Berlan Dicey v. S. Pickens

FILED

NOT FOR PUBLICATION JAN 31 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

BERLAN LYNELL DICEY, No. 11-16190

Plaintiff - Appellant, D.C. No. 2:06-cv-00482-KJN

v.

MEMORANDUM *

S. PICKENS; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of California Kendall J. Newman, Magistrate Judge, Presiding

Submitted November 5, 2012 ** San Francisco, California

Before: FARRIS, NOONAN, and BYBEE, Circuit Judges.

We understand and are sympathetic with one who slips and falls resulting in

injury, but to grant the relief sought we must find constitutional violations or errors

on the part of the trial court. Here, there are none.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The rejection of a judicial notice request is not itself error. We must

examine the basis for the request.…

dissenting:

This case was begun by Dicey, a prison inmate, acting pro se. Five days before trial including Thanksgiving, counsel was appointed for him. The case was tried before a magistrate judge. On appeal, the law firm of Orrick, Herrington & Sutcliffe volunteered to act as pro bono counsel and has rendered superior service to its client and the court.

The magistrate judge excluded in its entirety a report by the Inspector General of California on state prisons. Doing so, the magistrate judge misread Lee v. City Of Los Angeles, 250 F.3d 668 (9th Cir.2001).

Lee stands for the proposition that a court may take judicial notice of the fact that a hearing was held, the fact that a waiver of a right was signed by the plaintiff, and the fact that the waiver was signed under as alias. Lee, 250 F.3d at 690 . Applying Lee , the court should have permitted the admission of the Inspector General’s report establishing that an audit had been made of High Desert Prison, signed by the Inspector General and by the Warden and Health Care Manager of the prison.

Dicey could then have cross-examined the warden on the audit’s criticism of High Desert, criticism disputed by the defense. It is…

MEMORANDUM **

We understand and are sympathetic with one who slips and falls resulting in injury, but to grant the relief sought we must find constitutional violations or errors on the part of the trial court. Here, there are none.

The rejection of a judicial notice request is not itself error. We must examine the basis for the request. See Lee v. City of L.A., 250 F.3d 668 , 689-90 (9th Cir.2001). Dicey sought to have the documents complained of admitted for the truth of the facts contained therein. Those facts are not the proper subject of judicial notice, and the district court properly denied the request. Id.

Dicey alleges that he was irreparably prejudiced by defense counsel’s closing argument and that the district court erred in not granting him a new trial. It is not the province of the court on appeal to try to measure the effect of counsel’s closing argument. In a proper situation, objection would be made and we would consider the trial court’s response to the objection. When no objection is made, as here, our inquiry is limited to a search for plain error, “those errors that reach the pinnacle of fault.” Hemmings v. Tidyman’s Inc., 285 F.3d 1174 , 1192-93 (9th…