Hooper v. County of San Diego

• Court: District Court, S.D. California
• Decided: March 27, 2024
• Docket: 3:07-cv-01647
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBORAH HOOPER, Case No.: 3:07-cv-1647-JAH-KSC

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR PARTIAL JUDGMENT NOTWITHSTANDING 14 COUNTY OF SAN DIEGO; et al., THE VERDICT, OR IN THE 15 Defendants. ALTERNATIVE, A NEW TRIAL.

17 ECF No. 494.

18 I. INTRODUCTION 19 Presently before the Court is Plaintiff Deborah Hooper’s (“Plaintiff”) timely1 filed 20 Motion for Partial Judgment Notwithstanding the Verdict,2 or in the Alternative, a New 21 Trial. (“Mot.,” ECF No. 494). Defendants County of San Diego and Deputy Sheriff Kirk 22 23 24 1 A motion must be filed within 28 days of entry of final judgment. Fed. R. Civ. P. 25 50(b). Plaintiff brings this motion on November 30, 2021, and judgment was entered on November 2, 2021. (“Judgment,” ECF No. 490). 26 2 Although captioned as a Partial Judgment Notwithstanding the Verdict, “[e]ffective 27 December 31, 1991, Rule 50 of the Federal Rules of Civil Procedure was amended[, and a] motion for a ‘directed verdict’ is redesignated as motion for ‘judgment as a matter of 28 1 Terrell (“Deputy Terrell” or “Defendant Terrell”) (collectively, “Defendants”) filed a 2 Response in Opposition to Plaintiff’s Motion, (“Opp’n,” ECF No. 507), and Plaintiff filed 3 a Reply in support of her motion, (“Reply,” ECF No. 508). Upon consideration of the 4 moving papers and the applicable law, and for the reasons set forth below, the Court 5 DENIES Plaintiff’s Motion for Partial Judgment Notwithstanding the Verdict, or in the 6 Alternative, a New Trial. 7 II. BACKGROUND 8 On the morning of May 9, 2006, Plaintiff consumed a small amount of 9 methamphetamine and two malt beverages before going to Longs Drug Store at 10 approximately 3:00 to 3:30 p.m. While at the Longs Drugs, Plaintiff purchased 11 approximately forty dollars’ worth of items, but attempted to leave the store with items in 12 her purse that were not paid for. Plaintiff was subsequently detained by a Longs Drugs 13 loss prevention officer, who then placed her in an office in the store and placed her in 14 handcuffs. Plaintiff testified that after approximately thirty minutes in the loss prevention 15 office, Deputy Terrell arrived and began questioning her about the shoplifting. Plaintiff 16 agreed to let Deputy Terrell search her car. Her handcuffs were removed while she walked 17 with Deputy Terrell outside of the building to his patrol car first, then to her car, where 18 Deputy Terrell found a scale he believed would test positive for methamphetamine. 19 Deputy Terrell grabbed Hooper’s left wrist to place her under arrest, then she jerked her 20 hand away. 21 Plaintiff and Deputy Terrell dispute what occurs next. According to Plaintiff, 22 Deputy Terrell then grabbed her shirt, and she felt his foot come down on top of her foot, 23 in what is known as a heel strike. Hooper testified that she went down to the ground 24 positioned face down, and her shirt came off in the struggle. Plaintiff recalls Deputy Terrell 25 directed her to stop resisting once, with no other warning or repetition of that warning. 26 Hooper asserts that she initially had her hands above her head, but then Deputy Terrell got 27 both of her hands behind her back one at a time just before he called the police canine. 28 1 Deputy Terrell testified that during this struggle, he grabbed Hooper’s shirt before 2 she drops out of it, leaving him holding her shirt with his right hand. He drops it upon 3 noticing she is not wearing the shirt. Deputy Terrell testified that he did not conduct any 4 take down maneuver via heel strike, or otherwise, as Hooper testified. Deputy Terrell 5 asserts that while on the ground, he had a hold of Hooper’s left wrist but that she was 6 resisting arrest and had her right hand on the handle of his gun, which was holstered on his 7 right side. Deputy Terrell testified that he gave Hooper multiple warnings to stop resisting, 8 put her hands behind her back, get down on the ground, and warning her to let go of his 9 gun. Deputy Terrell also stated his head was inches from Hooper’s head, such that he could 10 see under his own car, when he called his canine. 11 The canine tore off large portions of Hooper’s scalp, requiring a number of skin graft 12 surgeries and resulting in permanent disfiguring scars. According to Deputy Terrell, the 13 dog bite lasted approximately five to ten seconds. 14 On February 21, 2007, Plaintiff pleaded guilty and was convicted of petty theft, 15 possession of a controlled substance, and resisting a peace officer. Plaintiff brought the 16 instant action against Defendants alleging violations of 42 U.S.C. § 1983 under the Fourth 17 Amendment, California Constitution, Article I § 13, and California's Tom Bane Civil 18 Rights Act, pursuant to California Civil Code § 52.1(b). (ECF No. 1). The first trial was 19 held from September 24 to October 4, 2018, after which the jury returned a unanimous 20 verdict in favor of Defendants on all claims. (ECF No. 156). Plaintiff requested, and the 21 Court granted a motion for a new trial. (ECF Nos. 164, 169). The next two consecutive 22 trials resulted in mistrials. (ECF Nos. 319, 386). The Court conducted the fourth trial from 23 September 28 to October 13, 2021. (ECF Nos. 452, 483). 24 /// 25 /// 26 /// 27 /// 28 /// 1 On October 9, 2021, Plaintiff orally moved for judgment as a matter of law pursuant 2 to Rule 50(a),3 arguing that (1) the evidence does not support a finding that there was a gun 3 grab, and (2) the canine bite was both unnecessary and excessive in duration. (ECF No. 4 504, 121:25-122:5). The Court denied the motion, stating: 5 AS TO THE FIRST POINT, A MOTION PURSUANT TO RULE 50 BASED UPON THE FACT THAT THE EVIDENCE DOES NOT 6 SUPPORT THAT THERE WAS A GUN GRAB, THAT MOTION 7 IS DENIED. DEPUTY TERRELL HAD A TOTALLY DIFFERENT VERSION TO PRESENT TO THE JURY. THE JURY HAS TO 8 DECIDE THAT QUESTION AS TO WHETHER OR NOT THAT 9 WAS THE CASE.

10 NUMBER TWO, HAVING THE DOG CONTINUE TO BITE 11 AFTER HE IS NO LONGER, AFTER THE DEPUTY IS NO LONGER IN DANGER, THERE'S WITNESS TESTIMONY 12 SUGGESTING THAT THE DEPUTY HAD STOOD UP OR 13 BACKED AWAY. THE PLAINTIFF TESTIFIED THAT SHE COULD NOT RESIST ANYMORE BECAUSE OF THE PAIN AND 14 THE BITING AND SHE WAS MORE PROTECTIVE OF HER 15 FACE AND SHE WAS NOT IN GEAR OF RESISTING AT THAT POINT; SHE HAD STOPPED RESISTING. DEFENDANT SAYS 16 THAT SHE WAS. I THINK THAT'S A MATTER FOR THE JURY 17 TOO. I THINK, AS A MATTER OF LAW, THE COURT CANNOT MAKE THAT FINDING. MOTION IS DENIED. 18

19 20 21 3 Federal Rule of Civil Procedure 50(a)(1) provides: 22 If a party has been heard on an issue during a jury trial and the court 23 finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: 24

25 (A) resolve the issue against the party; and

26 (B) grant a motion for judgment as a matter of law against the party 27 on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. 28 1 (ECF No. 504, 123:15-124:5). 2 On October 13, 2021, the jury returned a unanimous verdict in favor of Defendants. 3 (“Special Verdict Form,” ECF No. 488). In addition to finding Defendant Terrell did not 4 violate Plaintiff’s Fourth Amendment rights under 42 U.S.C. § 1983 and the Tom Bane 5 Civil Rights Act, the jury also answered the special verdict form as follows: 6 (a) Plaintiff resisted Defendant Terrell’s attempt to handcuff her after her arrest by jerking her hand or arm away from him? 7 Yes. 8 (b) Plaintiff grabbed or placed her hand on Defendant Terrell’s gun? 9 Yes. 10 (c) Plaintiff continued to resist during the dog bite? 11 Yes. 12 (d) The dog continued to bite after Plaintiff stopped resisting? 13 No. 14 (e) The dog continued to bite Plaintiff after Plaintiff was no longer a 15 threat to the safety of Defendant Terrell and/or the bystanders? 16 No. 17 (Special Verdict Form at 2-3). 18 Plaintiff brings a renewed post-verdict request for judgment as a matter of law 19 pursuant to Federal Rule of Civil Procedure 50(b). 20 III. LEGAL STANDARD 21 A. Judgment as a Matter of Law 22 Fed. R. Civ. P. 50(b) states that, 23 if the court does not grant a motion for judgment as a matter of law 24 made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal 25 questions raised by the motion. No later than 28 days after the entry 26 of judgment – or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged – the 27 movant may file a renewed motion for judgment as a matter of law 28 and may include an alternative or joint request for a new trial under 1 Rule 59. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a 2 new trial; or (3) direct the entry of judgment as a matter of law. 3 Fed. R. Civ. P. 50(b)(1)-(3). 4 A judgment as a matter of law is proper when the evidence permits only one 5 reasonable conclusion as to the verdict. Cockrum v. Whitney, 479 F.2d 84, 85 (9th Cir. 6 1973). In ruling on a motion for judgment as a matter of law, the trial judge cannot reweigh 7 the evidence or consider the credibility of the witnesses. Reeves v. Sanderson Plumbing 8 Prods., Inc., 530 U.S. 133, 150 (2000); Kay v. Cessna Aircraft Co., 548 F.2d 1370 (9th Cir. 9 1977). Judgment as a matter of law is appropriate if the evidence and its inferences, 10 considered as a whole and viewed in the light most favorable to the non-moving party can 11 support the reasonable conclusion that the moving party is entitled to judgment 12 notwithstanding the adverse verdict. The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 13 1151 (9th Cir. 1988).4 14 B. New Trial 15 Pursuant to Federal Rule of Civil Procedure 59, a district “court may . . . grant a new 16 trial on all or part of the issues . . . after a jury trial, for any reason for which a new trial 17 has heretofore been granted in an action at law in federal court[.]” Fed. R. Civ. P. 59(a)(1). 18 Because Rule 59 does not instruct on the grounds upon which a motion for a new trial may 19 be granted, the Court must look to the grounds historically recognized by the courts 20 including, but not limited to, claims “that the verdict is against the weight of the evidence, 21 that the damages are excessive, or that, for other reasons, the trial was not fair to the party 22 moving.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citing Montgomery 23 Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). 24 “A trial court may grant a new trial only if the jury’s verdict is against the clear 25 weight of the evidence, and may not grant it simply because the court would have arrived 26 27 28 1 at a different verdict.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002). In evaluating 2 a motion for a new trial, the court need not “view the evidence from the perspective most 3 favorable to the prevailing party.” Landes Constr. Co., Inc. v. Royal Bank of Canada, 833 4 F.2d 1365, 1371 (9th Cir. 1987). The Court is not required to draw all inferences in favor 5 of the verdict and may review the evidence and make credibility determinations. 6 Experience Hendrix L.L.C. v. hendrixlicensing.com Ltd., 762 F.3d 829, 845 (9th Cir. 2014) 7 (citing Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010)). The Court should “set aside 8 the verdict of the jury, even though supported by substantial evidence, where, in the court's 9 conscientious opinion, the verdict is contrary to the clear weight of the evidence.” Molski, 10 481 F.3d at 729. 11 IV. DISCUSSION 12 A. Judgment as a Matter of Law 13 Plaintiff sets forth two arguments in support of her argument that judgment be 14 granted as a matter of law is appropriate. First, relying on the trial testimony of canine 15 expert Burton Quick, and percipient witnesses, Plaintiff argues that the initial canine attack 16 was excessive force as a matter of law. Plaintiff asserts that the witnesses “testified they 17 saw Terrell trying to get Ms. Hooper’s hands behind her back as if to handcuff her but Ms. 18 Hooper would not cooperate. . . . [N]one saw Ms. Hooper grab Terrell’s firearm or make 19 any movement consistent with Terrell’s [testimony].” (Mot. at 9). Second, Plaintiff asserts 20 that the duration of the canine bite was excessive as a matter of law. (Id. at 12). The Court 21 will address each argument in turn. 22 1. Substantial Evidence Supports the Jury’s Verdict 23 To determine whether Deputy Terrell’s use of the police canine was an 24 unconstitutional intrusion on Plaintiff’s Fourth Amendment rights, the Court deploys an 25 “objective reasonableness” standard. Graham v. Conner, 490 U.S. 386, 388 (1989). 26 Objective reasonableness is determined “in light of the facts and circumstances confronting 27 [the officer], without regard to their underlying intent or motivation.” Id. at 397. The 28 “reasonableness” of an officer’s actions “must be judged from the perspective of a 1 reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396 2 (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). “In assessing the objective reasonableness 3 of a particular use of force, we consider: (1) ‘the severity of the intrusion on the individual's 4 Fourth Amendment rights by evaluating the type and amount of force inflicted,’ (2) ‘the 5 government's interest in the use of force,’ and (3) the balance between ‘the gravity of the 6 intrusion on the individual’ and ‘the government's need for that intrusion.’ ” Rice v. 7 Morehouse, 989 F.3d 1112, 1121 (9th Cir. 2021) (quoting Lowry v. City of San Diego, 858 8 F.3d 1248, 1256 (9th Cir. 2017)). 9 The key issue at trial—and the most important factor in the Fourth Amendment 10 analysis—is whether Plaintiff posed a threat to Defendant Terrell or any of the bystanders. 11 Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (citing Mattos v. Agarano, 12 661 F.3d 433, 441 (9th Cir. 2011)). Plaintiff asserts that percipient witness testimony 13 cannot be reconciled with Deputy Terrell’s testimony that Plaintiff had her right arm along 14 the right side of her body, with his forearm pressed against her hand placed on his weapon. 15 Specifically, Plaintiff’s principal argument is that of the percipient witness testimony, 16 “none saw Ms. Hooper grab Terrell’s firearm or make any movement consistent with 17 Terrell’s description of how Ms. Hooper supposedly had grabbed his firearm.” (Mot. at 18 9). Defendants rebut, arguing that the circumstances of the Court’s denial of Plaintiff’s 19 Rule 50(a) motion have not changed, and further, Plaintiff’s counsel in fact “conceded that 20 Deputy Terrell testified that plaintiff grabbed his gun; at that time he equated putting her 21 hand on his gun to grabbing it[.]” (Opp’n at 6). 22 As Plaintiff notes, the witnesses did not testify they saw Hooper grab Terrell’s 23 firearm. However, Deputy Terrell testified that during the altercation, Plaintiff had her 24 hand on his service weapon on his right side, and that he was under the belief that Hooper 25 was attempting to pull his gun from his holster. (ECF No. 476 at 6:10-18). Plaintiff’s 26 contention that all of the percipient witness testimony contradicts Deputy Terrell’s account 27 is unpersuasive. In fact, on cross examination, Defense counsel elicited testimony from 28 Jennifer Zabrowski, for example, that Deputy Terrell’s right hip was away from where 1 Zabrowski was standing. (ECF No. 473 at 41:1-3). Then, when asked if Zabrowski 2 observed Deputy Terrell “trying to block his right hip area where his holster was[,]” 3 Zabrowski said, “Yes. His arm was going from trying to grab her right arm to going up to 4 his hip to moving it back down to try to grab her arm. It would go back and forth.” (Id. at 5 41:9-13). Joel Leguina similarly testified during cross examination that he could not see 6 Deputy Terrell’s gun at the time the dog was released, nor could he see Plaintiff’s right 7 hand. (ECF No. 474 at 30:15-20). Leon Doyon also testified that he saw Plaintiff’s right 8 arm, but did not clearly see her right hand. (ECF No. 371 at 25:3-8). The jury was tasked 9 with determining the truthfulness and credibility of Hooper, Deputy Terrell and the 10 percipient witnesses, and upon such an endeavor, resolved conflicting accounts in favor of 11 Deputy Terrell. Donoghue v. Orange Cnty., 848 F.2d 926, 933 (9th Cir. 1987) (“Credibility 12 determinations are within the exclusive province of the jury.”) (citing Twin City Fire Ins. 13 Co. v. Philadelphia Life Ins. Co., 795 F.2d 1417, 1423 (9th Cir. 1986). Plaintiff’s motion 14 for judgment as a matter of law attempts to retry the matter by arguing her version of events, 15 and improperly asks this Court to reweigh the evidence and the credibility of the witness’ 16 testimony.5 To that extent, Plaintiff’s interpretation of the expert testimony of Burton 17 Quick to the facts as Plaintiff presents them is inapposite. 18 Taking the evidence presented at trial in the light most favorable to Defendants, and 19 drawing all reasonable inferences in their favor, substantial evidence was presented at trial 20 to support the jury’s conclusion that Defendant Terrell reasonably believed Plaintiff was 21 grabbing or attempting to grab his gun, and therefore justifying the deployment of his 22 23 5 Plaintiff also argues that no percipient witnesses heard Deputy Terrell “say anything 24 about his firearm or telling Ms. Hooper to let go of his firearm[.]” (Mot. at 9). On direct 25 examination Plaintiff’s counsel elicited testimony from Deputy Terrell that he yelled a number of times at Plaintiff to let go of his firearm. (ECF No. 476 at 12:19-23, 13:2- 26 14:15). To the same effect, the percipient witnesses also did not hear or did not recall 27 hearing Plaintiff yelling anything specific despite Hooper testifying that after the canine was pulled off of her, she “started screaming, ‘somebody call Dixie’ ” a dozen times, while 28 1 canine as reasonable force. See Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1115 2 (9th Cir. 2017) (“Because this appeal comes after the jury’s verdict, we must construe the 3 facts in the light most favorable to the jury’s verdict[.]”); see also Smith v. City of Hemet, 4 394 F.3d 689, 701 (9th Cir. 2005) (“Because [the excessive force inquiry] nearly always 5 requires a jury to sift through disputed factual contentions, and to draw inferences 6 therefrom, we have held on many occasions that summary judgment or judgment as a 7 matter of law in excessive force cases should be granted sparingly.”). In light of the 8 evidence supporting the jury’s verdict, Plaintiff’s motion that the canine bite was excessive 9 as a matter of law is DENIED. 10 2. The Duration of the Canine Bite 11 Defendant Terrell asserts, and Plaintiff disputes, that the canine bite lasted from five 12 to ten seconds. Plaintiff relies on Deputy Terrell’s testimony stating he did not instruct the 13 canine to let go because he did not yet have control of Hooper. (Mot. at 13). Plaintiff 14 contends that while she was protecting her face during the dog bite, her hand could not 15 have been on Deputy Terrell’s gun, and there was no longer justification for the level and 16 duration of force inflicted. 17 Defendants contend that Plaintiff “unfairly waited until after both sides rested to 18 argue that Deputy Terrell was independently liable because the dog did not stop biting 19 immediately.” (Opp’n at 12 (emphasis in original)). Defendants argue that if Plaintiff 20 provided fair notice through the Complaint, Rule 26 disclosures, or eliciting expert 21 testimony on the subject, Defendants would have been afforded an opportunity to also 22 present expert testimony as to the duration of the bite. (Id.) Defendants also brought this 23 objection to the Court’s attention during the pendency of the trial while discussing jury 24 interrogatories. (ECF No. 504 at 64:4-65:14). In oral argument and in her Reply, Plaintiff 25 in essence argues that the excessive duration of the dog attack is implicit in her testimony, 26 and the testimony of Deputy Terrell and Leon Doyon. (ECF No. 504 at 42:4-10). 27 Plaintiff’s theory of liability for the duration of the canine bite is not alleged in 28 Plaintiff’s complaint. See Sanders v. City of Pittsburg, 14 F.4th 968, n. 2 (9th Cir. 2021) 1 (plaintiff’s “complaint fails to allege any dog bite or continued dog bite after he was 2 handcuffed . . . Because this specific contention was not raised in briefing or his complaint 3 and the City and officers had no meaningful opportunity to respond to the new allegation, 4 we treat this argument as waived.”). Although Federal Rule of Civil Procedure 8 does not 5 require a plaintiff to set out in detail the facts upon which he bases his claim, the Rule does 6 require a short and plain statement of the claim. Fed. R. Civ. P. 8(a). Furthermore, Plaintiff 7 also failed to supplement disclosures and/or discovery responses under Rule 26, thereby 8 putting Defendants on notice about the expanded theory of liability that it intended to 9 present at trial. This is particularly revealing in light of Plaintiff’s own admission that the 10 “duration of the bite was always an issue in this case.” (Reply at 14 (emphasis in original)). 11 This is further belied by the absence of any expert testimony as to the duration of the bite 12 and the limited percipient witness testimony adduced supporting a theory of two distinct 13 and discrete violations: one based on Defendant Terrell siccing the dog and the other based 14 on the duration of the bite. It is clear that the procedural defect to asserting this theory of 15 liability has prevented a robust record on the matter, such that now it is too attenuated to 16 the original theory and too distinct to not require prior notice. Hartsell v. Cnty. of San 17 Diego, 802 Fed.Appx. 295, 296 (9th Cir. 2020) (citing Watkins v. City of Oakland, 145 18 F.3d 1087, 1093 (9th Cir. 1998) (“[W]e held more than twenty years ago that ‘it was clearly 19 established that excessive duration of [a canine] bite [or] improper encouragement of a 20 continuation of [an] attack by officers could constitute excessive force that would be a 21 constitutional violation.’ ”). Accordingly, Plaintiff’s motion for judgment as a matter of 22 law as to the duration of the bite is similarly DENIED. 23 B. New Trial 24 Plaintiff seeks a new trial on grounds that (1) the verdict was against the clear weight 25 of the evidence, and (2) the special verdict form was prejudicial error. 26 /// 27 /// 28 /// 1 1. The Verdict Is Not Against the Clear Weight of the Evidence 2 Plaintiff argues that the jury’s verdict was against the clear weight of the evidence 3 because (1) all percipient witness testimony corroborates Hooper’s version of events of her 4 resisting arrest, but not attempting to gain control of Defendant Terrell’s gun; (2) none of 5 the witnesses heard Defendant Terrell command Hooper to let go of his gun; (3) Sergeant 6 Yancey corroborated the percipient witnesses account as to the verbal commands; and (4) 7 a lack of physical evidence, despite Defendant Terrell’s testimony regarding his physical 8 proximity to Hooper when he deployed his canine. (Mot. at 14-16). 9 As stated above, the jury heard testimony from percipient witnesses Jennifer 10 Zabrowski and Joel Leguina stating that they were positioned on the left side of Plaintiff 11 and Deputy Terrell, while his weapon was seated on his right side. (ECF No. 473 at 16:22- 12 24; ECF No. 474 at 17:17-20). The jury also heard testimony from Zabrowski that she saw 13 Hooper’s arm go up towards Defendant Terrell’s side, “and he was going back and forth 14 between his side and going for her arm.” (ECF No. 473 at 22:1-3). Doyon testified that 15 he could not see Hooper’s right hand, nor could he see whether she had her hand on his 16 weapon. (ECF No. 371 at 25:3-8). Similarly, Joel Leguina testified that he could not see 17 Deputy Terrell’s gun at the time the dog was released, nor could he see Plaintiff’s right 18 hand. (ECF No. 474 at 30:15-20). The jury also heard testimony from Defendant Terrell 19 maintaining his deployment of the canine was solely in response to Plaintiff grabbing or 20 attempting to unseat his weapon. (See e.g., ECF No. 476 at 4:15-25; ECF No. 479:26:6- 21 9). The sum of this testimony provides the jury with sufficient evidence to believe Deputy 22 Terrell’s accounting of the incident. 23 Similarly unpersuasive is Plaintiff’s argument that none of the witnesses heard 24 Deputy Terrell command Hooper to let go of his gun. As previously mentioned, Plaintiff’s 25 counsel elicited testimony from Deputy Terrell that he yelled a number of times at Plaintiff 26 to let go of his firearm, which the percipient witnesses do not corroborate. (ECF No. 476 27 at 12:19-23, 13:2-14:15). However, percipient witness Zabrowski also testified that she 28 did not hear Deputy Terrell’s commands other than “stop resisting,” and both Zabrowski 1 and Leguina did not hear Plaintiff yelling the name, “Dixie” despite Hooper’s own 2 testimony that she “started screaming, ‘somebody call Dixie’ ” a dozen times, while 3 repeating a phone number after the canine was pulled off of her. (ECF No. 472 at 30:2-6; 4 ECF No. 473 at 38:5-12; ECF No. 474 at 29:2-4). 5 The jury also heard testimony from Defendants’ witness, Deputy James Stemper, 6 who was a deputy sheriff at the time of the incident and responded to Defendant Terrell’s 7 code cover call. Stemper testified that he arrived under one minute of the call and upon 8 arrival, he observed the canine biting Plaintiff while she was face down on the ground, with 9 Defendant Terrell on top of her on his stomach. (ECF No. 505 at 18:9-16). Although Joel 10 Leguina testified during trial that Deputy Terrell moved away from Plaintiff before the 11 canine reached her, the jury also heard impeaching deposition testimony from Leguina 12 stating he did not recall if Deputy Terrell moved back and away from Plaintiff before the 13 canine engaged with Plaintiff. (ECF No. 474 at 32:25-33:19). The jury also saw evidence 14 of blood on Deputy Terrell’s sleeve from the day of the incident. The jury heard testimony 15 from Defendant Terrell that this occurred while his right arm was on the ground during the 16 altercation on the floor, and which could not have occurred if he was standing away from 17 Hooper when the canine was deployed. (ECF No. 479 at 56:16-24). 18 Furthermore, there was testimony from use of force expert Elmer Pellegrino who 19 testified regarding the importance of weapon retention, stating that any level of force is 20 permissible if an officer reasonably believes there is an attempt to gain control of his 21 weapon. (ECF No. 502 at 14:8-15). Pellegrino also testified that Deputy Terrell’s decision 22 to deploy his canine was reasonable based on these circumstances. (Id. at 15:5-9). The 23 jury also heard from Jacob Pavlenko, a sheriff’s canine handling procedures expert, who 24 testified that it was acceptable to use a canine to prevent a suspect from getting control of 25 an officer’s gun. (ECF No. 500 at 14:22-25). 26 The jury ultimately concluded that Defendant Terrell did not use excessive or 27 unreasonable force against Plaintiff. Considering the totality of the testimony and the 28 evidence presented, the verdict was neither against the clear weight of the evidence nor a 1 miscarriage of justice. See Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 2 1365, 1371 (“[A] decent respect for the collective wisdom of the jury, and for the function 3 entrusted to it in our system, certainly suggests that in most cases, the judge should accept 4 the findings of the jury, regardless of his own doubts in the matter.”) (citation omitted). 5 2. The Special Verdict Form Was Not Prejudicial Error7 6 Plaintiff asserts that the questions in the special verdict form, specifically questions 7 6(b) and (c), were irrelevant and unfairly prejudicial. As to question 6(b), Plaintiff takes 8 issue with the phrasing of the question to include “or placed her hand” on the weapon, 9 because it contradicts Deputy Terrell’s own testimony that Plaintiff grabbed the gun. (Mot. 10 at 16). Plaintiff objects to question 6(c) as improper “because the fact that Ms. Hooper 11 resisted while the dog was ripping off her scalp cannot be used to justify the dog attack if 12 she had never grabbed Terrell’s firearm.” (Id.) 13 Plaintiff’s assertion that the wording of the special verdict forms caused confusion 14 is not supported by the record. The Court gave clear directions in the jury instructions, 15 which were read and provided to the jury, regarding the elements of the claims and what is 16 properly considered in reaching their verdict. The jurors did not submit any questions nor 17 was there any indication that they did not understand the law or their duties. Alaska 18 Airlines, Inc. v. United Airlines, Inc., 948 F.2d 536, 545 n.12 (9th Cir. 1991) (“[J]urors are 19 presumed to follow the instructions given.”) (citing United States v. Escalante, 637 F.2d 20 1197, 1202 (9th Cir. 1980)). Plaintiff’s attempt to draw a distinction between “grabbing” 21 or having “hands on” is unpersuasive in light of the Court’s finding that “based upon the 22 23 6 This case has been heard by a jury a remarkable four times. It strains credulity after 24 such a protracted history to find the verdict goes against the clear weight of the evidence 25 when two jury panels have found in favor of Defendants, and two trials resulted in a mistrial. 26 7 These objections are properly before the Court. Guy v. City. of San Diego, 608 F.3d 27 582, 587 (9th Cir. 2010) (“[W]hen a party is complaining about the wording of the questions submitted to the jury, it must object to the form of special interrogatories in the 28 1 evidence, it didn’t matter to the deputy whether she just touched it or grabbed it or 2 || whatever. She was after the gun and he was protecting the gun. That was the trigger.” (ECF 3 || No. 504 at 89:14-17). Furthermore, Plaintiffs assertion that question 6(c) misrepresents 4 Defendant Terrell’s testimony is similarly without merit, as question 6(c) is reconcilable 5 || with question 6(e)’, and the jury’s finding of not liable on the § 1983 claim.’ 6 V. 7 CONCLUSION 8 Based on the foregoing, IT IS HEREBY ORDERED Plaintiffs motion for judgment 9 ||as a matter of law, or in the alternative, a new trial is DENIED. 10 IT IS SO ORDERED. 11 DATED: March 27, 2024 12 B JOWIN A. HOUSTON UWITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 1/8 The jury answered “no” to question 6(e), which reads, “The dog continued to bite Plaintiff after Plaintiff was no longer a threat to the safety of Defendant Terrell and/or the bystanders?” 25 The Court found that the special interrogatories should be answered only if the jury 6 finds liability against Deputy Terrell. (ECF No. 447 at 35:8-10). Nonetheless, the special verdict form instructed the jury to answer the interrogatories regardless of the verdict. 27 || Despite this oversight, the Court finds that the questions and the jury answering the 28 questions was harmless. See Jazzabi v. Allstate Ins. Co., 278 F.3d 979, 985 n. 24 (9th Cir. 2002). 1«