                                                                           FILED
                              NOT FOR PUBLICATION
                                                                           DEC 02 2016
                       UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                              FOR THE NINTH CIRCUIT


ALEKSANDR BINKOVICH,                              No. 14-16768

                 Plaintiff-Appellee,              D.C. No. 5:11-cv-03774-PSG

 v.
                                                  MEMORANDUM*
BRUCE BARTHELEMY,
Officer, Badge #4066,

                 Defendant-Appellant.



ALEKSANDR BINKOVICH,                              No. 14-16888

                 Plaintiff-Appellant,             D.C. No. 5:11-cv-03774-PSG

 v.

BRUCE BARTHELEMY,
Officer, Badge #4066,

                 Defendant-Appellee.


                      Appeal from the United States District Court
                         for the Northern District of California
                      Paul S. Grewal, Magistrate Judge, Presiding


             *
                   This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
                     Argued and Submitted November 14, 2016
                             San Francisco, California

Before: GOULD, CLIFTON, and WATFORD, Circuit Judges.

      Defendant Bruce Barthelemy appeals the district court’s denial of his

motions for judgment as a matter of law under Federal Rules of Civil Procedure

50(a) and 50(b), regarding qualified immunity and excessive force, and challenges

a jury instruction. Plaintiff Aleksandr Binkovich cross-appeals the district court’s

decision to strike the jury’s award of punitive damages. We affirm the district

court’s decisions on qualified immunity, excessive force, and the issuance of the

jury instruction. We reverse the court’s decision to strike punitive damages and

remand for reinstatement of the jury’s award.

      The district court did not err in denying Defendant’s motion for judgment as

a matter of law with regard to qualified immunity. Defendant stipulated in a Joint

Pretrial Conference Statement that there were no disputed legal issues, did not

propose jury instructions or special interrogatories relevant to the defense, and did

not assert the defense in a motion for summary judgment or otherwise prior to or

during the trial. Other than in his answer to Plaintiff’s complaint, Defendant

asserted the qualified immunity defense for the first time in his post-trial motion

under Federal Rule of Civil Procedure 50(a). While failure to move for summary



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judgment alone does not forfeit the defense, see Torres v. City of Los Angeles, 548

F.3d 1197, 1210-11 (9th Cir. 2008), if summary judgment is not appropriate, the

issue is left for trial. Thompson v. Mahre, 110 F.3d 716, 720 (9th Cir. 1997).

Defendant did not present the defense at trial, however, and did not present a

verdict form that would have elicited relevant factual findings from the jury. The

language of Federal Rule of Civil Procedure 50(a) indicates that judgment as a

matter of law may only be granted “[i]f a party has been fully heard on an issue

during a jury trial.” Defendants may not assert the defense for the first time in a

post-trial motion under Federal Rule of Civil Procedure 50(a).

      The court did not err in denying Defendant’s motions for judgment as a

matter of law on Plaintiff’s excessive force claim. In reviewing a motion for

judgment as a matter of law, “[t]he evidence must be viewed in the light most

favorable to the nonmoving party, and all reasonable inferences must be drawn in

favor of that party.” Torres, 548 F.3d at 1205-1206 (quoting LaLonde v. Cty. of

Riverside, 204 F.3d 947, 959 (9th Cir. 2000)). A jury’s verdict must be upheld if it

is supported by substantial evidence, meaning “evidence adequate to support the

jury’s conclusion, even if it is also possible to draw a contrary conclusion from the

same evidence.” Johnson v. Paradise Valley Unified Sch. Dist., 251 F.3d 1222,

1227 (9th Cir. 2001). Assessing whether excessive force was used is a question of


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“whether the officers’ actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989).

Viewing all evidence in the light most favorable to Plaintiff, substantial evidence

supported the jury’s finding that Defendant used excessive force in sweeping

Plaintiff’s legs out from under him while Plaintiff, only suspected of committing a

noise violation, was walking towards the hotel’s front desk. See Guy v. City of San

Diego, 608 F.3d 582, 588 (9th Cir. 2010) (“[A] jury may properly refuse to credit

even uncontradicted testimony.”).

      Because “each party is entitled to an instruction about his or her theory of

the case if it is supported by law and has foundation in the evidence,” Hunter v.

Cty. of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (internal quotation marks

and citation omitted), the district court did not err in instructing the jury that a

person may lawfully use reasonable force to defend himself if a peace officer uses

unreasonable or excessive force while arresting or detaining that person. The

instruction at issue is grounded in law, and would be applicable to the case if the

jury believed Defendant’s account. Although a trial court may modify instructions

to make them clearly applicable to the case, it is not obligated to do so, and that the

instructions might have been formulated to expound a party’s theory more clearly




                                            4
does not mean they are inadequate. Reno-West Coast Distrib. Co., Inc. v. Mead

Corp., 613 F.2d 722, 725-26 (9th Cir. 1979).

      We reverse the district court’s decision with regard to punitive damages and

direct the reinstatement of the jury’s award. “[A] challenge to the sufficiency of the

evidence to support a punitive damage award must be rejected if the award is

supported by substantial evidence.” Fair Hous. of Marin v. Combs, 285 F.3d 899,

907 (9th Cir. 2002). The district court concluded that the jury’s award of punitive

damages was not supported by substantial evidence because there had been no

testimony of overt cruelty by Defendant, reasoning that the question could be

reduced to whether a reasonable jury could have concluded that Defendant “did not

just make a mistake, but rather [went] out of his way to hurt [Plaintiff].” However,

“a jury may be permitted to assess punitive damages in an action under § 1983

when the defendant’s conduct is shown to be motivated by evil motive or intent, or

when it involves reckless or callous indifference to the federally protected rights of

others.” Smith v. Wade, 461 U.S. 30, 56 (1983) (emphasis added). Viewing all

evidence in favor of Plaintiff, substantial evidence supported the jury’s finding that

Defendant evidenced “callous indifference” in pushing Plaintiff against a wall and,

without warning, sweeping his legs out from under him, when he presented no

threat to the safety of the officers or others. See id. Because “reasonable minds


                                           5
might accept [this evidence] as adequate to support [the jury’s] conclusion,” see

Fair Hous. of Marin, 285 F.3d at 907 (quoting Landes Const. Co., Inc. v. Royal

Bank of Can., 833 F.2d 1365, 1371 (9th Cir. 1987)), we reverse the district court’s

decision to strike the award of punitive damages, and we remand with direction to

reinstate the jury’s award.

      Costs awarded to Plaintiff.

      AFFIRMED in part, REVERSED and REMANDED in part.




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