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Hogan v. Koon

filed*fn*: January 8, 1992.

GREGORY RICHARD HOGAN, PLAINTIFF-APPELLANT,
v.
HAROLD KOON; JOHN H. WILL; FRANK MINNIE; JANICE BENZLER; AND BRADY CARTWRIGHT DEFENDANTS-APPELLEES.



On Appeal From the United States District Court for the District of Nevada. Edward C. Reed, District Judge, Presiding. D.C. No. CV-N-87-445-ECR

Before: Norris, Beezer and Leavy, Circuit Judges

MEMORANDUM

Gregory Richard Hogan, an inmate at the Nevada State Prison, brought suit against several correctional officers alleging that his civil rights were violated by the search of his jail cell. Judgment was entered for the defendants and Hogan appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

I

On the evening of June 3, 1987, John Will and Frank Minnie, correctional officers at the Nevada State Prison ("NSP"), conducted a search of Hogan's cell and removed three large plastic bags of items and property. At the time, Hogan was working as a law clerk at the NSP preparing lawsuits for fellow inmates subjected to cavity searches.

On September 8, 1987, Hogan filed a civil rights action against captain of security Harold Koon, Will, Minnie and two other officers, contending that his cell was searched in retaliation for having assisted in the cavity search lawsuits. Hogan alleged that the defendants violated his rights to access to the courts and to assist fellow prisoners in the preparation of lawsuits.

Trial on Hogan's claims began on January 9, 1990, and after a three day trial the jury returned a verdict in favor of the defendants. Hogan now appeals.

II

Hogan first contends that the district court erred in dismissing his claims under 42 U.S.C. § 1985(2) and (3), and under 42 U.S.C. § 1983.

We have reviewed Hogan's complaint. Because Hogan was not a party, witness or juror in the cavity search lawsuits, Hogan's complaint fails to state a cause of action under the first clause of 42 U.S.C. § 1985(2).

Because Hogan's complaint does not allege that he is a member of a particular race or suspect class protected under the second clause of § 1985(2) and under § 1985(3) the district court did not err in dismissing these claims prior to trial. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). The district court likewise did not err in dismissing Hogan's conspiracy claim under 42 U.S.C. § 1983 which Hogan attempted to raise for the first time at trial.

III

Defendants testified that one of Hogan's fellow prisoners informed them that Hogan possessed contraband in his cell. Hogan contends that the district court erred in admitting that testimony offered by the defendants to justify their search. Hogan also argues that the district court erred by allowing defendants to make reference to the evidence in summation.

In the absence of plain error, failure to object contemporaneously to the admission of evidence constitutes a waiver of the issue on appeal. Fed. R. Evid. 103(a), (d). The contemporaneous objection rule applies equally to remarks made by counsel during summation. Kaiser Steel Corp. v. Frank Coluccio Const. Co., 785 F.2d 656, 658 (9th Cir. 1986). Because the testimony was relevant and probative, and because Hogan did not object to the testimony at trial or to defendants' summation, there is no plain ...


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