Kenneth Bourke, Plaintiff-appellant, v. City of San Diego; San Diego Police Department; Dan Dennisdan, Detective; Does 1 to 25, Defendants-appellees, 108 F.3d 336 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 108 F.3d 336 (9th Cir. 1997) Submitted Feb. 18, 1997. *Decided Feb. 20, 1997

Before: ALARCN, CANBY, and TASHIMA, Circuit Judges.


Kenneth Bourke appeals pro se the judgment for the defendants following a jury trial in his 42 U.S.C. § 1983 action alleging violation of his Fourth Amendment rights. Bourke contends that the district court erred by excluding the testimony and video taped statements of his daughter. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we dismiss this appeal.

An appellant who attacks the district court's findings or conclusions on appeal must include in the record all the evidence on which the district court may have made its findings or conclusions. See Fed. R. App. P. 10(b); Thomas v. Computax Corp., 631 F.2d 139, 141 (9th Cir. 1980). We may dismiss an appellant's appeal for failure to comply with Fed. R. App. P. 10(b). See Portland Feminist Women's Health Ctr. v. Advocates for Life, 877 F.2d 787, 789 (9th Cir. 1989). Here, Bourke contends that he has satisfied his burden under Fed. R. App. P. 10(b) by providing the pretrial order, the district court docket, and the trial minutes. While these documents describe the evidence that Bourke intended to introduce at trial, they do not show the trial court's findings or conclusions regarding the offered evidence or indicate how Bourke was prejudiced. Because we cannot determine from the record provided by Bourke whether the district court's evidentiary rulings were an abuse of discretion, we dismiss Bourke's appeal. See Computax, 631 F.2d at 143.1 



The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Bourke's request for oral argument is denied


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


In his reply brief, Bourke contends that he was prejudiced by the defendant's failure to call one of its witness. Bourke has waived this issue, however, because he failed to raise it in his opening brief. See Thompson v. CIR, 631 F.2d 642, 649 (9th Cir. 1980)