Heriberto Rodriguez v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERIBERTO RODRIGUEZ; CARLOS No. 13-56292

FLORES; JUAN CARLOS SANCHEZ;

ERICK NUNEZ; JUAN TRINIDAD, D.C. No.

Plaintiffs-Appellees, 2:10-cv-06342-

CBM-AJW

v.

COUNTY OF LOS ANGELES; LOS

ANGELES COUNTY SHERIFF’S

DEPARTMENT,

Defendants,

and

DANIEL CRUZ; MATTHEW ONHEMUS;

CLAYTON STELTER; JUSTIN BRAVO;

HERMAN DELGADO; ADRIAN RUIZ;

CARLOS ORTEGA; FRANCISCO

ALONSO; CHRISTOPHER BLASNEK;

MICHEL MCGRATTAN; KELLEY

WASHINGTON; ALEJANDRO

HERNANDEZ CASTANON; ARTHUR

DIAZ, JR.; MICHAEL FRAZIER;

ANTONIO GALINDO; ARMANDO

GONZALEZ; MATTHEW NOWOTNY;

JOSEPH SANFORD; HECTOR

VAZQUEZ; IVAN DELATORRE; JOHN

MCNICHOLAS,

Defendants-Appellants.

2 RODRIGUEZ V. CRUZ

HERIBERTO RODRIGUEZ; CARLOS No. 14-55374

FLORES; JUAN TRINIDAD; JUAN

CARLOS SANCHEZ; ERICK NUNEZ, D.C. No.

Plaintiffs-Appellees, 2:10-cv-06342-

CBM-AJW

v.

COUNTY OF LOS ANGELES; DANIEL OPINION

CRUZ; CHRISTOPHER BLASNEK;

MATTHEW ONHEMUS; MICHEL

MCGRATTAN; KELLEY

WASHINGTON; CLAYTON STELTER;

JUSTIN BRAVO; FRANCISCO ALONSO;

ALEJANDRO HERNANDEZ

CASTANON; MICHAEL FRAZIER;

JOSEPH SANFORD; HECTOR

VAZQUEZ; NICHOLAS GRAHAM;

BLAKE ORLANDOS; MATTHEW

THOMAS; JAVIER GUZMAN; ANDREW

LYONS; ADOLPH ESQUEDA; HERMAN

DELGADO,

Defendants-Appellants.

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted August 31, 2017

Pasadena, California

Filed May 30, 2018

RODRIGUEZ V. CRUZ 3

Before: William A. Fletcher and Sandra S. Ikuta, Circuit

Judges, and Sarah Evans Barker,* District Judge.

Opinion by Judge W. Fletcher

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s judgment in favor

of plaintiffs following a jury trial, award of compensatory and

punitive damages, and award of attorney’s fees in a 42 U.S.C.

§ 1983 action brought by five prisoners who were severely

injured during the course of cell extractions at the Los

Angeles County Men’s Central Jail.

The panel first denied appellants’ request to vacate the

final judgment on the basis that the district court lacked

jurisdiction to go to trial during the pendency of appellants’

interlocutory appeal from a prior qualified immunity ruling.

The panel held that although the district court failed to certify

pursuant to Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.

1992), that the interlocutory appeal was frivolous, any error

was harmless.

*

The Honorable Sarah Evans Barker, United States District Judge for

the Southern District of Indiana, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 RODRIGUEZ V. CRUZ

Addressing the issue of exhaustion of administrative

remedies under the Prison Litigation Reform Act, the panel

held that the district court did not clearly err in finding that a

reasonable fear of retaliation made the grievance system

effectively unavailable for appellees, and that appellants

failed to carry their burden of proof showing otherwise.

The panel held that the district court did not err by

denying appellants’ Fed. R. Civ. P. 50(b) motion, based on

qualified immunity, for judgment as a matter of law. The

panel held that there was abundant evidence presented to the

jury that appellants inflicted severe injuries on appellees

while they were not resisting, and even while they were

unconscious. A jury could reasonably reject appellants’

argument that they acted reasonably and instead determine

that the force was not part of a good-faith effort to maintain

or restore discipline. The panel therefore rejected appellants’

sufficiency of the evidence challenge to the jury’s finding of

a constitutional violation.

The panel also found unpersuasive appellants’ arguments

that the law regarding their conduct was not clearly

established. Addressing the liability of the deputy appellants,

the panel held that no reasonable deputy in appellants’

position would have believed that beating a prisoner to the

point of serious injury, unconsciousness, or hospitalization

solely to cause him pain was constitutionally permissible.

The panel rejected the argument that the limits on the proper

use of tasers were still unclear as of 2008, stating that once a

jury has determined on the basis of sufficient evidence that

prison officials maliciously and sadistically used more than

de minimis force to cause harm, contemporary standards of

decency, and thus the Eighth Amendment, always are

violated.

RODRIGUEZ V. CRUZ 5

The panel held that the supervisor appellants—the

sergeants who directed the extraction teams and their

superiors—were not entitled to qualified immunity. The

panel held that to the extent that these appellants stood by and

observed the extractions but knowingly refused to terminate

the deputies’ unconstitutional acts, they were individually

liable. The panel determined that ample evidence—including

appellants’ own testimony—supported the conclusion that

appellants directed and observed most of the extraction

teams. The panel held that although it was unclear whether

Captain Cruz directly observed all of the extractions, a jury

could reasonably find the requisite causal connection to hold

Cruz liable for his own culpable action or inaction in the

training, supervision, or control of his subordinates.

The panel rejected the argument that the supervisors had

immunity under state law and therefore could not be held

liable under the Bane Act, California Civil Code § 52.1. The

panel first held that California Civil Code § 820.2 does not

shield government employees who use excessive force in

carrying out their duties and that § 820.8 was inapplicable

because appellees did not rely on vicarious liability. The

panel concluded that in excessive force cases, including

Eighth Amendment cases, § 52.1 does not require proof of

coercion beyond that inherent in the underlying violation.

Because appellees provided evidence sufficient to support a

finding that they were subjected to excessive force in

violation of the Eighth Amendment, they necessarily

provided evidence sufficient to support a finding of a

violation of their rights under the Bane Act.

The panel held that the record amply supported the jury’s

verdict and the district court’s ruling of municipal liability

under Monell v. Dep’t of Soc. Servs. of City of New York,

6 RODRIGUEZ V. CRUZ

436 U.S. 658, 694 (1978). The panel held that there was

substantial evidence of repeated constitutional violations, of

the Los Angeles County Sheriff’s Department awareness of

those violations, and of its failure to take any remedial action.

The panel concluded that legal precedent permitted the jury

to infer that the Sheriff’s Department had adopted a custom

or practice of condoning excessive force and that this culture

of violence and impunity proximately caused the injuries

inflicted on appellees.

The panel held that the record did not require a finding of

implied juror bias that allegedly arose from the professional

activities of a juror’s parents and the juror’s personal

friendships with other individuals having some involvement

with the prison system. The panel upheld the award of

$210,000 in punitive damages award against the supervisory

appellants, stating that the appellees proved egregious, even

shocking, abuses of power. The panel further noted that the

punitive damages awarded to each appellee, considered

individually or together, were all far less than appellees’

compensatory damages.

Addressing appellants’ claims of trial errors, the panel

held that the district court acted within its broad discretion in

declining to bifurcate the Monell claim and in excluding,

under Federal Rule of Evidence 403, evidence of appellees’

felony convictions and their gang membership. The panel

further found no error in the district court’s jury instructions

and determined that the district court reasonably denied the

application to compel live testimony for four appellees and

non-party inmates.

The panel affirmed the district court’s attorney’s fee

award of $5,378,174.66. The panel held that the fee limit

RODRIGUEZ V. CRUZ 7

provisions of the Prison Litigation Reform Act do not apply

to attorney’s fees incurred in litigation under California Civil

Code § 52.1. Finally, the panel found no fault in the district

court’s decision to apply a 2.0 multiplier, given the financial

risk assumed by appellees’ counsel, the difficulty of

representing prisoners in an excessive force action against

high-ranking jail officials who engage in aggressive

opposition, and the opportunity costs that the years-long

litigation in this case required. The panel noted that the

district court had considered the burden to California’s

taxpayers that the fee award would represent, and found that

the award was justified given the factors described above and

the importance of civil rights suits in protecting the public

against abuses at the hands of large or politically powerful

defendants.

8 RODRIGUEZ V. CRUZ

COUNSEL

David D. Lawrence (argued) and Jin S. Choi, Lawrence

Beach Allen & Choi P.C., Glendale, California; Andrew C.

Pongracz, Seki Nishimura & Watase LLP, Los Angeles,

California; for Defendants-Appellants.

Caitlin S. Weisberg (argued), Barrett S. Litt, and Ronald O.

Kaye, Kaye McLane Bednarski & Litt LLP, Pasadena,

California; James S. Muller, Offices of James S. Muller,

Glendale, California; for Plaintiffs-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

In 2008, corrections staff at the Los Angeles County

Men’s Central Jail performed “cell extractions” in two high-

security units in the course of quelling a disturbance.

Appellees, five prisoners in the jail, were severely injured

during the extractions. They brought suit in federal district

court, alleging that appellants violated their rights under the

Eighth and Fourteenth Amendments. After a month-long

trial, a jury found nineteen Los Angeles County Sheriff’s

Department (“LASD”) employees and the County of Los

Angeles liable for appellees’ injuries under 42 U.S.C. § 1983

or California Civil Code § 52.1, or both. The jury awarded

$740,000 in compensatory damages and $210,000 in punitive

damages. The court awarded more than $5 million in

attorney’s fees.

We affirm.

RODRIGUEZ V. CRUZ 9

I. Background

A. Factual History

Because this appeal follows a jury verdict in appellees’

favor, we relate the facts in the light most favorable to them.

See Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1064 n.1

(9th Cir. 2016) (en banc).

1. Cell Extractions

On August 25, 2008, there was a disturbance in Modules

3100 and 3300 of the Los Angeles County Men’s Central Jail,

two high-security units in which prisoners were housed in

single-person cells. Prisoners in the units lit fires, flooded

toilets, shattered sinks, and threw shards of porcelain.

Appellees described the disturbance as a “protest,” organized

in response to repeated uses of excessive force by jail

officials. Appellants described it as a “riot.” The district

court instructed the parties to use the term “incident” in front

of the jury.

To restore order, appellant Captain Daniel Cruz, unit

commander, and appellant Lieutenant Christopher Blasnek,

incident commander, planned a series of cell extractions.

Under the stated terms of the plan, prisoners would have an

opportunity to “cuff up” and leave their cells voluntarily.

Prisoners who refused to cuff up would be forcibly extracted.

Four LASD sergeants would lead four separate extraction

teams of several deputies, with each deputy on a team having

an assigned role. “Shield deputies,” covered with protective

gear and carrying a shield, would enter first to pin the

prisoner against a wall or to knock him to the ground.

“Capture deputies” would follow close behind to restrain the

10 RODRIGUEZ V. CRUZ

prisoner. In the event that these deputies were unable to

subdue a prisoner, “taser deputies” would administer electric

shocks in “stun mode” until the prisoner was subdued.

Official LASD policy required extraction teams to use the

“lowest possible level” of force to “overcome only that level

of resistance confronting the team.” Extraction teams were

prohibited from using force to punish prisoners. Appellees

were among those who were forcibly extracted.

Appellee Carlos Flores testified that, prior to his own

extraction, he could hear cell extractions occurring in other

cells. “[P]eople were crying out in pain, telling the deputies

to stop. And I could hear the punching and kicking. And I

could hear boots stomping. I could hear the deputies

sometimes laughing.” When deputies approached Flores’s

cell, “they were all wearing ski masks, I couldn’t see their

faces.” A deputy shot into Flores’s cell with a 40 mm “block

gun,” but Flores was not hit because he was protecting

himself with his mattress. Deputies then threw one or two

concussion grenades into Flores’s cell. They entered the cell,

and one deputy used his shield to push Flores down onto his

back. Five or six deputies then landed on top of Flores and

the deputy. Several deputies held Flores down while others

punched and kicked him in his face, head, and body.

Deputies took turns, alternating between hitting and tasing

him. “I could feel them stomping on my legs, trying to twist

my leg.” As one deputy was hitting Flores, “he was just

telling me, ‘Mother-Fucker. Mother-Fucker.’ ” “[T]hey were

telling me to stop resisting, and . . . I was trying to say, ‘I’m

not resisting.’ ” “[T]hat’s . . . a thing that the deputies do at

the jail . . . . [T]hey’ll beat inmates and say ‘Stop resisting,

stop resisting.’ But it’s like they know you’re not

resisting. . . . They just want to beat you up.” After one of the

tasers quit working, a deputy used the butt of the taser to hit

RODRIGUEZ V. CRUZ 11

Flores in the face and head. The repeated blows from fists,

boots, and the taser broke Flores’s nose and eye socket. “The

last thing I felt before I woke up in the hospital room . . . was

the whole right side of my face, just I felt the bone break

because he . . . kept hitting me in the same spot.” “It was the

worst thing I ever felt. . . It was so painful that I just blacked

out from the pain.” In the hospital afterwards, “the doctor

explained to me that my nose had been broken pretty bad and

that he had to go in there and . . . cut off a piece of some

cartilage in order to move the bone back in place or

something like that.” “[H]e explained to me . . . how my

cheek bone holds my eye into place, and . . . the fracture to

my . . . cheek bone had kind of like made my eye sunk down

out of the socket. So he had to go in there and . . . put . . . two

metal plates or something, and some screws, and . . . basically

put my . . . eye socket back together. So that way, . . . my eye

is not hanging at an odd angle out of my face.”

Appellee Juan Carlos Sanchez testified that before his

extraction began a deputy appeared on his tier and stated,

“You guys are going to get your ass beat.” When an

extraction team came to Sanchez’s cell, a deputy shot at him

with the block gun. He was not hit because he was protecting

himself with his mattress. Deputies then threw a concussion

grenade that exploded between his legs. Deputies entered the

cell and threw Sanchez onto the floor on his stomach. A

deputy handcuffed him with his hands behind his back. That

deputy began “socking me in my face, punching me in my

face, just punching me.” Sanchez was struck in the face until

he bled. Other deputies then came into the cell. “[T]hey

come in and started kicking me, stomping me out, . . . just

jumping on my legs.” They broke Sanchez’s left ankle.

Deputies told Sanchez to “stop fighting,” but “I wasn’t

fighting.” Deputies later told him to “stop resisting,” even

12 RODRIGUEZ V. CRUZ

though he was not resisting. Sanchez was dragged out of the

cell unconscious. Sanchez regained consciousness outside

the cell, still handcuffed and lying on his stomach. Now

outside the cell, deputies kicked Sanchez in the face and tased

him repeatedly. They pulled down his pants and “tasered me

on my butt.” At the hospital afterwards, doctors put

permanent metal pins in Sanchez’s broken ankle. Sanchez

was in a wheelchair for three to four months, and was not

able to walk without crutches or a walker for eight or nine

months. At the time of trial four years later, Sanchez still

walked with a limp. Sanchez had received a large “gash”

above his right eye. The gash had healed by the time of trial,

but it was “always tingling.” Sanchez’s right eye was

swollen shut for two weeks. At the time of trial, vision in that

eye was blurred.

Appellee Erik Nunez testified that before entering his cell

deputies shot him four or five times with large rubber or

wooden bullets from a block gun. They then threw a

concussion grenade into the cell. When they came into the

cell, they pushed Nunez to the floor. Nunez “immediately . . .

began feeling blows.” Deputies kicked him with “hard

boot[s]” on his face, back, and sides. Deputies hit Nunez

with their fists and jumped on his back. Nunez tried to cover

his head to protect himself, but deputies grabbed his arms and

continued to beat him. “I heard them saying . . . the whole

time I was on the floor, ‘Stop resisting’ until the moment I

came out of the cell.” Nunez testified that this was typical:

“[Y]ou always hear them say, ‘Stop resisting,” and [inmates]

are not even resisting. . . . That’s their justification.”

Deputies tased Nunez repeatedly. “I kept getting tasered, and

I was hoping that I would pass out. But . . . it was like . . . I

would come right back to it with the taser.” “[A]fter the first

tase, I was already out of it, . . . and then he just kept tasing

RODRIGUEZ V. CRUZ 13

and tasing me.” “This guy, he’s laughing, the guy that’s

tasing me. He grabbed it, and he put it . . . [b]etween my butt

cheeks, and he’s tasing me, and he’s laughing.” On a scale of

one to ten, Nunez rated his pain at eleven. The tasing left

marks on Nunez’s skin—“[b]lack marks, like wounds, like

two holes, like burn marks, like burned skin.”

Appellee Juan Trinidad testified that he heard other cell

extractions before deputies came to his cell. “You could hear

all the pain. People are screaming and everything else.”

“[Y]ou hear the same thing as usual, ‘Stop resisting,’ and they

keep beating [the inmates].” “I already figured I’m going to

get hurt. I’m going to get hurt real bad.” Before entering

Trinidad’s cell, deputies shot into the cell ten or more balls

filled with pepper spray. Deputies then shot into the cell with

a block gun. One of the bullets from the block gun broke

Trinidad’s right hand; one hit him directly in the chest; and

one ricocheted and hit him in the shoulder. Deputies then

threw a concussion grenade into the cell. Before deputies

entered his cell, Trinidad heard a female deputy say, “Well,

get that mother fucker.” When the deputies entered the cell,

Trinidad lay face down on his mattress, trying to protect

himself by “hid[ing] my face in between the floor and the

table.” Deputies “ran in and they start beating me. One

jumped on my back and the other one just started hitting me,

and they start tasing me.” “[O]ne was trying to break my

ankle.” Approximately five deputies were on top of Trinidad.

One deputy was twisting his already-broken right hand and

tasing him. Another deputy “was twisting my ankles.”

“They told me to stop resisting . . . . I was not [resisting]

because one deputy . . . had my right hand and he’s

twisting. . . . I can’t resist.” Trinidad heard a deputy say,

“The battery’s going dead. Give me another taser.” After

Trinidad was handcuffed, deputies continued to beat and tase

14 RODRIGUEZ V. CRUZ

him. He faded in and out of consciousness throughout the

extraction. On a scale of one to ten, Trinidad rated the pain

from the taser a ten. Trinidad’s back was broken in several

places. He was transported to the hospital in a neck brace,

where he was treated for head, hand, and back injuries.

Appellee Heriberto Rodriguez testified that when deputies

came to his cell, he was sitting on his toilet holding his

mattress in front of him for protection. Deputies used a block

gun to fire four shots, hitting his ankles. They then threw a

concussion grenade into the cell. When deputies came into

the cell, they yanked the mattress away and hit Rodriguez

twice in the face. Rodriguez wears glasses. He put his hands

to his face and dropped to the floor. When Rodriguez was

face down on the cell floor, someone was hitting his head. A

deputy pulled his hand away from his face and twisted his

arm. “He was trying to snap it like a broomstick. . . . [H]e

was saying things like, ‘You mother fucker. You mother

fucker.’ ” “I was watching my elbow bending in an awkward

position. I’ve never seen it bend that way.” At the time of

trial, four years later, Rodriguez’s elbow would not extend to

a straight and locked position. Deputies handcuffed

Rodriguez and continued to beat him. “Someone dropped a

knee or a leg or something on my back. I was still being hit

on the back of my head.” He was told to “stop fighting,”

even though he was already handcuffed and was not

struggling. Rodriguez was tased repeatedly, “in my armpits,

my fingertips, the back of my neck . . . . I was tasered my legs

[sic], and the bottom of my feet.” Rodriguez testified further,

“I was laying down cuffed, and I felt something probing my

anus. And [the taser] pushed, it pushed, and it went down,

and then it pushed, and then it was just a jolt.” It went to “the

part between the testicles and the anus[.]” On a scale of 1 to

100, Rodriguez rated his pain from the taser a 100.

RODRIGUEZ V. CRUZ 15

2. Missing Videotapes

LASD policy required staff to videotape cell extractions

in their entirety and to preserve the videotapes afterwards.

During discovery in this case, appellants produced forty-one

videotapes of the cell extractions. These videotapes show

almost none of the activity that took place inside the cells.

Expert witness Steve Martin reviewed all of the videotapes

produced by appellants, looking for the “hard-impact strikes”

described by appellants in their post-extraction reports and by

appellees. “Remarkably,” Martin testified, the videotapes

showed “not a single [hard-impact] strike[.]” “[N]ot a single

one of those hundred-plus strikes was captured on video.”

On the audio of many of the videotapes, deputies can be

heard saying “stop fighting.” However, none of the

videotapes that were produced in discovery shows the

inmates at the time this is being said, making it impossible to

see whether the inmates were, in fact, fighting.

Appellees’ evidence at trial showed that deputies took at

least five videotapes of cell extractions that were not

produced in discovery. Appellees’ evidence showed that

those videotapes were taken in a manner that would likely

have shown the actual beatings and tasing of the inmates. For

example, one of the videotapes that was produced was taken

during the extraction of appellee Nunez. The videotape

shows another deputy videotaping Nunez’s extraction from

a vantage point that would likely have shown him being

beaten and tased, and that would likely have shown whether

he was fighting or resisting at the time. That videotape was

not produced by appellants.

At trial, appellants denied “intentionally destroy[ing],

misplac[ing], or eras[ing]” the missing videotapes. But

16 RODRIGUEZ V. CRUZ

appellants provided no explanation for why those videotapes,

and only those videotapes, were missing.

B. Procedural History

Appellees brought suit against twenty-eight individual

defendants and the County of Los Angeles under 42 U.S.C.

§ 1983 and California Civil Code § 52.1. Appellees Flores,

Sanchez, Nunez, and Trinidad contended that the cell

extractions violated their right to be free from cruel and

unusual punishment under the Eighth and Fourteenth

Amendments. Appellee Rodriguez, who at the time of the

cell extraction was a pre-trial detainee, brought suit under the

Due Process Clause of the Fourteenth Amendment. See City

of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983).

1. Jury Instructions

The same jury instructions were used for all five

appellees, and the parties do not distinguish among them on

appeal. After the trial in this case, the Supreme Court

clarified that “the appropriate standard for a pretrial

detainee’s excessive force claim [under the Fourteenth

Amendment] is solely an objective one.” Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2473 (2015). In contrast, a

convicted prisoner’s excessive force claim under the Eighth

Amendment requires a subjective inquiry into “whether force

was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.”

Hudson v. McMillian, 503 U.S. 1, 7 (1992). The jury

instructions for appellee Rodriguez’s Fourteenth Amendment

claim erroneously required him, as a pretrial detainee, to

prove both the objective unreasonableness of the appellants’

force (that “defendants used excessive and unnecessary force

RODRIGUEZ V. CRUZ 17

under all of the circumstances”) and appellants’ subjective

intent (that “defendants acted maliciously and sadistically for

the purpose of causing harm”). Because Rodriguez did not

argue that this instruction was erroneous, the argument is

forfeited. See Castro, 833 F.3d at1071–72. In any event, the

error was harmless because Rodriguez prevailed at trial

despite having to prove the additional subjective element. Cf.

Kingsley, 135 S. Ct. at 2477; Clement v. Gomez, 298 F.3d

898, 903 (9th Cir. 2002) (explaining that the Eighth

Amendment’s subjective inquiry involves a “heightened

standard” that “necessarily involves a more culpable mental

state than that required for excessive force claims arising

under the Fourth Amendment’s unreasonable seizures

restriction”).

2. Interlocutory Appeal and Chuman motion

Prior to trial, appellants moved for summary judgment

based on qualified immunity. The district court denied the

motions. The extraction team supervisors, the “taser

deputies,” and some of the “shield” and “capture deputies”

filed an interlocutory appeal from the denial, arguing that

they were entitled to qualified immunity even assuming the

facts in the light most favorable to the appellees. We issued

an order to show cause why the appeal should not be

dismissed under Johnson v. Jones, 515 U.S. 304, 307 (1995).

While the interlocutory appeal was pending in our court,

appellees moved in the district court to certify the

interlocutory appeal as frivolous under Chuman v. Wright,

960 F.2d 104, 105 (9th Cir. 1992). The district court

concluded that it lacked jurisdiction to decide the Chuman

motion during the pendency of the appeal, and denied the

motion on that ground. Then, while the appeal was still

18 RODRIGUEZ V. CRUZ

pending and over appellants’ objection, the district court

ordered that the case proceed to trial on all claims against all

defendants. Appellants filed an emergency motion for a stay

in our court, which we denied. The case then went to trial.

3. Jury Selection

During and immediately following jury selection,

appellants contended that Juror Number 5 (“S.M.”) was

impliedly biased and should be excused for cause. During

voir dire, S.M. stated that his mother was a law professor. He

stated further that he had family and personal friends who

were engaged in activities related to challenging conditions

in Los Angeles County jails or who had had negative

experiences with law enforcement. One of his friends was

general counsel to the Citizens’ Commission on Jail Violence

(“CCJV”) formed by the Los Angeles County Board of

Supervisors. He described the friend only as the “head of the

Los Angeles Police Commission.” A CCJV report was later

introduced at trial to support Monell liability. There is no

evidence that S.M. was aware during voir dire of any

connection between his friend and the CCJV report that

would be used at trial. S.M. later testified that he had not

known that the friend was involved in the CCJV, and that he

had not spoken with the friend about “any jail-related

commissions.” S.M. was also a friend of an exoneree whom

appellees’ counsel’s firm represented. At voir dire, S.M. told

the court that he was not sure whether that friend was

pursuing a civil case and, if so, who was representing the

friend. S.M. also told the court he thought his mother was a

friend of appellees’ counsel. Appellees’ counsel informed the

court that he had at most a professional relationship with

S.M.’s mother. Appellees had already used all of their

RODRIGUEZ V. CRUZ 19

peremptory challenges. Their counsel moved to excuse S.M.

for cause. The court denied the motion.

The next day, after he had been seated on the jury, S.M.

submitted a note to the judge stating that his father was

currently vice-president of the ACLU Foundation of Southern

California and had previously served as president. S.M.

explained that he had forgotten the connection during voir

dire because his father’s “primary work” was in entertainment

law, and because his father spent comparatively little time

doing pro bono work for the ACLU Foundation. In response

to questioning, S.M. stated that he and his family members

had discussed “issues of jail inmates” during the previous six

months and that he and his family members agreed that

prisoners “certainly need[] protection of their civil rights and

constitutional rights . . . despite the fact they are

incarcerated.” S.M. stated, however, that he was not sure

whether any of these discussions concerned abuses on the

part of LASD, and stated that his father had not talked to him

about litigation related to prisoners’ rights. Appellants again

moved to excuse S.M. for cause. The court again denied the

motion. S.M. became the jury foreperson.

Later, near the time that the case was submitted to the

jury, S.M.’s mother wrote an op-ed in the Los Angeles Times

advocating for civilian oversight of LASD, in part because of

the conditions in the county jails. Appellants again moved to

remove S.M. from the jury. The court denied the motion.

4. Trial

With respect to individual liability, appellees’ testimony

at trial is summarized above. Non-party inmates testified to

having been subjected to similar treatment during their cell

20 RODRIGUEZ V. CRUZ

extractions. Appellants testified that their use of force was

justified under the circumstances, given the violent behavior

of appellees and their fellow inmates prior to the extractions

as well as the risks involved in extracting high security

inmates.

With respect to county liability, appellees presented

evidence that the county had a custom or policy of ignoring

excessive force used by jail officials, thereby creating a jail

culture that proximately caused the beatings and tasing to

which appellees were subjected. Appellees submitted the

report, mentioned above, by the CCJV. The CCJV report

concluded, with respect to the Men’s Central Jail, that “senior

management failed to investigate the excessive use of force

problems” at the jail; that “[s]everal key department leaders

ignored deputy aggression and discouraged discipline” at the

jail; and that senior jail officials had not taken steps to

investigate approximately one hundred use-of-force

allegations. The report recounted Department-wide

deficiencies in practices and policies governing use of force,

excessive force investigations, and discipline for using

excessive force. Appellees presented testimony from

appellant Cruz’s former supervisor, Commander Robert

Olmsted. Olmsted testified that he had investigated use-of-

force incidents at the jail and had found a major increase in

such incidents during Cruz’s tenure. Olmstead’s

investigation uncovered problems in investigating and

reporting use-of-force incidents, and in approval of uses of

force. Olmstead concluded that Cruz had “condone[d]” his

deputies’ excessive force by investigating force incidents

improperly or not at all. Appellees also presented evidence

that dozens of use-of-force incidents were omitted from the

LASD reporting system, including all of the use-of-force

incidents at issue in this case.

RODRIGUEZ V. CRUZ 21

After a month-long trial, the jury returned verdicts against

nineteen LASD officers and the County of Los Angeles. The

jury awarded $740,000 in compensatory damages and

$210,000 in punitive damages.

Appellants moved for judgment as a matter of law, for a

new trial, and to vacate the judgment and punitive damages

award. The district court denied the motions and entered

judgment in the amounts awarded by the jury. It also

awarded appellees $5,378,174.66 in attorney’s fees. This

appeal followed.

II. Discussion

A. Lack of Chuman Certification

Appellants contend that the district court lacked

jurisdiction to go to trial while the interlocutory appeal was

pending in our court, and they ask us therefore to vacate the

final judgment resulting from this trial. We review de novo

the existence of the district court’s jurisdiction and review for

clear error any underlying factual determinations. U.S. ex rel.

Lindenthal v. Gen. Dynamics Corp., 61 F.3d 1402, 1407 (9th

Cir. 1995).

“The filing of a notice of appeal is an event of

jurisdictional significance—it confers jurisdiction on the

court of appeals and divests the district court of its control

over those aspects of the case involved in the appeal.” Griggs

v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982).

The “divestiture of jurisdiction rule is not based upon

statutory provisions or the rules of civil or criminal

procedure. Instead, it is a judge made rule originally devised

in the context of civil appeals to avoid confusion or waste of

22 RODRIGUEZ V. CRUZ

time resulting from having the same issues before two courts

at the same time.” United States v. Claiborne, 727 F.2d 842,

850 (9th Cir. 1984). Though Griggs referred to the

“divestiture rule” as jurisdictional, the Supreme Court has

since made clear that “[o]nly Congress may determine a

lower federal court’s subject-matter jurisdiction.” Hamer v.

Neighborhood Hous. Services of Chicago, 138 S. Ct. 13, 17

(2017) (quoting Kontrick v. Ryan, 540 U.S. 443, 452 (2004)).

Accordingly, “jurisdictional” rules derived from sources other

than Congress are more accurately characterized as

“mandatory claim-processing rules” that may be applied in a

“less stern” manner than true jurisdictional rules. Id.

Consistent with this Supreme Court guidance, we have

created an exception to the “divestiture rule.” Recognizing

the importance of avoiding uncertainty and waste, but

concerned that the appeals process might be abused to run up

an adversary’s costs or to delay trial, we have authorized the

district court to go forward in appropriate cases by certifying

that an appeal is frivolous or waived. See, e.g., Chuman,

960 F.2d at 105 (qualified immunity); United States v.

LaMere, 951 F.2d 1106, 1109 (9th Cir. 1991) (double

jeopardy); Claiborne, 727 F.2d at 851 (separation of powers).

“In the absence of such certification,” however, “the district

court is automatically divested” of its authority “to proceed

with trial pending appeal.” Chuman, 960 F.2d at 105.

Unlike defects in constitutional or statutory jurisdiction,

which deprive a court of the power to act and thus void

actions taken while jurisdiction was lacking, see, e.g., U.S.

Catholic Conference v. Abortion Rights Mobilization, Inc.,

487 U.S. 72, 76–77 (1988), an error in following our circuit’s

divestiture procedure does not entirely eliminate the authority

of the district court to hear a case. We have “decline[d] to

apply the divestiture rule in a slavish manner that ignores the

RODRIGUEZ V. CRUZ 23

reality of what happened in the trial court.” United States v.

Hickey, 580 F.3d 922, 927 (9th Cir. 2009). Under this

pragmatic approach, we have in other contexts applied

harmless error analysis to district courts’ errors in following

our divestiture procedures. Hickey, 580 F.3d at 927 (finding

error harmless where “Hickey’s interlocutory appeal was

ultimately a losing one”); Claiborne, 727 F.2d at 851 (finding

that the district court erred in finding the appeal frivolous and

proceeding with the case, but noting that there would be little

point in forcing the district court to repeat actions taken in the

interim). Because this logic applies equally to qualified

immunity appeals, we conclude that the actions taken in the

district court in violation of Chuman require reversal only if

the error was prejudicial.

We do not ignore the significance of the error of

proceeding to trial in this case while the interlocutory appeal

was pending. Cf. Hickey, 580 F.3d at 927 (admonishing

district courts that divestiture errors can waste tremendous

time and resources, particularly where a case goes to trial);

Claiborne, 727 F.2d at 850–51 (noting that proceeding to trial

before an appellate court has ruled can cause a litigant

irreparable harm). Unlike in Hickey and Claiborne, where

the district court had conducted only pre-trial proceedings

during the relevant time period, see Hickey, 580 F.3d at 927;

Claiborne, 727 F.2d at 851, the district court in this case went

to trial. We nonetheless conclude that the error was harmless

here as well.

We begin with the premise that “a defendant, entitled to

invoke a qualified immunity defense, may not appeal a

district court’s summary judgment order insofar as that order

determines whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Johnson, 515 U.S. at

24 RODRIGUEZ V. CRUZ

319–20. We may exercise jurisdiction over issues that do not

require resolution of factual disputes, including in cases

where officers argue that they have qualified immunity,

assuming the facts most favorable to the plaintiff. See, e.g.,

George v. Morris, 736 F.3d 829, 833–34, 836 (9th Cir. 2013);

Johnson v. Cty. of L.A., 340 F.3d 787, 791 n.1 (9th Cir. 2003)

(“[W]e have jurisdiction . . . even when the determination of

qualified immunity depends upon disputed issues of material

fact so long as we assume the version of the material facts

asserted by the non-moving party to be correct.”) (internal

quotations and citations omitted).

Here, during the pendency of the qualified immunity

appeal, we issued a show cause order inviting appellants to

identify the issues, if any, over which we had jurisdiction.

Appellants’ response failed to identify issues over which we

would have had jurisdiction. Instead, appellants either relied

on disputed facts or made conclusory assertions insufficient

to show that they had a colorable claim to qualified immunity

even if all inferences were drawn in appellees’ favor. For

example, appellants Blasnek and Cruz argued that they “did

not participate in any of Plaintiffs’ cell extractions and played

no part in the manner in which their extractions were carried

out.” (Emphasis added.) Appellees, however, presented

evidence (and ultimately proved) that Cruz and Blasnek did

play a part in the manner in which the extractions were

carried out, both by directly observing the extractions and

choosing not to intervene and by creating a jail culture in

which uses of excessive force went unpunished.

Appellants thus failed to show cause why we should not

have dismissed the interlocutory appeal of the immunity

ruling by the district court for lack of jurisdiction, though the

trial started before we issued a ruling to that effect. Though

RODRIGUEZ V. CRUZ 25

we initially concluded that the jurisdictional issue was not

suitable for summary disposition, further review reveals that

appellants’ interlocutory appeal was frivolous. It is thus clear

that the district court’s error was harmless.

B. Exhaustion of Administrative Remedies

Appellants further contend that appellees failed to exhaust

administrative remedies at the Men’s Central Jail. Under the

Prison Litigation Reform Act (“PLRA”), a pretrial detainee

or convicted prisoner may not file suit challenging conditions

in a correctional facility unless he or she has exhausted

administrative remedies at the facility. 42 U.S.C. § 1997e(a);

see also Kingsley, 135 S. Ct. at 2476 (noting that the PLRA

“applies to both pretrial detainees and convicted prisoners”).

However, a prisoner is excused from the exhaustion

requirement in circumstances where administrative remedies

are effectively unavailable, including circumstances in which

a prisoner has reason to fear retaliation for reporting an

incident. McBride v. Lopez, 807 F.3d 982, 987 (9th Cir.

2015). In order for a fear of retaliation to excuse the PLRA’s

exhaustion requirement, the prisoner must show that (1) “he

actually believed prison officials would retaliate against him

if he filed a grievance”; and (2) “a reasonable prisoner of

ordinary firmness would have believed that the prison

official’s action communicated a threat not to use the prison’s

grievance procedure and that the threatened retaliation was of

sufficient severity to deter a reasonable prisoner from filing

a grievance.” Id. The district court found that administrative

remedies were effectively unavailable to appellees because

they “reasonably believed that they would suffer additional

physical force if they complained.”

26 RODRIGUEZ V. CRUZ

Pursuant to our then-existing precedent, the district court

considered the appellants’ PLRA exhaustion argument on an

unenumerated motion to dismiss, but only after requiring

appellees to submit evidence “as to why they did not comply

with the [applicable] administrative remedy scheme.” In our

subsequent en banc decision in Albino v. Baca, 747 F.3d

1162, 1170 (9th Cir. 2014) (en banc), we clarified that a fact-

based failure-to-exhaust defense should be asserted in a

summary judgment motion. But where, as here, “it is clear

that the district court considered evidence submitted by the

parties in reaching its decision, we construe the district

court’s order as a grant of summary judgment on the issue of

exhaustion.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th

Cir. 2015).

We agree with the district court.

Appellees submitted declarations in the district court

describing the reasons they feared retaliation for filing

grievances arising out of the cell extractions. All appellees

emphasized the extreme brutality with which they were

beaten and tased. See Kaba v. Stepp, 458 F.3d 678, 685 (7th

Cir. 2006) (holding that where a prisoner had been denied

grievance forms, threatened with retaliation by multiple

prison officials, including a captain and the warden, and

eventually attacked in his cell, “[t]he attack itself may have

transformed the remedies from available to unavailable, for

an ordinary prisoner in Kaba’s shoes.”). Each of them then

gave reasons why they individually feared retaliation if they

filed grievances.

Appellee Flores filed a declaration recounting that he had

turned in a complaint to a nurse at the jail medical ward. The

same day, a sergeant came to his cell to deliver a warning.

RODRIGUEZ V. CRUZ 27

She alluded to appellee Nunez, whom deputies had earlier

released into the exercise yard with rival gang members.

Nunez had been badly beaten and assaulted with razor blades.

The sergeant warned, “[T]hat’s how rats are treated when

they lie about my deputies.” The sergeant also claimed that

she had the power to have him charged with another crime.

She concluded, “[F]or your own good, I’m going to forget

you turned in this complaint. Keep your mouth shut.”

Appellee Sanchez filed a declaration recounting that a

deputy had threatened him as he rode in an ambulance to the

hospital after the cell extraction. The deputy warned him

“not to say shit” about the beatings, threatening that he would

be “dealt with” on his return to jail if he talked.

Appellee Nunez filed a declaration recounting that he was

housed in a unit where it was impossible to obtain a

complaint form without requesting it from a deputy who had

been involved in the cell extractions or who was a colleague

of such a deputy. Nunez stated that deputies not involved in

the cell extractions had told him he was “lucky” that they had

not been on duty, implying that they would have beaten him

even more severely. He also stated that appellee Flores had

told him about the sergeant’s threatening visit, during which

she had referred to the earlier deputy-instigated violence

against Nunez.

Appellee Trinidad filed a declaration recounting that he,

like Nunez, was housed in a unit where it was impossible to

obtain a complaint form without requesting it from a deputy

who had been involved in the cell extractions or who was a

colleague of such a deputy. Trinidad stated that he knew

from his personal experience that other inmates had been

beaten for filing grievances and that he had heard that anyone

28 RODRIGUEZ V. CRUZ

who complained about the beating that occurred during the

cell extractions would face retaliation.

Appellee Rodriguez filed a declaration recounting that he

was housed on the third floor of the jail, where some of the

beatings and tasings had taken place. He stated that guards

on that floor had developed a “gang-like culture” that

included intimidation and retaliation for filing grievances. He

submitted an article published in the Los Angeles Times

reporting that the LASD had initiated termination

proceedings against six third-floor deputies, who were part of

what officials had described as an “aggressive group,” and a

“clique” with “certain gang-like characteristics.” Using

public records, the Times had confirmed that third-floor

deputies had been involved in many more use-of-force

incidents against prisoners than deputies on other floors.

Because appellants demonstrated that appellees had failed

to use available remedies, the appellees were required to

produce evidence that “there [was] something in [their]

particular case that made the existing and generally available

administrative remedies effectively unavailable.” Albino v.

Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). If the

appellees in this case had alleged only general and

unsubstantiated fears about possible retaliation, as appellants

claim, we would hold that they had not exhausted their

administrative remedies. See McBride, 807 F.3d at 987–88.

The record reflects, however, that the appellees provided

factual statements supporting an actual and objectively

reasonable fear of retaliation for filing grievances.

Accordingly, the ultimate burden of proof remained with the

appellants to show that administrative remedies were

available. See Albino, 747 F.3d at 1172. The district court

did not clearly err in finding that a reasonable fear of

RODRIGUEZ V. CRUZ 29

retaliation made the grievance system effectively unavailable

for appellees, and that appellants did not carry their burden of

proof. See id. at 1171 (factual findings reviewed for clear

error).

C. Immunity under Federal and State Law

1. Qualified Immunity under Federal Law

Qualified immunity under federal law protects

government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

“Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about

open legal questions. When properly applied, it protects ‘all

but the plainly incompetent or those who knowingly violate

the law.’ ” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). “In

determining whether an officer is entitled to qualified

immunity, we consider (1) whether there has been a violation

of a constitutional right; and (2) whether that right was

clearly established at the time of the officer’s alleged

misconduct.” Estate of Lopez v. Gelhaus, 871 F.3d 998, 1005

(9th Cir. 2017).

Appellants have challenged the district court’s denial of

qualified immunity on two grounds. First, in their motions

for summary judgment, appellants invoked qualified

immunity based on the record then before the district court.

Those motions are now moot. See Ortiz v. Jordan, 562 U.S.

30 RODRIGUEZ V. CRUZ

180, 183–84 (2011); Padgett v. Wright, 587 F.3d 983, 985

(9th Cir. 2009) (per curiam).

Second, appellants argue that the district court erred in

denying their Rule 50(b) motion, based on qualified

immunity, for judgment as a matter of law. Because the jury

found for appellees on their excessive force claims, we

“construe the trial evidence in the light most favorable to

[appellees] in determining whether [their] rights were clearly

established.” Morales v. Fry, 873 F.3d 817, 826 (9th Cir.

2017). “Further, unlike a motion to dismiss or motion for

summary judgment, we must defer to the facts as they were

reasonably found by the jury . . . .” A.D. v. Cal. Highway

Patrol, 712 F.3d 446, 459 (9th Cir. 2013). We accept the

jury’s findings of fact, “including the [appellants’] subjective

intent,” unless the appellants demonstrate that those findings

were unsupported by the evidence. Id. at 458–59. But while

“only the jury can decide the disputed factual issues, . . . only

the judge can decide whether the right was clearly established

once the factual issues are resolved.” Morales, 873 F.3d at

823.

An Eighth Amendment claim of excessive force

“ultimately turns on ‘whether force was applied in a good

faith effort to maintain or restore discipline or maliciously

and sadistically for the very purpose of causing harm.’ ”

Hudson, 503 U.S. at 6 (quoting Whitley v. Albers, 475 U.S.

312, 320–21 (1986)). Accordingly, the jury here was

instructed that it had to find that (1) appellants “used

excessive and unnecessary force under all of the

circumstances”; (2) appellants “acted maliciously and

sadistically for the purpose of causing harm”; and (3) “the

acts of the [appellants] caused harm to the [appellees].” As

we explained above, Rodriguez has forfeited any argument

RODRIGUEZ V. CRUZ 31

that his claim should have been analyzed under the more

lenient, purely objective, due process standard.

Appellants argue that their use of force was justified by

the appellees’ resistance. In effect, they attack the jury’s

finding that they violated the Eighth Amendment by acting

“maliciously and sadistically.” This argument is meritless.

As noted above, there was abundant evidence presented to the

jury that appellants inflicted severe injuries on appellees

while they were not resisting, and even while they were

unconscious. A jury could reasonably reject appellants’

argument that they acted reasonably and instead determine

that this force was not part of a “good-faith effort to maintain

or restore discipline,” Hudson, 503 U.S. at 7. We therefore

reject appellants’ sufficiency of the evidence challenge to the

jury’s finding of a constitutional violation.

Appellants also argue that the law regarding their conduct

was not clearly established. Though we do “not require a

case directly on point for a right to be clearly established,

existing precedent must have placed the statutory or

constitutional question beyond debate.” Kisela v. Hughes,

138 S. Ct. 1148, 1148, 1152 (2018) (per curiam) (quoting

White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).

“[T]he focus is on whether the officer had fair notice that [the

officer’s] conduct was unlawful.” Id. (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam)). Though we

defer to the jury’s reasonable view of the facts, “the ‘clearly

established’ inquiry is a question of law that only a judge can

decide.” Morales, 873 F.3d at 821.

Appellants offer a variety of arguments, based on their

respective roles in the incident, that the law regarding their

conduct was not clearly established. None is persuasive.

32 RODRIGUEZ V. CRUZ

a. Deputies

The deputy appellants—Deputies Alonso, Bravo, Frazier,

Graham, Orlandos, Thomas, Guzman, Lyons, Esqueda,

Sanford, Vazquez, and Delgado—argue that the law was not

clearly established as to their use of force during the cell

extractions.

We have recognized that Hudson’s “good-faith effort to

maintain or restore discipline” standard, 503 U.S. at 6, sets

forth the clearly established law regarding an Eighth

Amendment excessive force violation “in the context of

quelling a prison disturbance,” Martinez v. Stanford, 323 F.3d

1178, 1184 (9th Cir. 2003). Appellants offer only a

conclusory statement that the law was not clearly established

as to the appropriate use of force within the context of a

prison disturbance. Accepting the jury’s finding of

appellants’ malicious and sadistic intent, see Morales,

873 F.3d at 823, and construing the record in the light most

favorable to the appellees, we disagree.

Analogous Supreme Court and circuit cases decided well

before 2008 gave these deputies notice that the malicious and

sadistic use of force in responding to a prison disturbance

violated the Eighth Amendment. See, e.g., Hudson, 504 U.S.

at 4 (holding that officers violated the Eighth Amendment

where one officer “punched Hudson in the mouth, eyes, chest,

and stomach while [another officer] held the inmate in place

and kicked and punched him from behind”). In Martinez, for

instance, the plaintiff claimed that he had covered his cell

door with a bed sheet in order to prevent pepper spray fumes

from entering the cell during a prison disturbance. 323 F.3d

at 1180. Under the plaintiff’s version of events, “after he told

the officers the sheet would be removed when the fumes were

RODRIGUEZ V. CRUZ 33

gone, the officers fired two plastic bullets from a gas gun and

one taser cartridge into the cell,” with one bullet striking him.

Id. “Once the officers entered the cell, they pushed him into

a seated position, and tasered him twice on his left arm,

despite his lack of resistance.” Id. Officers continued

striking the plaintiff while he was restrained and eventually

dragged him out of the cell. Id. We concluded that, viewing

the facts in the light most favorable to the plaintiff, the

plaintiff had alleged sufficient facts to show an Eighth

Amendment violation and that the officers had violated

clearly established law. Id. at 1183–85.

Given these precedents, no reasonable officer in

appellants’ positions would have believed that beating a

prisoner to the point of serious injury, unconsciousness, or

hospitalization solely to cause him pain was constitutionally

permissible.

b. Deputies Using Tasers

As we have just explained, existing precedent was

sufficient to place beyond debate the question whether the use

of more than de minimis force “maliciously and sadistically

for the purpose of causing harm” violated the Eighth

Amendment under the circumstances here. The deputies who

used tasers—Deputies Sanford, Vazquez, and Delgado—

nonetheless contend that they are entitled to qualified

immunity because the law governing the use of tasers was not

clearly established in 2008. We disagree.

“An officer is not entitled to qualified immunity on the

grounds that the law is not clearly established every time a

novel method is used to inflict injury.” Mendoza v. Block,

27 F.3d 1357, 1362 (9th Cir. 1994). This statement applies

34 RODRIGUEZ V. CRUZ

with particular strength in the context of the Eighth

Amendment. A plaintiff cannot prove an Eighth Amendment

violation without showing that force was employed

“maliciously and sadistically” for the purpose of causing

harm. See Whitley v. Albers, 475 U.S. 312, 320–21 (1986)

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973) (Friendly, J.)).

Even if particularized notice, specific to tasers, were

needed at the time Deputies Sanford, Vazquez, and Delgado

acted, see Mendoza, 27 F.3d at 1362, controlling circuit and

Supreme Court case law provided it. We observed in 1988

that the taser is a “painful and dangerous device” and that “[a]

legitimate prison policy of carrying tasers to enforce

discipline and security would not warrant their use when

unnecessary or ‘for the sole purpose of punishment or the

infliction of pain.’ ” Michenfelder v. Sumner, 860 F.2d 328,

336 (9th Cir. 1988) (quoting Soto v. Dickey, 744 F.2d 1260,

1270 (7th Cir. 1984), and Spain v. Procunier, 600 F.2d 189,

195 (9th Cir. 1979)); see also Gravelet-Blondin v. Shelton,

728 F.3d 1086, 1093 (9th Cir. 2013) (holding that, as of May

2008, it was clearly established that taser shocks constituted

“non-trivial force” for Fourth Amendment purposes); Lewis

v. Downey, 581 F.3d 467, 478–79 (7th Cir. 2009) (holding

that it was clearly unconstitutional in 2006 to tase prisoners

maliciously and sadistically in the circumstances alleged);

Orem v. Rephann, 523 F.3d 442, 448–49 (4th Cir. 2008)

(holding that malicious and sadistic use of a taser on a pretrial

detainee’s breast and inner thigh was not de minimus force

and was clearly unconstitutional in 2005), abrogated on other

grounds by Wilkins v. Gaddy, 559 U.S. 34, 37 (2010); Hickey

v. Reeder, 12 F.3d 754, 759 (8th Cir. 1993) (holding that

using “stun guns” on nonviolent prisoners violates the Eighth

Amendment). The Supreme Court has long disapproved of

RODRIGUEZ V. CRUZ 35

the use of electric shocks purely to inflict pain, beginning

with its denunciation of the famous “Tucker telephone,” a

device that, like the tasers in this case, was “used to

administer electrical shocks to various sensitive parts of an

inmate’s body.” Hutto v. Finney, 437 U.S. 678, 682 & n.5

(1978); see also Hudson, 503 U.S. at 14 (1992) (Blackmun,

J., concurring) (suggesting that an electric shock inflicted as

punishment would violate the Constitution); id. at 26

(Thomas, J., dissenting) (same).

Deputies Sanford, Vazquez, and Delgado argue that limits

on the proper use of tasers were still unclear as of 2008,

relying on two Fourth Amendment cases decided after the

cell extractions at issue in this case: Mattos v. Agarano,

661 F.3d 433 (9th Cir. 2011) (en banc), and Bryan v.

MacPherson, 630 F.3d 805 (9th Cir. 2010). Mattos and

Bryan clarified the circumstances under which taser use

would violate the Fourth Amendment and granted qualified

immunity to the officers who acted without the benefit of this

clarification. See Mattos, 661 F.3d at 448; Bryan, 630 F.3d

at 833.

However, the deputies’ argument fails to acknowledge the

respective standards for Fourth and Eighth Amendment

violations. Graham v. Connor, 490 U.S. 386, 397–98 (1989);

Whitley, 475 U.S. at 319. We determine whether the Fourth

Amendment has been violated by assessing the objective

reasonableness of the force used, balancing the degree of

intrusion against the government’s interest. Gravelet-Blondin,

728 F.3d at 1090. “Subjective intentions play no role in

ordinary . . . Fourth Amendment analysis.” Whren v. United

States, 517 U.S. 806, 813 (1996); see also Graham, 490 U.S.

at 399. By contrast, subjective intent is critical in an Eighth

Amendment analysis. More than de minimis force applied for

36 RODRIGUEZ V. CRUZ

no good faith law enforcement purpose violates the Eighth

Amendment. See Whitley, 475 U.S. at 320–21 (1986)

(holding that whether an officer used excessive force in

violation of the Eighth Amendment “ultimately turns on

‘whether force was applied in a good faith effort to maintain

or restore discipline or maliciously and sadistically for the

very purpose of causing harm.’ ” (quoting Johnson, 481 F.2d

at 1033)). Objective reasonableness may inform the Eighth

Amendment inquiry, providing evidence of good faith or of

malice. Hudson, 503 U.S. at 7. But once a jury has

determined on the basis of sufficient evidence that “prison

officials maliciously and sadistically use[d] [more than de

minimis] force to cause harm, contemporary standards of

decency,” and thus the Eighth Amendment, “always are

violated.” Id. at 9. Here, the evidence amply supported the

jury’s finding that the deputies acted maliciously and

sadistically.

c. Supervisors

The supervisor appellants—the sergeants who directed the

extraction teams (Sergeants McGratten, Ohnemus, and

Washington) and their superiors (Captain Cruz and

Lieutenant Blasnek)—argue that they are entitled to qualified

immunity. They contend that they did not violate clearly

established law because their actions were justified by the

nature of the pre-extraction disturbance and the appellees’

resistance. As explained above, the deputies’ actions violated

clearly established law. The question specific to the

supervisors is whether they are individually liable for those

constitutional violations under principles of supervisory

liability. We conclude that they are.

RODRIGUEZ V. CRUZ 37

A supervisory official is liable under § 1983 so long as

“there exists either (1) his or her personal involvement in the

constitutional deprivation, or (2) a sufficient causal

connection between the supervisor’s wrongful conduct and

the constitutional violation.” Keates v. Koile, 883 F.3d 1228,

1242–43 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d

1202, 1207 (9th Cir. 2011)). “The requisite causal connection

can be established . . . by setting in motion a series of acts by

others or by knowingly refus[ing] to terminate a series of acts

by others, which [the supervisor] knew or reasonably should

have known would cause others to inflict a constitutional

injury.” Starr, 652 F.3d at 1207–08 (internal quotation marks

and citations omitted) (alterations in original). Thus, a

supervisor may “be liable in his individual capacity for his

own culpable action or inaction in the training, supervision,

or control of his subordinates; for his acquiescence in the

constitutional deprivation; or for conduct that showed a

reckless or callous indifference to the rights of others.”

Keates, 883 F.3d at 1243 (quoting Starr, 652 F.3d at 1208).

Sergeants McGrattan, Ohnemus, and Washington concede

that they were personally present and directed the deputies’

use of force against appellees. Even assuming that their

presence and direction of the extraction teams does not

constitute “personal involvement,” there is a “sufficient

causal connection” to establish the sergeants’ supervisory

liability for their “own culpable action or inaction in the . . .

supervision [and] control of” the deputies. Keates, 883 F.3d

at 1242–43 (citation omitted).

We do not accept appellants’ argument that the nature of

the pre-extraction disturbance, standing alone, justified the

supervisors’ inaction. Long before the incident in question,

the Supreme Court established that government officials

38 RODRIGUEZ V. CRUZ

violate the Eighth Amendment when they use malicious and

sadistic force in the course of quelling a prison disturbance,

even one that “indisputably poses significant risks to the

safety of inmates and prison staff.” See Whitley, 475 U.S. at

320–21.

To the extent that appellants Cruz and Blasnek stood by

and observed the extractions but “knowingly refus[ed] to

terminate” the deputies’ unconstitutional acts, Starr, 652 F.3d

at 1207 (citation omitted), they are individually liable for the

same reasons as Sergeants McGrattan, Ohnemus, and

Washington. Ample evidence—including appellants’ own

testimony—supports the conclusion that appellants Cruz and

Blasnek directed and observed most of the extraction teams.

For example, there was evidence that appellant Blasnek

“observe[d] each extraction.” Appellant Cruz was shown on

video observing Trinidad’s, Sanchez’s, and Flores’s

extractions.

It is not clear from the record before us that appellant

Cruz directly observed Nunez’s and Rodriguez’s extractions.

Assuming without deciding that Cruz did not observe these

extractions, the jury could still have reasonably found the

“requisite causal connection” to hold Cruz liable for his “own

culpable action or inaction in the training, supervision, or

control of his subordinates.” Starr, 652 F.3d at 1207–08

(citations omitted). The jury could have concluded from

evidence in the record, including Olmstead’s testimony, that

Cruz knowingly participated in creating and maintaining a

culture of impunity for officers’ use of unconstitutionally

excessive force, thereby “setting in motion a series of acts

by” his subordinates that Cruz “knew or reasonably should

have known would cause” the violations of appellees’ Eighth

Amendment rights. Id. (citations omitted). The jury could

RODRIGUEZ V. CRUZ 39

also reasonably have concluded that in disabling or failing to

follow procedures used to identify uses of excessive force,

and in ensuring that violators escaped punishment, Cruz

created an environment where the mechanisms for

supervision and control over the use of force operated

ineffectively and sometimes not at all. Thus, the jury could

also reasonably conclude that Cruz’s “inaction in the training,

supervision, or control of his subordinates” provided a basis

for supervisory liability. Id. at 1208 (citation omitted).

2. Immunity under State Law

Finally, the supervisors argue that they have immunity

under state law. They argue that they cannot be held liable

under California Civil Code § 52.1 because California Civil

Code § 820.2 shields them from liability for discretionary

acts and California Civil Code § 820.8 renders them immune

from vicarious liability. We disagree. First, § 820.2 does not

shield from liability government employees who use

excessive force in carrying out their duties. See Blankenhorn

v. City of Orange, 485 F.3d 463, 487 (9th Cir. 2007). Second,

§ 820.8 is inapplicable because, as just explained, appellees

do not rely on vicarious liability, but, rather, rely on the

supervisors’ culpable action or inaction that proximately

caused their injuries.

D. California Civil Code § 52.1

The district court entered judgment in favor of appellees

Flores, Nunez, Sanchez and Trinidad under the Bane Act,

California Civil Code § 52.1, on their cruel and unusual

punishment claims under the Eighth Amendment. (As noted

above, supra Section I.B, appellee Rodriguez, a pre-trial

detainee, brought a Fourteenth Amendment due process claim

40 RODRIGUEZ V. CRUZ

rather than an Eighth Amendment cruel and unusual

punishment claim.) In relevant part, § 52.1 provides a cause

of action for interference or attempted interference “by threat,

intimidation, or coercion” with the “exercise or enjoyment”

of rights under the federal Constitution. Appellants argue that

§ 52.1 required appellees to prove that appellants threatened,

intimidated, or coerced appellees in some manner beyond the

coercion inherent in the Eighth Amendment excessive force

violation. In advancing this argument, appellants misread

§ 52.1 and California case law.

The most recent California Supreme Court case

interpreting the Bane Act is Venegas v. County of Los

Angeles (Venegas II), 87 P.3d 1 (Cal. 2004), in which two

plaintiffs alleged that sheriff’s deputies violated the Act when

they searched plaintiffs’ home without a warrant and without

consent, arrested one of the plaintiffs based on evidence

obtained during the warrantless search, and detained the other

for two hours. Plaintiffs did not allege threats, intimidation,

or coercion separate from, or in addition to, the conduct that

constituted the violations of the Fourth and Fourteenth

Amendments. See id. at 3–4. Without extended analysis, the

California Supreme Court held that “plaintiffs adequately

stated a cause of action under Section 52.1.” Id. at 14. The

Court’s holding in Venegas II had been prefigured in Jones v.

Kmart Corp., 949 P.2d 941 (Cal. 1998), in which KMart

employees pursued, seized, struggled with, and handcuffed

Jones, a suspected shoplifter. The California Supreme Court

held that no cause of action had been stated under § 52.1

because the KMart employees were not state actors. Id. at

943–44. But the Court noted that Jones’s rights under § 52.1

might have been “put in jeopardy . . . if [the] defendants had

called the police and then coercively interfered with Jones’s

Fourth Amendment rights when he attempted to exercise

RODRIGUEZ V. CRUZ 41

them against the police.” Id. at 944 (emphasis added). In

neither Venegas II nor Jones did the California Supreme

Court hold that § 52.1 requires threats, intimidation, or

coercion beyond that inherent in the constitutional violation

itself.

Appellants rely on two California Court of Appeal cases

decided after Venegas II—Shoyoye v. County of Los Angeles,

203 Cal. App. 4th 947 (2012), and Allen v. City of

Sacramento, 234 Cal. App. 4th 41 (2015)—to support their

argument that § 52.1 requires threats, intimidation, or

coercion beyond that inherent in the underlying constitutional

violation. Neither case supports their argument, as is shown

by two more California Court of Appeal cases—Bender v.

County of Los Angeles, 217 Cal. App. 4th 968 (2013), and

Cornell v. City and County of San Francisco, 17 Cal. App.

5th 766 (2017).

In Shoyoye, because of a negligent clerical error, the

plaintiff was held in the county jail for about sixteen days

beyond the date he should have been released. 203 Cal. App.

4th at 951–53. The Court of Appeal held that the negligent

act did not give rise to a cause of action under § 52.1. Id. at

959. It distinguished Venegas II:

The coercion [in holding Shoyoye in jail for

sixteen days beyond his release date] was not

carried out in order to effect a knowing

interference with Shoyoye’s constitutional

rights. This is in stark contrast to Venegas II,

for example, in which the evidence presented

could support a finding that the probable

cause that initially existed to justify stopping

the plaintiffs eroded at some point, such that

42 RODRIGUEZ V. CRUZ

the officers’ conduct became intentionally

coercive and wrongful, i.e., a knowing and

blameworthy interference with the plaintiffs’

constitutional rights.

Id. at 961.

In Allen, police officers arrested homeless people and

seized their tents, sleeping bags, tarps, and personal items

pursuant to a Sacramento anti-camping ordinance. 234 Cal.

App. 4th at 48–51. Relying on Shoyoye, the Court of Appeal

concluded that no cause of action had been stated under

§ 52.1, even if the arrest violated the Fourth Amendment. Id.

at 69. It wrote:

There are two distinct elements for a

section 52.1 cause of action. A plaintiff must

show (1) intentional interference or attempted

interference with a state or federal

constitutional or legal right, and (2) the

interference or attempted interference was by

threats, intimidation or coercion.

...

Similar to Shoyoye, this case involves an

allegedly unlawful arrest but no alleged

coercion beyond the coercion inherent in any

arrest. . . . Consistent with Shoyoye, we

conclude a wrongful arrest or detention,

without more, does not satisfy both elements

of section 52.1.

Id. at 67, 69.

RODRIGUEZ V. CRUZ 43

Bender was decided after Shoyoye but before Allen. The

plaintiff in Bender was granted a judgment under § 52.1 after

presenting evidence at trial that he had been subjected to

excessive force in the course of his arrest. 217 Cal. App. 4th

at 972–75. The Court of Appeal affirmed. Id. at 981.

Because of Bender, the Court of Appeal in Allen was careful

to limit its holding by noting that excessive force had not

been alleged. It wrote:

We begin by noting what plaintiffs do not

assert. The first amended complaint does not

allege the use of excessive or unreasonable

force by the police, and plaintiffs do not

contend on appeal that this is an excessive

force case.

Allen, 234 Cal. App. 4th at 66.

The facts in Bender are remarkably similar to the facts in

the case before us. Plaintiff Bender was an African-American

apartment manager who had questioned two sheriff’s deputies

when they arrested two African-American tenants of the

apartment. Bender, 217 Cal. App. 4th at 972. As in the case

before us, the defendants in Bender were deputies employed

by the LASD. Id. at 971. The deputies beat the plaintiff until

he was unconscious. Id. at 973. Most strikingly, deputies

yelled “stop fighting” as they were beating Bender even

though he was not fighting or resisting. Id. at 975.

The Court of Appeal wrote:

Deputy Chavez ran around the patrol car

and he and Deputy Sorrow slammed plaintiff

to the ground. Plaintiff was in handcuffs, so

44 RODRIGUEZ V. CRUZ

he could not break the fall and went down on

his face. Deputies Sorrow and Chavez started

“kneeing and kicking and beating him while

he was on the ground.” Deputy Sorrow was

kicking him in the arms and ribs. Plaintiff

was kicked in the side eight to 10 times, and

“there was what felt like a knee in the back of

my neck, pressing my face to the ground.

And while I was being held there by the back

of my neck, I was being struck on the top,

back part of my head.” . . .

During the beating, Deputy Sorrow said,

“F—ing [N word] lover, you’re getting what

you deserved.” Even though plaintiff at no

time attempted to fight or struggle with the

deputies, Deputy Sorrow yelled, “Stop

fighting.” . . . After the beating stopped,

plaintiff “thought it was over with, and I

opened my eyes and I was sprayed across both

of my eyes, and then it was sprayed up to my

nostrils and sprayed up my nose. And when

I opened my mouth to breath, it was pressed

against my lips and sprayed into my mouth.”

Plaintiff lost consciousness.

Id. at 973. The Court of Appeal distinguished Shoyoye based

on the fact that, unlike in Shoyoye, the deputies had used

excessive force: “Where, as here, an arrest is unlawful and

excessive force is applied in making the arrest, there has been

coercion ‘independent from the coercion inherent in the

wrongful detention itself’ (Shoyoye)—a violation of the Bane

Act.” Id. at 978 (emphasis in the original) (citation omitted);

RODRIGUEZ V. CRUZ 45

see also Lyall v. City of Los Angeles, 807 F.3d 1178, 1196

(9th Cir. 2015) (quoting this sentence from Bender).

In Cornell, the Court of Appeal recently confirmed “that

the use of excessive force can be enough to satisfy the [Bane

Act’s] ‘threat, intimidation or coercion’ element.” 17 Cal.

App. 5th at 799. The Court of Appeal explicitly rejected the

argument that appellants advance here, explaining that the

text of the Bane Act does not require “that the offending

‘threat, intimidation or coercion’ be ‘independent’ from the

constitutional violation alleged.” Id. at 800. Rather, the court

explained, in the context of an unlawful arrest, “the

egregiousness required by Section 52.1 is tested by whether

the circumstances indicate the arresting officer had a specific

intent to violate the arrestee’s right to freedom from

unreasonable seizure.” Id. at 801–02.

Finally, this analysis is consistent with our recent decision

in Reese v. County of Sacramento, where we addressed a

Bane Act claim premised on an alleged Fourth Amendment

excessive force violation. — F.3d —, 2018 WL 1902416, at

*6–7 (9th Cir. Apr. 23, 2018). We rejected a similar

argument based on Shoyoye, reasoning that Cornell’s

interpretation of the Bane Act was consistent with the

statutory language and the California Supreme Court’s

decisions. Id. at *8–9. We therefore held that “the Bane Act

does not require the ‘threat, intimidation or coercion’ element

of the claim to be transactionally independent from the

constitutional violation alleged,” but rather a showing of the

defendant’s specific intent to violate the plaintiff’s

constitutional rights. Id. at *8.

We conclude from these decisions that in excessive force

cases, including Eighth Amendment cases, § 52.1 does not

46 RODRIGUEZ V. CRUZ

require proof of coercion beyond that inherent in the

underlying violation. Because appellees Flores, Nunez,

Sanchez and Trinidad provided evidence sufficient to support

a finding that they were subjected to excessive force in

violation of the Eighth Amendment, they necessarily

provided evidence sufficient to support a finding of a

violation of their rights under § 52.1.

E. Monell Liability

Appellants argue that appellees’ evidence was insufficient

to support municipal liability, and that the district court

therefore erred in denying appellants’ post-trial motion for

judgment as a matter of law on appellees’ Monell claim. We

review de novo the district court’s denial of judgment as a

matter of law. We will uphold the jury’s verdict “if it is

supported by substantial evidence, which is evidence

adequate to support the jury’s conclusion, even if it is also

possible to draw a contrary conclusion.” Harper v. City of

Los Angeles, 533 F.3d 1010, 1021 (9th Cir. 2008) (quoting

Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)).

A local government is liable for an injury under § 1983

under three possible theories. See Clouthier v. County of

Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), overruled

on other grounds by Castro, 833 F.3d 1060. First, a local

government may be liable if “execution of a government’s

policy or custom, whether made by its lawmakers or by those

whose edicts or acts may fairly be said to represent official

policy, inflict[ed] the injury.” Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658, 694 (1978). Second, a

local government can fail to train employees in a manner that

amounts to “deliberate indifference” to a constitutional right,

such that “the need for more or different training is so

RODRIGUEZ V. CRUZ 47

obvious, and the inadequacy so likely to result in the violation

of constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the

need.” City of Canton v. Harris, 489 U.S. 378, 390 (1989).

Third, a local government may be held liable if “the

individual who committed the constitutional tort was an

official with final policy-making authority or such an official

ratified a subordinate’s unconstitutional decision or action

and the basis for it.” Gravelet-Blondin, 728 F.3d at 1097

(internal quotation marks and citation omitted).

We have recognized that a § 1983 plaintiff may prove the

second type of Monell liability, deliberate indifference,

through evidence of a “failure to investigate and discipline

employees in the face of widespread constitutional

violations.” Hunter v. Cty. of Sacramento, 652 F.3d 1225,

1234 n.8 (9th Cir. 2011). Thus, it is sufficient under our case

law to prove a “custom” of encouraging excessive force to

provide evidence that personnel have been permitted to use

force with impunity. Id. at 1233 (“We have long recognized

that a custom or practice can be inferred from widespread

practices or evidence of repeated constitutional violations for

which the errant municipal officers were not discharged or

reprimanded.” (internal quotation marks and citations

omitted)); Larez, 946 F.2d at 647 (“[T]here was evidence of

a departmental policy or custom of resorting to the use of

excessive force. The jury properly could find such policy or

custom from the failure of Gates to take any remedial steps

after the violations.”); McRorie v. Shimoda, 795 F.2d 780,

784 (9th Cir. 1986) (“McRorie alleges that guards seriously

injured him and twenty-eight other prisoners during the

shakedown and that Sergeant Dunn was acting under orders

of his superiors. If proved, these acts reflect a [policy or

custom].”); see also Velazquez v. City of Long Beach, 793

48 RODRIGUEZ V. CRUZ

F.3d 1010, 1027–28 (9th Cir. 2015) (recognizing that a

plaintiff could present “a failure-to-discipline Monell theory”

based on evidence “that the City had a policy or custom of

failing to investigate and discipline officers who had

allegedly committed prior instances of excessive force”).

Appellees presented substantial evidence to show that the

LASD had a custom of ignoring or condoning excessive

force, and that this custom proximately caused the beatings at

issue here. That evidence included the CCJV report;

Olmstead’s testimony; evidence that LASD had not used their

force-tracking system to monitor force used against many

prisoners, including appellees; and evidence that supervisory

staff had observed the practices proved at trial but had done

nothing. In declining to grant judgment as a matter of law to

appellants on this issue, the district court ruled that the LASD

had tolerated excessive force at the jail and had created an

atmosphere of wanton violence and impunity. The court

wrote that within the jail itself, “Captain Cruz . . . perpetuated

a culture where excessive force was encouraged, openly

joked with the deputies about force, and promoted the

practice of incomplete and ineffective investigations into

deputy misconduct.”

The record amply supports the jury’s verdict and the

district court’s ruling. There was substantial evidence of

repeated constitutional violations, of LASD’s awareness of

those violations, and of LASD’s failure to take any remedial

action. Our precedents permitted the jury to infer that LASD

had adopted a custom or practice of condoning excessive

force and that this culture of violence and impunity

proximately caused the injuries inflicted on appellees. See

Hunter, 652 F.3d at 1233–34.

RODRIGUEZ V. CRUZ 49

F. Juror Bias

Appellants argue that the district court erred in denying

their motions to excuse Juror Number 5 (“S.M.”) and later

denying a motion for a new trial based on S.M.’s service on

the jury. We disagree.

We review a district court’s implied bias determination de

novo but review the court’s findings of fact and credibility

determinations for clear error. Fields v. Brown, 503 F.3d

755, 770 (9th Cir. 2007) (en banc); Riley v. Payne, 352 F.3d

1313, 1317 (9th Cir. 2003). We review denial of a motion for

a new trial for abuse of discretion. Coughlin v. Tailhook

Ass’n, 112 F.3d 1052, 1055 (9th Cir. 1997).

“The Constitution guarantees both criminal and civil

litigants a right to an impartial jury.” Warger v. Shauers,

135 S. Ct. 521, 528 (2014). We have held that a juror was

“actually biased” where the juror’s answers in voir dire

indicated that he or she cannot decide the case impartially.

United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir.

2000). In “extraordinary” circumstances, we have also found

“implied bias.” Dyer v. Calderon, 151 F.3d 970, 981 (9th

Cir. 1998) (en banc); see also Tinsley v. Borg, 895 F.2d 520,

527–28 (9th Cir. 1990). Implied bias is found “in those

extreme situations ‘where the relationship between a

prospective juror and some aspect of the litigation is such that

it is highly unlikely that the average person could remain

impartial in his deliberations under the circumstances.’ ”

Fields, 503 F.3d at 770 (quoting Tinsley, 895 F.2d at 527).

We have recognized that implied bias can be found “where

the juror is apprised of such prejudicial information about the

defendant that the court deems it highly unlikely that he can

exercise independent judgment even if the juror states he

50 RODRIGUEZ V. CRUZ

will,” Tinsley, 895 F.2d at 528, or “where repeated lies in voir

dire imply that the juror concealed material facts in order to

secure a spot on the particular jury,” Fields, 503 F.3d at 770

(citing Dyer, 151 F.3d at 982).

We have cautioned that courts assessing implied bias

“should hesitate before formulating categories of

relationships which bar jurors from serving in certain types of

trials.” Id. at 772 (quoting Tinsley, 895 F.2d at 527)). For

example, “[w]e will not presume bias merely because a juror

works in law enforcement or is a federal government

employee.” Tinsley, 895 F.2d at 529. Otherwise, our

doctrine of implied bias would not be limited to “extreme

situations,” Fields, 503 F.3d at 770, but would instead extend

to “the summary exclusion for cause of NAACP members

from cases seeking the enforcement of civil rights statutes,

Moral Majority activists from pornography cases, Catholics

from cases involving abortion clinic protests, members of

NOW from sex discrimination cases, and subscribers to

Consumer Reports from cases involving products liability

claims,” Tinsley, 895 F.2d at 528 (quoting United States v.

Salamone, 800 F.2d 1216, 1225 (3d Cir. 1986)).

We have found implied bias based on a juror’s

employment only where it has been accompanied by

additional factors. In United States v. Allsup, 566 F.2d 68,

71–72 (9th Cir. 1977), we held that two jurors were impliedly

biased in a bank robbery trial where they worked for a

different branch of the bank that had been robbed. We

attributed this result to “[t]he employment relationship

coupled with a reasonable apprehension of violence by bank

robbers.” Id. In a subsequent en banc opinion, we noted the

limits of Allsup’s holding, explaining that “[t]he implied bias

that we found in Allsup was based on the jurors’ direct

RODRIGUEZ V. CRUZ 51

relationship with the victim and their own vulnerability to the

same type of conduct for which the accused bank robbers

were on trial.” Fields, 503 F.3d at 773. By contrast, in

Tinsley, we declined to infer bias on the basis of a juror’s

employment, “even where closely related to the substance of

the case.” 895 F.2d at 529 (finding no implied bias in a rape

case that turned on credibility, even though the juror had

professionally counseled a different rape survivor for a year

and a half and had testified at trial that that survivor was

credible).

We have been similarly hesitant to find implied bias

based solely on the experiences of a juror’s relatives. Thus,

while “we have recognized that bias may be implied where

close relatives of a juror ‘have been personally involved in a

situation involving a similar fact pattern,’ we have never done

so when the juror was honest on voir dire.” Fields, 503 F.3d

at 773 (internal citations omitted) (quoting Tinsley, 895 F.2d

at 528).

Here, appellants argue that S.M. was impliedly biased due

to a combination of the professional activities of his parents

and his personal friendships with other individuals who had

some involvement with the prison system.

This record does not require a finding of implied bias.

The ACLU affiliation of S.M.’s father does not, standing

alone, give rise to an inference of bias. Bias is even less

likely here than in Tinsley, since S.M. was not himself

affiliated with the ACLU. See United States v. Olano,

62 F.3d 1180, 1192 (9th Cir. 1995) (holding that juror’s

daughter-in-law’s employment with the company from whom

Olano was accused of taking kickbacks did not imply bias);

Salamone, 800 F.2d at 1226 (absent additional evidence of

52 RODRIGUEZ V. CRUZ

bias, “no juror may be excluded for cause on the basis of his

or her membership in an organization that adheres to a

particular view”).

Though the organizations with which S.M.’s family and

friends were associated had some remote connections to this

particular case, S.M. was not a member in these

organizations and was unaware of their involvement in

activities tied to this case. The ACLU had only an indirect

relationship with the litigation and that relationship does not

appear to have been known to S.M. Further, S.M. was

unaware that his friend’s organization, the CCJV, had

prepared a report that would be presented as evidence in the

case. Finally, S.M. also made clear that he did not know

whether the LASD had committed any of the kinds of abuses

that his family opposed.

Nor does the timing of the op-ed article published in the

Los Angeles Times by S.M.’s mother near the end of the trial

require us to find implied bias. S.M.’s mother’s publicly

expressed opinion on civilian oversight of LASD does not

implicate our case law involving “close relatives of a juror

[that] ‘have been personally involved in a situation, involving

a similar fact pattern,’ ” Fields, 503 F.3d at 773 (quoting

Tinsley, 895 F.2d at 528)), nor does it present a new type of

“extreme” situation giving rise to implied bias. An innocent

explanation for the article’s timing appears in its first two

sentences: “It is time to seriously consider a civilian

oversight board for the Los Angeles County Sheriff’s

Department. The Board of Supervisors is scheduled to

consider such a proposal next week.” (Emphasis added.)

The remainder of the article is devoted largely to the virtues

of civic participation. The article alludes to problems in Los

Angeles’s jails only in general terms and does not mention

RODRIGUEZ V. CRUZ 53

excessive force or the Men’s Central Jail. This is not enough

to overcome the presumption that S.M. complied with the

court’s instructions not to talk about the case with others and

to avoid reading about subjects related to the case. See

Parker v. Randolph, 442 U.S. 62, 73 (1979), abrogated on

other grounds by Cruz v. New York, 481 U.S. 186, 194

(1987).

Finally, appellants contend that S.M. was not candid

during voir dire. We held in Dyer, 151 F.3d at 982, that a

juror’s dishonesty supported an inference of bias, but the facts

in Dyer were radically different from the facts here. In Dyer,

the juror in question failed to mention that her brother was

murdered in the same manner that the defendant was accused

of murdering the victim. Further, the juror lied by claiming

that she thought her brother’s death was an accident and by

stating that she did not testify at the trial of her brother’s

killer. Id. at 982. Here, by contrast, there is no evidence that

S.M. was dishonest about anything. During his initial voir

dire, S.M. failed to mention his father’s ACLU connection,

but the next day, on his own initiative, he notified the court of

the omission. The district court did not err in finding that this

initial omission was not evidence of dishonesty that would

support a finding of implied bias. Further, the late disclosure

did not deprive appellants of the opportunity to exercise a

peremptory challenge, for they had used all of their

peremptory challenges before S.M.’s initial voir dire began.

G. Punitive Damages

Appellants challenge as excessive the jury’s award of

punitive damages. The total compensatory damages award

was $740,000. The total punitive damages award was

$210,000, awarded only against the supervisory appellants.

54 RODRIGUEZ V. CRUZ

The punitive damages awarded per individual supervisor

were: $75,000 against appellant Cruz; $60,000 against

appellant Blasnek; $30,000 each against appellants

McGratten and Ohnemus; and $15,000 against appellant

Washington. All of the punitive damages awards to

individual appellees ranged from $10,000 to $15,000, with

the exception of one award of $30,000.

Appellants urge us to apply California law that limits

punitive damages based on a defendant’s net worth. We

decline to apply California law here because appellees sought

punitive damages for violations of their rights under

42 U.S.C. § 1983 rather than state law. Under federal law,

“ability to pay is of some importance” in assessing the

propriety of a punitive damages award but it is not

dispositive. Tri-Tron Int’l v. Velto, 525 F.2d 432, 438 (9th

Cir. 1975).

Under the Due Process Clause of the Fourteenth

Amendment, the determination whether punitive damages are

excessive turns on several factors, including the

egregiousness of the conduct, the proportionality between

punitive and compensatory damages awards, and the amount

of the punitive damages awarded or upheld in similar cases.

See State Farm Mut. Automobile Ins. Co. v. Campbell,

538 U.S. 408, 418 (2003). As applied to facts of this case,

these factors do not warrant reversal.

Appellees proved egregious, even shocking, abuses of

power. Furthermore, the punitive damages awarded to each

appellee, considered individually or together, were all far less

than appellees’ compensatory damages. We have upheld

significantly larger per-plaintiff punitive damages awards in

other cases. For example, we recently upheld a jury award of

RODRIGUEZ V. CRUZ 55

$125,000 in compensatory damages and $165,000 in punitive

damages to a single plaintiff, in an excessive force case

against the County of Los Angeles, as well as appellant Cruz

and several other LASD officials working in a Los Angeles

County jail. Willis v. Vasquez, 648 F. App’x 720, 724 & n.1

(9th Cir. 2016).

H. Trial Errors

Appellants argue that the district court committed several

reversible errors during trial. We are not persuaded.

First, appellants argue that appellees’ Monell claim

against the county should have been tried separately from

their claims against the individual defendants. The district

court acted within its “broad discretion” in declining to

bifurcate the Monell claim. Hangarter v. Provident Life &

Acc. Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (citation

omitted). Though some of the evidence relevant to the

Monell claims was irrelevant to individual liability, the

district court’s many limiting instructions cured any possible

prejudice. See Velazquez, 793 F.3d at 1028.

Second, appellants argue that the district court should not

have excluded evidence of appellees’ felony convictions and

their gang membership. The district court permitted

appellants’ witnesses to testify, consistent with their

knowledge, that the prisoners involved in the disturbance held

some of the highest security classifications in the prison. For

example, appellants testified that the prisoners were

“extremely dangerous,” that they were some of the most

dangerous prisoners in the county and even the country, that

they were the “worst of the worst,” and that they were prone

to act violently toward other prisoners and staff. The court

56 RODRIGUEZ V. CRUZ

also permitted appellants to present evidence of appellees’

violent and disruptive behavior before and during the

extraction itself. The court evaluated the additional probative

value of the proffered evidence of criminal history and gang

membership, and balanced it against prejudice to appellees.

It then acted within its discretion in excluding the evidence

under Federal Rule of Evidence 403. “The Rule 403

weighing process is primarily for the district court to perform.

Trial judges are better able to sense the dynamics of a trial

than we can ever be, and broad discretion must be accorded

them in balancing probative value against prejudice.”

Longenecker v. Gen’l Motors Corp., 594 F.2d 1283, 1286

(9th Cir. 1979); see also United States v. Weiland, 420 F.3d

1062, 1078 (9th Cir. 2005).

Third, appellants argue that the district court erred in two

of its instructions to the jury. One is an instruction in which

the court told the jury:

The defendants have an affirmative duty to

video record what occurred during the

extractions and to preserve the videos.

Certain videos once existed. Now they are

missing or they are destroyed. The Court

makes a finding to be used for all purposes

that defendants violated their own video

preservation policy by not maintaining these

videos.

Appellants argue that before giving this instruction the

district court was required to find that the videotapes had

been willfully misplaced or destroyed. See Leon v. IDX Sys.

Corp., 464 F.3d 951, 959 (9th Cir. 2006). The district court

did make such a finding, which was supported by evidence in

RODRIGUEZ V. CRUZ 57

the record. Further, individual appellants point out that there

was no showing that any of them were responsible for the

loss or destruction of the videotapes. Therefore, they argue,

the jury should have been told that the instruction could be

used against only the county. We are not convinced. But

assuming without deciding that the individual appellants are

right on this point, we conclude that there was no prejudice,

given the overwhelming evidence against them. See Chess v.

Dovey, 790 F.3d 961, 977 (9th Cir. 2015) (noting that an

erroneous jury instruction is harmless if “it is more probable

than not that the jury would have reached the same verdict

had it been properly instructed” (citation omitted)).

The other challenged instruction told the jury to disregard

appellant Alonso’s testimony that he heard the prisoners

shouting “Spanish words that meant they were ready to

fight.” The district court interpreted this testimony to refer to

the phrase “puro sur trece,” a gang slogan that the court had

excluded from evidence in a pretrial order. The court did not

clearly err in finding that appellant Alonso was referring to

the excluded slogan in his testimony, and did not abuse its

discretion in giving the instruction.

Fourth, appellants argue that the district court should have

allowed live testimony from some of the appellees as well as

some non-party inmates. Appellee Rodriguez did provide

live testimony. The other appellees and the non-party

inmates testified by means of video depositions. The district

court had authorized the taking of these depositions on the

understanding that they could be used at trial in lieu of live

testimony, and appellants were able to cross examine the

witnesses during the depositions. Before trial, appellees

successfully moved for admission of the videotaped

depositions, listing a driving mileage of 126 miles between

58 RODRIGUEZ V. CRUZ

the courthouse and the witnesses’ place of incarceration.

After witness lists were filed, after the final pretrial order was

filed limiting witnesses to those identified on the lists, and

three weeks after appellees’ motion was granted, appellants

applied for writs of habeas corpus ad testificandum to compel

live testimony from the four appellees and the non-party

inmates. The district court reasonably denied the application.

Appellants maintain that the district court erred in

denying their application, noting that deposition testimony is

allowed under Federal Rule of Civil Procedure 32(a)(4)(B)

only if the witness is located more than 100 miles from the

place of trial. They contend that the distance between the

witnesses’ place of incarceration is less than 100 miles “as

the crow flies” (though they concede that it is more than

100 miles in driving distance). Appellants never presented

this argument to the district court, and it is therefore waived.

See In re Mercury Interactive Corp. Secs. Litig., 618 F.3d

988, 992 (9th Cir. 2010).

I. Attorney’s Fees

The district court awarded $5,378,174.66 in attorney’s

fees payable to appellees’ trial attorneys. We review the

award for abuse of discretion, Jones v. Giles, 741 F.2d 245,

250 (9th Cir. 1984), and affirm the decision of the district

court.

Appellants argue that the district court should have

applied the PLRA’s attorney’s fee provisions to all attorney’s

fees incurred in this case. The PLRA limits recovery of

attorney’s fees “in any action brought by a prisoner . . . in

which attorney’s fees are authorized under [42 U.S.C.

§ 1988].” 42 U.S.C. § 1997e(d). However, the PLRA’s limits

RODRIGUEZ V. CRUZ 59

do not apply to attorney’s fees incurred in litigation under

California Civil Code § 52.1. Attorney’s fees incurred in

litigating § 52.1 claims are not authorized under 42 U.S.C.

§ 1988. Rather, § 52.1(h) authorizes attorney’s fee awards

independently of 42 U.S.C. § 1988. Indeed, we have held

that the PLRA attorney’s fees cap does not apply even to

federal law claims for which attorney’s fees are available

under 42 U.S.C. § 1988, as long as those claims are brought

under statutes with their own attorney’s fee provisions.

Armstrong v. Davis, 318 F.3d 965, 973–74 (9th Cir. 2003)

(holding that the PLRA cap does not apply to fees awarded

under the ADA’s or RA’s attorney’s fee provisions even if

the plaintiff could have sought attorney’s fees under § 1988).

The district court calculated attorney’s fees attributable

solely to the work performed in litigating appellees’

42 U.S.C. § 1983 claims and applied 42 U.S.C. § 1997e(d) to

those fees. It calculated attorney’s fees solely attributable to

appellees’ § 52.1 claims as well as fees that were as readily

available to appellees’ § 52.1 claims as to their § 1983 claims,

and applied § 52.1(h) to those fees. The district court did not

abuse its discretion in so doing. See Bouman v. Block,

940 F.2d 1211, 1230, 1237 (9th Cir. 1991) (holding that the

district court did not abuse its discretion in awarding fees

under a California statute in excess of those allowed under

federal law, where the plaintiff challenged the same

discriminatory conduct under state and federal law).

Appellants challenge the district court’s decision to apply

a 2.0 multiplier to the attorney’s fees in this case. Calculation

of attorney’s fee awards in cases brought under state law is a

substantive matter to which state law applies. See In re

Larry’s Apartment, L.L.C., 249 F.3d 832, 838 (9th Cir. 2001);

Mangold v. California Pub. Utilities Comm’n, 67 F.3d 1470,

60 RODRIGUEZ V. CRUZ

1478–79 (9th Cir. 1995). In accordance with state law, the

district court based its decision on the substantial financial

risk that appellees’ counsel assumed in investing $3.4 million

of attorney time in a contingency case; the difficulty of

representing prisoners with the Men’s Central Jail’s highest

security classifications, in an excessive force action against

high-ranking jail officials, all the while facing “aggressive

opposition” from appellants; and the opportunity costs the

years-long litigation in this case required. The court

expressly noted that it had considered the burden to

California’s taxpayers that the fee award would represent, and

found that the award was justified given the factors described

above and the importance of civil rights suits in protecting the

public against abuses at the hands of “large or politically

powerful defendants.” Horsford v. Bd. of Trustees of

California State Univ., 132 Cal. App. 4th 359, 399–401

(2005); see Serrano v. Priest, 20 Cal. 3d 25, 49 (1977) (“The

experienced trial judge is the best judge of the value of

professional services rendered in his court, and while his

judgment is of course subject to review, it will not be

disturbed unless the appellate court is convinced that it is

clearly wrong.” (internal quotation marks and citation

omitted)). We cannot fault the trial judge’s reasoning or

results here.

Conclusion

For all the foregoing reasons, we affirm the judgment of

the district court.

AFFIRMED.