Unpublished Disposition, 875 F.2d 318 (9th Cir. 1989)

Nos. 87-6417, 87-6534 and 87-6420.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and BEEZER, Circuit Judges, and SCHWARZER,^*  District Judge.

MEMORANDUM^** 

After an altercation with members of the Los Angeles County Sheriff's Department, Robert Newhouse, Sr. ("Newhouse"), Robert Newhouse, Jr. ("Junior"), Deborah Newhouse, and Stacey Cantrell filed suit under 42 U.S.C. § 1983 alleging arrest without probable cause and use of excessive force. They named as defendants the officers of the Sheriff's Department who had been involved, the sheriff of Los Angeles County, and the County. The plaintiffs also raised state law claims against all the defendants for false imprisonment, battery, and the intentional infliction of emotional harm, and a claim against the County and the Sheriff for negligent employment of the deputies. Following the district court's dismissal of the pendent claims, the jury found for Newhouse on the illegal arrest claim, but not on the excessive force claim, awarding him $30,000 and no punitive damages. The jury found for the defendants on the claims by Deborah Newhouse and Stacey Cantrell.

Officer Bowler appeals the denial of his motion for a new trial on the ground the jury verdict was excessive, and contends that the district court abused its discretion in the manner in which it calculated attorney's fees under 42 U.S.C. § 1988. Plaintiffs cross-appeal on the grounds that the pendent state claims and parties should not have been dismissed, a directed verdict for the defendants on Junior's claims should not have been entered, a directed verdict for the other plaintiffs should have been entered, and the jury instructions contained errors. We affirm the district court on all grounds.

We review the denial of a motion for a new trial for abuse of discretion. See Roberts v. College of the Desert, 861 F.2d 1163, 1168-69 (9th Cir. 1989), amended by slip op. 2355, March 15, 1989. We will not reverse the trial court unless there is a total lack of evidence on all or certain portions of a case or the verdict. Brett v. Local 879, 828 F.2d 1409, 1417 (9th Cir. 1987).

The basic purpose of a Sec. 1983 damage award is to compensate persons for the injuries caused by the deprivation of their constitutional rights. Carey v. Piphus, 435 U.S. 247, 254-56 (1978). Damages are not presumed to flow from every deprivation. To recover more than nominal damages the plaintiff must produce evidence of whatever distress or other injury he or she suffered. Id. at 262-64.

Bowler contends that Newhouse produced insufficient proof of injury sustained as a result of his unlawful arrest. Bowler argues that because the jury did not find for Newhouse on the excessive force claim, the soreness and pain Newhouse testified to experiencing for a few days after the arrest should not be considered. Just because the jury did not find the force used excessive does not mean that they should not have considered that pain testimony. The jury did find for Newhouse on the unlawful arrest claim, and Newhouse did testify that he suffered pain as a result of that arrest.

Bowler also argues that when Newhouse testified to experiencing fear because of the incident and fear of police officers, and embarrassment and anger, it was not clear whether he was referring to fear because of the arrest or fear because of the force inherent in the arrest. That evaluation was properly left to the jury. There is sufficient evidence in the record of emotional distress that the jury could have concluded was suffered by Newhouse as a result of the arrest.

We will not set aside a jury award unless it is grossly excessive. See Herrington v. County of Sonoma, 834 F.2d 1488, 1503 (9th Cir. 1987), amended 857 F.2d 567 (9th Cir. 1988) (vacating award of $2,500,600 in damages on claims of violation of due process, substantive due process and equal protection in treatment of subdivision plan because the award was "so grossly excessive that it shocks the conscience"), cert. denied, 109 S. Ct. 1557 (1989).

Bowler argues that we should adopt the comparability analysis used in some Seventh Circuit cases. In the Seventh Circuit, the appellate court reviews a trial judge's decision not to vacate a jury verdict for excessiveness for abuse of discretion, employing in part a comparability analysis. Bailey v. Andrews, 811 F.2d 366, 373 (7th Cir. 1987).

We reject such a comparability analysis. Although it is appropriate to consider other awards in determining whether the award shocks the conscience, there is no need to formalize the analysis further. Cf. Rudelson v. United States, 602 F.2d 1326, 1331 (9th Cir. 1979) (refusing to reduce a damage award just because damage awards have been reduced in a similar aviation disaster case); Mattschei v. United States, 600 F.2d 205, 209 (9th Cir. 1979) (while courts seek to maintain some degree of uniformity of damage awards, the awards turn on the facts of each case); United States v. English, 521 F.2d 63, 72 (9th Cir. 1975) ("While analogies to, and comparisons with, other cases may be helpful on many types of issues, their usefulness on questions of damages is extremely limited.").

Newhouse was awarded $30,000 for being arrested in front of his family and detained for eight hours, an event that he testified frightened, angered, and embarrassed him. This award does not shock the conscience, and it was not an abuse of the trial judge's discretion to deny the motion for a new trial on the ground that the jury verdict was excessive.

We affirm the district court's denial of Bowler's motion for a new trial.

In a federal civil rights action, the trial court "in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. The standard of review of an award of attorney's fees is abuse of discretion. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Cunningham v. County of Los Angeles, 859 F.2d 705, 707 (9th Cir. 1988).

The district court awarded attorney's fees of $24,756. In making the fee award, he considered the skill and experience of counsel, whether the time expended on the case was overstated, the difficulty of the legal issues involved, and the effect of this litigation on counsel's other employment opportunities. He decided that the existence of the contingent fee agreement should have no effect on the fee award, and he determined that fees should be awarded at the rate of $150 per hour, and that 206.3 hours were expended on the case. Then, taking into account the effect of the limited success of the plaintiffs, he reduced the fee by 20 percent.

Bowler contends that the district court erred in setting a reduction from the lodestar amount at 20 percent rather than 40 per cent. There are two analyses for determining whether a reduction for limited success is appropriate, depending on whether the plaintiff's successful and unsuccessful claims are related or unrelated. If a plaintiff's successful and unsuccessful claims are unrelated, then the final fee award must not include fees for time expended on the unsuccessful claims. Hensley, 461 U.S. at 435; Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir. 1986). If the claims are related, then the trial court must evaluate the "significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, 461 U.S. at 435; Thorne, 802 F.2d at 1141. Claims sharing a common core of facts or based on related legal theories are related. Hensley, 461 U.S. at 435; Thorne, 802 F.2d at 1141.

The district court determined that the claims were related. It stated that there was "at least a significant foundation of facts that had to be established in any event, and that some of the evidence given by [the unsuccessful] plaintiffs would have been necessary, even if they had not made claims of their own." This determination was proper, because all of the plaintiffs' claims arose out of the same altercation and many of them alleged unlawful arrest and use of excessive force. The district court properly considered the extent of Newhouse's success. The court's choice of a 20 percent reduction, rather than the 40 percent reduction urged by Bowler, was within its discretion.

The award of attorney's fees is affirmed.

Dismissal of a state claim is not an abuse of discretion if it is justified by judicial economy, convenience, and fairness. See, e.g., Carnegie-Mellon University v. Cohill, 108 S. Ct. 614, 619 n. 7 (1988) (in some situations the balance of factors will tip in favor of declining to exercise jurisdiction). The decision whether to exercise pendent jurisdiction over state law claims is within the discretion of the trial judge. In re Nucorp Energy Securities Litigation, 772 F.2d 1486, 1491 (9th Cir. 1985).

Two of the six causes of action alleged by Newhouse, Deborah Newhouse, Junior, and Stacey Cantrell were federal claims under 42 U.S.C. § 1983. The remaining claims were for false imprisonment, battery, intentional infliction of emotional distress, and negligent hiring. The district court dismissed the remaining claims, reasoning that, although they were based on the same common nucleus of operative facts as the federal claims, the state claims likely would predominate in terms of proof in trial and likely would confuse the jury, and that retaining the claims would not further the interests of judicial economy and fairness to the parties.

Plaintiffs contend that the district court's decision was not justified, arguing that judicial economy, fairness and convenience would be served by a single trial in federal court rather than separate federal and state court trials. Although there are considerations present in this case that normally justify the exercise of pendent jurisdiction, the district court did not abuse its discretion in declining to exercise pendent jurisdiction. The district court concluded that there was a real risk of juror confusion if the state law claims were retained. The verdict of a confused jury would not serve the interest of fairness to the litigants, and the effort required to prevent such an occurrence would not be a judicious use of the court's time. See United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966) (where "state issues substantially predominate" in terms of proof, the state claims may be dismissed). Such a decision is not an abuse of the trial judge's discretion, and should be affirmed.

The district court properly dismissed the claims by Terry, Toulonne, and Charlotte Newhouse on the grounds that pendent party jurisdiction should not be accepted. See Ayala v. United States, 550 F.2d 1196, 1198-1200 (9th Cir. 1977), cert. dismissed, 435 U.S. 982 (1978); cf. Hymer v. Chai, 407 F.2d 136, 137 (9th Cir. 1969) (diversity case in which court refused to exercise jurisdiction over a pendent plaintiff whose claim did not meet the jurisdictional minimum). We affirm the district court's decision to dismiss all pendent state claims and the pendent party claims of Charlotte, Toulonne, and Terry Newhouse.

We review a district court's grant of a directed verdict de novo. West America v. Globe Indemnity Co., 765 F.2d 932, 934 (9th Cir. 1985).

1. Directed Verdict Against R. Newhouse, Jr.

a. on issue of initial detention

At the close of all the evidence, the district court granted a directed verdict for defendants on the issue of Junior's detention for questioning. The court provided three alternate grounds for his ruling: (1) the issue of the initial pretrial detention was not contained in the pretrial order, (2) "such a brief encounter should not by itself sustain a cause of action seeking damages for violation of civil rights," and (3) the police officers were entitled to qualified immunity. We affirm on the basis of the qualified immunity of the officers.

There is qualified immunity for government officials performing discretionary functions, unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The entitlement to qualified immunity may be established as a matter of law by the district court. Thorsted v. Kelly, 858 F.2d 571, 575 (9th Cir. 1988). If there are triable issues of fact concerning whether an officer could reasonably believe that his or her conduct was legal, a jury should evaluate the question. See id. Given the facts known to the officers at the time, a reasonable jury could only have concluded that the officers had a reasonable belief that they had probable cause to arrest Junior when they made the initial detention. See id. at 574; see also Anderson v. Creighton, 107 S. Ct. 3034, 3038-42 (1987).

b. on final arrest

At the close of the plaintiff's case, the district court denied defendants' motion for a directed verdict on the issue of Junior's arrest. Junior had run towards the officers shouting and swinging a bicycle chain, but was stopped and held down by his mother and others several houses away from the officers. He was arrested by backup officers. At that time the court stated that the offense for which Junior was arrested would have to be assault, which in California has a present ability requirement. At the close of evidence the district court granted defendants' renewed motion for a directed verdict. It did so on the ground that "neither this Court nor the jury could possibly find that the officers truly lacked probable cause to arrest [Junior]," and that "as a matter of law, the Court feels all officers are entitled to, at least, good faith immunity as to [Junior]."

Officers may arrest if they have "reasonable cause to believe that the person to be arrested has committed a public offense" in their presence. Cal. Penal Code Sec. 836(1). The presence requirement may be imputed in the case of officers summoned by an officer observing a misdemeanor. See Freeman v. Dept. of Motor Vehicles, 70 Cal. 2d 235, 449 P.2d 195, 74 Cal. Rptr. 259, 260-62 (1964). The backup officers arrested Junior at the direction of an officer present at the scene. Those officers had reasonable cause to arrest Junior for exhibiting a deadly weapon in a threatening manner, a violation of Cal. Penal Code Sec. 417(a) (1). No reasonable jury could have concluded that the officers could not reasonably have believed that Junior had exhibited a deadly weapon in a threatening manner.

The officers also had probable cause to arrest Junior if they had "reasonable cause to believe that the person to be arrested has committed a felony." Cal. Penal Code Sec. 836(3). Section 69 of the Cal. Penal Code provides:

Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed on such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable ... by imprisonment in the state prison....

See also People v. Buice, 230 Cal. App. 2d 324, 40 Cal. Rptr. 877, 884-85 (1964) (explaining Sec. 69). No reasonable jury could have concluded that the officers could not reasonably have believed that Junior attempted to threaten the officers with violence during the performance of their duties.

The district court's grant of a directed verdict on the issue of probable cause was correct.

2. Failure to Direct Verdict in Favor of Plaintiffs

Plaintiffs contend that the trial court erred in failing to direct a verdict for all the plaintiffs because the initial seizure of Junior was unlawful, and the unlawful arrest was the precipitating factor for all subsequent events, which were thus tainted by the unlawfulness. Their argument is based on an analogy they draw to the "fruit of the poisonous tree" cases holding that evidence obtained following an illegal arrest is inadmissible unless intervening events break the chain of causation.

The exclusionary rule has not been applied to exclude the introduction of evidence against persons other than the one whose rights were violated. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Similarly, liability against law enforcement officials should not be imposed without establishing that the individual rights of the plaintiffs were violated. See Smith v. City of Fontana, 818 F.2d 1411, 1417 (9th Cir.), cert. denied, 108 S. Ct. 311 (1987)

Plaintiffs contend that the combined effect of the probable cause and excessive force instructions deprived them of a fair trial. We review jury instruction for abuse of discretion, and give trial judges substantial latitude in tailoring them. Thorsted, 858 F.2d at 573. We determine whether the charge as a whole fairly and adequately covered the issues presented, whether it correctly stated the law, and whether it was misleading. Id.

In the Ninth Circuit, a plaintiff bears the burden of proof on the issue of whether the arrest was without probable cause. See Gilker v. Baker, 576 F.2d 245, 246 (9th Cir. 1978). The instructions given, placing the burden on plaintiffs to establish a violation of their right to be free from unlawful arrest, were not erroneous.

Second, plaintiffs contend that the jury should have been instructed to decide whether there was probable cause, before deciding whether the officers could have had a good faith belief that there was probable cause. The jury was given a standard instruction defining probable cause, and a definition of lawful arrest, and was instructed that if the defendants reasonably believed that probable cause existed for the arrest, then that would constitute a "complete defense," even if probable cause was lacking. An officer is immune, even if probable cause was lacking, if he had a reasonable belief that probable cause was present. Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), cert. denied, 459 U.S. 829 (1982). Thus, for a plaintiff to recover, he must "clear two hurdles: probable cause must be shown not to have existed [and] the officers must be shown not to have reasonably believed in good faith that probable cause did exist." Id. The jury instructions here, which both defined probable cause and stated the qualified immunity defense, adequately put this two hurdle analysis to the jury. See id.

Third, the plaintiffs object that the jury was told that to find that the defendants had acted without probable cause, there must be no evidence that could "possibly give rise to an inference supporting a reasonable suspicion of criminal activity." The district court stated:

If the facts relied on by the officers are of a type that are so consistent with innocent behavior that, taken together, they cannot possibly give rise to an inference supporting a reasonable suspicion of criminal activity, no probable cause to arrest exists.

In context, the objected-to instruction was not misleading.

The plaintiffs object that (1) the defendants were not required to bear any burden in justifying their use of force, and (2) plaintiffs were required to establish malicious and sadistic conduct in order to show that the force was excessive.

Plaintiffs were not entitled to an instruction placing the burden of proof on defendants. See Peraza v. Delameter, 722 F.2d 1455, 1457 (9th Cir. 1984) (excessive force). If both unlawful arrest and excessive force are alleged, the plaintiff still has the burden of establishing that his or her rights have been violated. Plaintiffs contend, however, that the excessive force instruction given by the district court was more stringent than the "reasonableness" standard applied to fourth amendment violations, and was thus erroneous. The district court may have incorrectly required that the actions of the officers were "inspired by a malicious desire to inflict harm...." Unreasonable, as opposed to malicious force, may violate a fourth amendment due process standard. See Brower v. Inyo County, 817 F.2d 540, 547 (9th Cir. 1987), rev'd on other grounds, 109 S. Ct. 1378 (1989).

The standard for reversible error is whether the error more probably than not tainted the jury's verdict. Maddox v. City of Los Angeles, 792 F.2d 1408, 1418 (9th Cir. 1986). The jury did not find for Newhouse on his excessive force claim. The evidence presented to the jury of excessive force was not so strong as to lead to the conclusion that the instruction more probably than not tainted the verdict.

AFFIRMED.

SCHWARZER, District Judge, dissenting in part:

I respectfully dissent from so much of the opinion as affirms the directed verdict against Robert Newhouse Jr. ("Junior") on his claim based on the initial detention.

The trial judge rested the grant of a directed verdict on the initial detention claim on three grounds: the police officers were entitled to qualified immunity, the issue of the initial detention was not contained in the pretrial order, and the detention was too brief to sustain a cause of action for a civil rights violation.

From the record evidence, the jury could have found the following facts. Junior was detained by Officers Bowler, Westfall, and Shirley for questioning about graffiti reported at a local high school. The basis for the officers' action was that they had heard someone call Junior "Rob," that the name "Crazy Rob" was sprayed on a nearby school wall, and the Junior was wearing blue clothing, the color of a local gang. The officers had detained Junior for fifteen to twenty minutes when Robert Newhouse, Sr., Junior's father, arrived at the scene. Newhouse saw Junior standing with his hands on the front of the officers' car. When Newhouse told his son to leave, Officer Bowler told Newhouse that Junior could not leave until the officers completed their investigation, and place his baton between Newhouse and Junior.

In Kraus v. County of Pierce, 793 F.2d 1105 (9th Cir. 1986), cert. denied, 480 U.S. 932 (1987)k this court defined the permissible scope of an investigative stop as follows:

Investigative stops based upon suspicion short of probable cause are ... constitutionally permissible only where the means utilized are the least intrusive reasonably available ....

Where more than a limited intrusion occurs, an arrest occurs and probable cause is required. Because detention represents only a limited intrusion, it can be justified only by a reasonable suspicion of criminal activity. However, that suspicion justifies only a brief stop and interrogation and, under proper circumstances, a brief check for weapons.

793 F.2d at 1108-09 (citations omitted).

A reasonable jury could find on these facts that an arrect occurred, and that the information upon which the officers acted did not amount to probable cause to believe that Junior had committed an offense.

The officers were entitled to qualified immunity if "their conduct (did) not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It is well established that an arrest without probable cause is unlawful. On this record, a reasonable jury could have found that no reasonable officer could have beliefed that the extended detention of Junior was lawful. When there are triable issues of fact concerning the reasonableness of the officers' belief as to the lawfulness of their conduct in light of settled law, the issue of qualified immunity is for the jury. Since, at this stage, the evidence must be viewed in the light most favorable to Junior, the directed verdict based on qualified immunity should be set aside.

The trial judge rested the directed verdict on the additional ground that the issue of the initial detention had not been preserved in the pretrial order. That order stated the among the issues to be tried was "whether probable cause existed for the arrests of the plaintiffs." Since the reference to arrests is not limited to the later arrest, and since the very issue concerning the initial detention was whether it was an arrest, the only reasonable interpretation of the order is that it encompasses the first seizure.

Moreover, Federal Rule of Civil Procedure 15(b) states that "(w)hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." The purpose of Rule 15(b) is to allow an amendment of the pleadings to bring them into line with the actual issues upon which the case was tried, if those issues were tried with the express or implied consent of the parties. Campbell v. Trustees of Leland Stanford Jr. Univ., 817 F.2d 499, 506 (9th Cir. 1987). Here, Junior had made a motion before trial to have collateral estoppel applied on this issue and had submitted jury instructions on it as well. Substantial evidence on the issue of the initial detention, which has been summarized above, was received at trial without objection. That evidence had no direct relevance to any other issue.

Whether the parties have impliedly consented to the trial of an issue lies within the discretion of the trial court, as does the interpretation of a pretrial order. See Davis & Cox v. Summa Corp., 751 F.2d 1507, 1522 (9th Cir. 1985). In light of the foregoing circumstances, I would conclude that the grant of the directed verdict on the basis of waiver of the issue in the pretrial order was an abuse of discretion.

Finally, the trial judge held, in granting the directed verdict, that "such a brief encounter should not by itself sustain a cause of action ... for violation of civil rights." Junior was held for fifteen to twenty minutes and his seizure ended only when the officers entered into a scuffle with Junior's father during which Junior was able to escape. The right asserted is that protected by the Fourth Amendment to be free from unreasonable seizures. See Terry v. Ohio, 392 U.S. 1, 8-9 (1968). No matter how modest the recoverable monetary damages may be, that right is not so trivial that it may not be vindicated under section 1983.