-SMS C.B. v. Sonora School District, et al., No. 1:2009cv00285 - Document 193 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION Re 675 676 677 Motions for Entry of Judgment, Motion for Judgment as a Matter of Law, and Requiring Retrial on Certain Issues, signed by Senior Judge Oliver W. Wanger on 09/30/11. (Coffman, Lisa)

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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 6 C.B., a minor, 1:09-cv-00285-OWW-SMS Plaintiff, 8 v. 9 SONORA SCHOOL DISTRICT; KAREN SINCLAIR; CITY OF SONORA; CHIEF OF POLICE MACE MCINTOSH; OFFICER HAL PROCK; DOES 1-10, MEMORANDUM DECISION RE DEFENDANTS MOTION FOR JUDGMENT AS A MATTER OF LAW AND MOTION FOR NEW TRIAL AND REMITTITUR (DOCS. 177, 178). 7 10 11 12 Defendants 13 14 I. 15 INTRODUCTION Before the court are Defendants City of Sonora, Chief Mace 16 17 18 McIntosh and Officer Hal Prock s (collectively, Defendants ), (1) Motion for Judgment as a Matter of Law (Defs. Mot. JMOL, ECF 19 No. 177) and (2) Motion for New Trial and Remittitur (Defs. Mot. 20 NT, ECF No. 178). Plaintiff C.B., a minor, ( Plaintiff ) opposes 21 both motions. (Pl. Opp n JMOL, ECF No. 186; Pl. Opp n NT, ECF No. 22 188.) 23 24 25 26 27 28 II. FACTUAL BACKGROUND This civil rights action arises from Officers McIntosh and Prock s (together, Defendant Officers ) September 29, 2008 arrest of Plaintiff, then an eleven year old student, at Sonora Elementary School. Plaintiff filed a Complaint (Compl., ECF No. 1 1 2) and an Amended Complaint (Am. Compl., ECF No. 54) alleging: 2 (1) violation of the Unruh Civil Rights Act; (2) false 3 imprisonment; (3) battery; (4) intentional infliction of 4 emotional distress; (5) violation of Section 504 of the 5 6 7 Rehabilitation Act of 1973; (6) violation of the Americans with Disabilities Act; and (7) civil rights claims under 42 U.S.C. § 8 1983 pursuant to the Fourth Amendment. Plaintiff settled his 9 claims against Defendants Sonora School District ( School 10 District ) and Karen Sinclair on November 6, 2009. (Pet. Approval 11 of Compr., ECF No. 48.) 12 13 14 15 The case was tried before a jury beginning on August 23, 2011. On August 31, 2011, the jury reached a verdict, which the court determined was inconsistent. An error in instructions on 16 answering a question on the jury verdict form was discovered and 17 corrected. The court answered the jury s questions and gave 18 supplemental instructions and explanations. 19 On September 1, 2011, the jury reached the following 20 verdicts: (1) Defendants violated Plaintiff s Fourth Amendment 21 right not to have excessive force used against him, and this 22 23 24 violation caused harm or damage to Plaintiff; (2) Defendants violated Plaintiff s Fourth Amendment rights by taking him into 25 temporary custody and removing him from school, and this 26 violation caused harm or damage to Plaintiff; (3) the City of 27 Sonora has a long standing practice or custom that caused its 28 2 1 police officers to use excessive force against juveniles; (4) 2 Defendant Officers intentionally caused Plaintiff to suffer 3 severe emotional distress, and this caused harm or damage to 4 Plaintiff; (5) Defendant Officers did not have a legal right to 5 6 7 take Plaintiff into temporary custody and to use reasonable force to effectuate and continue that custody; (6) Defendant Officers 8 wrongfully took Plaintiff into temporary custody and/or 9 wrongfully retained him in custody, and this caused harm or 10 damage to Plaintiff; (7) Defendant Officers did not have probable 11 cause to take Plaintiff into temporary custody and/or continue to 12 13 14 15 16 hold him in temporary custody; and (8) Defendant Officers acted with malice, oppression, or reckless disregard of Plaintiffs rights. (Verdict, ECF No. 174.) The jury awarded Plaintiff the following damages against Defendants: 17 CLAIM 18 4th Amend. Excessive Force 4th Amend. Seizure Intentional Infliction Emotional Distress False Arrest Punitive Damages TOTAL 19 20 21 22 23 24 25 26 OFFICER MCINTOCH $15,000 $15,000 $75,000 OFFICER PROCK $5,000 $5,000 $50,000 CITY OF SONORA $50,000 $50,000 -- $15,000 $0 $120,000 $5,000 $0 $65,000 --$100,000 (Verdict 12-13, 16, ECF No. 174.) III. MOTION FOR JUDGMENT AS A MATTER OF LAW Defendants move for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 on all of Plaintiff s causes 27 28 of actions and Defendants affirmative defenses. Plaintiff 3 1 contends that Defendants motion fails because the overwhelming 2 weight of the evidence supports the jury verdicts against 3 Defendants . . .. (Pl. Opp n JMOL 6, ECF No. 186.) 4 5 A. Legal Standard Federal Rule of Civil Procedure 50 governs motions for 6 7 8 judgment as a matter of law in jury trials, and allows the trial court to remove cases or issues from the jury's consideration 9 when the facts are sufficiently clear that the law requires a 10 particular result. Weisgram v. Marley Co., 528 U.S. 440, 447-48 11 (2000) (quoting 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 12 PRACTICE 13 AND PROCEDURE § 2521 (2d ed. 1995)). Rule 50(a) provides in pertinent part: 14 15 16 17 18 19 20 21 22 23 24 25 26 If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. Fed. R. Civ. P. 50(a)(1). A district court may set aside a jury verdict and grant judgment as a matter of law only if, under the governing law, there can be but one reasonable conclusion as to the verdict. Settlegoode v. Portland Pub. Schs., 362 F.3d 1118, 1122 (9th Cir. 2004) (quoting Winarto v. Toshiba Am. Elecs. Components, Inc., 27 274 F.3d 1276, 1283 (9th Cir. 2001)). [T]he court must draw all 28 reasonable inferences in favor of the nonmoving party, and it may 4 1 not make credibility determinations or weigh the evidence. 2 Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 120 3 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). A judgment as a matter of 4 law may be granted only if the evidence, viewed from the 5 6 7 perspective most favorable to the nonmovant, is so one-sided that the movant is plainly entitled to judgment, for reasonable minds 8 could not differ as to the outcome. Gibson v. City of Cranston, 9 37 F.3d 731, 735 (1st Cir. 1994). 10 11 12 13 14 15 16 17 18 B. Discussion 1. Plaintiff s Fourth Amendment Claims a) Unlawful Seizure Defendants move for judgment as a matter of law on Plaintiff s unlawful seizure claim on the grounds of qualified immunity. Defendants contend that a reasonable officer in Defendant Officers shoes during the incident would know that they were authorized to take Plaintiff into custody under Welfare 19 and Institutions Code §§ 625 and 601 because Plaintiff was 20 beyond the control of his guardian. 21 Qualified immunity shields government officials from 22 liability for civil damages insofar as their conduct does not 23 violate clearly established statutory or constitutional rights of 24 which a reasonable person would have known. Harlow v. 25 26 27 28 Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982). The qualified immunity inquiry has two prongs: (1) whether the facts that a plaintiff has alleged ... or shown ... make out a 5 1 violation of a constitutional right, and (2) whether the right 2 at issue was clearly established at the time of defendant's 3 alleged misconduct. Wilkinson v. Torres, 610 F.3d 546, 550 (9th 4 Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 5 6 7 8 808, 815-816, 172 L.Ed.2d 565 (2009)). (1) Constitutional Violation Defendants contend that the special needs standard applies 9 to Plaintiff s Fourth Amendment claim for unlawful seizure. 10 Traditional Fourth Amendment protections are lowered when 11 special needs, beyond the normal need for law enforcement, make 12 the warrant and probable cause requirement impracticable. 13 14 15 16 Greene, v. Camreta, 588 F.3d 1011, 1026, 1030 (9th Cir. 2009), vacated in part on other grounds by Camreta v. Greene, 131 S. Ct. 2020, 179 L. Ed. 2d 1118 (2011) (quoting Griffin v. Wisconsin, 17 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709 (1987)). 18 Defendants, however, do not specify what special needs are 19 present in this case beyond the normal need for law enforcement 20 to respond to a call for services from the school. Drawing all 21 inferences in favor of Plaintiff, as required under this motion 22 for judgment as a matter of law, there is insufficient evidence 23 24 25 to satisfy Defendant s burden on the threshold question of the applicability of the special needs standard. 26 The Fourth Amendment protects students from unreasonable 27 seizures at school. See, e.g., New Jersey v. T.L.O., 469 U.S. 28 6 1 325, 333, 105 S. Ct. 733 (1985). A police officer s seizure of a 2 student at a school is generally subject to traditional Fourth 3 Amendment analysis when done for traditional law enforcement 4 purposes. See Greene, 588 F.3d at 1026 (holding that the New 5 6 7 Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733 (1985), standard does not apply to seizure of student at school where child was 8 not seized for a special need beyond the normal need for law 9 enforcement). To comply with the Fourth Amendment, a warrantless 10 arrest must be supported by probable cause. Krainski v. Nev. ex 11 rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 12 969 (9th Cir. 2010). Probable cause to arrest exists when 13 14 15 officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that 16 an offense has been or is being committed by the person being 17 arrested. United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 18 2007). Probable cause is an objective standard. Devenpeck v. 19 Alford, 543 U.S. 146, 153-55, 125 S. Ct. 588 (2004). The 20 arresting officer s subjective intention is immaterial in judging 21 whether their actions were reasonable for Fourth Amendment 22 23 24 purposes. Id. Jury Instructions No. 14 and 15 properly instructed the jury 25 on the elements of Plaintiff s Fourth Amendment Claim for 26 wrongful seizure. (Jury Instructions 16-17, ECF No. 172.) The 27 jury concluded that Defendants violated Plaintiff s Fourth 28 7 1 Amendment rights by taking him into temporary custody and 2 removing him from school in handcuffs, and this violation caused 3 harm or damage to Plaintiff. (Verdict 4-5, ECF No. 174.) The 4 evidence presented at trial, viewed in Plaintiff s favor, does 5 6 7 8 not warrant setting aside the jury s verdict and granting Defendants judgment as a matter of law. Defendant Officers received a dispatch regarding a call from 9 the elementary school about an out of control juvenile. (Prock 10 Test. 59:13-16, August 23, 2011.) Officer Prock testified that he 11 could not determine based on that dispatch whether he would be 12 13 14 15 justified to handcuff or arrest the juvenile involved. (Prock Test. 60:3-10.) Officer Prock testified that in his experience as a law enforcement officer, dispatches are not always accurate, 16 and the initial step in responding to any dispatch is to arrive 17 at the scene and investigate. (Prock Test. 60:11-17.) Officer 18 Prock first learned that the school had not made any attempt to 19 contact the juvenile s parents or guardians. (Prock Test. 61:23- 20 25, 62:1-10.) 21 When they arrived, Defendant Officers observed that 22 23 24 Plaintiff was seated quietly on a bench in the school s playground and was not out of control. (Prock Test. 63:17-25, 25 65:16-18; McIntosh Test. 42:10-18, 47:2-16, August 24, 2011.) 26 Officer Prock testified that the only information he obtained 27 from Coach Sinclair was that Plaintiff was a runner, but he did 28 8 1 not ask her what that meant. (Prock Test. 64:3-7.) Officer Prock 2 did not learn any information about what Plaintiff had been doing 3 prior to his arrival. (Prock Test. 65:12-15.) Chief McIntosh 4 testified that Coach Sinclair told him that Plaintiff was a 5 6 7 runner, was out of control, had not taken his medications, and was yelling and cussing. (McIntosh Test. 41:22-42:2, 43:20-44:8.) 8 Defendant Officers testified that they did not believe 9 Plaintiff was in possession of any weapons, nor was he under the 10 influence of any illegal drugs, nor had he committed any crime 11 that day. (Prock Test. 69:18-23; McIntosh Test. 49:1-15.) 12 13 14 15 Plaintiff did not say a word the entire time Chief McIntosh was with him. (McIntosh Test. 47:2-7.) Prior to handcuffing Plaintiff, Officer Prock did not ask the school staff if they 16 could call a relative to pick up Plaintiff or handle the matter 17 themselves. (Prock Test. 71:20-72:1.) The school had a protocol 18 and plan for responding to disruptive behavior by Plaintiff. It 19 was not followed. 20 21 Defendants did not provide sufficient evidence to establish, as a matter of law, that Defendant Officers seizure of Plaintiff 22 23 24 was reasonable under traditional Fourth Amendment standards. Defendant Officers did not have a warrant, had no probable cause 25 to believe a crime had been committed, observed no threat to 26 anyone s safety, and were not faced with exigent circumstances. 27 Defendant Officers also do not establish the lawfulness of their 28 9 1 conduct under the lesser reasonableness standard applicable to 2 special needs cases, as discussed below. 3 (2) 4 5 Qualified Immunity Government officials are generally shielded from liability for civil damages insofar as their conduct does not violate 6 7 8 clearly established statutory or constitutional rights of which a reasonable person would have known. Bryan v. MacPherson, 630 9 F.3d 805, 832 (9th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 10 U.S. 800, 818 (1982)). Even if an officer is mistaken that 11 probable cause to arrest existed, they are nonetheless immune 12 from liability if their mistake is reasonable. Krainski, 616 F.3d 13 at 969. 14 Defendant Officers contend that they are entitled to 15 16 qualified immunity because California Welfare and Institutions 17 Code §§625 and 601 authorizes officers to take a juvenile into 18 temporary custody if the juvenile is beyond the control of the 19 guardian, and Defendant Officers acted in reasonable compliance 20 with the law. Defendant Officers also contend that they acted 21 within proper police procedures and the policy of their 22 department. 23 California Welfare and Institutions Code § 625(a) permits 24 25 officers to take a minor into temporary custody without a warrant 26 who the officer believes is a person described in Section 601, 27 i.e.: 28 10 1 2 3 4 5 Any person under the age of 18 years who persistently or habitually refuses to obey the reasonable and proper orders or directions of his or her parents, guardian, or custodian, or who is beyond the control of that person, or who is under the age of 18 years when he or she violated any ordinance of any city or county of this state establishing a curfew based solely on age is within the jurisdiction of the juvenile court which may adjudge the minor to be a ward of the court. 6 Cal. Wel. & Inst. Code § 601(a). California courts have 7 interpreted Section 601(a) to require serious behavior to find a 8 9 10 11 juvenile beyond the control of his or her parents, guardians, or custodian. E.g., In re David S., 12 Cal. App. 3d 1124, 1128 (1970) (affirming the juvenile court s conclusion that a fourteen 12 year old minor who deliberately lied to his mother to obtain 13 permission to spend a weekend on Stinson Beach, forty miles away 14 from his home in Suisun, and was picked up in San Diego, six 15 hundred miles away from his home, was beyond the control of his 16 parents); In re D.J.B., 18 Cal.App.3d 782, 786 (1971) (finding a 17 single instance of leaving home without permission insufficient 18 19 to constitute beyond the control ). 20 The Memorandum Decision denying Defendants motion for 21 summary judgment explains that at the time of Defendants conduct 22 in 2008, it was not clearly established that a police officer s 23 in-school seizure of a student in connection with a school 24 administrator s request for assistance with an unruly student was 25 26 27 28 subject to the same Fourth Amendment standards applicable outside the school context. See Greene, 588 F.3d at 1031 (applying special needs analysis for purposes of ascertaining qualified 11 1 immunity). Defendants are entitled to qualified immunity unless 2 their conduct was clearly unconstitutional under the lesser 3 special needs reasonableness standard. Id. The lesser standard 4 of reasonableness applicable in special needs cases requires a 5 6 7 two part inquiry: (1) the court must consider whether the action was justified at its inception; and (2) the court considers 8 whether the action was reasonably related in scope to the 9 circumstances which justified the interference in the first 10 place. Id. (citing T.L.O., 469 U.S. at 341). 11 12 13 14 15 Jury Instruction No. 15 properly instructed the jury on the special needs standard and on the relevant California Welfare & Institutions Code sections. (Jury Instructions 17-18, ECF No. 172.) After reading the special needs standard, the jury 16 concluded that Defendants violated Plaintiff s Fourth Amendment 17 right to be free from unlawful seizure. Drawing all inferences in 18 Plaintiff s favor, there was sufficient evidence to support the 19 jury s verdict. The evidence presented at trial does not 20 establish, as a matter of law, that Defendant Officers seizure 21 of Plaintiff was necessary or justified at its inception, or that 22 23 24 25 it was reasonably related in scope to the circumstances which justified the interference in the first place. Defendant Officers received a call about an out of control 26 juvenile, and were told, without any explanation, that Plaintiff 27 was a runner. (Prock Test. 64:3-7.) Defendant Officers did not 28 12 1 learn anything about what Plaintiff had been doing prior to their 2 arrival. (Prock Test. 65:12-15.) Chief McIntosh testified that 3 Coach Sinclair told him that Plaintiff was a runner, was out of 4 control, had not taken his medications, and was yelling and 5 6 7 cussing. (McIntosh Test. 41:22-42:2, 43:20-44:8.) Defendant Officers testified that they did not believe Plaintiff was in 8 possession of any weapons, nor was he under the influence of any 9 illegal drugs, nor had he committed any crime that day. (Prock 10 Test. 69:18-23; McIntosh Test. 49:1-15.) Defendant Officers 11 observed that Plaintiff, an eleven year-old boy, was sitting 12 13 14 15 quietly on a bench and was not out of control. (Prock Test. 63:17-25, 65:16-18; McIntosh Test. 42:10-18, 47:2-16.) Prior to handcuffing Plaintiff, Officer Prock did not ask the school staff 16 if they could call a relative to pick up Plaintiff or handle the 17 matter themselves. (Prock Test. 71:20-72:1.) 18 Drawing all inferences in favor of Plaintiff, a reasonable 19 jury could find, as the jury did here, that Defendant Officers 20 did not have reasonable cause to believe that Plaintiff, a small 21 four foot eight inch tall, eighty pound, eleven year old boy 22 23 24 sitting quietly on a bench in the schoolyard, was subject to temporary custody under the California Welfare & Institutions 25 Code. The evidence is not so one-sided that a reasonable police 26 officer could only have believed that it was lawful to place 27 Plaintiff in handcuffs, detain him in a police vehicle, and 28 13 1 remove him from school. 2 Defendants motion for judgment as a matter of law on 3 Plaintiff s Fourth Amendment unlawful seizure claim is DENIED. 4 5 b) Excessive Force Defendants also move for judgment as a matter of law on 6 7 8 9 10 Plaintiff s excessive force claim on the grounds of qualified immunity. (1) Constitutional Violation The threshold inquiry in a qualified immunity analysis is 11 whether the plaintiff s allegations, if true, establish a 12 constitutional violation. Wilkins v. City of Oakland, 350 F.3d 13 949, 954 (9th Cir. 2003). 14 15 16 17 Excessive force claims are examined under the Fourth Amendment's prohibition against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865 (1989). Fourth 18 Amendment analysis requires balancing of the quality and nature 19 of the intrusion on an individual's interests against the 20 countervailing governmental interests at stake. Id. at 396. Use 21 of force violates an individual s constitutional rights under the 22 Fourth Amendment where the force used was objectively 23 unreasonable in light of the facts and circumstances, judged from 24 25 26 the perspective of a reasonable officer on the scene rather than with the 20/20 vision of hindsight. Id. at 396-397. The 27 government's interest in the use of force is evaluated by 28 examining the totality of the circumstances, including the three 14 1 core Graham v. Connor factors: (1) the severity of the crime at 2 issue; (2) whether the suspect poses an immediate threat to the 3 safety of the officers or others; and (3) whether the suspect is 4 5 6 7 8 actively resisting arrest or attempting to evade arrest by flight. Bryan v. MacPherson, 630 F.3d 805, 818 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396). Defendants contend that handcuffing is standard practice and 9 is not, in and of itself, excessive force as a matter of law. In 10 support, Defendants cite two non-precedential district court 11 decisions from outside the Ninth Circuit, Davenport v. Rodriguez, 12 13 147 F. Supp.2d 630 (S.D. Tex. 2001), and Peters v. City of Biloxi, Miss., 57 F. Supp.2d 366 (1999). As stated in the 14 15 memorandum decision denying Defendants motion for summary 16 judgment, this argument misses the point. Even minor uses of 17 force may be unreasonable where the circumstances do not warrant 18 use of any force. 19 20 21 The jury concluded that Defendants violated Plaintiff s Fourth Amendment right not to have excessive force used against him under the totality of the circumstances. (Verdict 2, ECF No. 22 23 24 174.) Jury Instruction No. 13 properly instructed the jury on the Graham v. Connor factors and also included the instruction, over 25 Plaintiff s objection, that An officer need not use the least 26 intrusive means in taking a minor into custody. (Jury 27 Instructions 14-15, ECF No. 172.) 28 15 1 The Graham factors support the jury s verdict. The first 2 Graham factor, severity of the crime at issue, favors a finding 3 of excessive force. Defendant Officers testified that they did 4 not believe Plaintiff was in possession of any weapons, was not 5 6 7 under the influence of any illegal drugs, nor had he committed any crime that day. (Prock Test. 69:18-23; McIntosh Test. 49:1- 8 15.) As to the second Graham factor, whether the suspect poses an 9 immediate threat to the safety of the officers or others, 10 Defendant Officers did not feel that Plaintiff posed any direct 11 danger to his safety, and did not believe Plaintiff was a threat 12 13 14 15 to anyone s safety. (Prock Test. 68:13-20, 69:4-7.) Defendant Officers, however, both testified that Coach Sinclair told them Plaintiff was a runner, although she did not specify what she 16 meant by that term. (Prock Test. 64:3-7; McIntosh Test. 47:21- 17 25.) The third Graham factor, whether the suspect is actively 18 resisting arrest or attempting to evade, also weighs in favor of 19 finding excessive force. When told to do so, Plaintiff 20 immediately stood up and put his hands behind his back. (Prock 21 Test. 72:11-20.) Officer Prock testified that Plaintiff was 22 23 24 25 completely cooperative and did not resist at all. (Prock Test. 73:14-74:1.) Drawing all inferences in favor of Plaintiff, the evidence 26 is not so one-sided that Defendants are plainly entitled to 27 judgment as a matter of law on the issue of excessive force. A 28 16 1 reasonable jury could, as this jury did, find that it was 2 unreasonable to handcuff a cooperative, passive eleven year old 3 not suspected of any criminal activity. 4 5 (2) Qualified Immunity The next question in the qualified immunity analysis is 6 7 8 whether the right was clearly established on the date of the incident. Pearson v. Callahan, 129 S.Ct. at 814. The relevant, 9 dispositive inquiry in determining whether a right is clearly 10 established is whether it would be clear to a reasonable officer 11 that his conduct was unlawful in the situation he confronted. 12 Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151 (2001). This 13 14 inquiry is wholly objective and is undertaken in light of the specific factual circumstances of the case. Id. at 201. The 15 16 principles of qualified immunity shield an officer from personal 17 liability when an officer reasonably believes that his or her 18 conduct complies with the law. Pearson v. Callahan, 129 S.Ct. at 19 823. The protection of qualified immunity applies regardless of 20 whether the government official makes an error that is a mistake 21 of law, a mistake of fact, or a mistake based on mixed questions 22 of law and fact. Id. at 818 (quoting Groh v. Ramirez, 540 U.S. 23 24 25 551, 567, 124 S.Ct. 1284 (2004) (KENNEDY, J., dissenting)). Defendant Officers contend that they are entitled to 26 qualified immunity because a reasonable officer would believe 27 that his actions were lawful under California Institutions Code 28 17 1 §§ 625 and 601 and Penal Code §§ 835 and 847. California Welfare 2 and Institutions Code §§625 and 601 authorize officers to take a 3 juvenile into temporary custody if the juvenile is beyond the 4 control of the guardian. California Penal Code § 835 provides 5 6 7 that a person arrested may be subjected to such restraint as is reasonable for his arrest and detention. Cal. Pen. Code § 835. 8 In assessing the state of the law at the time of an incident, 9 however, courts need look no further than Graham's holding that 10 force is only justified when there is a need for force. 11 Blankenhorn v. City of Orange, 485 F.3d 463, 481 (9th Cir. 2007). 12 13 14 15 The evidence presented at trial does not establish that, as a matter of law, Defendant Officers use of force was reasonable. Defendant s police practices expert Don Cameron, testified that a 16 reasonable officer would know that he should take into account a 17 minor s age, weight and height relative to the officers weight 18 and height, the number of adults surrounding the minor, the 19 minor s calm and non-agitated state, the lack of severity of the 20 situation at hand, the minor s lack of resistance, and the 21 minor s lack of flight or attempted flight when assessing what 22 23 24 force is objectively reasonable. (Cameron Test. 32:5-25, 33:1-25, 34:1-9, 42:13-25, 43:1-25, 44:1-12, August 26, 2011.) There 25 simply was no need for use of any force whatsoever. Defendant 26 Officers handcuffed Plaintiff when he was eleven years old, four 27 feet eight inches tall, and eighty pounds, sitting calmly and 28 18 1 quietly on a school bench with his head down, surrounded by four 2 to five adults in close proximity, with the closest exit the 3 length of a football field away. (Prock Test. 64:8-14, 24-25, 4 65:1-11; McIntosh Test. 56:9-16, 72:4-12; Pl. Test. 112:4-6, 5 6 August 24, 2011; Amy Banks Test. 208:7-9, August 24, 2011.) Ron Martinelli, Plaintiff s police practices expert, 7 8 testified that he worked juvenile crimes and never handcuffed a 9 child eleven years old or younger. (Martinelli Test. 56:2-14, 10 August 30, 2011.). Martinelli also testified that no reasonable 11 officer would think it necessary nor objectively reasonable to 12 13 14 15 handcuff a child in the totality of circumstances present in this case. (Martinelli 36:1-12, 36:21-25, 37:1-8, 38:22-25, 1-25, 48:17-25, 49:1-17.) Defendants admit that there was no reasonable 16 probability that Plaintiff could run away from three law 17 enforcement officers standing around him. (McIntosh Test. 56:9- 18 16.) 19 20 21 Drawing all the inferences in Plaintiff s favor, a jury presented with all the evidence could reasonably conclude that, under all the circumstances, a reasonable police officer would 22 23 24 not have believed it was lawful to place Plaintiff in handcuffs, detain him in a police vehicle, and remove him from school. Defendants motion for judgment as a matter of law on 25 26 Plaintiff s Fourth Amendment excessive force claim is DENIED. 27 // 28 19 1 2 c) Municipal Liability A municipality may be held liable under Section 1983 when 3 execution of a government s policy or custom, whether made by its 4 lawmakers or by those whose edicts or acts may fairly be said to 5 represent official policy, inflicts the injury. Monell v. Dep t 6 7 8 of Soc. Servs., 463 U.S. 658, 694, 98 S.Ct. 2018 (1978). To prevail under a Section 1983 claim against a local government, a 9 plaintiff must show: (1) he or she was deprived of a 10 constitutional right; (2) the local government had a policy; (3) 11 the policy amounted to a deliberate indifference to his or her 12 constitutional right; and (4) the policy was the moving force 13 14 behind the constitutional violation. Burke v. Cnty. of Alameda, 586 F.3d 725, 734 (9th Cir. 2009). There are three ways to show a 15 16 17 18 19 20 21 22 23 24 25 municipality s policy or custom: (1) by showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Menotti v. Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich v. S.F., 308 F.3d 968, 984-85 (9th Cir. 2002)). Jury Instruction No. 11 properly instructed the jury that 26 municipal liability attaches if Officers McIntosh and/or Prock 27 acted pursuant to an expressly adopted official policy or long 28 20 1 standing practice or custom of the City of Sonora, and defined 2 official policy and practice or custom. (Jury Instructions 3 11, ECF No. 172.) Officer Prock testified that it was his belief 4 that he had to handcuff everyone riding in the backseat of his 5 6 7 vehicle no matter whether the person was under arrest or posed any particular safety threat. (Prock Test. 101:11-25, 102:1-5, 8 20-25.) Chief McIntosh ordered Plaintiff to be handcuffed after 9 only being on scene three and a half minutes with little to no 10 investigation and almost no information, particularly no 11 information that Plaintiff was any threat or that there was cause 12 13 14 15 to believe that Plaintiff had committed any crimes. Coach Sinclair testified that from her experience with dealing with the Sonora Police Department at Sonora Elementary School, any time 16 the police took a child off campus, whether for medical reasons, 17 drugs, or a fight, the child was handcuffed. (Sinclair Test. 48: 18 1-6, August 25, 2011.) 19 20 21 Coach Sinclair testified that police were summoned to Sonora Elementary School fifty times in the three years prior to the incident. Students were handcuffed during twenty, or less than 22 23 24 half, of those incidents; thirteen incidents were non-criminal. (Sinclair Test. 11:1-12:13.) Coach Sinclair asked if handcuffing 25 Plaintiff was really necessary and was told it was procedure. 26 Coach Sinclair understood the handcuffing was procedure 27 according to her past dealings with City officers. (Sinclair 28 21 1 2 3 4 Test. 47:18-48:6.) From this evidence, a reasonable jury could conclude that the City of Sonora had an official policy or long standing practice or custom of handcuffing juvenile detainees without 5 6 7 regard to whether such force was reasonable or necessary under the circumstances. Defendants motion for judgment as a matter of 8 law on Plaintiff s Fourth Amendment claim against the City of 9 Sonora is DENIED. 10 11 12 13 14 15 16 17 2. Plaintiff s State Law Claims a) Intentional Infliction of Emotional Distress Defendants move for judgment as a matter of law on Plaintiff s intentional infliction of emotional distress claim. Defendants argue that: (1) there was insufficient evidence at trial to support Plaintiff s claim for intentional infliction of emotional distress; and (2) they proved their affirmative defense 18 that their actions were lawfully privileged. 19 (1) 20 Evidence of Plaintiff s Claim A cause of action for intentional infliction of emotional 21 distress exists when there is (1) extreme and outrageous conduct 22 by the defendant with the intention of causing, or reckless 23 disregard of the probability of causing, emotional distress; (2) 24 the plaintiff's suffering severe or extreme emotional distress; 25 26 27 28 and (3) actual and proximate causation of the emotional distress by the defendant s outrageous conduct. Hughes v. Pair, 46 Cal.4th 1035, 1050, 95 Cal.Rptr.3d 636 (2009) (internal 22 1 quotations and citation omitted). A defendant s conduct is 2 outrageous when it is so extreme as to exceed all bounds of 3 that usually tolerated in a civilized community. Id. at 1051. 4 The defendant s conduct must also be intended to inflict injury 5 6 7 or engaged in with the realization that injury will result. Id. Defendants contend that there is no evidence of outrageous 8 conduct . Jury Instruction No. 17 properly instructed the jury on 9 the elements of intentional infliction of emotional distress and 10 defined outrageous conduct. (Jury Instructions 20, ECF No. 172.) 11 Plaintiff testified that the handcuffs hurt him and he started to 12 13 14 15 cry because he was scared. (Pl. Test. 126:18-25.) Defendant Officers testified that they did not explain to Plaintiff why he had been handcuffed, that he was not under arrest, or where they 16 were taking him. (Prock Test. 72:23-24, 73:10-13, 75:9-11; 17 McIntosh Test. 54:21-25, 59:19-23, 69:3-8.) In the police 18 vehicle, Officer Prock told Plaintiff that if he needed to take 19 his medication, he should have take his medication. (Prock Test. 20 99:2-25.) There is sufficient evidence of Defendant Officers 21 outrageous conduct in their treatment of a cooperative, passive, 22 23 24 non-threatening juvenile. Defendants further contend that there is no evidence 25 Defendant Officer s conduct caused Plaintiff severe emotional 26 distress. Defendants contend that Dr. Schreier testified that the 27 period of psychological trauma lasted three or four months. 28 23 1 (Schreier Test. 140:3-5, August 26, 2011.), but that Plaintiff is 2 doing quite well now and is no longer on medication. (Schreier 3 Test. 132:23-133:3.) Plaintiff s counselor Jennifer Murton 4 testified that in her opinion, Plaintiff had not sustained any 5 6 7 8 injury as a result of the police conduct. (Murton Test. 113:1-20, August 26, 2011.) The jury s verdict, however, was sufficiently supported. 9 Jury Instruction No. 19 properly defined severe emotional 10 distress, Jury Instruction No. 23 properly set forth the 11 requirement for causation, Jury Instruction No. 24 properly set 12 13 14 15 16 forth the standard of proof on damages, and Jury Instruction No. 25 properly set forth the standard for aggravation of preexisting conditions. (Jury Instructions 22, 26-29, ECF No. 172.) Plaintiff testified that he started crying after Defendant 17 Officers handcuffed him because he was scared. (Pl. Test. 126:22- 18 25.) When Plaintiff s mother saw him that afternoon, she said he 19 was crying, did not want to talk about anything, did not want to 20 discuss anything, and looked quiet and sad. (Amy Banks Test. 21 193:11-25.) Plaintiff s father testified that the day of the 22 23 24 incident Plaintiff was very dejected and down, very quiet, standoffish, lacking in energy, did not eat much and went right 25 to bed. (Matt Banks Test. 155:11-17, 156:9-24, August 24, 2011.) 26 Plaintiff s uncle testified that when he saw Plaintiff arrive in 27 handcuffs, he was shaken and obviously emotionally and 28 24 1 psychologically torn up over the situation. (Mark Banks Test. 2 95:23-96:5, August 25, 2011.) 3 4 Plaintiff s psychiatric expert Dr. Herbert Schreier, who treated Plaintiff from 2006 to 2008, testified that he believed 5 6 7 Plaintiff suffered from an acute stress response to the incident. (Schreier Test. 125:20-25.) Schreier testified that Plaintiff had 8 really poor sleep with nightmares, sleep disturbances at night, 9 slept a lot during the day, was avoiding things, was nervous when 10 he saw a police car, was having blackouts and losing time, and 11 became anxious. (Schreier Test. 128:6-19:2.) Schreier testified 12 13 14 15 that anger displacement is a recognized phenomenon in children, that a symptom of trauma is not wanting to talk about the worst aspects of the trauma or return to the place of the trauma, and 16 that psychological testing showed Plaintiff minimizes his 17 symptoms when expressing how he feels about the incident. 18 (Schreier Test. 124:7-19, 125:6-9, 127:25, 128:1-5, 129:8-14, 19 130:12-25, 131:1-9, 132:10-18.) 20 21 Plaintiff testified that the incident made him sad and not know who to trust. (Pl. Test. 132:15-25.) Plaintiff and his 22 23 24 parents testified that Plaintiff was very depressed, having difficulties at home, did not want to eat anything, had a hard 25 time sleeping or slept too much, started wetting his bed again, 26 did not want to talk to anyone, and just wanted to stay at home. 27 (Pl. Test. 134:13-17; Matt Banks Test. 157:24-158:13; Amy Banks 28 25 1 Test., 195:18-196:19.) Plaintiff s father testified that it was 2 hard to get Plaintiff to feel better after the incident and to 3 participate in football. (Matt Banks Test. 160:23-161:3.) 4 Plaintiff s father testified that Plaintiff had a hard time with 5 6 7 other kids and felt he was a bad kid after the incident. (Matt Banks Test. 159:21-160:3.) There were rumors going around town 8 about Plaintiff after the incident. (Amy Banks Test. 198:2-35.) 9 Plaintiff testified that he did not want to go back to Sonora 10 Elementary School because he was scared people would make fun of 11 him or be scared of him. (Pl. Test. 131:22-132:6.) Plaintiff was 12 13 14 15 out of school for three months. (Matt Banks Test. 158:20-159: 2.) Plaintiff s father testified that Plaintiff already had emotional difficulties before the incident and had already been 16 seeing Dr. Schreier, but after the incident it became compounded 17 and his behavior became worse than before. (Matt Banks Test. 18 169:4-15.) Dr. Schreier described Plaintiff as suffering from 19 regression after the incident (Schreir Test. 127:25-128:5.) 20 21 There was very substantial evidence that Plaintiff suffered severe emotional distress as a result of his treatment by the 22 23 24 25 26 27 28 police, by being placed in handcuffs, and the manner in which he was removed and transported from school under the totality of the circumstances. (2) Lawful Privilege Defendants further contend that they are entitled to 26 1 judgment as a matter of law on Plaintiff s claim for intentional 2 infliction of emotional distress because their actions were 3 lawfully privileged. Jury Instruction Number 20 instructed the 4 jury on the elements of privilege. (Jury Instruction 20, ECF No. 5 6 7 172.) The jury returned its verdict concluding that Defendants did not prove their entitlement to the privilege affirmative 8 defense by a preponderance of the evidence. (Jury Verdict 9, ECF 9 No. 174.). As discussed above with respect to Plaintiff s Fourth 10 Amendment claim for unlawful seizure, there is sufficient 11 evidence to support the jury s conclusion that given the 12 13 14 15 circumstances, Defendants were not exercising a legal right to take Plaintiff into temporary custody under law and Defendants did not have a good faith belief that they had a legal right to 16 take Plaintiff into temporary custody and to use reasonable force 17 to effectuate and continue that custody. 18 Defendants motion for judgment as a matter of law as to 19 Plaintiff s claim for intentional infliction of emotional 20 distress is DENIED. 21 22 b) False Imprisonment Defendants move for judgment as a matter of law on their 23 24 25 affirmative defense of having probable cause to take Plaintiff into temporary custody. Defendants assert that they were 26 authorized to take Plaintiff into temporary custody without a 27 warrant pursuant to California Welfare and Institutions Code §§ 28 27 1 625 and 601. For the reasons discussed in respect to Plaintiff s 2 claim for unlawful seizure, Defendants have not offered 3 sufficient evidence to prove probable cause as a matter of law. 4 Defendants motion for judgment as a matter of law as to 5 6 Plaintiff s claim for false imprisonment is DENIED. 3. 7 Offset Defendants contend that they are entitled to offset for all 8 9 monies paid by Defendant School District of Sonora ( School 10 District ) and Coach Sinclair. Defendant School District settled 11 Plaintiff s claims for $20,000 on November 6, 2009. (Pet. 12 Approval of Compr., ECF No. 48.) Plaintiff s claims against Coach 13 14 15 16 Sinclair were dismissed with prejudice for no monetary payment. (Order ¶ 2, ECF No. 66.) As authority, Defendants cite a single district court case, Velez v. Roche, 335 F. Supp. 2d 1022 (N.D. 17 Cal. 2004). Velez held that a nonsettling defendant may claim an 18 offset for amounts paid in settlement only if two conditions are 19 met: 20 21 22 First, the nonsettling defendant must demonstrate that the settlement and award (against which the offset is sought) were for the same injury. . . . Second, the injury must be indivisible such that there is joint and several liability among the settling and nonsettling defendants. 23 24 25 26 27 28 Id. at 1041-42. Defendants have the burden of demonstrating their entitlement to the offset. Id. at 1042. Defendants do not meet their burden on both elements. First, Defendants do not demonstrate that Defendant School District s 28 1 settlement and award were for the same injury. Plaintiff sued 2 Defendant School District for alleged discrimination on the basis 3 of Plaintiff s disability and violations of Plaintiff s rights on 4 account of his disability. Plaintiff s causes of action against 5 6 7 Defendant School District were made pursuant to the California Unruh Civil Rights Act, Section 504 of the Rehabilitation Act, 8 and Americans with Disabilities Act. (Amended Complaint 6, 11, 9 12, ECF No. 54.) In contrast, Plaintiff s claims against 10 Defendant City of Sonora and Defendant Officers were for 11 violation of the Fourth Amendment s protection against wrongful 12 13 14 15 16 seizure and excessive force; false imprisonment; and battery. (Id. at 7, 8, 14, 15.) Although the injuries were related to the same incident, they are not the same violations of the same primary rights. 17 Second, Defendants have not shown that the injury was 18 indivisible such that there is joint and several liability among 19 Defendant School District and Defendant City of Sonora and 20 Defendant Officers. Plaintiff asserted distinct claims against 21 Defendant School District based on his disability. Defendants 22 23 24 25 have not shown how Defendant School District could be jointly and severally liable for Defendants actions arising from the arrest and use of force against Plaintiff. Defendants request for offset is DENIED. 26 27 28 // 29 1 2 3 IV. MOTION FOR NEW TRIAL AND REMITTITUR Defendants move for a new trial pursuant to Federal Rule of Civil Procedure 59(a) and for remittitur of the jury s award. 4 A. 5 A motion for new trial may be granted after a jury trial 6 Legal Standard for any reason for which a new trial has heretofore been granted 7 8 9 in action at law in federal court. Fed. R. Civ. P. 59(a). The grant of a new trial is confided almost entirely to the exercise 10 of discretion on the part of the trial court. Murphy v. City of 11 Long Beach, 914 F.2d 183, 186 (9th Cir. 1990) (quoting Allied 12 Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S. Ct. 188 13 (1980)). A trial court may grant a new trial only if the jury s 14 15 16 17 verdict was against the clear weight of the evidence. Tortu v. Las Vegas Metro. Police Dep t, 556 F.3d 1075, 1083 (9th Cir. 2009). The court can weigh evidence and assess the credibility of 18 witnesses, and need not view the evidence from the perspective 19 most favorable to the prevailing party. Landes Constr. Co., Inc. 20 v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)). A 21 new trial may be granted [i]f, having given full respect to the 22 jury's findings, the judge on the entire evidence is left with 23 the definite and firm conviction that a mistake has been 24 25 26 committed .... Id. at 1371-72. The district court, however, may not grant a new trial simply because it would have arrived at a 27 different verdict. Wallace v. City of S.D., 479 F.3d 616, 630 28 (9th Cir. 2007). 30 1 B. 2 3 Discussion 1. Weight of Evidence Defendants move for a new trial, arguing that the jury s 4 verdicts were against the clear weight of the evidence. 5 Defendants raise the same arguments that they made in support of 6 their motion for judgment as a matter of law. Although a court 7 8 9 has more discretion in granting a motion for a new trial than in granting a motion for judgment as a matter of law, for the 10 reasons articulated above, a new trial is not appropriate. There 11 was substantial evidence to support the jury verdict. Defendants 12 motion for new trial based on the weight of the evidence is 13 DENIED. 14 15 16 17 18 19 20 2. Supplemental Jury Instructions Defendants also move for a new trial based on the alleged errors and irregularities in the process of instructing the jury and answering their questions following the initial verdict. (Def. Mot. New Trial 7, ECF No. 178.) On August 31, 2011, the jury initially returned a verdict 21 that the court deemed inconsistent. The jury initially found no 22 liability on Plaintiff s Fourth Amendment claims and found 23 liability for intentional infliction of emotional distress, but 24 concluded that there was privilege for the intentional infliction 25 26 27 28 of emotional distress. The jury nonetheless calculated and awarded damages for intentional infliction of emotional distress. Due to a typographical error in the verdict form as to how to 31 1 answer the next question, the jury did not return a verdict on 2 Plaintiff s state law claim for false arrest. The court concluded 3 that the jury verdict was incomplete and inconsistent and 4 reconvened the jury. The court explained that the verdicts were 5 6 7 inconsistent due to a typographical error in the verdict form. (Tr. Trans. 8, August 31, 2011.) The jury left the courtroom, 8 then indicated that they had a question and returned to ask the 9 court: 10 11 12 13 14 15 16 Clarify question 8 [affirmative defense to intentional infliction of emotional distress]. If we said yes to all on page 23 of Jury Instruction #20 [affirmative defense to intentional infliction of emotional distress - privilege] doesn t that mean we answer yes to page 9 in verdicts of trial jury [affirmative defense to intentional infliction of emotional distress - privilege]? (Jury Notes 6, ECF No. 185.) In response to this question and additional jury questions, 17 the court gave several explanations of the elements of 18 intentional infliction of emotional distress and Defendants 19 affirmative defense of privilege. Defendants contend that this 20 was improper, and the court should have instead reread the 21 original instructions or simply answered the jury s questions 22 23 24 with either yes or no. Defendants contend that the court s oral instruction had the improper effect of telling the jury that 25 Plaintiff s rights were violated. This is categorically wrong and 26 demonstrates ignorance of federal jury practice. 27 28 The court s resubmission of the inconsistent original 32 1 2 3 4 5 6 7 8 9 10 11 verdict to the jury was proper. The Ninth Circuit has explained: [W]hen the jury is still available, resubmitting an inconsistent verdict best comports with the fair and efficient administration of justice. Allowing the jury to correct its own mistakes conserves judicial resources and the time and convenience of citizen jurors, as well as those of the parties. It also allows for a resolution of the case according to the intent of the original fact-finder, while that body is still present and able to resolve the matter. Duke v. MGM Grand Hotel, Inc., 320 F.3d 1052, 1058 (9th Cir. 2003). The court has a duty to answer they jury s questions with additional instructions if necessary. See United States v. 12 Warren, 984 F.2d 325, 330 (9th Cir. 1993); see also United States 13 v. Hayes, 794 F.2d 1348, 1352 (9th Cir. 1986) ( [T]he district 14 court has the responsibility to eliminate confusion when a jury 15 asks for clarification of a particular issue. ). To determine 16 17 whether a court s supplemental instructions to the jury are improper, a court must consider whether the court's actions and 18 19 statements were coercive in the totality of the circumstances. 20 Jiminez v. Myers, 40 F.3d 976, 980 (9th Cir. 1993). Here, the jury 21 asked for clarification of the jury verdict form and jury 22 instructions. Their questions could not have been answered with a 23 simple yes or no or reading of the jury instructions. In 24 responding to the jury s questions, the court s answers were 25 26 27 28 neutral, unbiased, repeatedly referred to the jury instructions, and emphasized that only the jury could make the ultimate determinations on the issues. The court s supplemental 33 1 instructions and interactions with the jury were not coercive or 2 improper and accurately stated the law. What Defendants wanted 3 was an instruction that spun the direction of the jury in their 4 favor. 5 6 7 Plaintiff is correct that Defendants submission of the declaration of juror Russ Manfredo is entirely improper. Jurors 8 may not testify about their internal deliberative process and the 9 manner by which they reached their verdict. United States v. 10 Montes, 628 F.3d 1183, 1189 (9th Cir. 2011) (holding that even in 11 cases of extraneous information entering the jury room, inquiries 12 13 14 15 into how that extraneous information affected the mental process of the jurors is inadmissible); Fed. R. Evid. 606(b) ( [A] juror may not testify as to any matter or statement occurring during 16 the course of the jury's deliberations or to the effect of 17 anything upon the operation of a juror s mind or thought process, 18 or any other juror's mind or emotions as influencing the juror to 19 assent to or dissent from the verdict or indictment or concerning 20 the juror's mental processes in connection therewith. ) 21 Defendants motion for new trial on the basis of the court s 22 23 24 25 supplemental jury instructions is DENIED. 3. Amount of Jury Award Defendants also move for remittitur of the jury s award to 26 $3,000. Defendants contend that the jury s award of $285,000, 337 27 times the amount of treatment costs incurred by Plaintiff, is 28 34 1 excessive as a matter of law and shocks the conscience. 2 The court may reverse a jury s finding on the amount of 3 damages if the amount is grossly excessive or monstrous, Zhang 4 v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir. 2003) 5 6 7 (citation omitted), clearly unsupported by the evidence, or shocking to the conscience. Brady v. Gebbie, 859 F.2d 1543, 8 1557 (9th Cir. 1988) (citations omitted). The jury s damage award 9 does not meet this standard. 10 11 12 13 14 15 The Supreme Court has stated that Section 1983 damages may include impairment of reputation, personal humiliation, and mental anguish and suffering. Tortu v. Las Vegas Metro. Police Dep t, 556 F.3d 1075, 1086 (9th Cir. 2009) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307, 106 S. Ct. 2537, 91 L. 16 Ed. 2d 249 (1986)). [C]ompensatory damages may be awarded for 17 humiliation and emotional distress established by testimony or 18 inferred from the circumstances, whether or not plaintiffs submit 19 evidence of economic loss or mental or physical symptoms. Tortu, 20 556 F.3d at 1086 (quoting Johnson v. Hale, 13 F.3d 1351, 1352 (9th 21 Cir. 1994). 22 23 24 25 26 27 28 Jury Instruction No. 24 properly instructed the jury that damages include: 2. The loss of enjoyment of life experienced and which with reasonable probability will be experienced in the future; 3. The mental, physical, emotional pain and suffering experienced and/or which with reasonable probability will be 35 1 experienced in the future; 2 (Jury Instructions 27, ECF No. 172.) As detailed above, there is 3 ample evidence that Plaintiff suffered mental and emotional 4 damages resulting from the incident. The jury s damages award was 5 6 7 not grossly excessive or monstrous or shocking to the conscience. The events were traumatic for Plaintiff and liability was 8 severally imposed on each Defendant for severable conduct. 9 on the mental health professional, Plaintiff suffered severe 10 emotional distress. 11 Defendants motion for remittitur is DENIED. 12 13 14 15 16 17 Based V. CONCLUSION For the reasons stated: 1. Defendants motion for judgment as a matter of law is DENIED. 2. Defendants motion for new trial and remittitur is DENIED. 18 SO ORDERED. 19 DATED: September 30, 2011 /s/ Oliver W. Wanger Oliver W. Wanger United States District Judge 20 21 22 23 24 25 26 27 28 36

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