Kulas v. Flores

• Decision Date: 09 April 2001
• Docket Number: DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,No. 99-16029,99-16029
• Citation: 255 F.3d 780
• Parties: (9th Cir. 2001) THEODORE CHESTER KULAS,, v. JAIME FLORES,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 780

255 F.3d 780 (9th Cir. 2001)

THEODORE CHESTER KULAS, PLAINTIFF-APPELLANT, v. JAIME FLORES, DEFENDANT-APPELLEE.

No. 99-16029

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted April 9, 2001^* San Francisco, California

Filed June 25, 2001

[Copyrighted Material Omitted]

Theodore Chester Kulas, Pro Se, Arizona State Prison, Douglas, Arizona.

Sean Edward Holguin, Pima County Attorney's Office, Tucson, Arizona, and Ronna Lee Fickbohm and Richard A. Brown, Gabroy, Rollman & Bosse, Tucson, Arizona, for the appellee.

Appeal from the United States District Court for the District of Arizona Jack E. Tanner, District Judge, Presiding D.C. No. CV-93-00466-JET

Before: Mary M. Schroeder, Chief Judge, Dorothy W. Nelson, and Johnnie B. Rawlinson, Circuit Judges.

D.W. Nelson, Circuit Judge

OPINION

Theodore Chester Kulas, an Arizona state prisoner, appeals pro se the district court's judgment for the defendant following a bench trial in his 42 U.S.C. §§ 1983 claim against police officer Jaime Flores. We have jurisdiction pursuant to 28 U.S.C. §§ 1291. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 1993, Kulas filed several §§ 1983 claims against Flores stemming from Kulas' arrest and prosecution for drug and witness tampering charges. Among those claims, Kulas alleged that Flores perjured himself before a grand jury in order to obtain an indictment for witness tampering. Flores moved for summary judgment, arguing that he is entitled to absolute immunity for his grand jury testimony. The district court granted summary judgment and Kulas appealed. We remanded for a finding on two questions: (1) whether Flores was functioning as a complaining witness before the grand jury, and (2) if Flores was functioning as a complaining witness, whether he committed perjury. See Kulas v. Flores, No. 96-15571, 1998 WL 205791, *3 (9th Cir. 1998) (unpublished memorandum disposition).

At a bench trial following remand, the district court found that Flores was not functioning as a complaining witness and was, therefore, entitled to absolute immunity.¹ Kulas appeared pro se during the trial and clashed repeatedly with the district judge over the scope of relevant testimony, the proper way to question witnesses, and Kulas' many objections to opposing counsel's questions. At one point during defense counsel's cross-examination of a witness, the district judge had Kulas removed from the courtroom for disrupting the proceedings. Kulas argues on appeal that the district court erred by (1) failing to give preclusive effect to the state trial court's decision dismissing the witness tampering charge; (2) depriving him of his constitutional right to a jury trial; (3) excluding certain evidence and denying discovery motions; (4) ordering Kulas removed from the courtroom; and (5) refusing to recuse himself.

II. STANDARD OF REVIEW

The right to a jury trial is a question of law reviewed de novo, Frost v. Huffman, 152 F.3d 1124, 1128 (9th Cir. 1998), however, the district court has discretion to grant or deny an untimely jury demand. Kletzelman v. Capistrano Unified Sch. Dist., 91 F.3d 68, 71 (9th Cir. 1996). We review the district court's rulings concerning discovery and evidentiary issues for an abuse of discretion, Amarel v. Connell , 102 F.3d 1494, 1515 (9th Cir. 1996), and reverse only if the district court's ruling more likely than not affected the verdict. United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987). The denial of a recusal motion is also reviewed for an abuse of discretion. Leslie v. Grupo ICA, 198 F.3d 1152, 1157 (9th Cir. 1999).

III. DISCUSSION

A. ISSUE PRECLUSION

An Arizona trial court ultimately dismissed the witness tampering charge against Kulas. Now Kulas argues, for the first time on appeal, that this state court decision precluded the district court from hearing testimony in his§§ 1983 suit about Flores' perception of the alleged witness tampering conversation. Even if Kulas had not waived this argument by failing to raise it at trial, see Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996), we conclude that it is without merit. The issues in the two proceedings were entirely different. The state court determined that there was insufficient evidence of witness tampering to submit the charge to a jury. On remand in this case, the district court considered whether Flores was a complaining witness and whether he perjured himself before the grand jury. Therefore, at least one of the prerequisites for issue preclusion under Arizona law is lacking because the issue was not "actually litigated" in the prior proceeding. Garcia v. General Motors Corp., 195 Ariz. 510, 514, 990 P.2d 1069, 1073 (App. 1999).

B. JURY TRIAL

Kulas' second claim of error is that the district court denied his constitutional right to a jury trial. Kulas waived any right to a jury by failing to file a timely demand as required by Fed. R. Civ. P. 38(b). See Kletzelman, 91 F.3d at 71. Moreover, any error in denying a jury trial would be harmless. "The erroneous denial of a jury trial in a civil case is subject to harmless error analysis. The denial will be harmless only if `no reasonable jury could have found for the los ing party . . . .' " Fuller v. City of Oakland, 47 F.3d 1522, 1533 (9th Cir. 1995) (citation omitted). Even though the district judge made clear what was at issue on remand, Kulas presented no evidence relating to the threshold question of whether Flores was functioning as a complaining witness. Accordingly, no reasonable jury could have found for Kulas and the district court committed harmless error, if any, by conducting a bench trial. See Fuller, 47 F.3d 1533; Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir. 1988).

C. DISCOVERY AND EVIDENTIARY RULINGS

Kulas also challenges several evidentiary rulings and discovery orders made by the district court. Some of these issues were raised during Kulas's prior appeal in which we affirmed all of the district court's discovery rulings. Because in each instance the evidence Kulas sought through discovery and attempted to introduce at trial related only to the issue of whether Flores committed perjury, and not to Flores' role as a complaining witness, we conclude that any error in the district court's discovery and evidentiary rulings was harmless. See Burgess v. Premier Corp., 727 F.2d 826, 833-36 (9th Cir. 1984).

D. REMOVAL FROM THE COURTROOM

Kulas represented himself during the bench trial in his §§ 1983 claim against Flores. The district judge made repeated attempts to guide Kulas' direct examination toward the two questions on remand.² Despite the judge's best efforts, Kulas ignored these instructions and continued to harass the witness. The district judge warned Kulas that his conduct was improper and that he could be removed from the courtroom. ³ During defense counsel's cross-examination, Kulas interrupted each question with frivolous objections. When he continued disrupting the proceedings, the district judge ordered Kulas removed from the courtroom for the remainder of the cross-examination.⁴ While Kulas was out of the courtroom, the district judge questioned Flores twice about his testimony before the grand jury. After opposing counsel finished her cross-examination, Kulas was returned to the courtroom and given an opportunity to continue questioning Flores.

We must decide whether the district court erred in removing Kulas from the courtroom. In a civil suit, the parties do not have a constitutional right to be personally present during trial. See Faucher v. Lopez, 411 F.2d 992, 996 (9th Cir. 1969). Faucher was a bankruptcy case in which the alleged bankrupt could not attend a jury trial on the issue of her insolvency. On appeal, she argued that her due process rights were violated because she was unable to be present at the trial. We rejected this claim, noting that Appellant was ably represented at trial by counsel and that "[t]here is no constitutional right of a litigant to be personally present during the trial of a civil proceeding." Id. This case presents a more difficult question because Kulas was a pro se litigant. Therefore, the district judge not only excluded the plaintiff in this case, but removed the plaintiff and his counsel.

The Supreme Court has recognized that parties in a civil trial have a right "to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict." Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81 (1919). Since then two other circuits have affirmed the right under the Due Process Clause of the Fifth Amendment for the plaintiff or plaintiff's counsel to be present during a civil trial. See Helminski v. Ayerst Laboratories, 766 F.2d 208 (6th Cir. 1985); Arrington v. Robertson, 114 F.2d 821, 823 (3d Cir. 1940). However, these cases involved review of a district judge's decision to answer jury questions outside the presence of plaintiff or his counsel; they did not address the rights of a disorderly plaintiff or plaintiff's attorney to remain in the courtroom. Where a plaintiff continually disrupts the proceedings, substantially different issues are at stake. In those circumstances, we must weigh the plaintiff's interest in being present against the need for order in the courtroom and the defendant's right to a fair trial.

We turn, therefore, to cases in the criminal context for guidance. A criminal defendant's right to be present at his trial is clearly established, but even that right is not absolute. See Illinois v. Allen, 397 U.S. 337, 343 (1970); Polizzi v. United States, 550 F.2d 1133, 1137 (9th Cir. 1976). While the trial judge should take steps to insure the defendant's presence at trial, she has discretion to remove a disruptive defen dant. Allen, 397 U.S. at 343 ("[A] defendant can lose his right to be present at trial if, after he has been warned, by the judge that he will be removed if he continues his disruptive...