Unpublished Disposition, 894 F.2d 410 (9th Cir. 1986)

MEMORANDUM^* 

Police officers Brian H. Melnick and Ronald S. Masucci, Sergeant Louis Guay, and jailers Keith Soboleski and Dennis McEntarffer, members of the Glendale Police Department, appeal a judgment for damages in a 42 U.S.C. § 1983 action brought by Paul Valles. We affirm.

On November 13, 1986, officers Melnick and Masucci arrested Robert McIntyre for driving under the influence of alcohol. Melnick and Masucci further determined that Valles, a passenger in the vehicle, was also intoxicated and unable to drive McIntyre's vehicle home. Based on this assessment, Valles was arrested under California Penal Code section 647(f), for being in a public place under the influence of alcohol such that he could not care for his own safety or the safety of others. Cal.Penal Code Sec. 647(f). Valles testified that he had consumed two drinks that evening and that he did not feel drunk.

Melnick testified that Valles resisted arrest. Valles testified that he did not resist, and that he was unable to put his arms around his back because of a pulled muscle in his right arm which he sustained the prior evening. Masucci handcuffed Valles behind his back. Valles also testified that Masucci hit him in the back of the leg, forcing him to the ground. Both Valles and McIntyre were transported in handcuffs to the Glendale Police Station.

The parties give starkly disparate accounts of the events that took place at the station. The defendants claim that Valles was belligerent, that he kicked walls, hit bars and used profanities. Valles claims that Melnick punched him in the side, shoved him in the chest and jabbed him in the back with a night stick. All parties agree that Soboleski, assisted by the other defendants, "bodyweighted" Valles to the floor. They disagree, however, on the necessity of the action. Valles asserts that the action was brutal and unnecessary. The defendants claim that Valles was violent and had to be restrained in order to get him into the cell.

It is undisputed that Valles sustained injuries. The testimony conflicts as to whether Valles received prompt medical attention. McEntarffer testified that he checked Valles every hour and was not aware of any need by Valles to see a doctor. Valles testified that when he awoke in his cell his foot was swollen and he was in pain. He said he called for aid but did not receive any for several hours.

Valles brought this action under 42 U.S.C. § 1983 alleging that defendants illegally arrested him, used excessive force, and were deliberately indifferent to his serious medical needs during his overnight incarceration at the Glendale Police Department. The jury rendered a general verdict in favor of Valles.

Defendants argue that the district court erred in excluding their evidence that Valles had filed a prior civil complaint against Los Angeles police officers following an arrest on January 13, 1985. The defendants offered that evidence to show that Valles was biased against police officers in general and that his bias motivated him to bring the present case. The district court rejected the evidence because the defendants were unable to offer convincing proof that Valles actually filed the previous complaint. The district court did not abuse its discretion. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988), citing Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986).

Defendants also argue that the district court erred in excluding proof that Valles, during the January 13, 1985 arrest, said: "you police officers always are hassling me." Again, defendants sought to introduce this evidence to establish Valles's bias against the police. The district court correctly ruled that evidence of a prior statement made during a different arrest by different police officers is not relevant to the issue of Valles's motivation for bringing this suit.

Valles relies on Health v. Cast, 813 F.2d 254 (9th Cir.), cert. denied, 484 U.S. 849 (1987). In Health, we found no abuse of discretion when a trial judge allowed the admission of a prior civil complaint filed against the same police officers as relevant evidence of bias. Valles correctly notes that we did not hold that the exclusion of such evidence would be prejudicial error. Rather, we reviewed for an abuse of discretion and found none. We find no abuse here.

Likewise, we find that the district court did not exceed its discretion in permitting Valles's counsel to perform an in-court demonstration on the use of handcuffs. See Fed.R.Evid. Sec. 403.

The defendants' challenges to the sufficiency of the evidence supporting the jury's verdict of deliberate indifference to Valles's serious medical needs and false arrest are also meritless. Upon this record, we review the sufficiency question only for plain error. See Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1493 (9th Cir. 1986). See also Cabrales v. City of Los Angeles, 864 F.2d 1454, 1459 (9th Cir. 1988) (the court can review for plain error where failure to do so "would result in a manifest miscarriage of justice"); Shipman v. Central Gulf Lines, Inc., 709 F.2d 383, 385-86 (9th Cir. 1983) (motion for a new trial will not reopen the question of sufficiency of the evidence, the court may only review whether the district court abused its discretion in denying the motion for a new trial; proper standard of review is "whether there is an 'absolute absence of evidence to support the jury's verdict.' " quoting Coughlin v. Capitol Cemment Co., 571 F.2d 290, 298 (5th Cir. 1978)).

An exception exists to this rule where a party makes an ambiguous or inartful request or motion at the close of the evidence which sufficiently approximates a motion for directed verdict. Farley Transp. Co. v. Santa Fe Transp. Co., 786 F.2d 1342, 1346-47 (9th Cir. 1985). At the close of Valles's case the defendants requested that the issue of deliberate indifference to Valles's medical needs be decided as a matter of law. Even if this were deemed to be an "inartful" directed verdict motion, however, it would not fall within this exception. The Farley Court stated specifically that unless an earlier motion for a directed verdict was taken under consideration by the trial judge, the motion must be made at the close of all evidence. 786 F.2d at 1345-467 (emphasis added). See also Herrington v. County of Sonoma, 834 F.2d 1488, 1500 (9th Cir. 1987), amended by 857 F.2d 567 (9th Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 1557 (1989) (noting that all cases since Farley strictly interpret the directed verdict requirement).

Upon review of the record, we find that there is evidence to support each theory of liability submitted to the jury. Herrington, 834 F.2d at 1500; Syufy Enterprises v. American Multicinema, Inc., 793 F.2d 990, 1001-1002 (9th Cir. 1986), cert. denied, 479 U.S. 1031 (1987). There has been no plain error.

The remainder of defendants' contentions are without merit.

The parties shall bear their own costs. Valles's request for a fee enhancement is denied.

AFFIRMED.