                              NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                        APR 7 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


 RODNEY CABLE, a single man,                      No. 14-15037

              Plaintiff - Appellant,              D.C. No. 2:12-cv-00216-JAT

    v.
                                                  MEMORANDUM*
 CITY OF PHOENIX; MICHAEL TOMEK,
 Officer # 9511/husband; UNKNOWN
 TOMEK, named as: Jane Doe Tomek/wife,

              Defendants - Appellees.

                     Appeal from the United States District Court
                              for the District of Arizona
                  James A. Teilborg, Senior District Judge, Presiding

                        Argued and Submitted March 15, 2016
                             San Francisco, California

Before: FERNANDEZ, GOULD, and FRIEDLAND, Circuit Judges.

         Rodney Cable appeals the district court’s grant of summary judgment in

favor of Defendants on Cable’s § 1983 excessive force claim and related state law

claims arising out of incidents surrounding Cable’s arrest. We reverse in part,

affirm in part, and remand.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      After two Phoenix police officers, Michael Tomek and Derek Smith, pulled

over the vehicle that Cable was driving, they ordered him to exit the car, turn

around, and lie down face down on the ground. There is no dispute that Cable

complied with all of the officers’ commands once his vehicle was stopped.

Accounts of what happened next, however, differ substantially. Officer Tomek

asserts that he approached Cable and placed one knee between Cable’s shoulder

blades while handcuffing him, as he had been trained to do. In contrast, Cable

asserts that Officer Tomek jumped onto Cable’s lower back with his knees, causing

injury to his back. Officer Smith did not witness the entirety of the events

surrounding the handcuffing.

      Cable also alleges that he was handcuffed too tightly, causing pain and

tearing of his skin, and that Officer Tomek slammed him against the side of the

patrol car after he was handcuffed. Both officers dispute these allegations.

      “[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence

and determine the truth of the matter but to determine whether there is a genuine

issue for trial.’” Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

      There are genuine disputes of material fact here that preclude summary

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judgment on Cable’s § 1983 excessive force claim, because, if a jury were to credit

Cable’s version of events, it could find that Officer Tomek subjected Cable to

excessive force. See Santos v. Gates, 287 F.3d 846, 852-54 (9th Cir. 2002)

(reversing grant of judgment as a matter of law and holding that viewing the facts

in the light most favorable to the plaintiff could properly support a finding of

excessive force where plaintiff alleged that he suffered a broken back after officers

immobilized him, brought him to the ground, and handcuffed him); LaLonde v.

County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000) (reversing grant of

summary judgment where there were disputed facts about how much force an

officer used in placing his knee on the plaintiff’s back while handcuffing the

plaintiff during an arrest and about how much the plaintiff was resisting at the

time, because a jury crediting the plaintiff’s version of events “could conclude that

[the officer] used force in excess of what was reasonable”).

      Following his arrest, Cable was ultimately diagnosed with a back injury that

required lumbar fusion surgery. The district court held that Cable had failed to

create a triable issue of fact regarding whether that surgery was necessitated by

Officer Tomek’s actions rather than by a preexisting condition. Even if Cable so

failed, however, Defendants were not entitled to summary judgment. Cable could

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be entitled to actual damages for pain and suffering based on his testimony alone.

And even if he lacked evidence of actual damages, he could still be entitled to

nominal damages. See Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir.), as amended on

denial of reh’g (Oct. 28, 1993) (A plaintiff does “not have to show actual damages,

[and] he is not required to show a significant injury” in order to show a

constitutional violation for use of excessive force.); Hazle v. Crofoot, 727 F.3d

983, 991 n.6 (9th Cir. 2013) (“Nominal damages must be awarded” if a

constitutional violation is established even if “no actual injury is incurred or can be

proven.”). A jury that believed Cable might also award him punitive damages.

Smith v. Wade, 461 U.S. 30, 55 n.21 (1983) (“punitive damages may be the only

significant remedy available in some § 1983 actions where constitutional rights are

maliciously violated but the victim cannot prove compensable injury”) (quoting

Carlson v. Green, 446 U.S. 14, 22 n.9 (1980)).

      If a jury credits Cable’s version of events, Officer Tomek would also not be

entitled to qualified immunity because it was already clearly established at the time

the events took place that it would constitute excessive force for an officer to jump

onto the back of a nonresistant arrestee. See Santos, 287 F.3d at 852 (establishing

that a finding of excessive force would be proper if officers broke plaintiff’s back

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after immobilizing him and bringing him to the ground in a situation in which

plaintiff was not resisting arrest); P.B. v. Koch, 96 F.3d 1298, 1303 n.4 (9th Cir.

1996) (noting in the Fourth Amendment excessive force context that when “there

[is] no need for force, [defendant’s] use of force [is] objectively unreasonable.”).

      The district court also granted summary judgment on Cable’s related state

law claims for assault and battery, negligence and gross negligence, and intentional

infliction of emotional distress, as well his claim for vicarious liability against

Defendant City of Phoenix premised on those state law claims. We affirm the

district court’s grant of summary judgment with respect to Cable’s intentional

infliction of emotional distress claim, and we reverse as to the remaining claims.

      Because there is a genuine dispute of material fact as to the amount of force

used and the reasonableness of that force, the district court erred in granting

summary judgment on Cable’s state law assault and battery claim. See Ariz. Rev.

Stat. § 13-409 (shielding officers from liability for use of force when several

factors are met, including that “[a] reasonable person would believe that such force

is immediately necessary to effect the arrest or detention or prevent the escape”).

      Summary judgment was also inappropriate as to Cable’s state law

negligence and gross negligence claims because the differences between Cable’s

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and the officers’ accounts of the events also create genuine issues of material fact

as to the elements of those claims. See Gipson v. Kasey, 150 P.3d 228, 230 (Ariz.

2007) (en banc) (“To establish a claim for negligence, a plaintiff must prove four

elements: (1) a duty requiring the defendant to conform to a certain standard of

care; (2) a breach by the defendant of that standard; (3) a causal connection

between the defendant’s conduct and the resulting injury; and (4) actual

damages.”); Walls v. Ariz. Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct.

App. 1991) (“A party is grossly or wantonly negligent if he acts or fails to act

when he knows or has reason to know facts which would lead a reasonable person

to realize that his conduct not only creates an unreasonable risk of bodily harm to

others but also involves a high probability that substantial harm will result.”).

      We affirm the district court’s grant of summary judgment on Cable’s

emotional distress claim because Cable has waived any such claim by conceding

during discovery in the district court that he was no longer pursuing it.

      The district court also erred in granting summary judgment on the question

of the City’s vicarious liability for Cable’s state law claims. The City rests its

entire vicarious liability argument on the premise that all of Cable’s state law

claims lack merit. Because, as explained above, summary judgment is not

                                           6
appropriate as to most of Cable’s state law claims, it is not appropriate as to the

vicarious liability claim either.

      Each party shall bear its own costs on appeal.

      REVERSED in part, AFFIRMED in part, and REMANDED.




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