NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTHA BERNDT, 

Plaintiff-Appellant, 

 

 v. 

CALIFORNIA DEPARTMENT OF 

CORRECTIONS AND 

REHABILITATION, et al.,

Defendants-Appellees.

No. 16-16079 

D.C. No. 1:03-cv-03174-NJV 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Nandor J. Vadas, Magistrate Judge, Presiding

Argued and Submitted October 19, 2017

San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and GWIN,** District Judge.

Martha Berndt appeals from the district court’s denial of her motion for a new 

trial after a defense verdict in this sexual harassment suit.

 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable James S. Gwin, United States District Judge for the 

Northern District of Ohio, sitting by designation.

FILED

NOV 6 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-16079 

We affirm the defense judgment, but reverse the costs award.

1. Berndt argues that the district court erred on certain evidentiary rulings. 

We can only reverse if (1) the district court abused its discretion and (2) the error 

was prejudicial. McEuin v. Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 

2003). “A reviewing court should find prejudice only if it concludes that, more 

probably than not, the lower court’s error tainted the verdict.” Tennison v. Circus 

Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir. 2001).

a. In limiting the admission of evidence about similar incidents of 

indecent exposure by inmates witnessed by other prison employees, the district court 

performed the required balancing under Federal Rule of Evidence 403, allowing 

Berndt to offer only five rule violation reports. We review the district court’s Rule 

403 balancing with considerable deference, see United States v. Hankey, 203 F.3d 

1160, 1167 (9th Cir. 2000), and do not find an abuse of discretion. Moreover, we 

find no prejudice from the district court’s ruling, as the court admitted a state report 

that summarized all indecent exposures and Berndt used summary charts detailing 

all the 115 Forms. 

b. Berndt also argues that the district court erred when it denied her 

request to take judicial notice of rulings in Freitag v. Ayers, 468 F.3d 528 (9th Cir. 

2006). The district court properly denied the request, which involved factual and 
3 16-16079 

legal conclusions from another trial. See Lee v. City of Los Angeles, 250 F.3d 668, 

690 (9th Cir. 2001).

c. Berndt also challenges the district court allowing certain expert 

testimony on whether the masturbatory exhibitionism was pervasive in the Pelican 

Bay prison. Even assuming error, it was not prejudicial. Berndt asked her own 

prison practices expert whether the exhibitionism was pervasive. And other 

admitted evidence made the same point – that other inmate discipline problems 

occurred much more frequently.

d. Finally, Berndt complains that the district court excluded evidence 

concerning exhibitionist incidents before May 24, 1997. However, Berndt herself 

volunteered the May 24, 1997 time period limitation and thus waived her right to 

complain about it. See United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015), 

cert. denied, 136 S. Ct. 1393 (2016). Nor did she move to amend the pretrial order 

in the six-month period between the final pretrial conference and the beginning of 

trial.

2. Berndt argues that the district court should have granted a new trial 

because the jury’s verdict was against the clear weight of the evidence. We review 

to determine “if there was some ‘reasonable basis’ for the jury’s verdict,” Molski v. 

M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citations omitted), and will only 
4 16-16079 

reverse “where there is an absolute absence of evidence to support the jury’s 

verdict,” Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010) (citation omitted).

The jury’s finding that the claimed hostile work environment resulting from 

inmate exhibitionism was not “sufficiently severe or pervasive to alter the conditions 

of . . . employment and create an abusive working environment” was supported by 

the evidence. Freitag, 468 F.3d at 539 (alteration in original) (citation omitted). 

Berndt reported four masturbatory exposure incidents over eight years. Amidst large 

numbers of inmate assaults, inmate exhibitionism constituted a small portion of 

overall inmate misconduct at CDCR. 

3. Berndt waived any argument about the jury’s verdict regarding 

Sergeant David Skerik because she did not present this argument before the district 

court in her motion for a new trial. See Unitherm Food Sys., Inc. v. Swift-Eckrich, 

Inc., 546 U.S. 394, 402 (2006); Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

4. The district court did not abuse its discretion in granting Appellees the 

costs for daily transcripts that were necessary for appeal. See N.D. Cal. Civ. R. 54-

3(b)(1). The district court also did not abuse its discretion in awarding costs for 

converting and copying a recorded deposition into a mini DV CD. See N.D. Cal. 

Civ. R. 54-3(c)(1) (permitting “[t]he cost of an original and one copy of any 

deposition (including videotaped depositions) taken for any purpose in connection 

with the case”). But, the district court erred in awarding deposition synchronization 
5 16-16079 

costs to Appellees. See Kalitta Air L.L.C. v. Cent. Tex. Airborne Sys. Inc., 741 F.3d 

955, 959 (9th Cir. 2013), and we remand with instructions to reduce the costs award 

accordingly.1 

AFFIRMED IN PART and REVERSED IN PART.

 

1 Berndt had no basis for appealing the costs for the audio interview transcripts 

for Officer Judy Longo or the expedited transcript for Teresa Reagle. The district 

court disallowed those costs.