NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ARMSTRONG; et al., 

Plaintiffs-Appellees, 

 v. 

GAVIN NEWSOM, Governor; 

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND REHABILITATION, 

Defendants-Appellants.

No. 21-15614 

D.C. No. 4:94-cv-02307-CW 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted September 21, 2022

San Francisco, California

Before: GRABER, FRIEDLAND, and MILLER, Circuit Judges.

The California Department of Corrections and Rehabilitation and the 

Governor (collectively, “Defendants”) appeal from an order in which the district 

court required Defendants to take certain steps to correct ongoing violations of 

disabled inmates’ rights in five California prisons. We address the merits of 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

FEB 2 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Defendants’ claims in a published opinion filed concurrently with this 

memorandum disposition. Here, we address Defendants’ challenges to the district 

court’s discovery and evidentiary rulings.

1. Defendants’ due process rights were not violated by the limitations that

the district court placed on their ability to depose inmates. “Broad discretion is 

vested in the trial court to permit or deny discovery, and its decision to deny 

discovery will not be disturbed except upon the clearest showing that denial of 

discovery results in actual and substantial prejudice to the complaining litigant.” 

Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1047 n.16 (9th Cir. 

2016) (quoting Sablan v. Dep’t of Fin., 856 F.2d 1317, 1321 (9th Cir. 1988))

(internal quotation marks omitted). 

The district court permitted Defendants to conduct ten inmate depositions—

the default maximum number provided in the Federal Rules of Civil Procedure and 

thus a presumptively reasonable quantity. Fed. R. Civ. P. 30(a)(2)(A)(i). The 

additional limitation that the district court placed on those depositions—that 

Defendants proffer “some reason” for taking an inmate’s deposition—was not 

unreasonable, particularly considering the fact that the discovery took place during 

the height of the COVID-19 pandemic. See also Fed. R. Civ. P. 30(a)(2)(B)

(requiring a party to “obtain leave of court” before conducting a deposition “if the 

deponent is confined in prison”). In any event, Defendants have not shown that 
3 

they were prejudiced by the district court’s limitations, given that they did not take 

advantage of all the depositions they were allowed.

2. Defendants next contend that the district court improperly considered 

evidence that Plaintiffs submitted with their sur-rebuttal. But “we will not reverse” 

a district court’s evidentiary decision “unless the ruling is manifestly erroneous.” 

Tan Lam v. City of Los Banos, 976 F.3d 986, 1004–05 (9th Cir. 2020) (quoting 

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997)). That is not the case here, 

where the only challenged evidence on which the district court relied was data that 

Defendants had produced to Plaintiffs in the first instance. Moreover, Defendants 

take issue only with Plaintiffs’ interpretation of the data—not the admission of the 

data. 

3. Finally, Defendants argue that the district court improperly considered 

inmates’ declarations that were not signed by the inmates. We decline to consider 

that argument because it was not raised before the district court and, if it had been, 

the lack of signatures could have been remedied. See Marbled Murrelet v. Babbitt, 

83 F.3d 1060, 1063 (9th Cir. 1996) (“As a general rule, we will not consider an 

issue raised for the first time on appeal.”). 

AFFIRMED.