FILED
NOT FOR PUBLICATION
APR 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYLER H. WILLIS, Nos. 14-55721
14-56200
Plaintiff - Appellee,
D.C. No. 2:10-cv-07390-JAK-
v. DTB
ANTHONY D. VASQUEZ; et al., MEMORANDUM*
Defendants - Appellants.
Appeals from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted April 7, 2016
Pasadena, California
Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.
Defendants-Appellants, who are Los Angeles County Sheriff’s Deputies
Anthony D. Vasquez, Mark V. Farino, Pedro L. Guerrero; County of Los Angeles
and Los Angeles County Sheriff’s Department (the “Municipal Defendants”); and
Los Angeles County Sheriff Lee Baca and Captain Daniel Cruz (the “Supervisor
Defendants”), appeal from judgment entered against them by a jury verdict in a 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1983 action filed by Plaintiff-Appellee Tyler H. Willis, a Los Angeles
County post-arraignment, pretrial detainee, alleging federal constitutional claims
and related state law claims. We have jurisdiction under 28 U.S.C. § 1291. We
affirm in part, vacate in part, and remand.
Bifurcation
The district court did not abuse its discretion in denying Defendants’ motion
to bifurcate the trial because, given the overlap in the evidence used to prove
Willis’ claims against the Supervisor Defendants and the Municipal Defendants,
bifurcation would have been costly and unnecessary. See Hangarter v. Provident
Life & Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (setting forth standard
of review).
Admission of CCJV Report and McCorkle Memorandum
The district court did not abuse its discretion in admitting redacted portions
of the Citizen’s Commission on Jail Violence Report (“CCJV report”) and the
internal memorandum prepared by Lieutenant McCorkle (“McCorkle
memorandum”). See Causey v. Zinke (In re Aircrash in Bali, Indonesia), 871 F.2d
812, 816 (9th Cir. 1989) (per curiam) (setting forth standard of review).
The CCJV report and the McCorkle memorandum were investigative reports
that were not prepared in connection with the incident at issue in this action and,
2
therefore, the investigations themselves were not remedial measures. The district
court properly excluded or redacted from the reports any remedial measures
actually taken. Furthermore, the reports were directly relevant to Willis’ claims
against the Supervisor Defendants because the reports provided evidence of
knowledge of numerous prior incidents of unreasonable force, but a failure to
discipline, or train subordinate officers to prevent their reoccurrence. See Starr v.
Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (explaining that a supervisor can be
liable under § 1983 for “his own culpable action or inaction in the training,
supervision, or control of his subordinates, his acquiescence in the constitutional
deprivations of which the complaint is made, or conduct that showed a reckless or
callous indifference to the rights of others” (internal quotations marks omitted));
see also Velazquez v. City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015)
(explaining that, under § 1983, municipality’s “custom or practice can be inferred
from evidence of repeated constitutional violations for which the errant municipal
officers were not discharged or reprimanded” (internal quotations marks and
ellipsis omitted)); Henry v. Cty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997)
(“When a county continues to turn a blind eye to severe violations of inmates’
constitutional rights—despite having received notice of such violations—a rational
fact finder may properly infer the existence of a previous policy or custom of
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deliberate indifference”), as amended by 37 F.3d 1372, 1372 (9th Cir. 1998)
(order).
Lastly, the district court gave an adequate limiting instruction explaining that
the evidence was admitted only for a limited purpose, and what that purpose was.
See Velazquez, 793 F.3d at 1028 (holding that potential prejudice can be cured by
an appropriate limiting instruction); see also Dubria v. Smith, 224 F.3d 995, 1002
(9th Cir. 2000) (en banc) (“[C]autionary instruction[s] [are] presumed to have
cured prejudicial impact.”).
Excessive Force and Deference Jury Instructions
The district court declined to give two of Defendants’ requested instructions:
that Willis must prove that “defendants acted maliciously and sadistically for the
purpose of causing harm” consistent with the Eighth Amendment to prevail on his
excessive force claim; and that the jury “should give deference to prison officials
in the adoption and execution of policies and practices that in their judgment are
needed to preserve discipline and to maintain internal security in a prison.”
In Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015), the Supreme
Court held that a pretrial detainee is required to prove only that the force used was
objectively unreasonable. Therefore, the district court did not err in denying
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Defendants’ proposed jury instruction on “sadistic and malicious” use of force
consistent with the Eighth Amendment.
However, as to the deference instruction, the district court erred in refusing
to instruct the jury that deference should be given to jail officials’ judgment in
preserving order and discipline to maintain the jail’s security. “[M]aintaining
institutional security and preserving internal order are essentials goals [of a
prison]” and, accordingly, in certain instances, “[p]rison administrators . . . should
be accorded wide-ranging deference in the adoption and execution of policies and
practices that in their judgment are needed to preserve internal order and discipline
and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 546-47
(1979); see also Kingsley, 135 S. Ct. at 2473 (quoting Bell and stating that the
reasonableness of force used against pretrial detainee must account for the
legitimate interests that stem from the government’s need to manage the jail
facility).
We have held that the failure to instruct the jury on deference afforded
prison officials for a prisoner’s Eighth Amendment conditions of confinement
claim can constitute reversible, prejudicial error. Norwood v. Vance, 591 F.3d
1062, 1067 (9th Cir. 2010). Here, though, the error was harmless. Given the
extensive injuries that Willis sustained and the fact that the jury awarded punitive
5
damages, the verdict would “more probably than not” have been the same, absent
the error. Clem v. Lomeli, 566 F.3d 1177, 1182-83 (9th Cir. 2009). Additionally,
the jury instruction given by the district court already asked the jury to consider:
“Whether the force was used for punishment or in a good faith effort to maintain or
restore safe conditions in the jail” and, thus, the jury already was required to
consider whether Defendants’ use of force was necessary to maintain the jail’s
security.
Motion for New Trial
The district court did not abuse its discretion in denying Defendants’ motion
for new trial because there was substantial evidence to support the jury’s verdict
and award of punitive damages against Baca, Cruz, and the County of Los Angeles
as documented in the CCJV report and the McCorkle memorandum. See Guy v.
City of San Diego, 608 F.3d 582, 585 (9th Cir. 2010) (setting forth standard of
review).
Inconsistent Jury Verdict
Despite what Defendants contend, the jury’s verdict in favor of Vasquez on
the state law battery claim is not fatally inconsistent with its verdict against
Vasquez on the excessive force claim. Given that Willis was repeatedly struck
with a flashlight and tasered by Guerrero, and given that Farino repeatedly
6
punched Willis in the face, the jury reasonably could have concluded that, although
some force could have been used, the amount of force was excessive. See id. at
586 (explaining that this court should reconcile the jury’s special verdict responses
if possible). In any event, inconsistent verdicts are not per se reversible. United
States v. Horowitz, 756 F.2d 1400, 1406 (9th Cir. 1985).
Attorney’s Fees
For the first time on appeal, Defendants contend that Willis’ counsel fees
were limited to 150% of the judgment, or $435,000, under 42 U.S.C.
§ 1997e(d) of the Prison Litigation Reform Act ("PLRA"). We typically “decline
to consider arguments raised for the first time on appeal.” Paeste v. Gov’t of
Guam, 798 F.3d 1228, 1235 (9th Cir. 2015) (internal quotation marks omitted)).
However, we may exercise discretion to hear an issue for the first time on appeal if
the issue is “purely one of law, does not affect or rely upon the factual record
developed by the parties, and will not prejudice the party against whom it is
raised.” Id. (internal quotation marks omitted).
Because the issue presented here is purely one of law, and because it is clear
that there is no prejudice to Willis, we will exercise our discretion here. Any legal
argument Willis could have raised below, he could raise here; no facts on this point
are disputed. Moreover, this legal issue has been fully vetted on appeal.
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Under the PLRA, attorney’s fees are limited to 150% of the monetary
judgment. 42 U.S.C. § 1997e(d)(2); Woods v. Carey, 722 F.3d 1177, 1179 (9th
Cir. 2013). Here, the amount of the monetary judgment was $290,000.1 Pursuant
to 42 U.S.C. § 1997e(d)(2), Defendants are responsible for paying Willis’
attorney’s fees: $435,000 or 150% of the monetary judgment.2
While the district court appropriately calculated the reasonable amount of
attorney’s fees pursuant to 42 U.S.C. § 1997e(d)(1), this amount was subject to the
cap under subsection (d)(2). Accordingly, we vacate the amount of the attorney’s
fees award and remand to the district court for further proceedings consistent with
this disposition.
Willis’ request to strike Volume 12 of the Excerpts of Record, as set forth in
the Answering Brief, is denied because the documents in Volume 12 were part of
the district court’s docket and thus are properly part of the record on appeal.
AFFIRMED in part, VACATED in part, and REMANDED. The parties
shall bear their own costs on appeal.
1
The jury awarded $125,000 in compensatory damages and $165,000 in
punitive damages.
2
Title 42 U.S.C. § 1997e(d)(2) also provides that up to 25% of the judgment
shall be applied to satisfy the amount of attorney’s fees.
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