Kaimi v. Hawaii Department of Public Safety

MEMORANDUM ** Hawaii state prisoner Donna Lynn Kai-mi appeals pro se the district court’s judgment following a bench trial in her 42 U.S.C. § 1983 action alleging excessive force. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the district court’s evidentiary rulings. Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 886 (9th Cir. 2002). We affirm. The district court did not abuse its discretion in excluding evidence of defendant Anderson’s prior acts because it was “not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). The district court did not abuse its discretion in admitting defendant Anderson’s testimony concerning what could be seen when standing atop tables in the dining room because this was relevant evidence and Kaimi failed to establish that its probative value was substantially outweighed by the risk that it would be unfairly prejudicial. See Fed. R. Evid. 401 (standard for relevance); Fed. R. Evid. 403 (allowing relevant evidence to be excluded where its probative value is substantially- outweighed by potential for prejudice). The district court did not abuse its discretion in admitting Visitacion’s testimony after non-party Visitación had listened to the trial testimony of Kaimi because, even if Kaimi had invoked Federal Rule of Evidence 615 to exclude Visitación from the courtroom, the record does not support a finding that Visitaeion’s testimony prejudiced Kaimi. See Fed. R. Evid. 615 (rule of exclusion of witnesses); Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 859 (9th Cir. 2014) (evidentiary rulings are not reversed absent a showing of prejudice). The district court did not clearly err in its credibility determinations because its determinations were “plausible in light of the record viewed in its entirety.” Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir. 2002) (“[I]f the district court’s findings are plausible in light of the record viewed in its entirety, the appellate court cannot reverse even if it is convinced it would have found differently”). We reject as unsupported by the record Kaimi’s contentions concerning evidence of her medical condition and that the district court was biased against her. We do not consider arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.