Don Antoine v. County of Sacramento;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON ANTOINE,
Plaintiff - Appellant,
v.
COUNTY OF SACRAMENTO; et al.,
Defendants - Appellees.
No. 09-15983
D.C. No. 2:06-cv-01349-WBS-
GGH
MEMORANDUM*
DON ANTOINE,
Plaintiff - Appellee,
v.
COUNTY OF SACRAMENTO; et al.,
Defendants - Appellants.
No. 09-16085
D.C. No. 2:06-cv-01349-WBS-
GGH
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
FILED
OCT 19 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Louis H. Pollak, Senior United States District Judge**
for the Eastern District of Pennsylvania, sitting by designation.
Unlike in Memphis Community School District v. Stachura, 477 U.S. 2991
(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.
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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. Moreover, Antoine’s lawyer in closing argument pointed to1
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

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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.

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We construe defendants claim of qualified immunity as to the charge of2
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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3. Defendants are not entitled to qualified immunity. Antoine’s punitive2
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.

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