Heriberto Rodriguez v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERIBERTO RODRIGUEZ; CARLOS No. 13-56292
FLORES; JUAN CARLOS SANCHEZ;
ERICK NUNEZ; JUAN TRINIDAD, D.C. No.
Plaintiffs-Appellees, 2:10-cv-06342-
CBM-AJW
v.
COUNTY OF LOS ANGELES; LOS
ANGELES COUNTY SHERIFF’S
DEPARTMENT,
Defendants,
and
DANIEL CRUZ; MATTHEW ONHEMUS;
CLAYTON STELTER; JUSTIN BRAVO;
HERMAN DELGADO; ADRIAN RUIZ;
CARLOS ORTEGA; FRANCISCO
ALONSO; CHRISTOPHER BLASNEK;
MICHEL MCGRATTAN; KELLEY
WASHINGTON; ALEJANDRO
HERNANDEZ CASTANON; ARTHUR
DIAZ, JR.; MICHAEL FRAZIER;
ANTONIO GALINDO; ARMANDO
GONZALEZ; MATTHEW NOWOTNY;
JOSEPH SANFORD; HECTOR
VAZQUEZ; IVAN DELATORRE; JOHN
MCNICHOLAS,
Defendants-Appellants.
2 RODRIGUEZ V. CRUZ
HERIBERTO RODRIGUEZ; CARLOS No. 14-55374
FLORES; JUAN TRINIDAD; JUAN
CARLOS SANCHEZ; ERICK NUNEZ, D.C. No.
Plaintiffs-Appellees, 2:10-cv-06342-
CBM-AJW
v.
COUNTY OF LOS ANGELES; DANIEL OPINION
CRUZ; CHRISTOPHER BLASNEK;
MATTHEW ONHEMUS; MICHEL
MCGRATTAN; KELLEY
WASHINGTON; CLAYTON STELTER;
JUSTIN BRAVO; FRANCISCO ALONSO;
ALEJANDRO HERNANDEZ
CASTANON; MICHAEL FRAZIER;
JOSEPH SANFORD; HECTOR
VAZQUEZ; NICHOLAS GRAHAM;
BLAKE ORLANDOS; MATTHEW
THOMAS; JAVIER GUZMAN; ANDREW
LYONS; ADOLPH ESQUEDA; HERMAN
DELGADO,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted August 31, 2017
Pasadena, California
Filed May 30, 2018
RODRIGUEZ V. CRUZ 3
Before: William A. Fletcher and Sandra S. Ikuta, Circuit
Judges, and Sarah Evans Barker,* District Judge.
Opinion by Judge W. Fletcher
SUMMARY**
Prisoner Civil Rights
The panel affirmed the district court’s judgment in favor
of plaintiffs following a jury trial, award of compensatory and
punitive damages, and award of attorney’s fees in a 42 U.S.C.
§ 1983 action brought by five prisoners who were severely
injured during the course of cell extractions at the Los
Angeles County Men’s Central Jail.
The panel first denied appellants’ request to vacate the
final judgment on the basis that the district court lacked
jurisdiction to go to trial during the pendency of appellants’
interlocutory appeal from a prior qualified immunity ruling.
The panel held that although the district court failed to certify
pursuant to Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.
1992), that the interlocutory appeal was frivolous, any error
was harmless.
*
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 RODRIGUEZ V. CRUZ
Addressing the issue of exhaustion of administrative
remedies under the Prison Litigation Reform Act, the panel
held that the district court did not clearly err in finding that a
reasonable fear of retaliation made the grievance system
effectively unavailable for appellees, and that appellants
failed to carry their burden of proof showing otherwise.
The panel held that the district court did not err by
denying appellants’ Fed. R. Civ. P. 50(b) motion, based on
qualified immunity, for judgment as a matter of law. The
panel held that there was abundant evidence presented to the
jury that appellants inflicted severe injuries on appellees
while they were not resisting, and even while they were
unconscious. A jury could reasonably reject appellants’
argument that they acted reasonably and instead determine
that the force was not part of a good-faith effort to maintain
or restore discipline. The panel therefore rejected appellants’
sufficiency of the evidence challenge to the jury’s finding of
a constitutional violation.
The panel also found unpersuasive appellants’ arguments
that the law regarding their conduct was not clearly
established. Addressing the liability of the deputy appellants,
the panel held that no reasonable deputy in appellants’
position would have believed that beating a prisoner to the
point of serious injury, unconsciousness, or hospitalization
solely to cause him pain was constitutionally permissible.
The panel rejected the argument that the limits on the proper
use of tasers were still unclear as of 2008, stating that once a
jury has determined on the basis of sufficient evidence that
prison officials maliciously and sadistically used more than
de minimis force to cause harm, contemporary standards of
decency, and thus the Eighth Amendment, always are
violated.
RODRIGUEZ V. CRUZ 5
The panel held that the supervisor appellants—the
sergeants who directed the extraction teams and their
superiors—were not entitled to qualified immunity. The
panel held that to the extent that these appellants stood by and
observed the extractions but knowingly refused to terminate
the deputies’ unconstitutional acts, they were individually
liable. The panel determined that ample evidence—including
appellants’ own testimony—supported the conclusion that
appellants directed and observed most of the extraction
teams. The panel held that although it was unclear whether
Captain Cruz directly observed all of the extractions, a jury
could reasonably find the requisite causal connection to hold
Cruz liable for his own culpable action or inaction in the
training, supervision, or control of his subordinates.
The panel rejected the argument that the supervisors had
immunity under state law and therefore could not be held
liable under the Bane Act, California Civil Code § 52.1. The
panel first held that California Civil Code § 820.2 does not
shield government employees who use excessive force in
carrying out their duties and that § 820.8 was inapplicable
because appellees did not rely on vicarious liability. The
panel concluded that in excessive force cases, including
Eighth Amendment cases, § 52.1 does not require proof of
coercion beyond that inherent in the underlying violation.
Because appellees provided evidence sufficient to support a
finding that they were subjected to excessive force in
violation of the Eighth Amendment, they necessarily
provided evidence sufficient to support a finding of a
violation of their rights under the Bane Act.
The panel held that the record amply supported the jury’s
verdict and the district court’s ruling of municipal liability
under Monell v. Dep’t of Soc. Servs. of City of New York,
6 RODRIGUEZ V. CRUZ
436 U.S. 658, 694 (1978). The panel held that there was
substantial evidence of repeated constitutional violations, of
the Los Angeles County Sheriff’s Department awareness of
those violations, and of its failure to take any remedial action.
The panel concluded that legal precedent permitted the jury
to infer that the Sheriff’s Department had adopted a custom
or practice of condoning excessive force and that this culture
of violence and impunity proximately caused the injuries
inflicted on appellees.
The panel held that the record did not require a finding of
implied juror bias that allegedly arose from the professional
activities of a juror’s parents and the juror’s personal
friendships with other individuals having some involvement
with the prison system. The panel upheld the award of
$210,000 in punitive damages award against the supervisory
appellants, stating that the appellees proved egregious, even
shocking, abuses of power. The panel further noted that the
punitive damages awarded to each appellee, considered
individually or together, were all far less than appellees’
compensatory damages.
Addressing appellants’ claims of trial errors, the panel
held that the district court acted within its broad discretion in
declining to bifurcate the Monell claim and in excluding,
under Federal Rule of Evidence 403, evidence of appellees’
felony convictions and their gang membership. The panel
further found no error in the district court’s jury instructions
and determined that the district court reasonably denied the
application to compel live testimony for four appellees and
non-party inmates.
The panel affirmed the district court’s attorney’s fee
award of $5,378,174.66. The panel held that the fee limit
RODRIGUEZ V. CRUZ 7
provisions of the Prison Litigation Reform Act do not apply
to attorney’s fees incurred in litigation under California Civil
Code § 52.1. Finally, the panel found no fault in the district
court’s decision to apply a 2.0 multiplier, given the financial
risk assumed by appellees’ counsel, the difficulty of
representing prisoners in an excessive force action against
high-ranking jail officials who engage in aggressive
opposition, and the opportunity costs that the years-long
litigation in this case required. The panel noted that the
district court had considered the burden to California’s
taxpayers that the fee award would represent, and found that
the award was justified given the factors described above and
the importance of civil rights suits in protecting the public
against abuses at the hands of large or politically powerful
defendants.
8 RODRIGUEZ V. CRUZ
COUNSEL
David D. Lawrence (argued) and Jin S. Choi, Lawrence
Beach Allen & Choi P.C., Glendale, California; Andrew C.
Pongracz, Seki Nishimura & Watase LLP, Los Angeles,
California; for Defendants-Appellants.
Caitlin S. Weisberg (argued), Barrett S. Litt, and Ronald O.
Kaye, Kaye McLane Bednarski & Litt LLP, Pasadena,
California; James S. Muller, Offices of James S. Muller,
Glendale, California; for Plaintiffs-Appellees.
OPINION
W. FLETCHER, Circuit Judge:
In 2008, corrections staff at the Los Angeles County
Men’s Central Jail performed “cell extractions” in two high-
security units in the course of quelling a disturbance.
Appellees, five prisoners in the jail, were severely injured
during the extractions. They brought suit in federal district
court, alleging that appellants violated their rights under the
Eighth and Fourteenth Amendments. After a month-long
trial, a jury found nineteen Los Angeles County Sheriff’s
Department (“LASD”) employees and the County of Los
Angeles liable for appellees’ injuries under 42 U.S.C. § 1983or California Civil Code § 52.1, or both. The jury awarded
$740,000 in compensatory damages and $210,000 in punitive
damages. The court awarded more than $5 million in
attorney’s fees.
We affirm.
RODRIGUEZ V. CRUZ 9
I. Background
A. Factual History
Because this appeal follows a jury verdict in appellees’
favor, we relate the facts in the light most favorable to them.
See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1064 n.1
(9th Cir. 2016) (en banc).
1. Cell Extractions
On August 25, 2008, there was a disturbance in Modules
3100 and 3300 of the Los Angeles County Men’s Central Jail,
two high-security units in which prisoners were housed in
single-person cells. Prisoners in the units lit fires, flooded
toilets, shattered sinks, and threw shards of porcelain.
Appellees described the disturbance as a “protest,” organized
in response to repeated uses of excessive force by jail
officials. Appellants described it as a “riot.” The district
court instructed the parties to use the term “incident” in front
of the jury.
To restore order, appellant Captain Daniel Cruz, unit
commander, and appellant Lieutenant Christopher Blasnek,
incident commander, planned a series of cell extractions.
Under the stated terms of the plan, prisoners would have an
opportunity to “cuff up” and leave their cells voluntarily.
Prisoners who refused to cuff up would be forcibly extracted.
Four LASD sergeants would lead four separate extraction
teams of several deputies, with each deputy on a team having
an assigned role. “Shield deputies,” covered with protective
gear and carrying a shield, would enter first to pin the
prisoner against a wall or to knock him to the ground.
“Capture deputies” would follow close behind to restrain the
10 RODRIGUEZ V. CRUZ
prisoner. In the event that these deputies were unable to
subdue a prisoner, “taser deputies” would administer electric
shocks in “stun mode” until the prisoner was subdued.
Official LASD policy required extraction teams to use the
“lowest possible level” of force to “overcome only that level
of resistance confronting the team.” Extraction teams were
prohibited from using force to punish prisoners. Appellees
were among those who were forcibly extracted.
Appellee Carlos Flores testified that, prior to his own
extraction, he could hear cell extractions occurring in other
cells. “[P]eople were crying out in pain, telling the deputies
to stop. And I could hear the punching and kicking. And I
could hear boots stomping. I could hear the deputies
sometimes laughing.” When deputies approached Flores’s
cell, “they were all wearing ski masks, I couldn’t see their
faces.” A deputy shot into Flores’s cell with a 40 mm “block
gun,” but Flores was not hit because he was protecting
himself with his mattress. Deputies then threw one or two
concussion grenades into Flores’s cell. They entered the cell,
and one deputy used his shield to push Flores down onto his
back. Five or six deputies then landed on top of Flores and
the deputy. Several deputies held Flores down while others
punched and kicked him in his face, head, and body.
Deputies took turns, alternating between hitting and tasing
him. “I could feel them stomping on my legs, trying to twist
my leg.” As one deputy was hitting Flores, “he was just
telling me, ‘Mother-Fucker. Mother-Fucker.’ ” “[T]hey were
telling me to stop resisting, and . . . I was trying to say, ‘I’m
not resisting.’ ” “[T]hat’s . . . a thing that the deputies do at
the jail . . . . [T]hey’ll beat inmates and say ‘Stop resisting,
stop resisting.’ But it’s like they know you’re not
resisting. . . . They just want to beat you up.” After one of the
tasers quit working, a deputy used the butt of the taser to hit
RODRIGUEZ V. CRUZ 11
Flores in the face and head. The repeated blows from fists,
boots, and the taser broke Flores’s nose and eye socket. “The
last thing I felt before I woke up in the hospital room . . . was
the whole right side of my face, just I felt the bone break
because he . . . kept hitting me in the same spot.” “It was the
worst thing I ever felt. . . It was so painful that I just blacked
out from the pain.” In the hospital afterwards, “the doctor
explained to me that my nose had been broken pretty bad and
that he had to go in there and . . . cut off a piece of some
cartilage in order to move the bone back in place or
something like that.” “[H]e explained to me . . . how my
cheek bone holds my eye into place, and . . . the fracture to
my . . . cheek bone had kind of like made my eye sunk down
out of the socket. So he had to go in there and . . . put . . . two
metal plates or something, and some screws, and . . . basically
put my . . . eye socket back together. So that way, . . . my eye
is not hanging at an odd angle out of my face.”
Appellee Juan Carlos Sanchez testified that before his
extraction began a deputy appeared on his tier and stated,
“You guys are going to get your ass beat.” When an
extraction team came to Sanchez’s cell, a deputy shot at him
with the block gun. He was not hit because he was protecting
himself with his mattress. Deputies then threw a concussion
grenade that exploded between his legs. Deputies entered the
cell and threw Sanchez onto the floor on his stomach. A
deputy handcuffed him with his hands behind his back. That
deputy began “socking me in my face, punching me in my
face, just punching me.” Sanchez was struck in the face until
he bled. Other deputies then came into the cell. “[T]hey
come in and started kicking me, stomping me out, . . . just
jumping on my legs.” They broke Sanchez’s left ankle.
Deputies told Sanchez to “stop fighting,” but “I wasn’t
fighting.” Deputies later told him to “stop resisting,” even
12 RODRIGUEZ V. CRUZ
though he was not resisting. Sanchez was dragged out of the
cell unconscious. Sanchez regained consciousness outside
the cell, still handcuffed and lying on his stomach. Now
outside the cell, deputies kicked Sanchez in the face and tased
him repeatedly. They pulled down his pants and “tasered me
on my butt.” At the hospital afterwards, doctors put
permanent metal pins in Sanchez’s broken ankle. Sanchez
was in a wheelchair for three to four months, and was not
able to walk without crutches or a walker for eight or nine
months. At the time of trial four years later, Sanchez still
walked with a limp. Sanchez had received a large “gash”
above his right eye. The gash had healed by the time of trial,
but it was “always tingling.” Sanchez’s right eye was
swollen shut for two weeks. At the time of trial, vision in that
eye was blurred.
Appellee Erik Nunez testified that before entering his cell
deputies shot him four or five times with large rubber or
wooden bullets from a block gun. They then threw a
concussion grenade into the cell. When they came into the
cell, they pushed Nunez to the floor. Nunez “immediately . . .
began feeling blows.” Deputies kicked him with “hard
boot[s]” on his face, back, and sides. Deputies hit Nunez
with their fists and jumped on his back. Nunez tried to cover
his head to protect himself, but deputies grabbed his arms and
continued to beat him. “I heard them saying . . . the whole
time I was on the floor, ‘Stop resisting’ until the moment I
came out of the cell.” Nunez testified that this was typical:
“[Y]ou always hear them say, ‘Stop resisting,” and [inmates]
are not even resisting. . . . That’s their justification.”
Deputies tased Nunez repeatedly. “I kept getting tasered, and
I was hoping that I would pass out. But . . . it was like . . . I
would come right back to it with the taser.” “[A]fter the first
tase, I was already out of it, . . . and then he just kept tasing
RODRIGUEZ V. CRUZ 13
and tasing me.” “This guy, he’s laughing, the guy that’s
tasing me. He grabbed it, and he put it . . . [b]etween my butt
cheeks, and he’s tasing me, and he’s laughing.” On a scale of
one to ten, Nunez rated his pain at eleven. The tasing left
marks on Nunez’s skin—“[b]lack marks, like wounds, like
two holes, like burn marks, like burned skin.”
Appellee Juan Trinidad testified that he heard other cell
extractions before deputies came to his cell. “You could hear
all the pain. People are screaming and everything else.”
“[Y]ou hear the same thing as usual, ‘Stop resisting,’ and they
keep beating [the inmates].” “I already figured I’m going to
get hurt. I’m going to get hurt real bad.” Before entering
Trinidad’s cell, deputies shot into the cell ten or more balls
filled with pepper spray. Deputies then shot into the cell with
a block gun. One of the bullets from the block gun broke
Trinidad’s right hand; one hit him directly in the chest; and
one ricocheted and hit him in the shoulder. Deputies then
threw a concussion grenade into the cell. Before deputies
entered his cell, Trinidad heard a female deputy say, “Well,
get that mother fucker.” When the deputies entered the cell,
Trinidad lay face down on his mattress, trying to protect
himself by “hid[ing] my face in between the floor and the
table.” Deputies “ran in and they start beating me. One
jumped on my back and the other one just started hitting me,
and they start tasing me.” “[O]ne was trying to break my
ankle.” Approximately five deputies were on top of Trinidad.
One deputy was twisting his already-broken right hand and
tasing him. Another deputy “was twisting my ankles.”
“They told me to stop resisting . . . . I was not [resisting]
because one deputy . . . had my right hand and he’s
twisting. . . . I can’t resist.” Trinidad heard a deputy say,
“The battery’s going dead. Give me another taser.” After
Trinidad was handcuffed, deputies continued to beat and tase
14 RODRIGUEZ V. CRUZ
him. He faded in and out of consciousness throughout the
extraction. On a scale of one to ten, Trinidad rated the pain
from the taser a ten. Trinidad’s back was broken in several
places. He was transported to the hospital in a neck brace,
where he was treated for head, hand, and back injuries.
Appellee Heriberto Rodriguez testified that when deputies
came to his cell, he was sitting on his toilet holding his
mattress in front of him for protection. Deputies used a block
gun to fire four shots, hitting his ankles. They then threw a
concussion grenade into the cell. When deputies came into
the cell, they yanked the mattress away and hit Rodriguez
twice in the face. Rodriguez wears glasses. He put his hands
to his face and dropped to the floor. When Rodriguez was
face down on the cell floor, someone was hitting his head. A
deputy pulled his hand away from his face and twisted his
arm. “He was trying to snap it like a broomstick. . . . [H]e
was saying things like, ‘You mother fucker. You mother
fucker.’ ” “I was watching my elbow bending in an awkward
position. I’ve never seen it bend that way.” At the time of
trial, four years later, Rodriguez’s elbow would not extend to
a straight and locked position. Deputies handcuffed
Rodriguez and continued to beat him. “Someone dropped a
knee or a leg or something on my back. I was still being hit
on the back of my head.” He was told to “stop fighting,”
even though he was already handcuffed and was not
struggling. Rodriguez was tased repeatedly, “in my armpits,
my fingertips, the back of my neck . . . . I was tasered my legs
[sic], and the bottom of my feet.” Rodriguez testified further,
“I was laying down cuffed, and I felt something probing my
anus. And [the taser] pushed, it pushed, and it went down,
and then it pushed, and then it was just a jolt.” It went to “the
part between the testicles and the anus[.]” On a scale of 1 to
100, Rodriguez rated his pain from the taser a 100.
RODRIGUEZ V. CRUZ 15
2. Missing Videotapes
LASD policy required staff to videotape cell extractions
in their entirety and to preserve the videotapes afterwards.
During discovery in this case, appellants produced forty-one
videotapes of the cell extractions. These videotapes show
almost none of the activity that took place inside the cells.
Expert witness Steve Martin reviewed all of the videotapes
produced by appellants, looking for the “hard-impact strikes”
described by appellants in their post-extraction reports and by
appellees. “Remarkably,” Martin testified, the videotapes
showed “not a single [hard-impact] strike[.]” “[N]ot a single
one of those hundred-plus strikes was captured on video.”
On the audio of many of the videotapes, deputies can be
heard saying “stop fighting.” However, none of the
videotapes that were produced in discovery shows the
inmates at the time this is being said, making it impossible to
see whether the inmates were, in fact, fighting.
Appellees’ evidence at trial showed that deputies took at
least five videotapes of cell extractions that were not
produced in discovery. Appellees’ evidence showed that
those videotapes were taken in a manner that would likely
have shown the actual beatings and tasing of the inmates. For
example, one of the videotapes that was produced was taken
during the extraction of appellee Nunez. The videotape
shows another deputy videotaping Nunez’s extraction from
a vantage point that would likely have shown him being
beaten and tased, and that would likely have shown whether
he was fighting or resisting at the time. That videotape was
not produced by appellants.
At trial, appellants denied “intentionally destroy[ing],
misplac[ing], or eras[ing]” the missing videotapes. But
16 RODRIGUEZ V. CRUZ
appellants provided no explanation for why those videotapes,
and only those videotapes, were missing.
B. Procedural History
Appellees brought suit against twenty-eight individual
defendants and the County of Los Angeles under 42 U.S.C.
§ 1983 and California Civil Code § 52.1. Appellees Flores,
Sanchez, Nunez, and Trinidad contended that the cell
extractions violated their right to be free from cruel and
unusual punishment under the Eighth and Fourteenth
Amendments. Appellee Rodriguez, who at the time of the
cell extraction was a pre-trial detainee, brought suit under the
Due Process Clause of the Fourteenth Amendment. See City
of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).
1. Jury Instructions
The same jury instructions were used for all five
appellees, and the parties do not distinguish among them on
appeal. After the trial in this case, the Supreme Court
clarified that “the appropriate standard for a pretrial
detainee’s excessive force claim [under the Fourteenth
Amendment] is solely an objective one.” Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473 (2015). In contrast, a
convicted prisoner’s excessive force claim under the Eighth
Amendment requires a subjective inquiry into “whether force
was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 7 (1992). The jury
instructions for appellee Rodriguez’s Fourteenth Amendment
claim erroneously required him, as a pretrial detainee, to
prove both the objective unreasonableness of the appellants’
force (that “defendants used excessive and unnecessary force
RODRIGUEZ V. CRUZ 17
under all of the circumstances”) and appellants’ subjective
intent (that “defendants acted maliciously and sadistically for
the purpose of causing harm”). Because Rodriguez did not
argue that this instruction was erroneous, the argument is
forfeited. See Castro, 833 F.3d at1071–72. In any event, the
error was harmless because Rodriguez prevailed at trial
despite having to prove the additional subjective element. Cf.
Kingsley, 135 S. Ct. at 2477; Clement v. Gomez, 298 F.3d
898, 903 (9th Cir. 2002) (explaining that the Eighth
Amendment’s subjective inquiry involves a “heightened
standard” that “necessarily involves a more culpable mental
state than that required for excessive force claims arising
under the Fourth Amendment’s unreasonable seizures
restriction”).
2. Interlocutory Appeal and Chuman motion
Prior to trial, appellants moved for summary judgment
based on qualified immunity. The district court denied the
motions. The extraction team supervisors, the “taser
deputies,” and some of the “shield” and “capture deputies”
filed an interlocutory appeal from the denial, arguing that
they were entitled to qualified immunity even assuming the
facts in the light most favorable to the appellees. We issued
an order to show cause why the appeal should not be
dismissed under Johnson v. Jones, 515 U.S. 304, 307 (1995).
While the interlocutory appeal was pending in our court,
appellees moved in the district court to certify the
interlocutory appeal as frivolous under Chuman v. Wright,
960 F.2d 104, 105 (9th Cir. 1992). The district court
concluded that it lacked jurisdiction to decide the Chuman
motion during the pendency of the appeal, and denied the
motion on that ground. Then, while the appeal was still
18 RODRIGUEZ V. CRUZ
pending and over appellants’ objection, the district court
ordered that the case proceed to trial on all claims against all
defendants. Appellants filed an emergency motion for a stay
in our court, which we denied. The case then went to trial.
3. Jury Selection
During and immediately following jury selection,
appellants contended that Juror Number 5 (“S.M.”) was
impliedly biased and should be excused for cause. During
voir dire, S.M. stated that his mother was a law professor. He
stated further that he had family and personal friends who
were engaged in activities related to challenging conditions
in Los Angeles County jails or who had had negative
experiences with law enforcement. One of his friends was
general counsel to the Citizens’ Commission on Jail Violence
(“CCJV”) formed by the Los Angeles County Board of
Supervisors. He described the friend only as the “head of the
Los Angeles Police Commission.” A CCJV report was later
introduced at trial to support Monell liability. There is no
evidence that S.M. was aware during voir dire of any
connection between his friend and the CCJV report that
would be used at trial. S.M. later testified that he had not
known that the friend was involved in the CCJV, and that he
had not spoken with the friend about “any jail-related
commissions.” S.M. was also a friend of an exoneree whom
appellees’ counsel’s firm represented. At voir dire, S.M. told
the court that he was not sure whether that friend was
pursuing a civil case and, if so, who was representing the
friend. S.M. also told the court he thought his mother was a
friend of appellees’ counsel. Appellees’ counsel informed the
court that he had at most a professional relationship with
S.M.’s mother. Appellees had already used all of their
RODRIGUEZ V. CRUZ 19
peremptory challenges. Their counsel moved to excuse S.M.
for cause. The court denied the motion.
The next day, after he had been seated on the jury, S.M.
submitted a note to the judge stating that his father was
currently vice-president of the ACLU Foundation of Southern
California and had previously served as president. S.M.
explained that he had forgotten the connection during voir
dire because his father’s “primary work” was in entertainment
law, and because his father spent comparatively little time
doing pro bono work for the ACLU Foundation. In response
to questioning, S.M. stated that he and his family members
had discussed “issues of jail inmates” during the previous six
months and that he and his family members agreed that
prisoners “certainly need[] protection of their civil rights and
constitutional rights . . . despite the fact they are
incarcerated.” S.M. stated, however, that he was not sure
whether any of these discussions concerned abuses on the
part of LASD, and stated that his father had not talked to him
about litigation related to prisoners’ rights. Appellants again
moved to excuse S.M. for cause. The court again denied the
motion. S.M. became the jury foreperson.
Later, near the time that the case was submitted to the
jury, S.M.’s mother wrote an op-ed in the Los Angeles Times
advocating for civilian oversight of LASD, in part because of
the conditions in the county jails. Appellants again moved to
remove S.M. from the jury. The court denied the motion.
4. Trial
With respect to individual liability, appellees’ testimony
at trial is summarized above. Non-party inmates testified to
having been subjected to similar treatment during their cell
20 RODRIGUEZ V. CRUZ
extractions. Appellants testified that their use of force was
justified under the circumstances, given the violent behavior
of appellees and their fellow inmates prior to the extractions
as well as the risks involved in extracting high security
inmates.
With respect to county liability, appellees presented
evidence that the county had a custom or policy of ignoring
excessive force used by jail officials, thereby creating a jail
culture that proximately caused the beatings and tasing to
which appellees were subjected. Appellees submitted the
report, mentioned above, by the CCJV. The CCJV report
concluded, with respect to the Men’s Central Jail, that “senior
management failed to investigate the excessive use of force
problems” at the jail; that “[s]everal key department leaders
ignored deputy aggression and discouraged discipline” at the
jail; and that senior jail officials had not taken steps to
investigate approximately one hundred use-of-force
allegations. The report recounted Department-wide
deficiencies in practices and policies governing use of force,
excessive force investigations, and discipline for using
excessive force. Appellees presented testimony from
appellant Cruz’s former supervisor, Commander Robert
Olmsted. Olmsted testified that he had investigated use-of-
force incidents at the jail and had found a major increase in
such incidents during Cruz’s tenure. Olmstead’s
investigation uncovered problems in investigating and
reporting use-of-force incidents, and in approval of uses of
force. Olmstead concluded that Cruz had “condone[d]” his
deputies’ excessive force by investigating force incidents
improperly or not at all. Appellees also presented evidence
that dozens of use-of-force incidents were omitted from the
LASD reporting system, including all of the use-of-force
incidents at issue in this case.
RODRIGUEZ V. CRUZ 21
After a month-long trial, the jury returned verdicts against
nineteen LASD officers and the County of Los Angeles. The
jury awarded $740,000 in compensatory damages and
$210,000 in punitive damages.
Appellants moved for judgment as a matter of law, for a
new trial, and to vacate the judgment and punitive damages
award. The district court denied the motions and entered
judgment in the amounts awarded by the jury. It also
awarded appellees $5,378,174.66 in attorney’s fees. This
appeal followed.
II. Discussion
A. Lack of Chuman Certification
Appellants contend that the district court lacked
jurisdiction to go to trial while the interlocutory appeal was
pending in our court, and they ask us therefore to vacate the
final judgment resulting from this trial. We review de novo
the existence of the district court’s jurisdiction and review for
clear error any underlying factual determinations. U.S. ex rel.
Lindenthal v. Gen. Dynamics Corp., 61 F.3d 1402, 1407 (9th
Cir. 1995).
“The filing of a notice of appeal is an event of
jurisdictional significance—it confers jurisdiction on the
court of appeals and divests the district court of its control
over those aspects of the case involved in the appeal.” Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).
The “divestiture of jurisdiction rule is not based upon
statutory provisions or the rules of civil or criminal
procedure. Instead, it is a judge made rule originally devised
in the context of civil appeals to avoid confusion or waste of
22 RODRIGUEZ V. CRUZ
time resulting from having the same issues before two courts
at the same time.” United States v. Claiborne, 727 F.2d 842,
850 (9th Cir. 1984). Though Griggs referred to the
“divestiture rule” as jurisdictional, the Supreme Court has
since made clear that “[o]nly Congress may determine a
lower federal court’s subject-matter jurisdiction.” Hamer v.
Neighborhood Hous. Services of Chicago, 138 S. Ct. 13, 17
(2017) (quoting Kontrick v. Ryan, 540 U.S. 443, 452 (2004)).
Accordingly, “jurisdictional” rules derived from sources other
than Congress are more accurately characterized as
“mandatory claim-processing rules” that may be applied in a
“less stern” manner than true jurisdictional rules. Id.Consistent with this Supreme Court guidance, we have
created an exception to the “divestiture rule.” Recognizing
the importance of avoiding uncertainty and waste, but
concerned that the appeals process might be abused to run up
an adversary’s costs or to delay trial, we have authorized the
district court to go forward in appropriate cases by certifying
that an appeal is frivolous or waived. See, e.g., Chuman,
960 F.2d at 105 (qualified immunity); United States v.
LaMere, 951 F.2d 1106, 1109 (9th Cir. 1991) (double
jeopardy); Claiborne, 727 F.2d at 851 (separation of powers).
“In the absence of such certification,” however, “the district
court is automatically divested” of its authority “to proceed
with trial pending appeal.” Chuman, 960 F.2d at 105.
Unlike defects in constitutional or statutory jurisdiction,
which deprive a court of the power to act and thus void
actions taken while jurisdiction was lacking, see, e.g., U.S.
Catholic Conference v. Abortion Rights Mobilization, Inc.,
487 U.S. 72, 76–77 (1988), an error in following our circuit’s
divestiture procedure does not entirely eliminate the authority
of the district court to hear a case. We have “decline[d] to
apply the divestiture rule in a slavish manner that ignores the
RODRIGUEZ V. CRUZ 23
reality of what happened in the trial court.” United States v.
Hickey, 580 F.3d 922, 927 (9th Cir. 2009). Under this
pragmatic approach, we have in other contexts applied
harmless error analysis to district courts’ errors in following
our divestiture procedures. Hickey, 580 F.3d at 927 (finding
error harmless where “Hickey’s interlocutory appeal was
ultimately a losing one”); Claiborne, 727 F.2d at 851 (finding
that the district court erred in finding the appeal frivolous and
proceeding with the case, but noting that there would be little
point in forcing the district court to repeat actions taken in the
interim). Because this logic applies equally to qualified
immunity appeals, we conclude that the actions taken in the
district court in violation of Chuman require reversal only if
the error was prejudicial.
We do not ignore the significance of the error of
proceeding to trial in this case while the interlocutory appeal
was pending. Cf. Hickey, 580 F.3d at 927 (admonishing
district courts that divestiture errors can waste tremendous
time and resources, particularly where a case goes to trial);
Claiborne, 727 F.2d at 850–51 (noting that proceeding to trial
before an appellate court has ruled can cause a litigant
irreparable harm). Unlike in Hickey and Claiborne, where
the district court had conducted only pre-trial proceedings
during the relevant time period, see Hickey, 580 F.3d at 927;
Claiborne, 727 F.2d at 851, the district court in this case went
to trial. We nonetheless conclude that the error was harmless
here as well.
We begin with the premise that “a defendant, entitled to
invoke a qualified immunity defense, may not appeal a
district court’s summary judgment order insofar as that order
determines whether or not the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at24 RODRIGUEZ V. CRUZ
319–20. We may exercise jurisdiction over issues that do not
require resolution of factual disputes, including in cases
where officers argue that they have qualified immunity,
assuming the facts most favorable to the plaintiff. See, e.g.,
George v. Morris, 736 F.3d 829, 833–34, 836 (9th Cir. 2013);
Johnson v. Cty. of L.A., 340 F.3d 787, 791 n.1 (9th Cir. 2003)
(“[W]e have jurisdiction . . . even when the determination of
qualified immunity depends upon disputed issues of material
fact so long as we assume the version of the material facts
asserted by the non-moving party to be correct.”) (internal
quotations and citations omitted).
Here, during the pendency of the qualified immunity
appeal, we issued a show cause order inviting appellants to
identify the issues, if any, over which we had jurisdiction.
Appellants’ response failed to identify issues over which we
would have had jurisdiction. Instead, appellants either relied
on disputed facts or made conclusory assertions insufficient
to show that they had a colorable claim to qualified immunity
even if all inferences were drawn in appellees’ favor. For
example, appellants Blasnek and Cruz argued that they “did
not participate in any of Plaintiffs’ cell extractions and played
no part in the manner in which their extractions were carried
out.” (Emphasis added.) Appellees, however, presented
evidence (and ultimately proved) that Cruz and Blasnek did
play a part in the manner in which the extractions were
carried out, both by directly observing the extractions and
choosing not to intervene and by creating a jail culture in
which uses of excessive force went unpunished.
Appellants thus failed to show cause why we should not
have dismissed the interlocutory appeal of the immunity
ruling by the district court for lack of jurisdiction, though the
trial started before we issued a ruling to that effect. Though
RODRIGUEZ V. CRUZ 25
we initially concluded that the jurisdictional issue was not
suitable for summary disposition, further review reveals that
appellants’ interlocutory appeal was frivolous. It is thus clear
that the district court’s error was harmless.
B. Exhaustion of Administrative Remedies
Appellants further contend that appellees failed to exhaust
administrative remedies at the Men’s Central Jail. Under the
Prison Litigation Reform Act (“PLRA”), a pretrial detainee
or convicted prisoner may not file suit challenging conditions
in a correctional facility unless he or she has exhausted
administrative remedies at the facility. 42 U.S.C. § 1997e(a);
see also Kingsley, 135 S. Ct. at 2476 (noting that the PLRA
“applies to both pretrial detainees and convicted prisoners”).
However, a prisoner is excused from the exhaustion
requirement in circumstances where administrative remedies
are effectively unavailable, including circumstances in which
a prisoner has reason to fear retaliation for reporting an
incident. McBride v. Lopez, 807 F.3d 982, 987 (9th Cir.
2015). In order for a fear of retaliation to excuse the PLRA’s
exhaustion requirement, the prisoner must show that (1) “he
actually believed prison officials would retaliate against him
if he filed a grievance”; and (2) “a reasonable prisoner of
ordinary firmness would have believed that the prison
official’s action communicated a threat not to use the prison’s
grievance procedure and that the threatened retaliation was of
sufficient severity to deter a reasonable prisoner from filing
a grievance.” Id. The district court found that administrative
remedies were effectively unavailable to appellees because
they “reasonably believed that they would suffer additional
physical force if they complained.”
26 RODRIGUEZ V. CRUZ
Pursuant to our then-existing precedent, the district court
considered the appellants’ PLRA exhaustion argument on an
unenumerated motion to dismiss, but only after requiring
appellees to submit evidence “as to why they did not comply
with the [applicable] administrative remedy scheme.” In our
subsequent en banc decision in Albino v. Baca, 747 F.3d
1162, 1170 (9th Cir. 2014) (en banc), we clarified that a fact-
based failure-to-exhaust defense should be asserted in a
summary judgment motion. But where, as here, “it is clear
that the district court considered evidence submitted by the
parties in reaching its decision, we construe the district
court’s order as a grant of summary judgment on the issue of
exhaustion.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th
Cir. 2015).
We agree with the district court.
Appellees submitted declarations in the district court
describing the reasons they feared retaliation for filing
grievances arising out of the cell extractions. All appellees
emphasized the extreme brutality with which they were
beaten and tased. See Kaba v. Stepp, 458 F.3d 678, 685 (7th
Cir. 2006) (holding that where a prisoner had been denied
grievance forms, threatened with retaliation by multiple
prison officials, including a captain and the warden, and
eventually attacked in his cell, “[t]he attack itself may have
transformed the remedies from available to unavailable, for
an ordinary prisoner in Kaba’s shoes.”). Each of them then
gave reasons why they individually feared retaliation if they
filed grievances.
Appellee Flores filed a declaration recounting that he had
turned in a complaint to a nurse at the jail medical ward. The
same day, a sergeant came to his cell to deliver a warning.
RODRIGUEZ V. CRUZ 27
She alluded to appellee Nunez, whom deputies had earlier
released into the exercise yard with rival gang members.
Nunez had been badly beaten and assaulted with razor blades.
The sergeant warned, “[T]hat’s how rats are treated when
they lie about my deputies.” The sergeant also claimed that
she had the power to have him charged with another crime.
She concluded, “[F]or your own good, I’m going to forget
you turned in this complaint. Keep your mouth shut.”
Appellee Sanchez filed a declaration recounting that a
deputy had threatened him as he rode in an ambulance to the
hospital after the cell extraction. The deputy warned him
“not to say shit” about the beatings, threatening that he would
be “dealt with” on his return to jail if he talked.
Appellee Nunez filed a declaration recounting that he was
housed in a unit where it was impossible to obtain a
complaint form without requesting it from a deputy who had
been involved in the cell extractions or who was a colleague
of such a deputy. Nunez stated that deputies not involved in
the cell extractions had told him he was “lucky” that they had
not been on duty, implying that they would have beaten him
even more severely. He also stated that appellee Flores had
told him about the sergeant’s threatening visit, during which
she had referred to the earlier deputy-instigated violence
against Nunez.
Appellee Trinidad filed a declaration recounting that he,
like Nunez, was housed in a unit where it was impossible to
obtain a complaint form without requesting it from a deputy
who had been involved in the cell extractions or who was a
colleague of such a deputy. Trinidad stated that he knew
from his personal experience that other inmates had been
beaten for filing grievances and that he had heard that anyone
28 RODRIGUEZ V. CRUZ
who complained about the beating that occurred during the
cell extractions would face retaliation.
Appellee Rodriguez filed a declaration recounting that he
was housed on the third floor of the jail, where some of the
beatings and tasings had taken place. He stated that guards
on that floor had developed a “gang-like culture” that
included intimidation and retaliation for filing grievances. He
submitted an article published in the Los Angeles Times
reporting that the LASD had initiated termination
proceedings against six third-floor deputies, who were part of
what officials had described as an “aggressive group,” and a
“clique” with “certain gang-like characteristics.” Using
public records, the Times had confirmed that third-floor
deputies had been involved in many more use-of-force
incidents against prisoners than deputies on other floors.
Because appellants demonstrated that appellees had failed
to use available remedies, the appellees were required to
produce evidence that “there [was] something in [their]
particular case that made the existing and generally available
administrative remedies effectively unavailable.” Albino v.
Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). If the
appellees in this case had alleged only general and
unsubstantiated fears about possible retaliation, as appellants
claim, we would hold that they had not exhausted their
administrative remedies. See McBride, 807 F.3d at 987–88.
The record reflects, however, that the appellees provided
factual statements supporting an actual and objectively
reasonable fear of retaliation for filing grievances.
Accordingly, the ultimate burden of proof remained with the
appellants to show that administrative remedies were
available. See Albino, 747 F.3d at 1172. The district court
did not clearly err in finding that a reasonable fear of
RODRIGUEZ V. CRUZ 29
retaliation made the grievance system effectively unavailable
for appellees, and that appellants did not carry their burden of
proof. See id. at 1171 (factual findings reviewed for clear
error).
C. Immunity under Federal and State Law
1. Qualified Immunity under Federal Law
Qualified immunity under federal law protects
government officials “from liability for civil damages insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about
open legal questions. When properly applied, it protects ‘all
but the plainly incompetent or those who knowingly violate
the law.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)
(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “In
determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer’s alleged
misconduct.” Estate of Lopez v. Gelhaus, 871 F.3d 998, 1005
(9th Cir. 2017).
Appellants have challenged the district court’s denial of
qualified immunity on two grounds. First, in their motions
for summary judgment, appellants invoked qualified
immunity based on the record then before the district court.
Those motions are now moot. See Ortiz v. Jordan, 562 U.S.
30 RODRIGUEZ V. CRUZ
180, 183–84 (2011); Padgett v. Wright, 587 F.3d 983, 985
(9th Cir. 2009) (per curiam).
Second, appellants argue that the district court erred in
denying their Rule 50(b) motion, based on qualified
immunity, for judgment as a matter of law. Because the jury
found for appellees on their excessive force claims, we
“construe the trial evidence in the light most favorable to
[appellees] in determining whether [their] rights were clearly
established.” Morales v. Fry, 873 F.3d 817, 826 (9th Cir.
2017). “Further, unlike a motion to dismiss or motion for
summary judgment, we must defer to the facts as they were
reasonably found by the jury . . . .” A.D. v. Cal. Highway
Patrol, 712 F.3d 446, 459 (9th Cir. 2013). We accept the
jury’s findings of fact, “including the [appellants’] subjective
intent,” unless the appellants demonstrate that those findings
were unsupported by the evidence. Id. at 458–59. But while
“only the jury can decide the disputed factual issues, . . . only
the judge can decide whether the right was clearly established
once the factual issues are resolved.” Morales, 873 F.3d at
823.
An Eighth Amendment claim of excessive force
“ultimately turns on ‘whether force was applied in a good
faith effort to maintain or restore discipline or maliciously
and sadistically for the very purpose of causing harm.’ ”
Hudson, 503 U.S. at 6 (quoting Whitley v. Albers, 475 U.S.
312, 320–21 (1986)). Accordingly, the jury here was
instructed that it had to find that (1) appellants “used
excessive and unnecessary force under all of the
circumstances”; (2) appellants “acted maliciously and
sadistically for the purpose of causing harm”; and (3) “the
acts of the [appellants] caused harm to the [appellees].” As
we explained above, Rodriguez has forfeited any argument
RODRIGUEZ V. CRUZ 31
that his claim should have been analyzed under the more
lenient, purely objective, due process standard.
Appellants argue that their use of force was justified by
the appellees’ resistance. In effect, they attack the jury’s
finding that they violated the Eighth Amendment by acting
“maliciously and sadistically.” This argument is meritless.
As noted above, there was abundant evidence presented to the
jury that appellants inflicted severe injuries on appellees
while they were not resisting, and even while they were
unconscious. A jury could reasonably reject appellants’
argument that they acted reasonably and instead determine
that this force was not part of a “good-faith effort to maintain
or restore discipline,” Hudson, 503 U.S. at 7. We therefore
reject appellants’ sufficiency of the evidence challenge to the
jury’s finding of a constitutional violation.
Appellants also argue that the law regarding their conduct
was not clearly established. Though we do “not require a
case directly on point for a right to be clearly established,
existing precedent must have placed the statutory or
constitutional question beyond debate.” Kisela v. Hughes,
138 S. Ct. 1148, 1148, 1152 (2018) (per curiam) (quoting
White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).
“[T]he focus is on whether the officer had fair notice that [the
officer’s] conduct was unlawful.” Id. (quoting Brosseau v.
Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Though we
defer to the jury’s reasonable view of the facts, “the ‘clearly
established’ inquiry is a question of law that only a judge can
decide.” Morales, 873 F.3d at 821.
Appellants offer a variety of arguments, based on their
respective roles in the incident, that the law regarding their
conduct was not clearly established. None is persuasive.
32 RODRIGUEZ V. CRUZ
a. Deputies
The deputy appellants—Deputies Alonso, Bravo, Frazier,
Graham, Orlandos, Thomas, Guzman, Lyons, Esqueda,
Sanford, Vazquez, and Delgado—argue that the law was not
clearly established as to their use of force during the cell
extractions.
We have recognized that Hudson’s “good-faith effort to
maintain or restore discipline” standard, 503 U.S. at 6, sets
forth the clearly established law regarding an Eighth
Amendment excessive force violation “in the context of
quelling a prison disturbance,” Martinez v. Stanford, 323 F.3d
1178, 1184 (9th Cir. 2003). Appellants offer only a
conclusory statement that the law was not clearly established
as to the appropriate use of force within the context of a
prison disturbance. Accepting the jury’s finding of
appellants’ malicious and sadistic intent, see Morales,
873 F.3d at 823, and construing the record in the light most
favorable to the appellees, we disagree.
Analogous Supreme Court and circuit cases decided well
before 2008 gave these deputies notice that the malicious and
sadistic use of force in responding to a prison disturbance
violated the Eighth Amendment. See, e.g., Hudson, 504 U.S.
at 4 (holding that officers violated the Eighth Amendment
where one officer “punched Hudson in the mouth, eyes, chest,
and stomach while [another officer] held the inmate in place
and kicked and punched him from behind”). In Martinez, for
instance, the plaintiff claimed that he had covered his cell
door with a bed sheet in order to prevent pepper spray fumes
from entering the cell during a prison disturbance. 323 F.3d
at 1180. Under the plaintiff’s version of events, “after he told
the officers the sheet would be removed when the fumes were
RODRIGUEZ V. CRUZ 33
gone, the officers fired two plastic bullets from a gas gun and
one taser cartridge into the cell,” with one bullet striking him.
Id. “Once the officers entered the cell, they pushed him into
a seated position, and tasered him twice on his left arm,
despite his lack of resistance.” Id. Officers continued
striking the plaintiff while he was restrained and eventually
dragged him out of the cell. Id. We concluded that, viewing
the facts in the light most favorable to the plaintiff, the
plaintiff had alleged sufficient facts to show an Eighth
Amendment violation and that the officers had violated
clearly established law. Id. at 1183–85.
Given these precedents, no reasonable officer in
appellants’ positions would have believed that beating a
prisoner to the point of serious injury, unconsciousness, or
hospitalization solely to cause him pain was constitutionally
permissible.
b. Deputies Using Tasers
As we have just explained, existing precedent was
sufficient to place beyond debate the question whether the use
of more than de minimis force “maliciously and sadistically
for the purpose of causing harm” violated the Eighth
Amendment under the circumstances here. The deputies who
used tasers—Deputies Sanford, Vazquez, and Delgado—
nonetheless contend that they are entitled to qualified
immunity because the law governing the use of tasers was not
clearly established in 2008. We disagree.
“An officer is not entitled to qualified immunity on the
grounds that the law is not clearly established every time a
novel method is used to inflict injury.” Mendoza v. Block,
27 F.3d 1357, 1362 (9th Cir. 1994). This statement applies
34 RODRIGUEZ V. CRUZ
with particular strength in the context of the Eighth
Amendment. A plaintiff cannot prove an Eighth Amendment
violation without showing that force was employed
“maliciously and sadistically” for the purpose of causing
harm. See Whitley v. Albers, 475 U.S. 312, 320–21 (1986)
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
1973) (Friendly, J.)).
Even if particularized notice, specific to tasers, were
needed at the time Deputies Sanford, Vazquez, and Delgado
acted, see Mendoza, 27 F.3d at 1362, controlling circuit and
Supreme Court case law provided it. We observed in 1988
that the taser is a “painful and dangerous device” and that “[a]
legitimate prison policy of carrying tasers to enforce
discipline and security would not warrant their use when
unnecessary or ‘for the sole purpose of punishment or the
infliction of pain.’ ” Michenfelder v. Sumner, 860 F.2d 328,
336 (9th Cir. 1988) (quoting Soto v. Dickey, 744 F.2d 1260,
1270 (7th Cir. 1984), and Spain v. Procunier, 600 F.2d 189,
195 (9th Cir. 1979)); see also Gravelet-Blondin v. Shelton,
728 F.3d 1086, 1093 (9th Cir. 2013) (holding that, as of May
2008, it was clearly established that taser shocks constituted
“non-trivial force” for Fourth Amendment purposes); Lewis
v. Downey, 581 F.3d 467, 478–79 (7th Cir. 2009) (holding
that it was clearly unconstitutional in 2006 to tase prisoners
maliciously and sadistically in the circumstances alleged);
Orem v. Rephann, 523 F.3d 442, 448–49 (4th Cir. 2008)
(holding that malicious and sadistic use of a taser on a pretrial
detainee’s breast and inner thigh was not de minimus force
and was clearly unconstitutional in 2005), abrogated on other
grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Hickey
v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993) (holding that
using “stun guns” on nonviolent prisoners violates the Eighth
Amendment). The Supreme Court has long disapproved of
RODRIGUEZ V. CRUZ 35
the use of electric shocks purely to inflict pain, beginning
with its denunciation of the famous “Tucker telephone,” a
device that, like the tasers in this case, was “used to
administer electrical shocks to various sensitive parts of an
inmate’s body.” Hutto v. Finney, 437 U.S. 678, 682 & n.5
(1978); see also Hudson, 503 U.S. at 14 (1992) (Blackmun,
J., concurring) (suggesting that an electric shock inflicted as
punishment would violate the Constitution); id. at 26(Thomas, J., dissenting) (same).
Deputies Sanford, Vazquez, and Delgado argue that limits
on the proper use of tasers were still unclear as of 2008,
relying on two Fourth Amendment cases decided after the
cell extractions at issue in this case: Mattos v. Agarano,
661 F.3d 433 (9th Cir. 2011) (en banc), and Bryan v.
MacPherson, 630 F.3d 805 (9th Cir. 2010). Mattos and
Bryan clarified the circumstances under which taser use
would violate the Fourth Amendment and granted qualified
immunity to the officers who acted without the benefit of this
clarification. See Mattos, 661 F.3d at 448; Bryan, 630 F.3d
at 833.
However, the deputies’ argument fails to acknowledge the
respective standards for Fourth and Eighth Amendment
violations. Graham v. Connor, 490 U.S. 386, 397–98 (1989);
Whitley, 475 U.S. at 319. We determine whether the Fourth
Amendment has been violated by assessing the objective
reasonableness of the force used, balancing the degree of
intrusion against the government’s interest. Gravelet-Blondin,
728 F.3d at 1090. “Subjective intentions play no role in
ordinary . . . Fourth Amendment analysis.” Whren v. United
States, 517 U.S. 806, 813 (1996); see also Graham, 490 U.S.
at 399. By contrast, subjective intent is critical in an Eighth
Amendment analysis. More than de minimis force applied for
36 RODRIGUEZ V. CRUZ
no good faith law enforcement purpose violates the Eighth
Amendment. See Whitley, 475 U.S. at 320–21 (1986)
(holding that whether an officer used excessive force in
violation of the Eighth Amendment “ultimately turns on
‘whether force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically for the
very purpose of causing harm.’ ” (quoting Johnson, 481 F.2d
at 1033)). Objective reasonableness may inform the Eighth
Amendment inquiry, providing evidence of good faith or of
malice. Hudson, 503 U.S. at 7. But once a jury has
determined on the basis of sufficient evidence that “prison
officials maliciously and sadistically use[d] [more than de
minimis] force to cause harm, contemporary standards of
decency,” and thus the Eighth Amendment, “always are
violated.” Id. at 9. Here, the evidence amply supported the
jury’s finding that the deputies acted maliciously and
sadistically.
c. Supervisors
The supervisor appellants—the sergeants who directed the
extraction teams (Sergeants McGratten, Ohnemus, and
Washington) and their superiors (Captain Cruz and
Lieutenant Blasnek)—argue that they are entitled to qualified
immunity. They contend that they did not violate clearly
established law because their actions were justified by the
nature of the pre-extraction disturbance and the appellees’
resistance. As explained above, the deputies’ actions violated
clearly established law. The question specific to the
supervisors is whether they are individually liable for those
constitutional violations under principles of supervisory
liability. We conclude that they are.
RODRIGUEZ V. CRUZ 37
A supervisory official is liable under § 1983 so long as
“there exists either (1) his or her personal involvement in the
constitutional deprivation, or (2) a sufficient causal
connection between the supervisor’s wrongful conduct and
the constitutional violation.” Keates v. Koile, 883 F.3d 1228,
1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d
1202, 1207 (9th Cir. 2011)). “The requisite causal connection
can be established . . . by setting in motion a series of acts by
others or by knowingly refus[ing] to terminate a series of acts
by others, which [the supervisor] knew or reasonably should
have known would cause others to inflict a constitutional
injury.” Starr, 652 F.3d at 1207–08 (internal quotation marks
and citations omitted) (alterations in original). Thus, a
supervisor may “be liable in his individual capacity for his
own culpable action or inaction in the training, supervision,
or control of his subordinates; for his acquiescence in the
constitutional deprivation; or for conduct that showed a
reckless or callous indifference to the rights of others.”
Keates, 883 F.3d at 1243 (quoting Starr, 652 F.3d at 1208).
Sergeants McGrattan, Ohnemus, and Washington concede
that they were personally present and directed the deputies’
use of force against appellees. Even assuming that their
presence and direction of the extraction teams does not
constitute “personal involvement,” there is a “sufficient
causal connection” to establish the sergeants’ supervisory
liability for their “own culpable action or inaction in the . . .
supervision [and] control of” the deputies. Keates, 883 F.3d
at 1242–43 (citation omitted).
We do not accept appellants’ argument that the nature of
the pre-extraction disturbance, standing alone, justified the
supervisors’ inaction. Long before the incident in question,
the Supreme Court established that government officials
38 RODRIGUEZ V. CRUZ
violate the Eighth Amendment when they use malicious and
sadistic force in the course of quelling a prison disturbance,
even one that “indisputably poses significant risks to the
safety of inmates and prison staff.” See Whitley, 475 U.S. at320–21.
To the extent that appellants Cruz and Blasnek stood by
and observed the extractions but “knowingly refus[ed] to
terminate” the deputies’ unconstitutional acts, Starr, 652 F.3d
at 1207 (citation omitted), they are individually liable for the
same reasons as Sergeants McGrattan, Ohnemus, and
Washington. Ample evidence—including appellants’ own
testimony—supports the conclusion that appellants Cruz and
Blasnek directed and observed most of the extraction teams.
For example, there was evidence that appellant Blasnek
“observe[d] each extraction.” Appellant Cruz was shown on
video observing Trinidad’s, Sanchez’s, and Flores’s
extractions.
It is not clear from the record before us that appellant
Cruz directly observed Nunez’s and Rodriguez’s extractions.
Assuming without deciding that Cruz did not observe these
extractions, the jury could still have reasonably found the
“requisite causal connection” to hold Cruz liable for his “own
culpable action or inaction in the training, supervision, or
control of his subordinates.” Starr, 652 F.3d at 1207–08
(citations omitted). The jury could have concluded from
evidence in the record, including Olmstead’s testimony, that
Cruz knowingly participated in creating and maintaining a
culture of impunity for officers’ use of unconstitutionally
excessive force, thereby “setting in motion a series of acts
by” his subordinates that Cruz “knew or reasonably should
have known would cause” the violations of appellees’ Eighth
Amendment rights. Id. (citations omitted). The jury could
RODRIGUEZ V. CRUZ 39
also reasonably have concluded that in disabling or failing to
follow procedures used to identify uses of excessive force,
and in ensuring that violators escaped punishment, Cruz
created an environment where the mechanisms for
supervision and control over the use of force operated
ineffectively and sometimes not at all. Thus, the jury could
also reasonably conclude that Cruz’s “inaction in the training,
supervision, or control of his subordinates” provided a basis
for supervisory liability. Id. at 1208 (citation omitted).
2. Immunity under State Law
Finally, the supervisors argue that they have immunity
under state law. They argue that they cannot be held liable
under California Civil Code § 52.1 because California Civil
Code § 820.2 shields them from liability for discretionary
acts and California Civil Code § 820.8 renders them immune
from vicarious liability. We disagree. First, § 820.2 does not
shield from liability government employees who use
excessive force in carrying out their duties. See Blankenhorn
v. City of Orange, 485 F.3d 463, 487 (9th Cir. 2007). Second,
§ 820.8 is inapplicable because, as just explained, appellees
do not rely on vicarious liability, but, rather, rely on the
supervisors’ culpable action or inaction that proximately
caused their injuries.
D. California Civil Code § 52.1
The district court entered judgment in favor of appellees
Flores, Nunez, Sanchez and Trinidad under the Bane Act,
California Civil Code § 52.1, on their cruel and unusual
punishment claims under the Eighth Amendment. (As noted
above, supra Section I.B, appellee Rodriguez, a pre-trial
detainee, brought a Fourteenth Amendment due process claim
40 RODRIGUEZ V. CRUZ
rather than an Eighth Amendment cruel and unusual
punishment claim.) In relevant part, § 52.1 provides a cause
of action for interference or attempted interference “by threat,
intimidation, or coercion” with the “exercise or enjoyment”
of rights under the federal Constitution. Appellants argue that
§ 52.1 required appellees to prove that appellants threatened,
intimidated, or coerced appellees in some manner beyond the
coercion inherent in the Eighth Amendment excessive force
violation. In advancing this argument, appellants misread
§ 52.1 and California case law.
The most recent California Supreme Court case
interpreting the Bane Act is Venegas v. County of Los
Angeles (Venegas II), 87 P.3d 1 (Cal. 2004), in which two
plaintiffs alleged that sheriff’s deputies violated the Act when
they searched plaintiffs’ home without a warrant and without
consent, arrested one of the plaintiffs based on evidence
obtained during the warrantless search, and detained the other
for two hours. Plaintiffs did not allege threats, intimidation,
or coercion separate from, or in addition to, the conduct that
constituted the violations of the Fourth and Fourteenth
Amendments. See id. at 3–4. Without extended analysis, the
California Supreme Court held that “plaintiffs adequately
stated a cause of action under Section 52.1.” Id. at 14. The
Court’s holding in Venegas II had been prefigured in Jones v.
Kmart Corp., 949 P.2d 941 (Cal. 1998), in which KMart
employees pursued, seized, struggled with, and handcuffed
Jones, a suspected shoplifter. The California Supreme Court
held that no cause of action had been stated under § 52.1
because the KMart employees were not state actors. Id. at
943–44. But the Court noted that Jones’s rights under § 52.1
might have been “put in jeopardy . . . if [the] defendants had
called the police and then coercively interfered with Jones’s
Fourth Amendment rights when he attempted to exercise
RODRIGUEZ V. CRUZ 41
them against the police.” Id. at 944 (emphasis added). In
neither Venegas II nor Jones did the California Supreme
Court hold that § 52.1 requires threats, intimidation, or
coercion beyond that inherent in the constitutional violation
itself.
Appellants rely on two California Court of Appeal cases
decided after Venegas II—Shoyoye v. County of Los Angeles,
203 Cal. App. 4th 947 (2012), and Allen v. City of
Sacramento, 234 Cal. App. 4th 41 (2015)—to support their
argument that § 52.1 requires threats, intimidation, or
coercion beyond that inherent in the underlying constitutional
violation. Neither case supports their argument, as is shown
by two more California Court of Appeal cases—Bender v.
County of Los Angeles, 217 Cal. App. 4th 968 (2013), and
Cornell v. City and County of San Francisco, 17 Cal. App.
5th 766 (2017).
In Shoyoye, because of a negligent clerical error, the
plaintiff was held in the county jail for about sixteen days
beyond the date he should have been released. 203 Cal. App.
4th at 951–53. The Court of Appeal held that the negligent
act did not give rise to a cause of action under § 52.1. Id. at
959. It distinguished Venegas II:
The coercion [in holding Shoyoye in jail for
sixteen days beyond his release date] was not
carried out in order to effect a knowing
interference with Shoyoye’s constitutional
rights. This is in stark contrast to Venegas II,
for example, in which the evidence presented
could support a finding that the probable
cause that initially existed to justify stopping
the plaintiffs eroded at some point, such that
42 RODRIGUEZ V. CRUZ
the officers’ conduct became intentionally
coercive and wrongful, i.e., a knowing and
blameworthy interference with the plaintiffs’
constitutional rights.
Id. at 961.
In Allen, police officers arrested homeless people and
seized their tents, sleeping bags, tarps, and personal items
pursuant to a Sacramento anti-camping ordinance. 234 Cal.
App. 4th at 48–51. Relying on Shoyoye, the Court of Appeal
concluded that no cause of action had been stated under
§ 52.1, even if the arrest violated the Fourth Amendment. Id.
at 69. It wrote:
There are two distinct elements for a
section 52.1 cause of action. A plaintiff must
show (1) intentional interference or attempted
interference with a state or federal
constitutional or legal right, and (2) the
interference or attempted interference was by
threats, intimidation or coercion.
...
Similar to Shoyoye, this case involves an
allegedly unlawful arrest but no alleged
coercion beyond the coercion inherent in any
arrest. . . . Consistent with Shoyoye, we
conclude a wrongful arrest or detention,
without more, does not satisfy both elements
of section 52.1.
Id. at 67, 69.
RODRIGUEZ V. CRUZ 43
Bender was decided after Shoyoye but before Allen. The
plaintiff in Bender was granted a judgment under § 52.1 after
presenting evidence at trial that he had been subjected to
excessive force in the course of his arrest. 217 Cal. App. 4th
at 972–75. The Court of Appeal affirmed. Id. at 981.
Because of Bender, the Court of Appeal in Allen was careful
to limit its holding by noting that excessive force had not
been alleged. It wrote:
We begin by noting what plaintiffs do not
assert. The first amended complaint does not
allege the use of excessive or unreasonable
force by the police, and plaintiffs do not
contend on appeal that this is an excessive
force case.
Allen, 234 Cal. App. 4th at 66.
The facts in Bender are remarkably similar to the facts in
the case before us. Plaintiff Bender was an African-American
apartment manager who had questioned two sheriff’s deputies
when they arrested two African-American tenants of the
apartment. Bender, 217 Cal. App. 4th at 972. As in the case
before us, the defendants in Bender were deputies employed
by the LASD. Id. at 971. The deputies beat the plaintiff until
he was unconscious. Id. at 973. Most strikingly, deputies
yelled “stop fighting” as they were beating Bender even
though he was not fighting or resisting. Id. at 975.
The Court of Appeal wrote:
Deputy Chavez ran around the patrol car
and he and Deputy Sorrow slammed plaintiff
to the ground. Plaintiff was in handcuffs, so
44 RODRIGUEZ V. CRUZ
he could not break the fall and went down on
his face. Deputies Sorrow and Chavez started
“kneeing and kicking and beating him while
he was on the ground.” Deputy Sorrow was
kicking him in the arms and ribs. Plaintiff
was kicked in the side eight to 10 times, and
“there was what felt like a knee in the back of
my neck, pressing my face to the ground.
And while I was being held there by the back
of my neck, I was being struck on the top,
back part of my head.” . . .
During the beating, Deputy Sorrow said,
“F—ing [N word] lover, you’re getting what
you deserved.” Even though plaintiff at no
time attempted to fight or struggle with the
deputies, Deputy Sorrow yelled, “Stop
fighting.” . . . After the beating stopped,
plaintiff “thought it was over with, and I
opened my eyes and I was sprayed across both
of my eyes, and then it was sprayed up to my
nostrils and sprayed up my nose. And when
I opened my mouth to breath, it was pressed
against my lips and sprayed into my mouth.”
Plaintiff lost consciousness.
Id. at 973. The Court of Appeal distinguished Shoyoye based
on the fact that, unlike in Shoyoye, the deputies had used
excessive force: “Where, as here, an arrest is unlawful and
excessive force is applied in making the arrest, there has been
coercion ‘independent from the coercion inherent in the
wrongful detention itself’ (Shoyoye)—a violation of the Bane
Act.” Id. at 978 (emphasis in the original) (citation omitted);
RODRIGUEZ V. CRUZ 45
see also Lyall v. City of Los Angeles, 807 F.3d 1178, 1196
(9th Cir. 2015) (quoting this sentence from Bender).
In Cornell, the Court of Appeal recently confirmed “that
the use of excessive force can be enough to satisfy the [Bane
Act’s] ‘threat, intimidation or coercion’ element.” 17 Cal.
App. 5th at 799. The Court of Appeal explicitly rejected the
argument that appellants advance here, explaining that the
text of the Bane Act does not require “that the offending
‘threat, intimidation or coercion’ be ‘independent’ from the
constitutional violation alleged.” Id. at 800. Rather, the court
explained, in the context of an unlawful arrest, “the
egregiousness required by Section 52.1 is tested by whether
the circumstances indicate the arresting officer had a specific
intent to violate the arrestee’s right to freedom from
unreasonable seizure.” Id. at 801–02.
Finally, this analysis is consistent with our recent decision
in Reese v. County of Sacramento, where we addressed a
Bane Act claim premised on an alleged Fourth Amendment
excessive force violation. — F.3d —, 2018 WL 1902416, at
*6–7 (9th Cir. Apr. 23, 2018). We rejected a similar
argument based on Shoyoye, reasoning that Cornell’s
interpretation of the Bane Act was consistent with the
statutory language and the California Supreme Court’s
decisions. Id. at *8–9. We therefore held that “the Bane Act
does not require the ‘threat, intimidation or coercion’ element
of the claim to be transactionally independent from the
constitutional violation alleged,” but rather a showing of the
defendant’s specific intent to violate the plaintiff’s
constitutional rights. Id. at *8.
We conclude from these decisions that in excessive force
cases, including Eighth Amendment cases, § 52.1 does not
46 RODRIGUEZ V. CRUZ
require proof of coercion beyond that inherent in the
underlying violation. Because appellees Flores, Nunez,
Sanchez and Trinidad provided evidence sufficient to support
a finding that they were subjected to excessive force in
violation of the Eighth Amendment, they necessarily
provided evidence sufficient to support a finding of a
violation of their rights under § 52.1.
E. Monell Liability
Appellants argue that appellees’ evidence was insufficient
to support municipal liability, and that the district court
therefore erred in denying appellants’ post-trial motion for
judgment as a matter of law on appellees’ Monell claim. We
review de novo the district court’s denial of judgment as a
matter of law. We will uphold the jury’s verdict “if it is
supported by substantial evidence, which is evidence
adequate to support the jury’s conclusion, even if it is also
possible to draw a contrary conclusion.” Harper v. City of
Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008) (quoting
Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)).
A local government is liable for an injury under § 1983
under three possible theories. See Clouthier v. County of
Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), overruled
on other grounds by Castro, 833 F.3d 1060. First, a local
government may be liable if “execution of a government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy, inflict[ed] the injury.” Monell v. Dep’t of Soc. Servs.
of City of New York, 436 U.S. 658, 694 (1978). Second, a
local government can fail to train employees in a manner that
amounts to “deliberate indifference” to a constitutional right,
such that “the need for more or different training is so
RODRIGUEZ V. CRUZ 47
obvious, and the inadequacy so likely to result in the violation
of constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the
need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).
Third, a local government may be held liable if “the
individual who committed the constitutional tort was an
official with final policy-making authority or such an official
ratified a subordinate’s unconstitutional decision or action
and the basis for it.” Gravelet-Blondin, 728 F.3d at 1097
(internal quotation marks and citation omitted).
We have recognized that a § 1983 plaintiff may prove the
second type of Monell liability, deliberate indifference,
through evidence of a “failure to investigate and discipline
employees in the face of widespread constitutional
violations.” Hunter v. Cty. of Sacramento, 652 F.3d 1225,
1234 n.8 (9th Cir. 2011). Thus, it is sufficient under our case
law to prove a “custom” of encouraging excessive force to
provide evidence that personnel have been permitted to use
force with impunity. Id. at 1233 (“We have long recognized
that a custom or practice can be inferred from widespread
practices or evidence of repeated constitutional violations for
which the errant municipal officers were not discharged or
reprimanded.” (internal quotation marks and citations
omitted)); Larez, 946 F.2d at 647 (“[T]here was evidence of
a departmental policy or custom of resorting to the use of
excessive force. The jury properly could find such policy or
custom from the failure of Gates to take any remedial steps
after the violations.”); McRorie v. Shimoda, 795 F.2d 780,
784 (9th Cir. 1986) (“McRorie alleges that guards seriously
injured him and twenty-eight other prisoners during the
shakedown and that Sergeant Dunn was acting under orders
of his superiors. If proved, these acts reflect a [policy or
custom].”); see also Velazquez v. City of Long Beach, 793
48 RODRIGUEZ V. CRUZ
F.3d 1010, 1027–28 (9th Cir. 2015) (recognizing that a
plaintiff could present “a failure-to-discipline Monell theory”
based on evidence “that the City had a policy or custom of
failing to investigate and discipline officers who had
allegedly committed prior instances of excessive force”).
Appellees presented substantial evidence to show that the
LASD had a custom of ignoring or condoning excessive
force, and that this custom proximately caused the beatings at
issue here. That evidence included the CCJV report;
Olmstead’s testimony; evidence that LASD had not used their
force-tracking system to monitor force used against many
prisoners, including appellees; and evidence that supervisory
staff had observed the practices proved at trial but had done
nothing. In declining to grant judgment as a matter of law to
appellants on this issue, the district court ruled that the LASD
had tolerated excessive force at the jail and had created an
atmosphere of wanton violence and impunity. The court
wrote that within the jail itself, “Captain Cruz . . . perpetuated
a culture where excessive force was encouraged, openly
joked with the deputies about force, and promoted the
practice of incomplete and ineffective investigations into
deputy misconduct.”
The record amply supports the jury’s verdict and the
district court’s ruling. There was substantial evidence of
repeated constitutional violations, of LASD’s awareness of
those violations, and of LASD’s failure to take any remedial
action. Our precedents permitted the jury to infer that LASD
had adopted a custom or practice of condoning excessive
force and that this culture of violence and impunity
proximately caused the injuries inflicted on appellees. See
Hunter, 652 F.3d at 1233–34.
RODRIGUEZ V. CRUZ 49
F. Juror Bias
Appellants argue that the district court erred in denying
their motions to excuse Juror Number 5 (“S.M.”) and later
denying a motion for a new trial based on S.M.’s service on
the jury. We disagree.
We review a district court’s implied bias determination de
novo but review the court’s findings of fact and credibility
determinations for clear error. Fields v. Brown, 503 F.3d
755, 770 (9th Cir. 2007) (en banc); Riley v. Payne, 352 F.3d
1313, 1317 (9th Cir. 2003). We review denial of a motion for
a new trial for abuse of discretion. Coughlin v. Tailhook
Ass’n, 112 F.3d 1052, 1055 (9th Cir. 1997).
“The Constitution guarantees both criminal and civil
litigants a right to an impartial jury.” Warger v. Shauers,
135 S. Ct. 521, 528 (2014). We have held that a juror was
“actually biased” where the juror’s answers in voir dire
indicated that he or she cannot decide the case impartially.
United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.
2000). In “extraordinary” circumstances, we have also found
“implied bias.” Dyer v. Calderon, 151 F.3d 970, 981 (9th
Cir. 1998) (en banc); see also Tinsley v. Borg, 895 F.2d 520,
527–28 (9th Cir. 1990). Implied bias is found “in those
extreme situations ‘where the relationship between a
prospective juror and some aspect of the litigation is such that
it is highly unlikely that the average person could remain
impartial in his deliberations under the circumstances.’ ”
Fields, 503 F.3d at 770 (quoting Tinsley, 895 F.2d at 527).
We have recognized that implied bias can be found “where
the juror is apprised of such prejudicial information about the
defendant that the court deems it highly unlikely that he can
exercise independent judgment even if the juror states he
50 RODRIGUEZ V. CRUZ
will,” Tinsley, 895 F.2d at 528, or “where repeated lies in voir
dire imply that the juror concealed material facts in order to
secure a spot on the particular jury,” Fields, 503 F.3d at 770
(citing Dyer, 151 F.3d at 982).
We have cautioned that courts assessing implied bias
“should hesitate before formulating categories of
relationships which bar jurors from serving in certain types of
trials.” Id. at 772 (quoting Tinsley, 895 F.2d at 527)). For
example, “[w]e will not presume bias merely because a juror
works in law enforcement or is a federal government
employee.” Tinsley, 895 F.2d at 529. Otherwise, our
doctrine of implied bias would not be limited to “extreme
situations,” Fields, 503 F.3d at 770, but would instead extend
to “the summary exclusion for cause of NAACP members
from cases seeking the enforcement of civil rights statutes,
Moral Majority activists from pornography cases, Catholics
from cases involving abortion clinic protests, members of
NOW from sex discrimination cases, and subscribers to
Consumer Reports from cases involving products liability
claims,” Tinsley, 895 F.2d at 528 (quoting United States v.
Salamone, 800 F.2d 1216, 1225 (3d Cir. 1986)).
We have found implied bias based on a juror’s
employment only where it has been accompanied by
additional factors. In United States v. Allsup, 566 F.2d 68,
71–72 (9th Cir. 1977), we held that two jurors were impliedly
biased in a bank robbery trial where they worked for a
different branch of the bank that had been robbed. We
attributed this result to “[t]he employment relationship
coupled with a reasonable apprehension of violence by bank
robbers.” Id. In a subsequent en banc opinion, we noted the
limits of Allsup’s holding, explaining that “[t]he implied bias
that we found in Allsup was based on the jurors’ direct
RODRIGUEZ V. CRUZ 51
relationship with the victim and their own vulnerability to the
same type of conduct for which the accused bank robbers
were on trial.” Fields, 503 F.3d at 773. By contrast, in
Tinsley, we declined to infer bias on the basis of a juror’s
employment, “even where closely related to the substance of
the case.” 895 F.2d at 529 (finding no implied bias in a rape
case that turned on credibility, even though the juror had
professionally counseled a different rape survivor for a year
and a half and had testified at trial that that survivor was
credible).
We have been similarly hesitant to find implied bias
based solely on the experiences of a juror’s relatives. Thus,
while “we have recognized that bias may be implied where
close relatives of a juror ‘have been personally involved in a
situation involving a similar fact pattern,’ we have never done
so when the juror was honest on voir dire.” Fields, 503 F.3d
at 773 (internal citations omitted) (quoting Tinsley, 895 F.2d
at 528).
Here, appellants argue that S.M. was impliedly biased due
to a combination of the professional activities of his parents
and his personal friendships with other individuals who had
some involvement with the prison system.
This record does not require a finding of implied bias.
The ACLU affiliation of S.M.’s father does not, standing
alone, give rise to an inference of bias. Bias is even less
likely here than in Tinsley, since S.M. was not himself
affiliated with the ACLU. See United States v. Olano,
62 F.3d 1180, 1192 (9th Cir. 1995) (holding that juror’s
daughter-in-law’s employment with the company from whom
Olano was accused of taking kickbacks did not imply bias);
Salamone, 800 F.2d at 1226 (absent additional evidence of
52 RODRIGUEZ V. CRUZ
bias, “no juror may be excluded for cause on the basis of his
or her membership in an organization that adheres to a
particular view”).
Though the organizations with which S.M.’s family and
friends were associated had some remote connections to this
particular case, S.M. was not a member in these
organizations and was unaware of their involvement in
activities tied to this case. The ACLU had only an indirect
relationship with the litigation and that relationship does not
appear to have been known to S.M. Further, S.M. was
unaware that his friend’s organization, the CCJV, had
prepared a report that would be presented as evidence in the
case. Finally, S.M. also made clear that he did not know
whether the LASD had committed any of the kinds of abuses
that his family opposed.
Nor does the timing of the op-ed article published in the
Los Angeles Times by S.M.’s mother near the end of the trial
require us to find implied bias. S.M.’s mother’s publicly
expressed opinion on civilian oversight of LASD does not
implicate our case law involving “close relatives of a juror
[that] ‘have been personally involved in a situation, involving
a similar fact pattern,’ ” Fields, 503 F.3d at 773 (quoting
Tinsley, 895 F.2d at 528)), nor does it present a new type of
“extreme” situation giving rise to implied bias. An innocent
explanation for the article’s timing appears in its first two
sentences: “It is time to seriously consider a civilian
oversight board for the Los Angeles County Sheriff’s
Department. The Board of Supervisors is scheduled to
consider such a proposal next week.” (Emphasis added.)
The remainder of the article is devoted largely to the virtues
of civic participation. The article alludes to problems in Los
Angeles’s jails only in general terms and does not mention
RODRIGUEZ V. CRUZ 53
excessive force or the Men’s Central Jail. This is not enough
to overcome the presumption that S.M. complied with the
court’s instructions not to talk about the case with others and
to avoid reading about subjects related to the case. See
Parker v. Randolph, 442 U.S. 62, 73 (1979), abrogated on
other grounds by Cruz v. New York, 481 U.S. 186, 194
(1987).
Finally, appellants contend that S.M. was not candid
during voir dire. We held in Dyer, 151 F.3d at 982, that a
juror’s dishonesty supported an inference of bias, but the facts
in Dyer were radically different from the facts here. In Dyer,
the juror in question failed to mention that her brother was
murdered in the same manner that the defendant was accused
of murdering the victim. Further, the juror lied by claiming
that she thought her brother’s death was an accident and by
stating that she did not testify at the trial of her brother’s
killer. Id. at 982. Here, by contrast, there is no evidence that
S.M. was dishonest about anything. During his initial voir
dire, S.M. failed to mention his father’s ACLU connection,
but the next day, on his own initiative, he notified the court of
the omission. The district court did not err in finding that this
initial omission was not evidence of dishonesty that would
support a finding of implied bias. Further, the late disclosure
did not deprive appellants of the opportunity to exercise a
peremptory challenge, for they had used all of their
peremptory challenges before S.M.’s initial voir dire began.
G. Punitive Damages
Appellants challenge as excessive the jury’s award of
punitive damages. The total compensatory damages award
was $740,000. The total punitive damages award was
$210,000, awarded only against the supervisory appellants.
54 RODRIGUEZ V. CRUZ
The punitive damages awarded per individual supervisor
were: $75,000 against appellant Cruz; $60,000 against
appellant Blasnek; $30,000 each against appellants
McGratten and Ohnemus; and $15,000 against appellant
Washington. All of the punitive damages awards to
individual appellees ranged from $10,000 to $15,000, with
the exception of one award of $30,000.
Appellants urge us to apply California law that limits
punitive damages based on a defendant’s net worth. We
decline to apply California law here because appellees sought
punitive damages for violations of their rights under
42 U.S.C. § 1983 rather than state law. Under federal law,
“ability to pay is of some importance” in assessing the
propriety of a punitive damages award but it is not
dispositive. Tri-Tron Int’l v. Velto, 525 F.2d 432, 438 (9th
Cir. 1975).
Under the Due Process Clause of the Fourteenth
Amendment, the determination whether punitive damages are
excessive turns on several factors, including the
egregiousness of the conduct, the proportionality between
punitive and compensatory damages awards, and the amount
of the punitive damages awarded or upheld in similar cases.
See State Farm Mut. Automobile Ins. Co. v. Campbell,
538 U.S. 408, 418 (2003). As applied to facts of this case,
these factors do not warrant reversal.
Appellees proved egregious, even shocking, abuses of
power. Furthermore, the punitive damages awarded to each
appellee, considered individually or together, were all far less
than appellees’ compensatory damages. We have upheld
significantly larger per-plaintiff punitive damages awards in
other cases. For example, we recently upheld a jury award of
RODRIGUEZ V. CRUZ 55
$125,000 in compensatory damages and $165,000 in punitive
damages to a single plaintiff, in an excessive force case
against the County of Los Angeles, as well as appellant Cruz
and several other LASD officials working in a Los Angeles
County jail. Willis v. Vasquez, 648 F. App’x 720, 724 & n.1
(9th Cir. 2016).
H. Trial Errors
Appellants argue that the district court committed several
reversible errors during trial. We are not persuaded.
First, appellants argue that appellees’ Monell claim
against the county should have been tried separately from
their claims against the individual defendants. The district
court acted within its “broad discretion” in declining to
bifurcate the Monell claim. Hangarter v. Provident Life &
Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (citation
omitted). Though some of the evidence relevant to the
Monell claims was irrelevant to individual liability, the
district court’s many limiting instructions cured any possible
prejudice. See Velazquez, 793 F.3d at 1028.
Second, appellants argue that the district court should not
have excluded evidence of appellees’ felony convictions and
their gang membership. The district court permitted
appellants’ witnesses to testify, consistent with their
knowledge, that the prisoners involved in the disturbance held
some of the highest security classifications in the prison. For
example, appellants testified that the prisoners were
“extremely dangerous,” that they were some of the most
dangerous prisoners in the county and even the country, that
they were the “worst of the worst,” and that they were prone
to act violently toward other prisoners and staff. The court
56 RODRIGUEZ V. CRUZ
also permitted appellants to present evidence of appellees’
violent and disruptive behavior before and during the
extraction itself. The court evaluated the additional probative
value of the proffered evidence of criminal history and gang
membership, and balanced it against prejudice to appellees.
It then acted within its discretion in excluding the evidence
under Federal Rule of Evidence 403. “The Rule 403
weighing process is primarily for the district court to perform.
Trial judges are better able to sense the dynamics of a trial
than we can ever be, and broad discretion must be accorded
them in balancing probative value against prejudice.”
Longenecker v. Gen’l Motors Corp., 594 F.2d 1283, 1286
(9th Cir. 1979); see also United States v. Weiland, 420 F.3d
1062, 1078 (9th Cir. 2005).
Third, appellants argue that the district court erred in two
of its instructions to the jury. One is an instruction in which
the court told the jury:
The defendants have an affirmative duty to
video record what occurred during the
extractions and to preserve the videos.
Certain videos once existed. Now they are
missing or they are destroyed. The Court
makes a finding to be used for all purposes
that defendants violated their own video
preservation policy by not maintaining these
videos.
Appellants argue that before giving this instruction the
district court was required to find that the videotapes had
been willfully misplaced or destroyed. See Leon v. IDX Sys.
Corp., 464 F.3d 951, 959 (9th Cir. 2006). The district court
did make such a finding, which was supported by evidence in
RODRIGUEZ V. CRUZ 57
the record. Further, individual appellants point out that there
was no showing that any of them were responsible for the
loss or destruction of the videotapes. Therefore, they argue,
the jury should have been told that the instruction could be
used against only the county. We are not convinced. But
assuming without deciding that the individual appellants are
right on this point, we conclude that there was no prejudice,
given the overwhelming evidence against them. See Chess v.
Dovey, 790 F.3d 961, 977 (9th Cir. 2015) (noting that an
erroneous jury instruction is harmless if “it is more probable
than not that the jury would have reached the same verdict
had it been properly instructed” (citation omitted)).
The other challenged instruction told the jury to disregard
appellant Alonso’s testimony that he heard the prisoners
shouting “Spanish words that meant they were ready to
fight.” The district court interpreted this testimony to refer to
the phrase “puro sur trece,” a gang slogan that the court had
excluded from evidence in a pretrial order. The court did not
clearly err in finding that appellant Alonso was referring to
the excluded slogan in his testimony, and did not abuse its
discretion in giving the instruction.
Fourth, appellants argue that the district court should have
allowed live testimony from some of the appellees as well as
some non-party inmates. Appellee Rodriguez did provide
live testimony. The other appellees and the non-party
inmates testified by means of video depositions. The district
court had authorized the taking of these depositions on the
understanding that they could be used at trial in lieu of live
testimony, and appellants were able to cross examine the
witnesses during the depositions. Before trial, appellees
successfully moved for admission of the videotaped
depositions, listing a driving mileage of 126 miles between
58 RODRIGUEZ V. CRUZ
the courthouse and the witnesses’ place of incarceration.
After witness lists were filed, after the final pretrial order was
filed limiting witnesses to those identified on the lists, and
three weeks after appellees’ motion was granted, appellants
applied for writs of habeas corpus ad testificandum to compel
live testimony from the four appellees and the non-party
inmates. The district court reasonably denied the application.
Appellants maintain that the district court erred in
denying their application, noting that deposition testimony is
allowed under Federal Rule of Civil Procedure 32(a)(4)(B)
only if the witness is located more than 100 miles from the
place of trial. They contend that the distance between the
witnesses’ place of incarceration is less than 100 miles “as
the crow flies” (though they concede that it is more than
100 miles in driving distance). Appellants never presented
this argument to the district court, and it is therefore waived.
See In re Mercury Interactive Corp. Secs. Litig., 618 F.3d
988, 992 (9th Cir. 2010).
I. Attorney’s Fees
The district court awarded $5,378,174.66 in attorney’s
fees payable to appellees’ trial attorneys. We review the
award for abuse of discretion, Jones v. Giles, 741 F.2d 245,
250 (9th Cir. 1984), and affirm the decision of the district
court.
Appellants argue that the district court should have
applied the PLRA’s attorney’s fee provisions to all attorney’s
fees incurred in this case. The PLRA limits recovery of
attorney’s fees “in any action brought by a prisoner . . . in
which attorney’s fees are authorized under [42 U.S.C.
§ 1988].” 42 U.S.C. § 1997e(d). However, the PLRA’s limits
RODRIGUEZ V. CRUZ 59
do not apply to attorney’s fees incurred in litigation under
California Civil Code § 52.1. Attorney’s fees incurred in
litigating § 52.1 claims are not authorized under 42 U.S.C.
§ 1988. Rather, § 52.1(h) authorizes attorney’s fee awards
independently of 42 U.S.C. § 1988. Indeed, we have held
that the PLRA attorney’s fees cap does not apply even to
federal law claims for which attorney’s fees are available
under 42 U.S.C. § 1988, as long as those claims are brought
under statutes with their own attorney’s fee provisions.
Armstrong v. Davis, 318 F.3d 965, 973–74 (9th Cir. 2003)
(holding that the PLRA cap does not apply to fees awarded
under the ADA’s or RA’s attorney’s fee provisions even if
the plaintiff could have sought attorney’s fees under § 1988).
The district court calculated attorney’s fees attributable
solely to the work performed in litigating appellees’
42 U.S.C. § 1983 claims and applied 42 U.S.C. § 1997e(d) to
those fees. It calculated attorney’s fees solely attributable to
appellees’ § 52.1 claims as well as fees that were as readily
available to appellees’ § 52.1 claims as to their § 1983 claims,
and applied § 52.1(h) to those fees. The district court did not
abuse its discretion in so doing. See Bouman v. Block,
940 F.2d 1211, 1230, 1237 (9th Cir. 1991) (holding that the
district court did not abuse its discretion in awarding fees
under a California statute in excess of those allowed under
federal law, where the plaintiff challenged the same
discriminatory conduct under state and federal law).
Appellants challenge the district court’s decision to apply
a 2.0 multiplier to the attorney’s fees in this case. Calculation
of attorney’s fee awards in cases brought under state law is a
substantive matter to which state law applies. See In re
Larry’s Apartment, L.L.C., 249 F.3d 832, 838 (9th Cir. 2001);
Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470,
60 RODRIGUEZ V. CRUZ
1478–79 (9th Cir. 1995). In accordance with state law, the
district court based its decision on the substantial financial
risk that appellees’ counsel assumed in investing $3.4 million
of attorney time in a contingency case; the difficulty of
representing prisoners with the Men’s Central Jail’s highest
security classifications, in an excessive force action against
high-ranking jail officials, all the while facing “aggressive
opposition” from appellants; and the opportunity costs the
years-long litigation in this case required. The court
expressly noted that it had considered the burden to
California’s taxpayers that the fee award would represent, and
found that the award was justified given the factors described
above and the importance of civil rights suits in protecting the
public against abuses at the hands of “large or politically
powerful defendants.” Horsford v. Bd. of Trustees of
California State Univ., 132 Cal. App. 4th 359, 399–401
(2005); see Serrano v. Priest, 20 Cal. 3d 25, 49 (1977) (“The
experienced trial judge is the best judge of the value of
professional services rendered in his court, and while his
judgment is of course subject to review, it will not be
disturbed unless the appellate court is convinced that it is
clearly wrong.” (internal quotation marks and citation
omitted)). We cannot fault the trial judge’s reasoning or
results here.
Conclusion
For all the foregoing reasons, we affirm the judgment of
the district court.
AFFIRMED.