its discretion in denying Campbell's motion for discovery sanctions.

Campbell contends that the district court erred in denying his request for attorney's fees because he was the prevailing party. We review a district court's decision whether to award attorney's fees for abuse of discretion. Hardin v. White Mountain Apache Tribe, 779 F.2d 476, 480 (9th Cir. 1985).

Title 42 of the United States Code section 1988 provides in pertinent part that in a section 1983 action, "the court in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." However, in Gonzalez v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987), we held that a prevailing party who is a pro se prisoner and is not an attorney is not entitled to an award of attorney's fees under 42 U.S.C. § 1988.

Campbell urges us to award him attorney's fees "under a public interest exception to [our] holding in Gonzalez." Gonzalez is the law of this circuit and we decline to consider any "public interest exception." See State of Montana v. Johnson, 738 F.2d 1074, 1077 (9th Cir. 1984) (we are bound by prior Ninth Circuit decisions). The district court did not err in denying Campbell attorney's fees.

III

CONCLUSION

The judgment of the district court is AFFIRMED.