United States v. 2020-03-26 | 18-35474 | DUANE BELANUS V. LEO DUTTON | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUANE RONALD BELANUS,

Plaintiff-Appellant,

v.

LEO DUTTON; et al.,

Defendants-Appellees.

No. 18-35474

D.C. No. 6:12-cv-00065-DLC

MEMORANDUM
*

Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding

Submitted March 24, 2020
**

Before: GOODWIN, FARRIS, and LEAVY, Circuit Judges.

Montana state prisoner Duane Ronald Belanus appeals pro se the district
court’s judgment, following a jury trial, in his action under 42 U.S.C. § 1983
alleging that defendants failed to protect him from inmate assault. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.

*
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).
FILED

MAR 26 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
Belanus has not shown plain error in Jury Instruction 10. See C.B. v. City of
Sonora, 769 F.3d 1005, 1016 (9th Cir. 2014) (where a party fails to preserve an
objection to jury instructions in a civil case, we review only for plain error). First,
because Belanus had been convicted at the time of the events at issue in this case,
the district court properly applied Eighth Amendment standards to his claim. See
Pierce v. Cnty. of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008) (pre-trial detainees
have a Fourteenth Amendment protection against conditions that amount to
punishment, while convicted prisoners “may be subject to punishment so long as it
does not violate the Eighth Amendment’s bar against cruel and unusual
punishment”); Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (holding that a
plaintiff who had been convicted but awaited sentencing should be treated as a
convicted prisoner rather than a pretrial detainee for purposes of his constitutional
claim). Second, Jury Instruction 10 accurately states the elements of an Eighth
Amendment claim for deliberate indifference to a prisoner’s safety. See Farmer v.
Brennan, 511 U.S. 825, 847 (1994) (explaining requirements of such a claim).
The district court did not abuse its discretion in denying Belanus’s requests
for appointment of counsel because Belanus failed to demonstrate exceptional
circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (standard
of review; explaining the “exceptional circumstances” requirement).
AFFIRMED.