Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1985)

MEMORANDUM^* 

Franklin Segal brought this 42 U.S.C. § 1983 civil rights action for police abuse against the County of Los Angeles and seven county and state highway police deputies. The district court granted a directed verdict in favor of the county and three of the defendant police officers. The case against the remaining four defendants went to the jury on the limited issue of whether those defendants failed to prevent the use of excessive force. The jury returned a verdict in the defendants' favor. Segal appeals the court's directed verdict in favor of the county and three police officers, as well as the court's refusal to instruct the jury on Segal's excessive force theory. In addition, Segal takes issue with several procedural and evidentiary matters decided during the trial. We reverse and remand to the district court for a new trial.

DISCUSSION

I. The Court's Refusal to Instruct the Jury on Segal's Theory of the Case.

Federal Rule of Civil Procedure 51 provides that no party may assign as error the giving or the failure to give an instruction unless he objects to the court's decision before the jury retires to consider its verdict. Fed. R. Civ. P. 51. Moreover, he must state distinctly the matter to which he objects and the grounds for his objection. Id. This rule must be read together with Federal Rule of Civil Procedure 46, which provides that formal exceptions to court rulings are unnecessary if the party "at the time the ruling or order of the court is made or sought, makes known to the court the action which the party desires the court to take or the party's objection to the action of the court and the grounds therefor ..." Fed. R. Civ. P. 46. See Brown v. Avemco Inv. Corp., 603 F.2d 1367, 1370 (9th Cir. 1979) (must read the two rules together). Thus, Segal must comply with Rule 51 before he can take exception to the court's failure to instruct the jury on his excessive force and conspiracy theories.

A. Segal's Excessive Force Claim.

The record shows that Segal complied with Rule 51 and properly preserved for appeal the court's refusal to instruct the jury on the use of excessive force in his arrest. Segal proposed a jury instruction on this theory and he objected when Judge Ideman refused to give the instruction. He stated that he felt there was enough evidence for the jury to infer the defendants' participation in an illegal beating. Judge Ideman noted that Segal had made a sufficient record of his objection. Thus, the issue of whether Segal was entitled to an instruction on the excessive force theory is properly reviewable on appeal.

Segal was entitled to an instruction on his excessive force claim if some basis existed in the record to support this theory of the case. See Gauthier v. AMF, Inc., 788 F.2d 634, 635 (9th Cir. 1986). Judge Ideman refused to instruct the jury on Segal's excessive force claim because he found that no evidence existed to show that any of the defendants personally participated in the assault. There was evidence, however, that placed the defendants at the scene. Segal produced six eyewitnesses at the trial to establish that some degree of police force accompanied his arrest. Under our decision in Rutherford v. City of Berkeley, 780 F.2d 1444 (9th Cir. 1986), the very presence of the officers at the scene may constitute sufficient evidence for a jury to infer that the officers participated in an illegal beating that was shown to have occurred. Id. at 1448.¹  Thus, it is not necessary that direct evidence exists to link particular officers with the assault. It is sufficient to withstand a directed verdict if overall questions of credibility and inference exist that might permit the jury to infer participation. The evidence in this case was sufficient to permit such an inference.

Defendants contend that the instruction on failure to prevent the use of excessive force, which was given by the court, necessarily included the excessive force issue within it. They assert that the instruction provided for liability if the jury concluded that certain defendants actually used excessive force to effectuate Segal's arrest. We are of the view, however, that when the issue is presented to the jury as one of the failure to prevent the use of excessive force, the jury will assume that the decision has already been made that these particular officers did not themselves actually use excessive force. Accordingly, we remand this case so that the jury can decide whether any of the seven officers present used excessive force in Segal's arrest.

B. Segal's Conspiracy Claim.

Segal also preserved his claim the district court erred in refusing to instruct the jury regarding the alleged conspiracy to conceal evidence. However, Segal failed to properly plead that claim. See Sykes v. California, 497 F.2d 197, 200 (9th Cir. 1974) (civil rights conspiracy must be pleaded with specificity). While Segal attempted to amend his complaint to allege conspiracy in greater detail, he did so without the court's permission and only on the eve of the trail -- some three years after the facts that arguably support the claim were known. The district court could not have abused its discretion in denying permission to amend even had Segal requested it. See Fed. R. Civ. P. 15(a); see also Ulloa v. Guam Economic Development Authority, 580 F.2d 952, 959 (9th Cir. 1978) (trial court possessed discretion to deny amendment to more specifically allege fraud given three-year delay). Thus the failure to instruct on this issue was not error.

II. The Directed Verdict In Favor of the Three Police Officers.

We review the propriety of a directed verdict de novo. Donoghue v. Orange County, 828 F.2d 1432, 1438 (9th Cir. 1987). A directed verdict is improper if " 'the evidence in its entirety would rationally support a verdict for the plaintiff.' " Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 345 (9th Cir. 1978) (citations omitted). In reviewing the directed verdict, we must view all of the evidence in a light most favorable to Segal and draw all possible inferences in Segal's favor. See id. To take advantage of any favorable inference, however, Segal must present "substantial evidence" in support of his claims. See Feldman v. Simkins Industries, Inc., 679 F.2d 1299, 1303 (9th Cir. 1982); Wolf v. Reynolds Electrical & Engineering Co., 304 F.2d 646 (9th Cir. 1962).

Segal contends that the district court improperly granted a directed verdict in favor of three police officers because substantial evidence existed from which a jury could draw a reasonable inference that the officers either exercised excessive force in his arrest, participated in a conspiracy to conceal a civil rights violation, or failed to prevent the use of excessive force by other officers. In Rutherford, we held that the very presence of the officers at the scene may constitute sufficient evidence to infer that they participated in the beating. See Rutherford, 780 F.2d at 1448. Sgt. Campbell's testimony placed the excused defendants at the scene; their presence in the circumstances of this case constituted sufficient evidence from which the jury might have inferred that they participated in the arrest or exercised excessive force. As we noted previously, this issue presents questions of inference and witness credibility that belong to the jury.

In addition, substantial evidence existed from which a jury could infer that the three officers for whom a total verdict was directed could have, at the very least, prevented an illegal beating. Segal presented sufficient evidence and testimony to show that he was beaten by the police to some degree. The record shows that the officers were present in the vicinity and at some point, they became aware of Segal's arrest. This is sufficient evidence to defeat a directed verdict; in light of all the evidence, it permits the jury to infer that they were within the group of defendants that may have observed the use of excessive force and failed to act to prevent it. Accordingly, the case should be presented to the jury on remand to determine whether the three defendants either exercised excessive force or failed to prevent the use of excessive force.

III. The Directed Verdict In Favor of Los Angeles County.

The county of Los Angeles may be held liable under 42 U.S.C. § 1983 if Segal's federally protected rights were violated by an action taken pursuant to "official municipal policy." Monell v. New York City Dep't. of Social Services, 436 U.S. 658, 690 (1978). Recovery from a municipality is limited to acts that are officially sanctioned or ordered by the municipality. Id. The "official policy" requirement is intended to distinguish acts of the municipality from acts of employees of the municipality, to ensure that municipal liability is "limited to action for which the municipality is actually responsible." Pembaur v. Cincinnati, 475 U.S. 469, 479-80 (1986).

Segal argues that the County of Los Angeles was improperly dismissed because a jury might have reasonably found that the police department's failure adequately to investigate the circumstances of his arrest was sanctioned by a county policy. In addition, Segal argues that the police conspired to conceal the facts of his arrest and that this action was taken pursuant to a county policy. To preclude a directed verdict, Segal must present "substantial evidence" that a county policy caused the deprivation of a federally protected right.

Segal presented no evidence to the district court on any county policy or county history regarding the failure to investigate civilian complaints of police brutality or concealment by the police of facts surrounding a contested arrest. Instead, Segal merely pointed to the silence of the defendant officers in this particular instance, their failure to interview witnesses, and their inability to name the officers directly involved in his arrest. Contrast Fiacco v. City of Rensselaer, N.Y., 783 F.2d 319, 329 (2nd Cir. 1986), cert. denied, 107 S. Ct. 1384 (1987) (failure to investigate complaints of police brutality may be a city "policy" where the city charter authorized a Board to hear such charges, the Board provided no form for citizen complaints, and no hearings were held by the Board for three years).

While a single decision by a municipal policymaker may sometimes satisfy Monell's municipal policy requirement, see Pembaur, 475 U.S. at 480, the acting official must be directly responsible for establishing final government policy on the activity involved and not just have discretion in carrying out his duties. Id. at 482-83.²  In contrast to Pembaur, this case showed only spontaneous decisions made, not by authorized policymakers, but rather by the police as employees of the county. Thus, Segal cannot rely solely on the specific facts of this case but must produce some evidence of a county policy on which the police relied in their investigation of his claim. See e.g., Shaw v. Cal. Dep't. of Alcoholic Beverage Control, 788 F.2d 600, 610 (9th Cir. 1986) (a "pattern or series of incidents" showing unconstitutional enforcement of the laws constitutes an allegation of policy sufficient to withstand a directed verdict motion). Because Segal failed to provide any evidence that the police were acting pursuant to a county policy, the district court properly granted a directed verdict in favor of the County of Los Angeles.

IV. Segal's Request to Supplement His Witness List.

Segal contends that the district court erred in refusing to allow him to supplement his witness list so that he could call certain expert medical witnesses. Before trial, the parties agreed to a pretrial conference order and Segal's list of potential witnesses was included within this order. In the period preceding the trial, Segal's physical condition continued to change and his care was assumed by other doctors. Segal sought leave to amend his witness list to include his new physicians as witnesses and the court denied this request.

We review the district court's refusal to amend the parties' pretrial order for abuse of discretion. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985). A pretrial order controls the course of the litigation, unless it is modified to prevent "manifest injustice." Pierce County Hotel Employees and Restaurant Employees Health Trust v. Elks Lodge, 1450, 827 F.2d 1324, 1329 (9th Cir. 1987). The pretrial order should be liberally construed; an inflexible adherence to a pretrial order is an abuse of discretion. Dabney v. Montgomery Ward & Co., 692 F.2d 49 (8th Cir. 1982), cert. denied, 461 U.S. 957 (1983). The court should consider four factors in determining whether to modify the parties' pretrial order: (1) the degree of prejudice or surprise to the defendants if the unlisted witnesses were allowed to testify; (2) the ability of the defendants to cure any prejudice; (3) the impact of the modification on the orderly and efficient conduct of the case; and (4) any degree of willfulness or bad faith on Segal's part in failing to comply with the court's order. See United States v. First Nat. Bank of Circle, 652 F.2d 882, 887 (9th Cir. 1981); Meyers v. Pennypack Woods Home Ownership Assoc., 559 F.2d 894, 904 (3d Cir. 1977), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985).

Applying these considerations to the instant case, we conclude that the district court abused its discretion in not allowing Segal to supplement his witness list. First, allowing Segal to update his witness list would have caused little, if any, prejudice or surprise to the defendants. Segal first requested leave to update his list on February 7, 1985, almost a full year before the trial was scheduled to begin.³  Defendants had more than enough time properly to acquaint themselves with the expected testimony of the new witnesses. Second, defendants did not act to minimize any prejudice by taking steps to familiarize themselves with the new witnesses and their expected testimony. See e.g., Meyers, 559 F.2d at 905 (while modification may have complicated the trial, any assertion of prejudice must be viewed in the context of defendant's complete failure to initiate further discovery or to respond to plaintiff's offer to furnish information). Third, the introduction of Segal's new medical witnesses at that early stage of the litigation would have been of only minimal impact on the orderly conduct of the case. Finally, the record does not reveal any bad faith or willfulness on Segal's part. Indeed, in his February 22 motion, Segal fully explained the medical specialty of each witness, the relevance of their testimony, whether or not they personally examined Segal after the incident, and, in the case of Dr. Harold Segal, why his testimony was of critical importance.

The defendants contend that Segal had originally listed several doctors as potential witnesses and the additions to the list were merely cumulative. Yet many of the original witnesses were listed, not as expert witnesses, but as associates of Segal's. The record shows that the medical experts Segal sought to introduce would have offered important new testimony on his physical status. The exclusion of critical witness testimony is disfavored. Berroyer v. Hertz, 672 F.2d 334, 338 (3d Cir. 1982). We conclude, therefore, that the district court abused its discretion in refusing Segal's request to update his witness list.

V. The District Judge's Refusal to Recuse Himself.

Finally, Segal argues that Judge Ideman should have recused himself after he discovered that one of the law firms representing the defense was also representing him in a civil action.⁴  Denial of a motion for recusal is reviewed for abuse of discretion. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986). The standard for recusal under 28 U.S.C. § 455(a) is " 'whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might be reasonably questioned.' " Id. (Citations omitted).

The facts of this case do not suggest that Judge Ideman's impartiality might reasonably be questioned. The judge did not select the firm to defend him and he did not realize the firm was representing him until it was volunteered by the defense attorneys from the firm. He never met with any of the firm's attorneys and he never developed a lawyer-client relationship with any attorney. The mere fact of representation alone, especially in this large civil action naming numerous court personnel as defendants, cannot be said to raise reasonable doubts about Judge Ideman's impartiality.

Finally, Segal has requested that the action be remanded to a different district court judge. This type of relief is "exceedingly rare" and in the absence of personal bias, it is taken only under "unusual circumstances." In Re Yagman, 796 F.2d 1165, 1188 (9th Cir. 1986), cert. denied, 108 S. Ct. 450 (1987). In this case, we are not persuaded by Segal's assertions of personal bias and find that this does not present the rare circumstances in which remand to a different judge is appropriate. Thus, we remand this case to the district court for retrial according to the directions of this opinion, without requiring that the retrial be before a different judge.

CONCLUSION

The district court properly dismissed the County of Los Angeles and properly determined that recusal was unnecessary. The district court did not err in refusing to submit a conspiracy theory to the jury. The district court erred, however, in refusing to submit the use of excessive force to the jury, in directing a verdict for three defendants on all issues, and in denying Segal the opportunity to call additional expert witnesses. On remand, the use of excessive force issue should be submitted to a jury against all seven defendants. The issue of the failure to prevent the use of force must also be submitted against all seven defendants because the district court abused its discretion in refusing Segal the opportunity to update his expert witness list. Finally, this case is remanded without a direction that it be reassigned to a different judge for retrial. Segal is entitled to costs on this appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.