422 F.3d 800 (9th Cir. 2005), 03-55403, Dang v. Cross

Docket Nº:03-55403, 03-56360.
Citation:422 F.3d 800
Party Name:H.N. DANG, Plaintiff-Appellant, v. Gilbert CROSS, Defendant-Appellee.
Case Date:August 22, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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422 F.3d 800 (9th Cir. 2005)

H.N. DANG, Plaintiff-Appellant,


Gilbert CROSS, Defendant-Appellee.

Nos. 03-55403, 03-56360.

United States Court of Appeals, Ninth Circuit.

August 22, 2005.

Argued and Submitted December 8, 2004—Pasadena, California

Appeal from the United States District Court for the Central District of California, D.C. No. CV-00-13001-GAF, Gary A. Feess, District Judge, Presiding

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[Copyrighted Material Omitted]

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Stephen Yagman, Kathryn Bloomfield, Marion Yagman, Joseph Reichman, Yagman & Yagman & Reichman & Bloomfield, Venice Beach, California, for the plaintiff-appellant.

Wilmont A. Odom, Cal P. Saunders, Office of City Attorney, Compton, California, for the defendant-appellee.

Before: Betty B. Fletcher, John T. Noonan, and Richard A. Paez, Circuit Judges.


PAEZ, Circuit Judge:

In this civil rights action, under 42 U.S.C. § 1983, Plaintiff H.N. Dang prevailed in a jury trial on his excessive force claim against Officer Gilbert Cross of the City of Compton Police Department and was awarded compensatory damages, but not punitive damages. We consider Dang's consolidated appeals. Dang first challenges the district court's refusal to instruct the jury that oppressive conduct can serve as a predicate for punitive damages under § 1983. Second, Dang contends that the district court erred in its calculation of reasonable attorney's fees and costs under 42 U.S.C. § 1988.

We hold that the district court erred in failing to instruct the jury that it could award punitive damages if it found that Cross acted in an oppressive manner and we conclude that this error was not harmless. Second, we hold that the district court did not abuse its discretion in determining the reasonable hourly rate it applied in calculating the fee award. We vacate the fee award and remand, however, for further consideration of the reasonable hours expended in light of the proper legal standard and for reimbursement of the cost of recording an abstract of judgment.


Plaintiff H.N. Dang was the shop manager of the Compton Jewelry Exchange, which Compton police officers suspected of operating an unlicensed pawn shop. On December 17, 1999, Compton police officers

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executed an undercover investigation of the Jewelry Exchange's alleged pawn shop activities. An undercover officer, Betty Jones, entered the store to attempt to pawn a ring. After Dang agreed to take the ring in exchange for $100, Jones left the store and notified Officer Gilbert Cross, who was waiting outside the store with two other officers, that she had successfully pawned the ring.

Shortly thereafter, three officers, Cross, Sergeant Preston Harris, and Officer James Lewis, entered the store. When the officers entered, Dang was in the office, which was separated from the salesroom where the officers stood by a bulletproof window and a steel security door. After Dang opened the security door at the officers' request, Harris and Cross entered the office. Lewis remained by the front door. The officers informed Dang that he was under arrest.1 Without patting down or searching Dang, the officers handcuffed Dang and requested that he produce the pawned ring. Dang informed the officers that the ring was in a safe. Cross then instructed Dang to open the safe. After the officers removed the handcuffs, Dang bent down and proceeded to open the safe, which took several attempts. After opening the safe, Dang reached inside. As soon as he did so, however, Cross yelled at him to stop and Harris pulled Dang away from the safe. Dang leaned forward again to reach into the safe and Harris pulled Dang back, knocking him to the floor.2 As Dang was pushed to the floor, he was holding the allegedly pawned ring, which Cross attempted to retrieve.

A struggle ensued between Dang and the three officers, as Lewis had joined the other two officers in the office at this point. During the struggle, Cross struck Dang in the groin area in order to incapacitate him.3 Although Cross testified that he struck Dang in the groin with his fist, Dang testified that Cross kicked him in the genitalia. After striking Dang in the groin area, Cross punched Dang in the face. Dang also testified that the officers stepped on his head and his hand. The officers finally subdued Dang when Harris put Dang into a carotid restraint (a chokehold) and handcuffed him again.

The police officers took Dang to the Compton Police Department and, while waiting, Dang lost consciousness. The officers then took Dang to the hospital for medical attention. Dang later sought private medical care because of the bruises and pain in his chest, shoulders, neck, arm, hand, mouth, and groin, and because there was blood in his urine.

Following the events of December 17, 1999, Dang filed suit in the Central District of California against several City of Compton officials and police officers alleging violations of his Fourth Amendment rights under 42 U.S.C. § 1983. Before the defendants filed motions for summary judgment, Dang voluntarily dismissed the claims against all defendants except Cross and Hourie Taylor, the Chief of Police for the Compton Police Department. Dang

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also voluntarily dismissed his conspiracy and Fourteenth Amendment claims against these remaining defendants.

Dang alleged that Cross, in his individual capacity, violated Dang's Fourth Amendment rights by executing an unlawful entry, illegal search and seizure, false arrest, and by using excessive force. Dang sued Taylor in his individual and official capacities alleging supervisory liability for the constitutional violations and alleging that the violations arose from the customs, policies, and practices of the Compton Police Department. Cross and Taylor filed summary judgment motions on all claims. The district court concluded that disputed material issues of fact regarding the extent of force Cross used against Dang precluded summary judgment on Dang's excessive force claim against Cross. The court, however, granted summary judgment on all other remaining claims against Cross and Taylor.

At trial, Dang as well as Cross, Lewis, and Harris testified. The jury found Cross liable for excessive force and awarded Dang $18,000 in compensatory damages. Before the punitive damages phase of the trial, Dang requested a punitive damages jury instruction that included a clause stating that an act "oppressively done" could be a predicate for an award of punitive damages. The district court rejected this instruction, concluding that it was an inaccurate statement of the law, and instead instructed the jury in accordance with Ninth Circuit Model Civil Jury Instruction 7.5 (2002). In support of his claim for punitive damages, the court allowed Dang to present additional evidence. Dang called Cross as a witness and questioned him about his remorse for the events on December 17, 1999. After argument and deliberations, the jury declined to award punitive damages and returned a verdict in favor of Cross.

At the conclusion of the litigation, Dang filed a motion for an award of reasonable attorney's fees under 42 U.S.C. § 1988. Dang sought $250,000 in fees and $2,030 in costs. Cross opposed the motion. The district court awarded $134,000 in attorney's fees. The court arrived at this amount by reducing the hours included in Dang's requested fee award by 25 percent and by reducing counsel's hourly rate from $550 to $400 per hour. The court also awarded Dang $908.25 in costs, but denied his request for reimbursement of $18.50 for the cost of obtaining and recording an abstract of judgment. Dang timely appealed the judgment and the order granting attorney's fees.


" 'The standard of review on appeal for an alleged error in jury instructions depends on the nature of the claimed error.' " Phillips v. United States I.R.S., 73 F.3d 939, 941 (9th Cir. 1996) (quoting Oglesby v. S. Pac. Transp. Co., 6 F.3d 603, 606 (9th Cir. 1993)). "We review a district court's formulation of jury instructions in a civil case for abuse of discretion." White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002). "We review de novo whether the instructions misstated the law." Fireman's Fund Ins. Cos. v. Alaskan Pride P'ship, 106 F.3d 1465, 1469 (9th Cir. 1997). Here, we review de novo because Dang challenges the court's instruction as an incorrect statement of the law and the court rejected Dang's proposed instruction as contrary to the law of this circuit. See Galdamez v. Potter, 415 F.3d 1015, (9th Cir. 2005).

We have stressed that "[j]ury instructions must fairly and adequately cover the issues presented, must correctly state the law, and must not be misleading." White, 312 F.3d at 1012. Further, "[a] party is entitled to an instruction about his

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or her theory of the case if it is supported by law and has foundation in the evidence." Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). We also have noted that the "[u]se of a model jury instruction does not preclude a finding of error." United States v. Warren, 984 F.2d 325, 328 (9th Cir. 1993). If, however, the error in the jury instruction is harmless, it does not warrant reversal. Tritchler v. County of Lake, 358 F.3d 1150, 1154 (9th Cir. 2004). "In evaluating jury instructions, prejudicial error results when, looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered." Swinton v. Potomac Corp., 270 F.3d 794, 802 (9th Cir. 2001) (alteration in original) (internal quotation marks and citations omitted).

The issue here is whether the district court erred in rejecting Dang's proposed punitive damages jury instruction and in giving an instruction that did not instruct the jury that it could award punitive...

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