NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 7 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY CABLE, a single man, No. 14-15037
Plaintiff - Appellant, D.C. No. 2:12-cv-00216-JAT
v.
MEMORANDUM*
CITY OF PHOENIX; MICHAEL TOMEK,
Officer # 9511/husband; UNKNOWN
TOMEK, named as: Jane Doe Tomek/wife,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued and Submitted March 15, 2016
San Francisco, California
Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.
Rodney Cable appeals the district court’s grant of summary judgment in
favor of Defendants on Cable’s § 1983 excessive force claim and related state law
claims arising out of incidents surrounding Cable’s arrest. We reverse in part,
affirm in part, and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
After two Phoenix police officers, Michael Tomek and Derek Smith, pulled
over the vehicle that Cable was driving, they ordered him to exit the car, turn
around, and lie down face down on the ground. There is no dispute that Cable
complied with all of the officers’ commands once his vehicle was stopped.
Accounts of what happened next, however, differ substantially. Officer Tomek
asserts that he approached Cable and placed one knee between Cable’s shoulder
blades while handcuffing him, as he had been trained to do. In contrast, Cable
asserts that Officer Tomek jumped onto Cable’s lower back with his knees, causing
injury to his back. Officer Smith did not witness the entirety of the events
surrounding the handcuffing.
Cable also alleges that he was handcuffed too tightly, causing pain and
tearing of his skin, and that Officer Tomek slammed him against the side of the
patrol car after he was handcuffed. Both officers dispute these allegations.
“[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine
issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
There are genuine disputes of material fact here that preclude summary
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judgment on Cable’s § 1983 excessive force claim, because, if a jury were to credit
Cable’s version of events, it could find that Officer Tomek subjected Cable to
excessive force. See Santos v. Gates, 287 F.3d 846, 852-54 (9th Cir. 2002)
(reversing grant of judgment as a matter of law and holding that viewing the facts
in the light most favorable to the plaintiff could properly support a finding of
excessive force where plaintiff alleged that he suffered a broken back after officers
immobilized him, brought him to the ground, and handcuffed him); LaLonde v.
County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (reversing grant of
summary judgment where there were disputed facts about how much force an
officer used in placing his knee on the plaintiff’s back while handcuffing the
plaintiff during an arrest and about how much the plaintiff was resisting at the
time, because a jury crediting the plaintiff’s version of events “could conclude that
[the officer] used force in excess of what was reasonable”).
Following his arrest, Cable was ultimately diagnosed with a back injury that
required lumbar fusion surgery. The district court held that Cable had failed to
create a triable issue of fact regarding whether that surgery was necessitated by
Officer Tomek’s actions rather than by a preexisting condition. Even if Cable so
failed, however, Defendants were not entitled to summary judgment. Cable could
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be entitled to actual damages for pain and suffering based on his testimony alone.
And even if he lacked evidence of actual damages, he could still be entitled to
nominal damages. See Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir.), as amended on
denial of reh’g (Oct. 28, 1993) (A plaintiff does “not have to show actual damages,
[and] he is not required to show a significant injury” in order to show a
constitutional violation for use of excessive force.); Hazle v. Crofoot, 727 F.3d
983, 991 n.6 (9th Cir. 2013) (“Nominal damages must be awarded” if a
constitutional violation is established even if “no actual injury is incurred or can be
proven.”). A jury that believed Cable might also award him punitive damages.
Smith v. Wade, 461 U.S. 30, 55 n.21 (1983) (“punitive damages may be the only
significant remedy available in some § 1983 actions where constitutional rights are
maliciously violated but the victim cannot prove compensable injury”) (quoting
Carlson v. Green, 446 U.S. 14, 22 n.9 (1980)).
If a jury credits Cable’s version of events, Officer Tomek would also not be
entitled to qualified immunity because it was already clearly established at the time
the events took place that it would constitute excessive force for an officer to jump
onto the back of a nonresistant arrestee. See Santos, 287 F.3d at 852 (establishing
that a finding of excessive force would be proper if officers broke plaintiff’s back
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after immobilizing him and bringing him to the ground in a situation in which
plaintiff was not resisting arrest); P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir.
1996) (noting in the Fourth Amendment excessive force context that when “there
[is] no need for force, [defendant’s] use of force [is] objectively unreasonable.”).
The district court also granted summary judgment on Cable’s related state
law claims for assault and battery, negligence and gross negligence, and intentional
infliction of emotional distress, as well his claim for vicarious liability against
Defendant City of Phoenix premised on those state law claims. We affirm the
district court’s grant of summary judgment with respect to Cable’s intentional
infliction of emotional distress claim, and we reverse as to the remaining claims.
Because there is a genuine dispute of material fact as to the amount of force
used and the reasonableness of that force, the district court erred in granting
summary judgment on Cable’s state law assault and battery claim. See Ariz. Rev.
Stat. § 13-409 (shielding officers from liability for use of force when several
factors are met, including that “[a] reasonable person would believe that such force
is immediately necessary to effect the arrest or detention or prevent the escape”).
Summary judgment was also inappropriate as to Cable’s state law
negligence and gross negligence claims because the differences between Cable’s
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and the officers’ accounts of the events also create genuine issues of material fact
as to the elements of those claims. See Gipson v. Kasey, 150 P.3d 228, 230 (Ariz.
2007) (en banc) (“To establish a claim for negligence, a plaintiff must prove four
elements: (1) a duty requiring the defendant to conform to a certain standard of
care; (2) a breach by the defendant of that standard; (3) a causal connection
between the defendant’s conduct and the resulting injury; and (4) actual
damages.”); Walls v. Ariz. Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct.
App. 1991) (“A party is grossly or wantonly negligent if he acts or fails to act
when he knows or has reason to know facts which would lead a reasonable person
to realize that his conduct not only creates an unreasonable risk of bodily harm to
others but also involves a high probability that substantial harm will result.”).
We affirm the district court’s grant of summary judgment on Cable’s
emotional distress claim because Cable has waived any such claim by conceding
during discovery in the district court that he was no longer pursuing it.
The district court also erred in granting summary judgment on the question
of the City’s vicarious liability for Cable’s state law claims. The City rests its
entire vicarious liability argument on the premise that all of Cable’s state law
claims lack merit. Because, as explained above, summary judgment is not
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appropriate as to most of Cable’s state law claims, it is not appropriate as to the
vicarious liability claim either.
Each party shall bear its own costs on appeal.
REVERSED in part, AFFIRMED in part, and REMANDED.
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