Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1991)

Michael SIMS, Plaintiff-Appellant,v.James CHRISTY, Defendant-Appellee.

No. 90-15365.

United States Court of Appeals, Ninth Circuit.

Submitted April 12, 1991.* Decided June 13, 1991.

Before HUG, POOLE and FERGUSON, Circuit Judges.


MEMORANDUM** 

Michael Sims, a prisoner at the Ely State Prison in Nevada, was stabbed in the shower by another prisoner in full view of prison guard James Christy. A jury found Christy not liable for Sims' injuries under 42 U.S.C. § 1983, and he appeals, claiming that prejudicial evidence and judicial errors tainted the jury verdict. We affirm.

The stabbing occurred in October 1984. Sim's fellow inmate in the secure unit, William Leonard, hid in the shower stall and attacked Sims with a home-made knife. Correctional Officer James Christy observed the entire attack, but did not intervene until Sims had been stabbed eleven times. Sims finally escaped and fled back to his cell, and was later taken to the local hospital for emergency treatment of his wounds.

Acting pro per, Sims brought this civil rights complaint under 42 U.S.C. § 1983, alleging that Christy had violated his Eighth Amendment rights by failing to protect him from Leonard.1  The case was heard at a three-day jury trial at which both Sims and Christy testified. The central issue at trial was whether Christy acted with "deliberate indifference" to Sims' rights by not intervening to protect him during the stabbing, under the rule established in Berg v. Kincheloe, 794 F.2d 457, 462 (9th Cir. 1986). During deliberations, the jury sent several notes to the judge, requesting to see the original complaint and a transcript of Sims' testimony. The court denied the first two requests, and the jury returned a verdict in favor of Christy.

The trial court's denial of the jury's requests to see the complaint and transcripts did not constitute an abuse of discretion, and in any case was likely harmless. See United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987). Sims argues that the jury might have wanted to see the complaint to determine whether it had been filed within the statute of limitations. However, because the complaint referred to irrelevant causes of action and defendants who had been dismissed prior to trial, it might have confused and misled the jury. Even if Sims had attempted to introduce the complaint as evidence, it was probably inadmissible under both Fed.R.Evid. 401 and 403. In any case, the trial judge provided the jury with the date that the original complaint was filed, so the denial could not have prejudiced his case. No abuse of discretion occurred.

Sims also contends that the jury's request to review a transcript of his testimony should have been granted. The trial court denied this request based on the lack of a transcript for review, and instructed the jurors to rely on their memories. We cannot say that this was erroneous. Trial courts enjoy great latitude in deciding whether to grant a jury request to read back testimony, especially in civil cases. Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir. 1983). See also United States v. Portac, 869 F.2d 1288, 1295 (9th Cir. 1989), cert. denied sub nom. Wolf v. United States, 111 S. Ct. 129 (1990); United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984), cert. denied, 469 U.S. 1225 (1985) (citing United States v. Birges, 723 F.2d 666, 671-72 (9th Cir.), cert. denied, 466 U.S. 943 (1984)).

Moreover, reading back trial testimony is generally disfavored, since it may encourage the jury to place undue emphasis on particular testimony. United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985). Therefore, the court's refusal did not constitute an abuse of discretion. Finally, Sims contends that at the very least the judge should have inquired into the reasons for jury's request. However, the judge's decision not to do so was also within his discretion.

As for prejudice, Sims speculates that the jury sought to clarify the date of another altercation in which Sims was involved, which was mentioned on cross-examination. However, the judge excluded any testimony on the incident because it occurred three years after the stabbing, and Sims has not demonstrated that the judge's refusal to grant the jury's request affected their verdict. Thus, because Sims has not shown that the court's decision was either erroneous or harmful, it does not constitute grounds for reversal. See Emmert, 829 F.2d at 808; Haddad, 720 F.2d at 1459.

Sims also contends that the district court prevented him from introducing medical records to establish the extent of his injuries and damages. Evidentiary rulings such as this one are also reviewed for abuse of discretion. Kern v. Levolor Lorentzen, Inc., 899 F.2d 772, 780 (9th Cir. 1990).

In both his orders granting partial summary judgment to defendants, the trial court dismissed Sims' medical treatment claims based on affidavits indicating that he had received prompt and adequate medical treatment for his wounds at a local hospital. Sims' argument fails to recognize that the central issue in the case was not one of damages, but of liability: whether Officer Christy acted with deliberate indifference to Sims' safety by not intervening to stop the stabbing. The medical records provide no insight into this issue, and were thus properly excluded under Fed.R.Evid. 401. See United States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988). No abuse of discretion occurred.

Finally, Sims alleges on appeal that the jury was exposed to prejudicial evidence and/or inappropriate statements by defense counsel. He apparently refers to the introduction of his prison disciplinary record, and to the cross-examination about the 1987 altercation referred to above. However, according to the government, Sims failed to object to the admission of his prison disciplinary record at trial, which constitutes a waiver of that issue on appeal. Kline v. Johns-Manville Corp. 745 F.2d 1217, 1221 (9th Cir. 1984).

As for the 1987 incident, it is undisputed that the line of questioning was excluded as irrelevant after an objection from Sims' "lay assistant" at trial. Thus, his claim is essentially that the evidence should have been excluded earlier.2  However, Sims has failed to request that a trial transcript be prepared and provided to this panel, as required by Fed. R. App. P. 10(b) and Ninth Circuit Rule 10-2 and 10-3. Thus, we are precluded from effectively reviewing this issue on appeal, and must affirm. See Syncon Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991); Portland Feminist Women's Health Ctr. v. Advocates for Life, Inc., 877 F.2d 787, 789 (9th Cir. 1989).

CONCLUSION

The district court did not abuse its discretion. The jury verdict is AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument under Fed. R. App. P. 34(a) and Ninth Circuit 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 9th Cir.R. 36-3

 1

Several other claims and defendants were dismissed and/or resolved on summary judgment against Sims, and he has not appealed those rulings

 2

Sims' pretrial motion in limine on this point was denied without prejudice. He apparently has not appealed this denial