                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 14 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 BRANDEN ADKINS; CHRISTOPHER                     No.    15-15548
 ABRAMS; CLARENCE BUTLER, Jr.;
 WARREN K. ELICKER; SAMUEL                       D.C. No. 2:12-cv-01615-SMM
 GUSMAN, Jr.; VAOPELE T. IIGA;
 WILLIAM KEKONA, III; DANIEL
 KENOLIO; KEONE LABATAD; HARRY                   MEMORANDUM*
 B. LOUGHMILLER, Jr.; JUSTIN LUHIA;
 EARL NAKI; JASON K. SANTOS; LOTO
 SATELE; MOSES THOMPSON; PAUL
 M. TOGIA; SENITA M. TUIVAILALA;
 POTAUFA ULA; SHADRACH UNEA;
 CODY BRANDT; KEOKI AGOSTO,

                 Plaintiffs-Appellants,

   v.

 CORRECTIONS CORPORATION OF
 AMERICA; NATHANIEL SAMBERG;
 SCHNEIDER, CO; ROCHA, CO;
 ROMERO, Sort Member; STATE OF
 HAWAII; JOHN IOANE; FRANK
 GARCIA; GAWLIK, Sort Member;
 CANTEY, Sort Member; ONDULICH, Sort
 Member,

                 Defendants-Appellees.

                   Appeal from the United States District Court

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                           for the District of Arizona
                  Stephen M. McNamee, District Judge, Presiding

                       Argued and Submitted January 9, 2017
                            San Francisco, California

Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.

      Plaintiffs, twenty one State of Hawaii (SOH) inmates formerly in the

custody of Corrections Corporation of America (CCA) at Saguaro Correctional

Center in Eloy, Arizona, appeal from the judgment entered by the district court in

favor of Defendants CCA, SOH, eleven CCA corrections officers, and one SOH

corrections officer following jury verdicts on several causes of action arising from

alleged beatings related to an inmate disturbance on July 26, 2010. We assume the

parties’ familiarity with the facts and procedural history of this case, and discuss

them only as necessary to explain our decision. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

      1. The district court did not err in granting Defendants’ Rule 50(a) motions

for judgment as a matter of law with respect to all 42 U.S.C. § 1983 claims against

each individual Defendant for each beating in which he was not identified as a

direct participant. We review de novo the district court’s grant of Rule 50 motions.

LaLonde v. County of Riverside, 204 F.3d 947, 959 (9th Cir. 2000). An individual

can be held liable pursuant to § 1983 only when there is “a showing of personal

participation in the alleged rights deprivation.” Jones v. Williams, 297 F.3d 930,


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934 (9th Cir. 2002). Under the integral participant theory, an individual’s personal

participation can be established through “some fundamental involvement in the

conduct that allegedly caused the violation.” Blankenhorn v. City of Orange, 485

F.3d 463, 481 n.12 (9th Cir. 2007).

      Plaintiffs produced no evidence at trial from which a reasonable jury could

have found that any individual Defendant was fundamentally involved in any

alleged beating beyond those in which he was already specifically identified as a

direct participant. At most, Plaintiffs’ collective testimony established that some

individual Defendants were present during assaults perpetrated by other individual

Defendants. But mere presence at the scene of a constitutional violation is

insufficient to constitute integral participation. Jones, 297 F.3d at 936. The

district court therefore properly dismissed as a matter of law all § 1983 claims

except for those supported by evidence which identified an individual Defendant as

having participated in the alleged beating of a particular Plaintiff.1




1
  In their reply brief, Plaintiffs identify excerpts of individual Plaintiffs’
testimonies that purportedly establish the direct participation of particular
individual Defendants in the beatings of those individual Plaintiffs. Plaintiffs
argue that the district court overlooked these testimonies in dismissing the § 1983
claims of those Plaintiffs against those Defendants. Id. However, Plaintiffs did
not raise this argument in their opening brief, and we therefore conclude that it is
waived. Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994) (“We review only
issues which are argued specifically and distinctly in a party’s opening brief.”
(citing Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986)).

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      2. The district court did not err in granting Defendants’ Rule 50(a) motions

for judgment as a matter of law with respect to all Arizona state law assault and

battery claims against each individual Defendant for each beating in which he was

not identified as a direct participant. Arizona law permits joint and several liability

when multiple tortfeasors are found to have been “acting in concert.” A.R.S. § 12–

2506(D)(1). However, a plaintiff must show that there was “a conscious

agreement to pursue a common plan or design” between the tortfeasors. A.R.S. §

12–2506(F)(1). Plaintiffs produced no evidence at trial from which a reasonable

jury could have found a “conscious agreement” between all Defendants to

perpetrate every alleged beating. The district court therefore properly dismissed as

a matter of law all Arizona state law assault and battery claims except for those

supported by evidence which identified an individual Defendant as having

participated in the alleged beating of a particular Plaintiff.2

      3. The district court’s Rule 50(a) dismissal of the Arizona state law

vicarious liability claims against CCA and SOH is affirmed. Vicarious liability

under Arizona law attaches to an employer only when an employee commits a tort.

Wiper v. Downtown Dev. Corp. of Tucson, 732 P.2d 200, 201-02 (Ariz. 1987).


2
  Plaintiffs also rely on the testimonies identified in their reply brief to argue that
the district court improperly dismissed Arizona state law assault and battery claims
against individual Defendants who were identified by Plaintiffs as direct
participants in their assaults. Because Plaintiffs did not raise this issue in their
opening brief, we also conclude that it is waived. Greenwood, 28 F.3d at 977.

                                            4
Because 1) the district court properly dismissed all Arizona state law assault and

battery claims against each individual Defendant for each beating in which he was

not identified as a direct participant, and 2) the jury found for the individual

Defendants on all remaining Arizona state law assault and battery claims, there are

no Arizona state law torts to which vicarious liability could have attached.

      4. The district court did not abuse its discretion in denying Plaintiffs’

motion to amend the complaint to add state law negligence and conspiracy claims.

Denials of leave to amend are reviewed for abuse of discretion. Or. Teamster

Emp’rs Trust v. Hillsboro Garbage Disposal, Inc., 800 F.3d 1151, 1161 (9th Cir.

2015). The district court has broad discretion to deny claims and allegations raised

in circumstances where discovery has closed and the amendment would cause

prejudice and delay. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074,

1079 (9th Cir. 1990). Although Plaintiffs contend that the complaint sufficiently

pleaded both claims, the district court’s summary judgment order gave clear notice

that the complaint did not do so. Plaintiffs provide no explanation for why they

waited nine months after the summary judgment order until only a week before

trial before attempting to amend the complaint. The district court therefore did not

abuse its discretion in denying the motion to amend on the grounds that Plaintiffs

had ample opportunity to amend the complaint prior to trial and the addition of




                                           5
these two claims would have required additional discovery and trial preparation on

the eve of trial.

       5. The district court did not err in granting summary judgment to

Defendants on Plaintiffs’ federal conspiracy claim. Plaintiffs argue that they

mischaracterized their federal conspiracy claim as a § 1985 conspiracy claim in the

Joint Case Management Plan (JCMP) and should not be penalized for a

typographical “error in one digit (‘1985’ instead of ‘1983’).” Despite having

ample opportunity to correct this mistake, Plaintiffs not only failed to do so, but

instead perpetuated the impression that they were asserting a § 1985 conspiracy

claim. The JCMP required the parties to list the elements of each cause of action,

and Plaintiffs both listed the elements for a § 1985(3) conspiracy claim and

provided citations to § 1985(3) conspiracy cases to explain the elements.

Furthermore, after Defendants moved for summary judgment based on the

elements of a § 1985(3) conspiracy claim, Plaintiffs did not clarify in their

opposition papers that they intended to assert a § 1983 conspiracy claim. Lastly,

after the district court dismissed the conspiracy claim as a § 1985(3) conspiracy

claim, Plaintiffs did not seek reconsideration or clarification from the district court.

Because Plaintiffs had knowledge of their mistake and made no attempt to correct

it, the district court properly granted summary judgment on Plaintiffs’ federal

conspiracy claim.


                                           6
      6. The district court did not abuse its discretion in denying Plaintiffs’

motion to amend the pleadings to conform to the evidence following Plaintiffs’

case-in-chief. Denials of motion to conform the pleadings to the evidence are

reviewed for abuse of discretion. Madeja v. Olympic Packers, LLC, 310 F.3d 628,

635 (9th Cir. 2002). Plaintiffs’ motion was a second attempt to assert a general

negligence claim against CCA and SOH and a state law conspiracy claim against

Defendants; thus, the same reasons for affirming the denial of the motion to amend

the complaint weigh in favor of affirming the denial of the motion to conform the

pleadings to the evidence. Furthermore, granting this motion following Plaintiffs’

case-in-chief would have resulted in additional prejudice to Defendants by

depriving them of the opportunity to cross-examine Plaintiffs’ witnesses based on

these new claims.

      7. The district court did not err with respect to the four challenged jury

instructions. “We review a district court’s formulation of civil jury instructions for

abuse of discretion, but we review de novo whether an instruction states the law

correctly. Jury instructions must be supported by the evidence, fairly and

adequately cover the issues presented, correctly state the law, and not be

misleading.” Peralta v. Dillard, 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc)

(internal citations omitted).

      First, the district court did not abuse its discretion in failing to include an


                                           7
“integral participation” instruction or an “acting in concert” instruction because,

for the reasons discussed above, Plaintiffs failed to produce sufficient evidence at

trial from which a jury could have found any individual Defendant liable under

either theory. Second, the district court did not abuse its discretion in rejecting

Plaintiffs’ requested “legal cause” instruction because the instructions given did

not preclude the jury from concluding that more than one individual Defendant

participated in an alleged beating. Third, the district court did not abuse its

discretion with respect the formulation of the “justification” instruction because it

was an accurate reflection of Arizona law. See A.R.S. § 13-403. Fourth, Plaintiffs

waived their challenge to the “evidence pertaining to remaining claims”

instruction. Plaintiffs initially objected to this instruction, and the district court

preliminarily agreed that this instruction would not be given. However, when the

district court presented the parties with the proposed jury instructions the next

morning with the disputed instruction included, Plaintiffs confirmed that the

instructions “comport[ed] with [the district court’s] rulings” while reiterating

objections to two other challenged instructions. We therefore conclude that

Plaintiffs invited error by withdrawing their objection. See United States v. Perez,

116 F.3d 840, 845 (9th Cir. 1997) (en banc) (“If the defendant has both invited the

error, and relinquished a known right, then the error is waived and therefore

unreviewable.”).


                                            8
      8. The district court did not violate Plaintiffs’ First Amendment rights by

denying their request “to talk to the jury without restrictions” post-verdict.

“[T]here is no federal constitutional problem involved in the denial of a motion to

interrogate jurors where, as here, there has been no specific claim of jury

misconduct.” Smith v. Cupp, 457 F. 2d 1098, 1100 (9th Cir. 1972); see also United

States v. Wright, 506 F.3d 1293, 1303 (10th Cir. 2007) (“[A] trial judge is well

within his discretion in denying leave to inquire of jurors where there was no claim

of external interference with the process.”). Plaintiffs concede in their appellate

briefing that the purpose of their request was to inquire into jury deliberation

improprieties. Because Plaintiffs failed to provide the district court with any

evidence of juror misconduct, the district court did not abuse its discretion in

denying Plaintiffs’ request to inquire into juror deliberations.

      AFFIRMED.




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