Mary Cotton, individually v. Anthony Martinez;

* This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY COTTON, individually and in her
capacity as Successor-in-Interest for
decedent Russell Dene Cotton; et al.,
Plaintiffs - Appellants,
and
PATRICK COTTON,
Plaintiff,
v.
ANTHONY MARTINEZ; et al.,
Defendants - Appellees,
and
COUNTY OF SANTA BARBARA, a
public entity; et al.,
Defendants.
No. 10-55975
D.C. No. 2:03-cv-07652-PSG-RZ
MEMORANDUM*
FILED
JUL 30 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted January 10, 2012 **
San Francisco, California
Before: SCHROEDER, WARDLAW, and TALLMAN, Circuit Judges.
Following a jury verdict rejecting all but one of the civil rights claims
brought by Russell Cotton’s wife and daughters (“the Cottons”) and the court’s
declaration of a mistrial on the last claim, the Cottons appeal several of the district
court’s rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm
the district court.
I.
The district court did not err by limiting the Cottons’ claims against
individual Psychiatric Health Facility (“PHF”) defendants to solely Dr. Lunianski.
When this appeal was last before us, summary judgment had been granted to all the
PHF employees named in the Cottons’ complaint, and discovery had been cut-off
with the exception of a small number of specifically-enumerated depositions that
the Cottons delayed taking. The Cottons’ previous appeal challenged only the
district court’s grant of summary judgment as to Dr. Lunianski and the PHF on

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their deliberate indifference claims. Therefore we had no other individuals before
us and did not require the district court to add additional PHF defendants. The
district court was “free [to make its own decision] as to anything not foreclosed by
the mandate,” Cassett v. Steward, 406 F.3d 614, 621 (9th Cir. 2005), and its
decision to limit the Cottons to claims against Dr. Lunianski was neither contrary
to our mandate nor erroneous, given the Cottons’ failure to appeal the summary
judgments granted to the other PHF defendants and the lack of evidence
establishing viable claims against them.
II.
The district court did not abuse its discretion in deciding that it could not
evaluate the relevance of the internal jail policies that the Cottons sought to admit.
The Cottons failed to provide the district court with information necessary to
determine whether particular jail policies were relevant under Scott v. Henrich, 39
F.3d 912, 915–16 (9th Cir. 1994), which held that internal policies or procedures
are relevant to an excessive force determination only “when one of their purposes
is to protect the individual against whom force is used.”
III.
The district court’s exclusion of evidence of alleged violations of California
Welfare & Institutions Code §§ 5150 and 5150.1 under Federal Rule of Evidence

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403 was within the court’s wide discretion. See United States v. Abel, 469 U.S. 45,
54 (1984). The district court did not abuse its discretion in determining that
evidence of violations of §§ 5150 and 5150.1 could confuse the jury about whether
the Cottons had made the separate showing required for deliberate indifference.
See Kanekoa v. City & Cnty. of Honolulu, 879 F.2d 607, 613–14 (9th Cir. 1989)
(“Trial judges are better able to sense the dynamics of a trial than we can ever be,
and broad discretion must be accorded them in balancing probative value against
prejudice.”) (quoting Longenecker v. General Motors Corp., 594 F.2d 1283, 1286
(9th Cir. 1979)).
IV.
The district court did not abuse its discretion in imposing a 10-hour per side
trial limit for direct and cross-examinations and 30-minute limit on opening
statements, especially as the court repeatedly allocated the Cottons extra time for
cross-examination despite expiration of the trial limit. See Zivkovic v. S. California
Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). Appellants fail to demonstrate
that the district court’s “admonishments” were improper or prejudicial. See United
States v. Scott, 642 F.3d 791, 799 (9th Cir. 2011).
AFFIRMED.

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