                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 19 2010

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




                            FOR THE NINTH CIRCUIT



DON ANTOINE,                                     No. 09-15983

              Plaintiff - Appellant,             D.C. No. 2:06-cv-01349-WBS-
                                                 GGH
  v.

COUNTY OF SACRAMENTO; et al.,                    MEMORANDUM *

              Defendants - Appellees.



DON ANTOINE,                                     No. 09-16085

              Plaintiff - Appellee,              D.C. No. 2:06-cv-01349-WBS-
                                                 GGH
  v.

COUNTY OF SACRAMENTO; et al.,

              Defendants - Appellants.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                      Argued and Submitted October 7, 2010
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REINHARDT and BERZON, Circuit Judges, and POLLAK, Senior
District Judge.**

      1. Even if the court’s response to the jury’s question or the omission of a

nominal damages instruction was in error, which we do not decide, “‘it is more

probable than not that the jury would have reached the same verdict’ had it been

properly instructed.” Galdamez v. Potter, 415 F.3d 1015, 1025 (9th Cir. 2005)

(quoting Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir. 2005)); see Fed. R. Civ. P.

61. No instruction or evidence would have led the jury to assume that $20,000 was

an appropriate award of nominal damages for the abstract violation of a

constitutional right.1 Moreover, Antoine’s lawyer in closing argument pointed to

medical injury, pain and suffering, humiliation and ongoing trauma as the basis for

granting compensatory damages, while emphasizing the importance of the

constitutional right as a reason for granting punitive damages. Under that


          **
             The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
      1
        Unlike in Memphis Community School District v. Stachura, 477 U.S. 299
(1986), the authority relied upon by the district court here, the district court gave
no instruction to the jury to “consider the importance of the right in our system of
government, the role which this right has played in the history of our republic,
[and] the significance of the right in the context of the activities which the Plaintiff
was engaged in at the time of the violation of the right,” nor any other formulation
that invited the jury to place a monetary value on the abstract deprivation of the
right. Id. at 303.

                                            2
argument, the evidence presented by Antoine would clearly support a finding of

$20,000 in actual medical and/or emotional damages. Granting a new trial as to

compensatory damages when faced with this overwhelming likelihood of

harmlessness was an abuse of discretion. It follows that retrial as to punitive

damages and liability was improper as well.

       2. We decline to affirm the grant of a new trial on alternative grounds

rejected by the district court.

       a. Antoine’s expert testimony was relevant because it had a tendency to

make more probable his contention that defendants’ intent in restraining him was

punitive, not for his safety. Fed. R. Evid. 401.

       b. The district court’s punitive restraint instruction correctly stated the law

under Bell v. Wolfish, 441 U.S. 520, 538 (1979). The district court did not abuse

its discretion by refusing to amplify that instruction further. Investment Serv. Co.

v. Allied Equities Corp., 519 F.2d 508, 511 (9th Cir. 1975).

       c. The jury verdict against defendants Britton and Reeve was not against the

weight of the evidence.




                                           3
      3. Defendants are not entitled to qualified immunity.2 Antoine’s punitive

restraint claim did not challenge the county’s grating practice per se, but rather

asserted that he was “grated” because the defendants intended to punish him rather

than to keep him safe. It is clearly established that restraint for such a purpose is

unconstitutional. See Bell v. Wolfish, 441 U.S. 520, 538 (1979).

      4. We therefore REVERSE the orders of the district court granting

defendants’ motions for a new trial and REMAND with instructions to reinstate the

first jury verdict. We DISMISS defendants’ cross-appeal for want of jurisdiction.

      09-15983: REVERSED and REMANDED.

      09-16085: DISMISSED.




      2
        We construe defendants claim of qualified immunity as to the charge of
punitive restraint as an alternative ground for affirming the judgment below, rather
than as a cross-appeal. Defendants acknowledge that they never sought an
adjudication of their qualified immunity defense in the district court, so no decision
adverse to them exists from which they may take a cross-appeal. We therefore
dismiss the cross-appeal for want of jurisdiction. 28 U.S.C. § 1291.

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