NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EUGENE FORTE, 

Plaintiff-Appellant, 

 v. 

TIMOTHY SCHWARTZ, 

Defendant-Appellee.

No. 18-15619 

D.C. No. 

1:13-cv-01980-LJO-MJS 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O'Neill, District Judge, Presiding

Submitted January 28, 2020**

Before: FARRIS, D.W. NELSON, and SILVERMAN, Circuit Judges.

Eugene Forte appeals pro se the district court’s judgment after a jury trial in 

his civil rights action alleging that police officer Timothy Schwartz violated his 

Fourth Amendment rights by using excessive force in an arrest. We have 

jurisdiction under 28 U.S.C. § 1291, and we affirm.

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

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JAN 28 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

The district court properly exercised its discretion in denying Forte’s motion 

for leave to amend his complaint to add a First Amendment retaliation claim. See 

Branch Banking & Trust Co. v. D.M.S.I., LLC, 871 F.3d 751, 760 (9th Cir. 2017) 

(standard of review). Given Forte’s delay in moving to amend and the imminence 

of trial, the district court properly concluded that adding the new claim would 

prejudice defendant and cause undue delay in the proceedings. See Zivkovic v. S. 

Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). The district court also did 

not abuse its discretion in denying Forte’s motion for reconsideration. See 

Havensight Capital, LLC v. Nike, Inc., 891 F.3d 1167, 1171 (9th Cir. 2018).

We affirm the district court’s evidentiary and discovery rulings. The district 

court properly exercised its discretion in quashing a subpoena of a witness whose 

testimony would not have been relevant to Forte’s excessive force claims. See 

Fed. R. Evid. 401 (defining relevant evidence); Erickson Prods., Inc. v. Kast, 921 

F.3d 822, 829 (9th Cir. 2019) (standard of review); Felarca v. Birgeneau, 891 F.3d 

809, 816 (9th Cir. 2018) (stating elements of Fourth Amendment excessive force 

claim). The district court properly admitted evidence that Forte had filed another 

lawsuit and excluded as irrelevant detailed information about the other suit. See 

Fed. R. Evid. 401; Erickson Prods., Inc., 891 F.3d at 816. The district court also 

properly exercised its discretion in denying Forte’s requests for subpoenas without 

prejudice on the ground that the materials he sought were not relevant and would 
3 

impose an undue burden. See Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 

(9th Cir. 2003) (a district court has broad discretion to permit or deny discovery).

The district court did not abuse its discretion in refusing to extend the 

deadline for filing a judicial disqualification motion at a time when trial was set for 

less than two months in the future. See United States v. Mikhel, 889 F.3d 1003, 

1027 (9th Cir. 2018) (a recusal motion may be denied as untimely), petition for 

cert. filed (U.S. Feb. 7, 2019) (No. 18-7835). Further, District Judge O’Neill was 

not required to disqualify himself. See 28 U.S.C. § 455(a) (a judge must disqualify 

himself “in any proceeding in which his impartiality might reasonably be 

questioned”). Judge O’Neill’s rulings at trial did not provide grounds for 

disqualification. See United States v. McChesney, 871 F.3d 801, 807 (9th Cir. 

2017) (judicial rulings almost never provide a valid basis for recusal, and 

expressions of impatience or annoyance do not establish bias or partiality). The 

judge’s imposition of a Fed. R. Civ. P. 11 sanction for filing a request “filled with 

offensive commentary” and the referral of Forte for criminal contempt proceedings 

also were rulings on matters before the court and did not show that the judge’s 

impartiality might reasonably be questioned. See id.; Marshall v. Marshall (In re 

Marshall), 721 F.3d 1032, 1042-43 (9th Cir. 2013) (judge’s decision to impose 

sanction did not warrant recusal). 
4 

The district court properly exercised its discretion in refusing to reopen the 

time for Forte to object to the magistrate judge’s findings and recommendations to 

dismiss certain claims. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807 (9th 

Cir. 2002) (litigation management decisions are reviewed for an abuse of 

discretion). Forte has waived any argument regarding the dismissal of any 

particular claim. He neither objected to the magistrate judge’s findings and 

recommendations nor raised such an argument in his opening brief. See Miranda 

v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012).

Appellant’s motion for judicial notice (Docket Entry No. 8) is GRANTED. 

We deny appellant’s request for an investigation of the judges of the District Court 

for the Eastern District of California. Appellant’s filing dated January 9, 2020 

(Docket Entry No. 31), which we construe as a motion for judicial notice, is

DENIED.

AFFIRMED.