                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 01 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FREDERICK JACKSON; A.N.J., a minor;              No. 10-17456
B.F.A.J., a minor; SHAWNA YVETTE
MARTIN,                                          D.C. No. 3:09-CV-01016-WHA

              Plaintiffs - Appellees,
                                                 MEMORANDUM *
  v.

CITY OF PITTSBURG; AARON L.
BAKER, individually and in his official
capacity as Chief of Police of the City of
Pittsburg Police Department; C. SMITH;
P. DUMPA; WILLIAM BLAKE
HATCHER; SARA SPIRES, individually
and as Officers of the City of Pittsburg
Police Department,

              Defendants,

  and

G. LOMBARDI, individually and as an
Officer of the City of Pittsburg Police
Department (Badge #275),

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
FREDERICK JACKSON; A.N.J., a minor;              No. 10-17561
B.F.A.J., a minor; SHAWNA YVETTE
MARTIN,                                          D.C. No. 3:09-CV-01016-WHA

              Plaintiffs - Appellants,

  v.

CITY OF PITTSBURG; AARON L.
BAKER, individually and in his official
capacity as Chief of Police of the City of
Pittsburg Police Department; G.
LOMBARDI, individually and as an
Officer of the City of Pittsburg Police
Department (Badge #275); C. SMITH; P.
DUMPA; WILLIAM BLAKE
HATCHER; SARA SPIRES, individually
and as Officers of the City of Pittsburg
Police Department,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                     Argued and Submitted December 6, 2012
                            San Francisco, California

Before: D.W. NELSON, TASHIMA, and MURGUIA, Circuit Judges.

       Gerald Lombardi appeals the district court’s partial denial of his renewed

motion for judgment as a matter of law under Federal Rule of Civil Procedure




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50(b) in Frederick Jackson’s 42 U.S.C. § 1983 action. Lombardi also appeals the

district court’s denial of his motion for a new trial.

      Jackson cross-appeals the district court’s partial grant of the officers’ motion

for judgment as a matter of law on the grounds that qualified immunity barred

Jackson’s Fourth Amendment claims. Jackson also appeals the district court’s

order denying costs to both parties.

      We have jurisdiction under 28 U.S.C. § 1291. We review de novo an order

granting or denying judgment as a matter of law. Lawson v. Umatilla Cnty., 139

F.3d 690, 692 (9th Cir. 1998). We review for abuse of discretion an order denying

a motion for a new trial. Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010). We

review de novo who is a “prevailing party,” La Asociacion de Trabajadores de

Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010), but

review the award or denial of costs under Federal Rule of Civil Procedure 54(d)(1)

for abuse of discretion, Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342

F.3d 1016, 1020 (9th Cir. 2003). We affirm the district court in all respects except

one: we reverse the district court’s order denying costs to Jackson.

A.    The motion for judgment as a matter of law.

1.    The district court did not err when it granted in part the officers’ motion for

judgment as a matter of law on the ground that all three tasing officers were


                                            3
entitled to qualified immunity on Jackson’s Fourth Amendment claims. At the time

Jackson was tased, the law regarding excessive-force claims involving the use of

tasers was not clearly established in this circuit. See Bryan v. MacPherson, 630

F.3d 805, 833 (9th Cir. 2010). Jackson argues that the officers’ conduct was “so

patently violative” of his constitutional rights that the lack of clearly established

law is irrelevant. Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)

(internal quotation marks and citation omitted). But the officers who tased him

clearly had less reason to believe their conduct was unconstitutional than did the

officers in Bryan: Jackson matched the description of a man whom two 911 callers

claimed had committed an assault and was carrying a weapon, and Jackson made

physical contact with the officer attempting to search him. The plaintiff in Bryan,

by contrast, was suspected of no serious crime and was standing fifteen to twenty-

five feet from the officers who tased him. Bryan, 630 F.3d at 827–29.

2.    Nor did the district court err when it denied Lombardi’s motion for judgment

as a matter of law on Jackson’s First Amendment claim and affirmed the jury’s

compensatory damage award. After being properly instructed on the law governing

Jackson’s First and Fourth Amendment claims, the jury completed a special verdict

form on which it separately decided liability under both theories. We presume that

a jury follows the trial court’s instructions. Ho v. Carey, 332 F.3d 587, 594 (9th


                                            4
Cir. 2003). Lombardi’s argument that the district court’s decision to postpone his

ruling on qualified immunity until after trial “prejudiced” the outcome on the

remaining claims is particularly untenable in a case like this one, where the First

and Fourth Amendment claims involved largely identical evidence.

3.     Because Lombardi’s unconstitutional retaliation was a proximate cause of

Jackson’s indivisible injuries, he is liable for the entire award of compensatory

damages. See Husky Ref. Co. v. Barnes, 119 F.2d 715, 716 (9th Cir. 1941).

(“Where the independent tortious acts of two persons combine to produce an injury

indivisible in its nature, either tortfeasor may be held for the entire damage . . . .”).

4.     Lombardi waived his argument that the evidence was insufficient to support

the verdict when he failed to raise it in his motions for judgment as a matter of law.

See Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007).

B.     The motion for a new trial.

       The district court did not abuse its discretion when it denied Lombardi’s

motion for a new trial on the grounds that Juror Padilla did not fail “to answer

honestly a material question on voir dire . . . .” McDonough Power Equip., Inc. v.

Greenwood, 464 U.S. 548, 556 (1984). Nothing in the record establishes that

Padilla’s violent encounters in Chile involved police officers. And none of the




                                            5
other experiences she discussed during or after trial were necessarily characterized

as “particularly good” or “particularly bad” experiences with the police.

C.    The order denying costs to the parties.

      Because he prevailed on his First Amendment claim and won compensatory

damages for his injuries, Jackson was the “prevailing party.” See Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983) (“[P]laintiffs may be considered ‘prevailing

parties’ for attorney’s fees purposes if they succeed on any significant issue in

litigation which achieves some of the benefit the parties sought in bringing suit.”)

(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278–79 (1st Cir. 1978)). The district

court therefore erred when it concluded that there was no prevailing party. It is still

within the district court’s discretion, however, to decide whether or not to award

costs to Jackson as the prevailing party. See Ass’n of Mexican-Am. Educators v.

California, 231 F.3d 572, 591 (9th Cir. 2000) (en banc). We therefore remand to

the district court to make that determination.

      The parties will bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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