NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDEN ADKINS; CHRISTOPHER No. 15-15548
ABRAMS; CLARENCE BUTLER, Jr.;
WARREN K. ELICKER; SAMUEL D.C. No. 2:12-cv-01615-SMM
GUSMAN, Jr.; VAOPELE T. IIGA;
WILLIAM KEKONA, III; DANIEL
KENOLIO; KEONE LABATAD; HARRY MEMORANDUM*
B. LOUGHMILLER, Jr.; JUSTIN LUHIA;
EARL NAKI; JASON K. SANTOS; LOTO
SATELE; MOSES THOMPSON; PAUL
M. TOGIA; SENITA M. TUIVAILALA;
POTAUFA ULA; SHADRACH UNEA;
CODY BRANDT; KEOKI AGOSTO,
Plaintiffs-Appellants,
v.
CORRECTIONS CORPORATION OF
AMERICA; NATHANIEL SAMBERG;
SCHNEIDER, CO; ROCHA, CO;
ROMERO, Sort Member; STATE OF
HAWAII; JOHN IOANE; FRANK
GARCIA; GAWLIK, Sort Member;
CANTEY, Sort Member; ONDULICH, Sort
Member,
Defendants-Appellees.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Argued and Submitted January 9, 2017
San Francisco, California
Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.
Plaintiffs, twenty one State of Hawaii (SOH) inmates formerly in the
custody of Corrections Corporation of America (CCA) at Saguaro Correctional
Center in Eloy, Arizona, appeal from the judgment entered by the district court in
favor of Defendants CCA, SOH, eleven CCA corrections officers, and one SOH
corrections officer following jury verdicts on several causes of action arising from
alleged beatings related to an inmate disturbance on July 26, 2010. We assume the
parties’ familiarity with the facts and procedural history of this case, and discuss
them only as necessary to explain our decision. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
1. The district court did not err in granting Defendants’ Rule 50(a) motions
for judgment as a matter of law with respect to all 42 U.S.C. § 1983 claims against
each individual Defendant for each beating in which he was not identified as a
direct participant. We review de novo the district court’s grant of Rule 50 motions.
LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000). An individual
can be held liable pursuant to § 1983 only when there is “a showing of personal
participation in the alleged rights deprivation.” Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). Under the integral participant theory, an individual’s personal
participation can be established through “some fundamental involvement in the
conduct that allegedly caused the violation.” Blankenhorn v. City of Orange, 485
F.3d 463, 481 n.12 (9th Cir. 2007).
Plaintiffs produced no evidence at trial from which a reasonable jury could
have found that any individual Defendant was fundamentally involved in any
alleged beating beyond those in which he was already specifically identified as a
direct participant. At most, Plaintiffs’ collective testimony established that some
individual Defendants were present during assaults perpetrated by other individual
Defendants. But mere presence at the scene of a constitutional violation is
insufficient to constitute integral participation. Jones, 297 F.3d at 936. The
district court therefore properly dismissed as a matter of law all § 1983 claims
except for those supported by evidence which identified an individual Defendant as
having participated in the alleged beating of a particular Plaintiff.1
1
In their reply brief, Plaintiffs identify excerpts of individual Plaintiffs’
testimonies that purportedly establish the direct participation of particular
individual Defendants in the beatings of those individual Plaintiffs. Plaintiffs
argue that the district court overlooked these testimonies in dismissing the § 1983
claims of those Plaintiffs against those Defendants. Id. However, Plaintiffs did
not raise this argument in their opening brief, and we therefore conclude that it is
waived. Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“We review only
issues which are argued specifically and distinctly in a party’s opening brief.”
(citing Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986)).
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2. The district court did not err in granting Defendants’ Rule 50(a) motions
for judgment as a matter of law with respect to all Arizona state law assault and
battery claims against each individual Defendant for each beating in which he was
not identified as a direct participant. Arizona law permits joint and several liability
when multiple tortfeasors are found to have been “acting in concert.” A.R.S. § 12–
2506(D)(1). However, a plaintiff must show that there was “a conscious
agreement to pursue a common plan or design” between the tortfeasors. A.R.S. §
12–2506(F)(1). Plaintiffs produced no evidence at trial from which a reasonable
jury could have found a “conscious agreement” between all Defendants to
perpetrate every alleged beating. The district court therefore properly dismissed as
a matter of law all Arizona state law assault and battery claims except for those
supported by evidence which identified an individual Defendant as having
participated in the alleged beating of a particular Plaintiff.2
3. The district court’s Rule 50(a) dismissal of the Arizona state law
vicarious liability claims against CCA and SOH is affirmed. Vicarious liability
under Arizona law attaches to an employer only when an employee commits a tort.
Wiper v. Downtown Dev. Corp. of Tucson, 732 P.2d 200, 201-02 (Ariz. 1987).
2
Plaintiffs also rely on the testimonies identified in their reply brief to argue that
the district court improperly dismissed Arizona state law assault and battery claims
against individual Defendants who were identified by Plaintiffs as direct
participants in their assaults. Because Plaintiffs did not raise this issue in their
opening brief, we also conclude that it is waived. Greenwood, 28 F.3d at 977.
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Because 1) the district court properly dismissed all Arizona state law assault and
battery claims against each individual Defendant for each beating in which he was
not identified as a direct participant, and 2) the jury found for the individual
Defendants on all remaining Arizona state law assault and battery claims, there are
no Arizona state law torts to which vicarious liability could have attached.
4. The district court did not abuse its discretion in denying Plaintiffs’
motion to amend the complaint to add state law negligence and conspiracy claims.
Denials of leave to amend are reviewed for abuse of discretion. Or. Teamster
Emp’rs Trust v. Hillsboro Garbage Disposal, Inc., 800 F.3d 1151, 1161 (9th Cir.
2015). The district court has broad discretion to deny claims and allegations raised
in circumstances where discovery has closed and the amendment would cause
prejudice and delay. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074,
1079 (9th Cir. 1990). Although Plaintiffs contend that the complaint sufficiently
pleaded both claims, the district court’s summary judgment order gave clear notice
that the complaint did not do so. Plaintiffs provide no explanation for why they
waited nine months after the summary judgment order until only a week before
trial before attempting to amend the complaint. The district court therefore did not
abuse its discretion in denying the motion to amend on the grounds that Plaintiffs
had ample opportunity to amend the complaint prior to trial and the addition of
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these two claims would have required additional discovery and trial preparation on
the eve of trial.
5. The district court did not err in granting summary judgment to
Defendants on Plaintiffs’ federal conspiracy claim. Plaintiffs argue that they
mischaracterized their federal conspiracy claim as a § 1985 conspiracy claim in the
Joint Case Management Plan (JCMP) and should not be penalized for a
typographical “error in one digit (‘1985’ instead of ‘1983’).” Despite having
ample opportunity to correct this mistake, Plaintiffs not only failed to do so, but
instead perpetuated the impression that they were asserting a § 1985 conspiracy
claim. The JCMP required the parties to list the elements of each cause of action,
and Plaintiffs both listed the elements for a § 1985(3) conspiracy claim and
provided citations to § 1985(3) conspiracy cases to explain the elements.
Furthermore, after Defendants moved for summary judgment based on the
elements of a § 1985(3) conspiracy claim, Plaintiffs did not clarify in their
opposition papers that they intended to assert a § 1983 conspiracy claim. Lastly,
after the district court dismissed the conspiracy claim as a § 1985(3) conspiracy
claim, Plaintiffs did not seek reconsideration or clarification from the district court.
Because Plaintiffs had knowledge of their mistake and made no attempt to correct
it, the district court properly granted summary judgment on Plaintiffs’ federal
conspiracy claim.
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6. The district court did not abuse its discretion in denying Plaintiffs’
motion to amend the pleadings to conform to the evidence following Plaintiffs’
case-in-chief. Denials of motion to conform the pleadings to the evidence are
reviewed for abuse of discretion. Madeja v. Olympic Packers, LLC, 310 F.3d 628,
635 (9th Cir. 2002). Plaintiffs’ motion was a second attempt to assert a general
negligence claim against CCA and SOH and a state law conspiracy claim against
Defendants; thus, the same reasons for affirming the denial of the motion to amend
the complaint weigh in favor of affirming the denial of the motion to conform the
pleadings to the evidence. Furthermore, granting this motion following Plaintiffs’
case-in-chief would have resulted in additional prejudice to Defendants by
depriving them of the opportunity to cross-examine Plaintiffs’ witnesses based on
these new claims.
7. The district court did not err with respect to the four challenged jury
instructions. “We review a district court’s formulation of civil jury instructions for
abuse of discretion, but we review de novo whether an instruction states the law
correctly. Jury instructions must be supported by the evidence, fairly and
adequately cover the issues presented, correctly state the law, and not be
misleading.” Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc)
(internal citations omitted).
First, the district court did not abuse its discretion in failing to include an
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“integral participation” instruction or an “acting in concert” instruction because,
for the reasons discussed above, Plaintiffs failed to produce sufficient evidence at
trial from which a jury could have found any individual Defendant liable under
either theory. Second, the district court did not abuse its discretion in rejecting
Plaintiffs’ requested “legal cause” instruction because the instructions given did
not preclude the jury from concluding that more than one individual Defendant
participated in an alleged beating. Third, the district court did not abuse its
discretion with respect the formulation of the “justification” instruction because it
was an accurate reflection of Arizona law. See A.R.S. § 13-403. Fourth, Plaintiffs
waived their challenge to the “evidence pertaining to remaining claims”
instruction. Plaintiffs initially objected to this instruction, and the district court
preliminarily agreed that this instruction would not be given. However, when the
district court presented the parties with the proposed jury instructions the next
morning with the disputed instruction included, Plaintiffs confirmed that the
instructions “comport[ed] with [the district court’s] rulings” while reiterating
objections to two other challenged instructions. We therefore conclude that
Plaintiffs invited error by withdrawing their objection. See United States v. Perez,
116 F.3d 840, 845 (9th Cir. 1997) (en banc) (“If the defendant has both invited the
error, and relinquished a known right, then the error is waived and therefore
unreviewable.”).
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8. The district court did not violate Plaintiffs’ First Amendment rights by
denying their request “to talk to the jury without restrictions” post-verdict.
“[T]here is no federal constitutional problem involved in the denial of a motion to
interrogate jurors where, as here, there has been no specific claim of jury
misconduct.” Smith v. Cupp, 457 F. 2d 1098, 1100 (9th Cir. 1972); see also United
States v. Wright, 506 F.3d 1293, 1303 (10th Cir. 2007) (“[A] trial judge is well
within his discretion in denying leave to inquire of jurors where there was no claim
of external interference with the process.”). Plaintiffs concede in their appellate
briefing that the purpose of their request was to inquire into jury deliberation
improprieties. Because Plaintiffs failed to provide the district court with any
evidence of juror misconduct, the district court did not abuse its discretion in
denying Plaintiffs’ request to inquire into juror deliberations.
AFFIRMED.
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