FILED
NOT FOR PUBLICATION
DEC 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEKSANDR BINKOVICH, No. 14-16768
Plaintiff-Appellee, D.C. No. 5:11-cv-03774-PSG
v.
MEMORANDUM*
BRUCE BARTHELEMY,
Officer, Badge #4066,
Defendant-Appellant.
ALEKSANDR BINKOVICH, No. 14-16888
Plaintiff-Appellant, D.C. No. 5:11-cv-03774-PSG
v.
BRUCE BARTHELEMY,
Officer, Badge #4066,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Paul S. Grewal, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted November 14, 2016
San Francisco, California
Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.
Defendant Bruce Barthelemy appeals the district court’s denial of his
motions for judgment as a matter of law under Federal Rules of Civil Procedure
50(a) and 50(b), regarding qualified immunity and excessive force, and challenges
a jury instruction. Plaintiff Aleksandr Binkovich cross-appeals the district court’s
decision to strike the jury’s award of punitive damages. We affirm the district
court’s decisions on qualified immunity, excessive force, and the issuance of the
jury instruction. We reverse the court’s decision to strike punitive damages and
remand for reinstatement of the jury’s award.
The district court did not err in denying Defendant’s motion for judgment as
a matter of law with regard to qualified immunity. Defendant stipulated in a Joint
Pretrial Conference Statement that there were no disputed legal issues, did not
propose jury instructions or special interrogatories relevant to the defense, and did
not assert the defense in a motion for summary judgment or otherwise prior to or
during the trial. Other than in his answer to Plaintiff’s complaint, Defendant
asserted the qualified immunity defense for the first time in his post-trial motion
under Federal Rule of Civil Procedure 50(a). While failure to move for summary
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judgment alone does not forfeit the defense, see Torres v. City of Los Angeles, 548
F.3d 1197, 1210-11 (9th Cir. 2008), if summary judgment is not appropriate, the
issue is left for trial. Thompson v. Mahre, 110 F.3d 716, 720 (9th Cir. 1997).
Defendant did not present the defense at trial, however, and did not present a
verdict form that would have elicited relevant factual findings from the jury. The
language of Federal Rule of Civil Procedure 50(a) indicates that judgment as a
matter of law may only be granted “[i]f a party has been fully heard on an issue
during a jury trial.” Defendants may not assert the defense for the first time in a
post-trial motion under Federal Rule of Civil Procedure 50(a).
The court did not err in denying Defendant’s motions for judgment as a
matter of law on Plaintiff’s excessive force claim. In reviewing a motion for
judgment as a matter of law, “[t]he evidence must be viewed in the light most
favorable to the nonmoving party, and all reasonable inferences must be drawn in
favor of that party.” Torres, 548 F.3d at 1205-1206 (quoting LaLonde v. Cty. of
Riverside, 204 F.3d 947, 959 (9th Cir. 2000)). A jury’s verdict must be upheld if it
is supported by substantial evidence, meaning “evidence adequate to support the
jury’s conclusion, even if it is also possible to draw a contrary conclusion from the
same evidence.” Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,
1227 (9th Cir. 2001). Assessing whether excessive force was used is a question of
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“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).
Viewing all evidence in the light most favorable to Plaintiff, substantial evidence
supported the jury’s finding that Defendant used excessive force in sweeping
Plaintiff’s legs out from under him while Plaintiff, only suspected of committing a
noise violation, was walking towards the hotel’s front desk. See Guy v. City of San
Diego, 608 F.3d 582, 588 (9th Cir. 2010) (“[A] jury may properly refuse to credit
even uncontradicted testimony.”).
Because “each party is entitled to an instruction about his or her theory of
the case if it is supported by law and has foundation in the evidence,” Hunter v.
Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (internal quotation marks
and citation omitted), the district court did not err in instructing the jury that a
person may lawfully use reasonable force to defend himself if a peace officer uses
unreasonable or excessive force while arresting or detaining that person. The
instruction at issue is grounded in law, and would be applicable to the case if the
jury believed Defendant’s account. Although a trial court may modify instructions
to make them clearly applicable to the case, it is not obligated to do so, and that the
instructions might have been formulated to expound a party’s theory more clearly
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does not mean they are inadequate. Reno-West Coast Distrib. Co., Inc. v. Mead
Corp., 613 F.2d 722, 725-26 (9th Cir. 1979).
We reverse the district court’s decision with regard to punitive damages and
direct the reinstatement of the jury’s award. “[A] challenge to the sufficiency of the
evidence to support a punitive damage award must be rejected if the award is
supported by substantial evidence.” Fair Hous. of Marin v. Combs, 285 F.3d 899,
907 (9th Cir. 2002). The district court concluded that the jury’s award of punitive
damages was not supported by substantial evidence because there had been no
testimony of overt cruelty by Defendant, reasoning that the question could be
reduced to whether a reasonable jury could have concluded that Defendant “did not
just make a mistake, but rather [went] out of his way to hurt [Plaintiff].” However,
“a jury may be permitted to assess punitive damages in an action under § 1983
when the defendant’s conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the federally protected rights of
others.” Smith v. Wade, 461 U.S. 30, 56 (1983) (emphasis added). Viewing all
evidence in favor of Plaintiff, substantial evidence supported the jury’s finding that
Defendant evidenced “callous indifference” in pushing Plaintiff against a wall and,
without warning, sweeping his legs out from under him, when he presented no
threat to the safety of the officers or others. See id. Because “reasonable minds
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might accept [this evidence] as adequate to support [the jury’s] conclusion,” see
Fair Hous. of Marin, 285 F.3d at 907 (quoting Landes Const. Co., Inc. v. Royal
Bank of Can., 833 F.2d 1365, 1371 (9th Cir. 1987)), we reverse the district court’s
decision to strike the award of punitive damages, and we remand with direction to
reinstate the jury’s award.
Costs awarded to Plaintiff.
AFFIRMED in part, REVERSED and REMANDED in part.
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