                                NOT FOR PUBLICATION

                         UNITED STATES COURT OF APPEALS                      FILED
                                FOR THE NINTH CIRCUIT                         FEB 03 2011

                                                                         MOLLY C. DWYER, CLERK
 ANA MARIA VICENTE; SARA                              No. 09-17522         U.S. COURT OF APPEALS

 VASQUEZ; JORGE PEREZ; RIGOBERTO
 PEREZ, RODOLFO TORREZ; OCTAVIO                       D.C. No. 4:05-cv-00157-JMR
 PEREZ; JUAN VICENTE; GERARDO
 GONZALEZ; SAMUEL JORDAN;                             MEMORANDUM*
 SANDRA VELAZQUEZ; MATEO
 JORDAN; ADELA VICENTE; NANCY
 VICENTE, through her next friend;
 FRANCISCO VILCHES; ABEL CRUZ;
 MANUEL G. MARTINEZ,

            Plaintiffs - Appellees,

  v.

 ROGER BARNETT,

           Defendant - Appellant,

  and

 BARBARA BARNETT; DONALD
 BARNETT; COCHISE COUNTY,

           Defendants.




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Arizona
                   John M. Roll., Chief District Judge, Presiding

                     Argued and Submitted December 8, 2010
                            San Francisco, California

Before: THOMPSON, COWEN,** and SILVERMAN, Circuit Judges.

      Following a jury trial in the United States District Court for the District of

Arizona, the jury returned a verdict in favor of four of the plaintiffs (the Appellees)

on their claims for assault and intentional infliction of emotional distress (IIED)

against the Appellant, Roger Barnett. The jury awarded compensatory, nominal,

and punitive damages. This appeal followed.

      Appellant first argues that the District Court erred in denying Appellant’s

proposed jury instruction on self-defense. We disagree. Under Arizona law, “a

person is justified in threatening or using physical force against another when and

to the extent a reasonable person would believe that physical force is immediately

necessary to protect himself against the other’s use or attempted use of unlawful

physical force.” A.R.S. § 13-404(A). Appellant himself conceded on the stand,

however, that none of the plaintiffs were armed or threatened him in any other


      **
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.

                                           2
way. As a result, the evidence adduced at trial did not support a self-defense

instruction. See, e.g.,United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990)

(“A defendant is entitled to have the judge instruct the jury on his theory of defense

provided that it is supported by the law and some evidence.”).

      Appellant also argues that the District Court erred in denying his motion for

judgment as a matter of law insofar as he claimed that the Appellees failed to prove

that his conduct caused them “severe emotional distress” under Arizona law. Upon

review, we conclude that there is substantial evidence from which the jury could

have concluded that the Appellees suffered severe emotional distress. See Josephs

v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006) (“The test applied is whether the

evidence permits only one reasonable conclusion, and that conclusion is contrary

to the jury’s verdict.”). First, to the extent that Appellant argues that the

Appellees’ distress was not “severe” because they did not suffer the type of

physical injuries described in Midas Muffler Shop v. Ellison, 650 P.2d 496, 501

(Ariz. App. 1982), Arizona courts have since made clear that bodily injury is not

required. See, e.g., Pankratz v. Willis, 744 P.2d 1182, 1191 (Ariz. App. 1987).

Furthermore, the jury heard testimony from each of the Appellees, who stated that

they suffered from ongoing anxiety, depression, and insomnia as a result of the

Appellant's actions. In addition, a psychological expert diagnosed three of the four

                                           3
Appellees with post-traumatic stress disorder and other emotional disorders. This

evidence is sufficient to sustain the jury’s IIED verdict under Arizona law. See id.

Accordingly, the District Court did not err in denying Appellant’s Rule 50 motion

in this regard.

         Appellant next argues that it was improper for the jury to award punitive

damages to Appellees Sara Vasquez and Sandra Velasquez on their IIED claims

because Arizona law does not permit recovery of punitive damages when the jury

awards only nominal damages. As the Appellees correctly note, however,

Appellant never objected to the verdict form that allowed for this combination of

damages. Therefore, Appellant has waived his right to challenge the verdict form

or any error contained therein. See, e.g., Fox v. Hayes, 600 F.3d 819, 847 (7th Cir.

2010).

      Appellant also argues that the District Court erred in allowing the expert

testimony of Dr. Machabanski because his testimony was not the “product of

reliable principles and methods” under Rule 702 of the Federal Rules of Evidence

and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579 (1993). We see no abuse of discretion in the District Court’s decision to

admit Dr. Machabanski’s testimony because the reasoning and methodology

underlying his testimony was not clearly invalid. See Daubert, 509 U.S. at 592-93.

                                         4
To assess the psychological health of the Appellees, Dr. Machabanski conducted

clinical interviews lasting four to six hours each. During these interviews, he made

clinical observations regarding each person’s affect and gathered data on each

person’s life history, level of function prior to the assault, and functioning since the

assault. Dr. Machabanski also administered the Minnesota Multiphasic Personality

Inventory 2 (MMPI 2) diagnostic tests to each Appellee he interviewed. This

Court has recognized that these types of diagnostic techniques are part of a valid

methodology for psychological evaluation. See, e.g., United States v. Finley, 301

F.3d 1000, 1008 (9th Cir. 2002).

      Appellant also argues that his wife, Barbara, who was a defendant below, is

entitled to attorney's fees under 42 U.S.C. § 1988. While 42 U.S.C. § 1988 does

authorize an award of attorney’s fees to a prevailing defendant in actions under §

1981 and § 1985, the prevailing defendant is only entitled to fees if the plaintiff’s

action was “frivolous, unreasonable, or without foundation.” Hughes v. Rowe, 449

U.S. 5, 14 15 (1980); Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.

1994). We have reviewed the record and conclude that plaintiffs’ claims against

Barbara under § 1981 and § 1985 were not frivolous because, even though the

plaintiffs did not ultimately prevail on these claims, there was evidence to support




                                           5
them. Therefore, the District Court did not abuse its discretion in denying

Barbara's request for fees under § 1988.

      We also agree with the District Court that Appellant was not entitled to costs

pursuant to 28 U.S.C.§ 1332(b) or sanctions pursuant to Rule 11 of the Federal

Rules of Civil Procedure.

      We have reviewed Appellant’s remaining arguments and conclude that they

are without merit.

      AFFIRMED.




                                           6
