NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 25 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GREGORY STESHENKO, Nos. 15-15625 15-16611 Plaintiff-Appellant, D.C. No. 5:09-cv-05543-RS v.

THOMAS McKAY, of the Cabrillo MEMORANDUM* Community College; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding

Submitted May 23, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges

In these companion appeals, Gregory Steshenko appeals pro se from the

district court’s judgment following a jury verdict in his action alleging

constitutional and statutory violations arising from his dismissal from a community

college nursing program, and its order awarding costs to defendants as prevailing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). parties. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

district court’s orders granting judgment as a matter of law and summary

judgment. Hunt v. County of Orange, 672 F.3d 606, 611 (9th Cir. 2012) (judgment

as a matter of law); Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir.

2009) (summary judgment). We review for an abuse of discretion the district

court’s formulation of jury instructions and award of costs. See Draper v. Rosario,

836 F.3d 1072, 1087 (9th Cir. 2016) (costs to prevailing parties); Wilkerson v.

Wheeler, 772 F.3d 834, 838 (9th Cir. 2014) (jury instructions). We may affirm on

any basis supported by the record, Gordon, 575 F.3d at 1047, and we affirm.

The district court properly granted judgment as a matter of law on

Steshenko’s discrimination claims based on age, sex, and national origin because

Steshenko declined to introduce evidence in support of these claims. See Torres v.

City of Los Angeles, 548 F.3d 1197, 1205 (9th Cir. 2008) (“Judgment as a matter of

law is properly granted only if no reasonable juror could find in the non-moving

party’s favor.” (citation and internal quotation marks omitted)).

The district court properly granted judgment as a matter of law on

Steshenko’s disability discrimination claim because Steshenko failed to introduce

evidence sufficient for a reasonable juror to conclude that discrimination occurred.

See id. (standard of review); Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041,

1045 (9th Cir. 1999) (describing a plaintiff’s burden of proof under the Americans

2 15-15625 with Disabilities Act); see also Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847

(9th Cir. 2004) (the same standard for liability applies under California’s Unruh

Civil Rights Act as under the ADA).

The district court properly granted summary judgment to Watsonville

Community Hospital, Kristine Scopazzi, Berthalupe Carrillo, and Sally Newell

(the hospital defendants) on Steshenko’s § 1985 conspiracy claim because

Steshenko failed to raise a genuine issue of material fact as to whether defendants

had any agreement to dismiss Steshenko improperly from the nursing program.

See Haynie v. County of Los Angeles, 339 F.3d 1071, 1078 (9th Cir. 2003) (to

survive summary judgment plaintiff must present evidence of an agreement

between defendants).

Judgment as a matter of law on Steshenko’s § 1985 claim against Cabrillo

Community College District, McKay, Nunn, and Lucero (the college defendants)

was proper because § 1985 provides no independent basis for liability, and the jury

found against Steshenko on his § 1983 claims. See Olsen v. Idaho State Bd. of

Med., 363 F.3d 916, 930 (9th Cir. 2004) (explaining that “to state a claim for

conspiracy under § 1985, a plaintiff must first have a cognizable claim under

§ 1983”).

The district court properly granted summary judgment to the college

defendants on Steshenko’s defamation claim because Steshenko failed to raise a

3 15-15625 genuine issue of material fact as to whether any statements of the college

defendants fell outside of the privilege for communications made without malice

between interested parties. See SDV/ACCI, Inc. v. AT&T Corp., 522 F.3d 955, 961

(9th Cir. 2008) (discussing privileged publications under California law); Fraser v.

Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“In reviewing a summary

judgment, we are limited to the . . . evidence available to the court at the time the

motion was made.” (internal citation and quotation marks omitted)).

The district court properly granted summary judgment to the hospital

defendants on Steshenko’s defamation claim because Steshenko failed to raise a

genuine issue of material fact as to whether these defendants made any actionable

false statements about Steshenko. See Manufactured Home Cmtys., Inc. v. County

of San Diego, 655 F.3d 1171, 1177 (9th Cir. 2011) (“California law requires, in the

case of a defamation claim by a private figure, that the allegedly defamatory

statements be false.”).

The district court properly granted summary judgment to the hospital

defendants on Steshenko’s labor law claims because Steshenko failed to raise a

genuine issue of material fact as to whether an employment relationship existed.

See Benjamin v. B & H Educ., Inc., 877 F.3d 1139, 1147 (9th Cir. 2017) (adopting

primary beneficiary test to determine whether student interns qualify as employees

under the Fair Labor Standards Act).

4 15-15625 The district court did not abuse its discretion by denying any spoliation

sanctions at trial, and its factual findings regarding the extent of spoliation were

not clearly erroneous. See Leon v. IDX Sys. Corp., 464 F.3d 951, 957-58 (9th Cir.

2006) (standards of review for spoliation sanctions and for underlying factual

findings).

We conclude that Steshenko did not waive his objections to the jury

instructions by failing to timely file formal objections prior to the beginning of jury

deliberations. See Chess v. Dovey, 790 F.3d 961, 970-71 (9th Cir. 2015) (applying

pointless formality test when appellant proceeded pro se and the district court was

aware of potential objections). The district court properly exercised its discretion

in the formulation of jury instructions and verdict form. See Wilkerson, 772 F.3d

at 838 (standard of review for formulation of jury instructions); Galdamez v.

Potter, 415 F.3d 1015, 1026 (9th Cir. 2005) (standard of review for verdict form).

Contrary to Steshenko’s contentions, the jury instructions properly stated the law,

fairly and adequately covered the issues presented, and were not misleading. See

Wilkerson, 772 F.3d at 838 (standard of review for whether jury instructions

properly state the law).

The district court did not abuse its discretion by enforcing time limits during

the trial. See Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (standard of

review).

5 15-15625 The district court did not abuse its discretion by denying Steshenko’s motion

for an intradistrict transfer of venue from the San Francisco division to the San

Jose division because Steshenko failed to show good cause, and the transfer would

have substantially delay the trial. See 28 U.S.C. § 1404(b) (intradistrict transfer

between divisions is within the discretion of the district court); see also Jones v.

GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000) (listing factors that

district court should consider in reviewing motion for transfer of venue).

The district court did not abuse its discretion by denying Steshenko’s

motions to exclude testimony from defendants’ expert witnesses. See Flores v.

City of Westminster, 873 F.3d 739, 753-54 (9th Cir. 2017) (standard of review).

Contrary to Steshenko’s contention, the district court reasonably concluded that the

expert testimony was relevant and reliable.

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

In No. 15-16611, the district court did not abuse its discretion by awarding

costs to Cabrillo Community College District, McKay, Nunn, and Lucero as

prevailing parties under Fed. R. Civ. P. 54(d)(1). See Draper, 836 F.3d at 1087

(“We have interpreted Rule 54(d)(1) as creating a presumption for awarding costs

to prevailing parties; the losing party must show why costs should not be

awarded.” (internal quotation and citation omitted)). We reject as unsupported by

6 15-15625 the record Steshenko’s contentions that he did not consent to the appointment of

pro bono counsel, and that he should not be responsible for costs resulting from

appointed counsel’s discovery. We reject as meritless Steshenko’s contention that

the district court violated his due process rights by appointing counsel.

Appellees Cabrillo Community College District, McKay, Nunn, and

Lucero’s motions to supplement the record (Docket Entry No. 38) and to strike the

new evidence attached to Steshenko’s opening brief (Docket Entry No. 39) are

denied.

No. 15-15625: AFFIRMED.

No. 15-16611: AFFIRMED.

7 15-15625