Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 924 F.2d 1062 (9th Cir. 1991)

Otis DUCKETT, Plaintiff/Appellant,v.Officer Gabriel CERVANTES, et al., Defendants/Appellees.

No. 87-2771.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 7, 1990.* Decided Jan. 31, 1991.

Before FARRIS, CYNTHIA HOLCOMB HALL and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Otis Duckett appeals the judgment in favor of the defendants on his 42 U.S.C. §§ 1981, 1983, and 1985, battery, and intentional infliction of emotional distress claims. Duckett makes numerous claims of error. His primary concerns appear to be his claims: (1) that there was not substantial evidence to support the jury verdict in defendants' favor and that the jury's verdict was motivated by racial and gender animus, (2) that the district court abused its discretion by allowing expert voir dire and cross-examination of his witnesses, (3) that the district court erred in its instructions to the jury, and (4) that the district court judge engaged in various forms of misconduct. We affirm.

I. Sufficiency of Evidence Supporting Verdict

The record reflects substantial evidence to support the verdict. See Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1450 (9th Cir. 1988). Witness credibility and the weight to be accorded evidence are within the province of the finder of fact. Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1024 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986).

Two white men, three white women, and one black woman comprised the jury. Duckett made no objection to the jury composition at trial and, on appeal, has made no showing that the jury was prejudiced against him or his cause of action. In fact, the record refutes any allegation of bias. Counsel for Duckett successfully proposed a significant number of voir dire questions and exercised Duckett's challenge rights fully. The jury properly exercised its duties.

Duckett's contention that the trial court erred in allowing the defense to insinuate that his medical expert did not have a medical degree and that his other witnesses were criminals, substance abusers, indigents, and racists finds no support whatever in the record. Duckett's claim that the defense attempted to make the jury believe that one of its witnesses's back injury was caused by Duckett is equally unsupported.

Duckett alleges that the district court's jury instructions were incorrect in three respects. Duckett first claims that the district court erred in defining "under color of law" for purposes of section 1983. The court's instructions on this area of law, read as a whole, were proper. See United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir. 1989) (instructions must be considered as a whole to determine whether they are misleading). The court made clear that the defendant could act outside of the authority bestowed upon him by the state and still be liable.

Duckett next claims that the court improperly placed the burden of proof on him to show that the force used by the defendant to arrest him was excessive. This allocation of the burden of proof is proper. See Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984); see also Edwards v. City of Philadelphia, 860 F.2d 568, 572 (3rd Cir. 1988); Wing v. Britton, 748 F.2d 494, 497 (8th Cir. 1984); Stone v. City of Chicago, 738 F.2d 896, 900 (7th Cir. 1984).

Finally, Duckett claims for the first time on appeal that the court erred in its instruction on proximate cause. The district court at one point inadvertently stated that the plaintiff had to prove that the defendant's acts were not the proximate cause of his injuries, but a moment later correctly and clearly stated the plaintiff's burden. The instructions given by the court regarding proximate cause were adequate and not misleading.

Duckett claims that the trial court (1) did not clearly indicate its rulings on objections made by counsel at trial, (2) improperly rushed the trial in general and certain testimony in particular, and (3) was biased in favor of the city of Oakland because the judge had been an Oakland judge for twenty years. As to Duckett's first claim, we find that the judge's occasional use of phrases such as "okay" instead of "sustained" was not confusing to counsel. Duckett rests his claim of improper acceleration of the trial on one instance when the judge asked Duckett's counsel how much longer he would examine a particular witness. It is clear from the record that the court's inquiry was solely for the purpose of deciding whether to wait until the examination was completed to take a break. Duckett's claims that the judge was in a hurry or that he was about to take a vacation have no support in the record. Similarly, nothing in the record supports Duckett's allegations of bias or prejudice.

Duckett's other claims of error, including allegations of impropriety in the defense's closing argument, are also without merit.

AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument pursuant to Federal Rule of Appellate Procedure 34(a) and Ninth Cirucit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3