Scott E. Stearns v. Phillip Flores;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
Stearns and Flores consented to proceed before a magistrate judge.**
See 28 U.S.C. § 636(c).
The panel unanimously concludes this case is suitable for decision***
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SCOTT E. STEARNS,
Plaintiff - Appellant,
v.
PHILLIP FLORES; et al.
Defendants - Appellees.
No. 07-16719
D.C. No. CV-00-06331-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding**
Submitted December 19, 2011***
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Scott E. Stearns, a California state prisoner, appeals pro se from the district
court’s summary judgment and judgment following a jury verdict in his 42 U.S.C.
FILED
JAN 10 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

07-16719 2
§ 1983 action alleging that defendants violated his constitutional rights by
validating him as an associate of a gang and failing to protect him from an assault
by the gang. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
summary judgment. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003). We
review for manifest error a district court’s findings concerning juror impartiality.
Skilling v. United States, 130 S. Ct. 2896, 2923 (2010). We affirm.
The district court properly granted summary judgment on Stearns’s due
process claim because there was “some evidence” to validate Stearns as a gang
associate. See Bruce, 351 F.3d at 1287-88 (affirming summary judgment on due
process claim where “‘some evidence’” supported the gang validation, and
explaining that the “‘some evidence’” standard is met where “‘there is any
evidence in the record that could support the conclusion’” (citation omitted)).
We are not persuaded by Stearns’s challenges to the jurors who were seated
at trial on his failure-to-protect claim because the record shows at most that several
jurors had acquaintances or relatives in law enforcement, and those jurors stated
that they could be impartial. See Skilling, 130 S. Ct. at 2924 (the district court did
not commit manifest error by finding that juror who stated that she thought she
could be impartial was fit for trial); Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir.

-- 2 of 3 --

07-16719 3
1990) (jurors are not presumed to be biased solely because they are in law
enforcement or related to someone in law enforcement).
Stearns’s remaining contentions, including those concerning discovery, are
unpersuasive.
Stearns’s “Motion for Review En Banc on Original Petition Filed,” filed on
December 15, 2011, is denied.
AFFIRMED.

-- 3 of 3 --