                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

TYLER H. WILLIS,                                 Nos. 14-55721
                                                      14-56200
              Plaintiff - Appellee,
                                                 D.C. No. 2:10-cv-07390-JAK-
 v.                                              DTB

ANTHONY D. VASQUEZ; et al.,                      MEMORANDUM*

              Defendants - Appellants.


                   Appeals from the United States District Court
                      for the Central District of California
                   John A. Kronstadt, District Judge, Presiding

                        Argued and Submitted April 7, 2016
                               Pasadena, California

Before:       TASHIMA, SILVERMAN, and GRABER, Circuit Judges.

       Defendants-Appellants, who are Los Angeles County Sheriff’s Deputies

Anthony D. Vasquez, Mark V. Farino, Pedro L. Guerrero; County of Los Angeles

and Los Angeles County Sheriff’s Department (the “Municipal Defendants”); and

Los Angeles County Sheriff Lee Baca and Captain Daniel Cruz (the “Supervisor

Defendants”), appeal from judgment entered against them by a jury verdict in a 42


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 1983 action filed by Plaintiff-Appellee Tyler H. Willis, a Los Angeles

County post-arraignment, pretrial detainee, alleging federal constitutional claims

and related state law claims. We have jurisdiction under 28 U.S.C. § 1291. We

affirm in part, vacate in part, and remand.

      Bifurcation

      The district court did not abuse its discretion in denying Defendants’ motion

to bifurcate the trial because, given the overlap in the evidence used to prove

Willis’ claims against the Supervisor Defendants and the Municipal Defendants,

bifurcation would have been costly and unnecessary. See Hangarter v. Provident

Life & Accident Ins. Co., 373 F.3d 998, 1021 (9th Cir. 2004) (setting forth standard

of review).

      Admission of CCJV Report and McCorkle Memorandum

      The district court did not abuse its discretion in admitting redacted portions

of the Citizen’s Commission on Jail Violence Report (“CCJV report”) and the

internal memorandum prepared by Lieutenant McCorkle (“McCorkle

memorandum”). See Causey v. Zinke (In re Aircrash in Bali, Indonesia), 871 F.2d

812, 816 (9th Cir. 1989) (per curiam) (setting forth standard of review).

      The CCJV report and the McCorkle memorandum were investigative reports

that were not prepared in connection with the incident at issue in this action and,


                                          2
therefore, the investigations themselves were not remedial measures. The district

court properly excluded or redacted from the reports any remedial measures

actually taken. Furthermore, the reports were directly relevant to Willis’ claims

against the Supervisor Defendants because the reports provided evidence of

knowledge of numerous prior incidents of unreasonable force, but a failure to

discipline, or train subordinate officers to prevent their reoccurrence. See Starr v.

Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (explaining that a supervisor can be

liable under § 1983 for “his own culpable action or inaction in the training,

supervision, or control of his subordinates, his acquiescence in the constitutional

deprivations of which the complaint is made, or conduct that showed a reckless or

callous indifference to the rights of others” (internal quotations marks omitted));

see also Velazquez v. City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015)

(explaining that, under § 1983, municipality’s “custom or practice can be inferred

from evidence of repeated constitutional violations for which the errant municipal

officers were not discharged or reprimanded” (internal quotations marks and

ellipsis omitted)); Henry v. Cty. of Shasta, 132 F.3d 512, 519 (9th Cir. 1997)

(“When a county continues to turn a blind eye to severe violations of inmates’

constitutional rights—despite having received notice of such violations—a rational

fact finder may properly infer the existence of a previous policy or custom of


                                           3
deliberate indifference”), as amended by 37 F.3d 1372, 1372 (9th Cir. 1998)

(order).

      Lastly, the district court gave an adequate limiting instruction explaining that

the evidence was admitted only for a limited purpose, and what that purpose was.

See Velazquez, 793 F.3d at 1028 (holding that potential prejudice can be cured by

an appropriate limiting instruction); see also Dubria v. Smith, 224 F.3d 995, 1002

(9th Cir. 2000) (en banc) (“[C]autionary instruction[s] [are] presumed to have

cured prejudicial impact.”).

      Excessive Force and Deference Jury Instructions

      The district court declined to give two of Defendants’ requested instructions:

that Willis must prove that “defendants acted maliciously and sadistically for the

purpose of causing harm” consistent with the Eighth Amendment to prevail on his

excessive force claim; and that the jury “should give deference to prison officials

in the adoption and execution of policies and practices that in their judgment are

needed to preserve discipline and to maintain internal security in a prison.”

      In Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472-73 (2015), the Supreme

Court held that a pretrial detainee is required to prove only that the force used was

objectively unreasonable. Therefore, the district court did not err in denying




                                           4
Defendants’ proposed jury instruction on “sadistic and malicious” use of force

consistent with the Eighth Amendment.

       However, as to the deference instruction, the district court erred in refusing

to instruct the jury that deference should be given to jail officials’ judgment in

preserving order and discipline to maintain the jail’s security. “[M]aintaining

institutional security and preserving internal order are essentials goals [of a

prison]” and, accordingly, in certain instances, “[p]rison administrators . . . should

be accorded wide-ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 546-47

(1979); see also Kingsley, 135 S. Ct. at 2473 (quoting Bell and stating that the

reasonableness of force used against pretrial detainee must account for the

legitimate interests that stem from the government’s need to manage the jail

facility).

       We have held that the failure to instruct the jury on deference afforded

prison officials for a prisoner’s Eighth Amendment conditions of confinement

claim can constitute reversible, prejudicial error. Norwood v. Vance, 591 F.3d

1062, 1067 (9th Cir. 2010). Here, though, the error was harmless. Given the

extensive injuries that Willis sustained and the fact that the jury awarded punitive


                                           5
damages, the verdict would “more probably than not” have been the same, absent

the error. Clem v. Lomeli, 566 F.3d 1177, 1182-83 (9th Cir. 2009). Additionally,

the jury instruction given by the district court already asked the jury to consider:

“Whether the force was used for punishment or in a good faith effort to maintain or

restore safe conditions in the jail” and, thus, the jury already was required to

consider whether Defendants’ use of force was necessary to maintain the jail’s

security.

      Motion for New Trial

      The district court did not abuse its discretion in denying Defendants’ motion

for new trial because there was substantial evidence to support the jury’s verdict

and award of punitive damages against Baca, Cruz, and the County of Los Angeles

as documented in the CCJV report and the McCorkle memorandum. See Guy v.

City of San Diego, 608 F.3d 582, 585 (9th Cir. 2010) (setting forth standard of

review).

      Inconsistent Jury Verdict

      Despite what Defendants contend, the jury’s verdict in favor of Vasquez on

the state law battery claim is not fatally inconsistent with its verdict against

Vasquez on the excessive force claim. Given that Willis was repeatedly struck

with a flashlight and tasered by Guerrero, and given that Farino repeatedly


                                            6
punched Willis in the face, the jury reasonably could have concluded that, although

some force could have been used, the amount of force was excessive. See id. at

586 (explaining that this court should reconcile the jury’s special verdict responses

if possible). In any event, inconsistent verdicts are not per se reversible. United

States v. Horowitz, 756 F.2d 1400, 1406 (9th Cir. 1985).

      Attorney’s Fees

      For the first time on appeal, Defendants contend that Willis’ counsel fees

were limited to 150% of the judgment, or $435,000, under 42 U.S.C.

§ 1997e(d) of the Prison Litigation Reform Act ("PLRA"). We typically “decline

to consider arguments raised for the first time on appeal.” Paeste v. Gov’t of

Guam, 798 F.3d 1228, 1235 (9th Cir. 2015) (internal quotation marks omitted)).

However, we may exercise discretion to hear an issue for the first time on appeal if

the issue is “purely one of law, does not affect or rely upon the factual record

developed by the parties, and will not prejudice the party against whom it is

raised.” Id. (internal quotation marks omitted).

      Because the issue presented here is purely one of law, and because it is clear

that there is no prejudice to Willis, we will exercise our discretion here. Any legal

argument Willis could have raised below, he could raise here; no facts on this point

are disputed. Moreover, this legal issue has been fully vetted on appeal.


                                           7
      Under the PLRA, attorney’s fees are limited to 150% of the monetary

judgment. 42 U.S.C. § 1997e(d)(2); Woods v. Carey, 722 F.3d 1177, 1179 (9th

Cir. 2013). Here, the amount of the monetary judgment was $290,000.1 Pursuant

to 42 U.S.C. § 1997e(d)(2), Defendants are responsible for paying Willis’

attorney’s fees: $435,000 or 150% of the monetary judgment.2

      While the district court appropriately calculated the reasonable amount of

attorney’s fees pursuant to 42 U.S.C. § 1997e(d)(1), this amount was subject to the

cap under subsection (d)(2). Accordingly, we vacate the amount of the attorney’s

fees award and remand to the district court for further proceedings consistent with

this disposition.

      Willis’ request to strike Volume 12 of the Excerpts of Record, as set forth in

the Answering Brief, is denied because the documents in Volume 12 were part of

the district court’s docket and thus are properly part of the record on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED. The parties

shall bear their own costs on appeal.




      1
       The jury awarded $125,000 in compensatory damages and $165,000 in
punitive damages.
      2
        Title 42 U.S.C. § 1997e(d)(2) also provides that up to 25% of the judgment
shall be applied to satisfy the amount of attorney’s fees.

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