Hunter v. M.

• Decision Date: 26 July 2011
• Docket Number: No. 09–15288.,09–15288.
• Citation: 652 F.3d 1225,11 Cal. Daily Op. Serv. 9331,2011 Daily Journal D.A.R. 11204,80 Fed.R.Serv.3d 142
• Parties: Robert E. HUNTER, D.V.M.; Howard Eley, Plaintiffs–Appellants,v.COUNTY OF SACRAMENTO; Sheriff's Department, County of Sacramento; Lou Blanas, Sheriff; Office of the District Attorney, County of Sacramento; Jan Scully; William Kevin Sowles; John McGinness, Sheriff; Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

652 F.3d 1225

80 Fed.R.Serv.3d 142

11 Cal. Daily Op. Serv. 9331

2011 Daily Journal D.A.R. 11,204

Robert E. HUNTER, D.

v.M.; Howard Eley, Plaintiffs–Appellants,

v.COUNTY OF SACRAMENTO; Sheriff's Department, County of Sacramento; Lou Blanas, Sheriff; Office of the District Attorney, County of Sacramento; Jan Scully; William Kevin Sowles; John McGinness, Sheriff; Defendants–Appellees.

No. 09–15288.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 2010.Filed July 26, 2011.

Gary W. Gorski (argued), Fair Oaks, CA, and Daniel M. Karalash, Sacramento, CA, for the plaintiffs-appellants.Thomas A. Cregger (argued), Randolph Cregger & Chalfant LLP, Sacramento, CA, for the defendants-appellees.Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, Jr., District Judge, Presiding. D.C. No. 2:06–cv–00457–GEB–EFB.

Before: STEPHEN REINHARDT and MARSHA S. BERZON, Circuit Judges, and LOUIS H. POLLAK, Senior District Judge.^*

OPINION

POLLAK, District Judge:

Robert Hunter and Howard Eley, the plaintiffs in this § 1983 action, sought to prove at trial that they were subjected to excessive force while in custody at the Sacramento County Main Jail pursuant to the County's allegedly unconstitutional custom or practice of using excessive force at the Main Jail. The jury found in favor of the County, and the District Court denied plaintiffs' motion for a new trial. In this appeal, plaintiffs argue that the District Court erred by refusing to use certain jury instructions they requested. Because we agree that the District Court erred, and that its error was prejudicial, we reverse the District Court's order and remand for a new trial.

I

Plaintiffs initiated this action on March 3, 2006, and filed their Second Amended Complaint (“Complaint”) on August 22, 2006. The Complaint alleges that, on September 17, 2005, plaintiff Hunter was arrested for driving while under the influence. He was taken to the Sacramento County Main Jail (“Main Jail”), where he was placed in a detox cell with a clogged and overflowing toilet. The Complaint further alleges that when Hunter alerted several deputies of the Sacramento County Sheriff's Department about the toilet's condition, the deputies responded by throwing him to the floor and applying force that resulted in a fractured elbow, stretched tendons, and nerve damage. The Complaint also alleges that plaintiff Eley was an inmate at the Main Jail, and that on March 21, 2004, Eley had a verbal disagreement with a deputy sheriff, after which the sheriff shoved, slapped, and choked Eley without provocation.

Plaintiffs' Complaint named a number of defendants and asserted several causes of action. In its September 8, 2008 ruling on the defendants' summary judgment motion, the District Court dismissed all of plaintiffs' claims except for their Monell ¹ claim against the County of Sacramento (“defendant” or “County”). Plaintiffs' Monell claim alleged that they were subjected to excessive force, in violation of their rights under 42 U.S.C. § 1983, pursuant to defendant's longstanding practice or custom of subjecting inmates at the Main Jail to excessive force.

In its ruling denying summary judgment on this claim, the District Court's opinion placed primary emphasis upon a declaration submitted by plaintiffs' expert, Lieutenant Twomey, a former employee of the Sacramento County Sheriff's Department (“Sheriff's Department”). Lt. Twomey declared that there were 40 to 50 “major incidents” of excessive force at the Main Jail from 2000 to 2005. Lt. Twomey also declared that officials in the jail repeatedly failed to investigate the incidents, discipline the guards, or take other action to address the problem. For example, no Internal Affairs investigation was opened after a detainee named Jafar Afshar filed a complaint alleging that he had been subject to excessive force in the Main Jail when a deputy grabbed him from behind and threw him backward, smashing his head onto the floor. A Sheriff's Department official later admitted that an investigation should have been opened but was not. Similarly, Lt. Twomey declared that, in his experience, an internal investigation should have been opened when inmate Mihaita Constantin suffered a fractured nose and hand after being thrown to the ground and having his wrists restrained by five deputies, none of whom were injured in the altercation. The Court found that all of this evidence created a material issue of fact as to whether the County had a practice or custom of using excessive force, despite the fact that the County had formal written policies prohibiting the use of excessive force.

On September 25, 2008, about a month and a half before trial, the District Court instructed the parties to submit proposed jury instructions. On October 14, plaintiffs and defendant both submitted proposed jury instructions. Plaintiffs offered 21 proposed instructions, 12 of which elucidated various ways in which a plaintiff may establish municipal liability under Monell. On October 31, the District Court issued its own set of proposed jury instructions, instructing the parties to submit any suggested modifications as soon as possible.

The instruction of central relevance to this appeal laid out the elements of a Monell claim for the use of excessive force in violation of the Fourth Amendment (“ Monell instruction”). The District Court's proposed Monell instruction read, in its entirety, as follows:

Each Plaintiff alleges that the Defendant County of Sacramento violated his Fourth Amendment constitutional right against use of excessive force. To prevail on this claim each Plaintiff must prove by a preponderance of the evidence each of the following elements:

First, that one or more of Defendant's employees used excessive force against Plaintiff in violation of the Fourth Amendment of the United States constitution.

Second, that in so doing, Defendant's employee or employees acted pursuant to a longstanding practice or custom of Defendant.

Third, that Plaintiff was injured; and,

Fourth, that Defendant's longstanding practice or custom was so closely related to Plaintiff's injury that it was the moving force causing Plaintiff's injury.

Excerpts of Record (“ER”) at 14. Both parties filed objections and proposed modifications to the District Court's instructions. The document filed by plaintiffs began as follows: “PLEASE TAKE NOTICE that Plaintiffs object to the proposed Jury Instructions proffered by the Court, and request the following modifications.” In the body of the document, plaintiffs explained that they did “not object to [the Monell instruction] as written,” but they “specifically request[ed] the following proposed instructions be provided as well, as they state the law in the Ninth Circuit accurately, and in this District.” Plaintiffs then listed the following ten additional instructions, all of which were taken from their earlier list of proposed instructions and addressed standards for liability under Monell.

(1) The routine failure to follow a general policy can itself constitute an actionable custom.

(2) Plaintiff can establish municipal liability against Defendant by proving that the excessive force was committed pursuant to a longstanding practice or custom which constitutes the “standard operating procedure” of the local governmental entity.

(3) Regardless of whether the County has formal policies regarding the use of

force, routine failure to follow a general policy can itself constitute an actionable custom.

(4) Failure to properly investigate, like failure to discipline employees involved in incidents of excessive force, is evidence of and supports a finding that not only was it accepted, but was customary.

(5) Plaintiff may also attempt to prove the existence of a custom or informal policy with evidence of repeated constitutional violations for which the errant municipal officials were not discharged or reprimanded.

(6) Policy or custom may be inferred if, after the use of excessive force, the County of Sacramento took no steps to reprimand or discharge the deputy sheriffs, or if they otherwise failed to admit the deputy sheriffs' conduct was in error.

(7) The County is liable for depriving Plaintiff of a federal right if it is determined it did an affirmative act, participated in another's affirmative acts, or omitted to perform an act which it was legally required to do that causes the deprivation.

(9) Liability for an established custom can be imposed irrespective of whether official policy makers had actual knowledge of the practice at issue.

(11) Failure to properly investigate, like failure to discipline employees involved in incidents of excessive force, is evidence of and supports a finding excessive force was not only accepted but was customary.

(12) The extent and openness of excessive force supports an inference that managerial level employees should have known.

ER 35–37 (citations omitted).² Each of these instructions was accompanied by a citation to one or more cases providing legal support for the stated proposition.

The District Court thereafter issued a final set of jury instructions for use during trial. ER 8–11 (excerpting relevant instructions). The Court did not adopt any of plaintiffs' proposed supplemental instructions. Appellants' Br. at 6. Indeed, the District Court's order did not acknowledge that plaintiffs had filed supplemental instructions, or explain why it was not using any of those instructions. ER 8.³

The final instructions did reflect the County's suggestion that the definition of the term “practice or custom” used in Ninth Circuit Model Civil Jury Instruction 9.4 (2007) be added to the proposed Monell instruction. That definition specifies that “ ‘[p]ractice or custom’ means any permanent, widespread, well-settled practice or custom that constitutes a standard operating procedure of the defendant.” Ninth Circuit Model Civil Jury Instruction 9.4 (2007)...