NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL A. HARTSELL, No. 21-56045
Plaintiff-Appellant, D.C. No. 3:16-cv-01094-LAB-LL v.
COUNTY OF SAN DIEGO; TRENTON MEMORANDUM* STROH, San Diego County Deputy Sheriff,
Defendants-Appellees,
and
DOES, 1-15,
Defendants.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
Submitted March 16, 2023** Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Michael Hartsell (“Hartsell”) appeals the district court’s order denying his
post-trial motions for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b), or alternatively for a new trial under Rule 59(a). A jury found in
favor of Deputy Trenton Stroh (“Stroh”) and the County of San Diego
(collectively, “the County”) on Hartsell’s claims for battery, negligence, and
violation of his Fourth Amendment rights under 42 U.S.C. § 1983. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Rule 50(b) Motion for Judgment. While fleeing arrest in May 2015,
Hartsell was bitten by a San Diego Sheriff’s Department canine. The dog, at the
direction of its handler, Stroh, entered a bush where Hartsell was hiding and bit
onto his left arm. Although Hartsell complied with Stroh’s commands to show his
hands after he was bitten, Stroh did not immediately command the dog to let go.
Instead, Stroh ordered Hartsell to crawl several feet forward out of the bush before
removing the dog from his arm. At trial, the sole issue before the jury was whether
Stroh used excessive force by failing to release the dog from its bite sooner.1
Hartsell challenges the jury’s verdict in favor of the County, arguing that the
evidence at trial established that Stroh acted unreasonably in violation of the
Fourth Amendment.
1 Prior to trial, the district court found that Stroh’s initial deployment of the dog was a reasonable use of force as a matter of law.
2 “We review de novo the district court’s denial of a Rule 50(b) renewed
motion for judgment as a matter of law. The test is whether ‘the evidence,
construed in the light most favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to that of the jury.’” Est. of
Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016) (citation omitted).
Under this deferential standard of review, we must uphold a jury verdict “if it is
supported by substantial evidence that is adequate to support the jury’s findings,
even if contrary findings are also possible.” Dunlap v. Liberty Nat. Prods., Inc.,
878 F.3d 794, 797 (9th Cir. 2017) (citation omitted).
The district court did not err by rejecting Hartsell’s Rule 50(b) motion. To
determine whether an officer used excessive force, the court inquires “whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Est. of
Diaz, 840 F.3d at 604-05 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).
To assess objective reasonableness, courts consider the factors set forth in Graham
v. Connor, including “the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest.” 490 U.S. at 396.
Applying the Graham factors and considering the totality of the evidence,
the jury’s verdict is supported by substantial evidence. The evidence at trial
3 showed that Stroh faced a difficult decision about how to release the dog safely.
Both Hartsell and the dog were located inside a dense bush, partially secreted from
Stroh’s view. Stroh and other officers testified that they are trained to physically
remove a biting dog while simultaneously issuing a verbal command, because it is
the safest way to ensure the animal does not bite again. Stroh testified that he
could not safely enter the bush to physically apprehend the dog, and he feared
issuing a verbal command would cause the dog to bite another part of Hartsell’s
body. Based on this evidence, the jury reasonably concluded that Stroh’s decision
to instruct Hartsell to crawl from the bushes before disengaging the dog was not an
excessive use of force.
As Hartsell argues, some of the evidence at trial weighed in his favor. He
complied with Stroh’s commands, he was not known to be violent, and he was in
his underwear and was unlikely to have a weapon. Nonetheless, “[w]hen each of
the Graham factors is analyzed, the record does not ‘permit[] only one reasonable
conclusion . . . contrary to that of the jury.’” Est. of Diaz, 840 F.3d at 605
(alterations in original) (quoting White v. Ford Motor Co., 312 F.3d 998, 1010 (9th
Cir. 2002)). In light of the evidence supporting the jury’s verdict, Hartsell is not
entitled to judgment as a matter of law.2 See id. at 604 (holding that question of
2 Hartsell also argues that the district court’s summary judgment ruling contradicts the jury’s finding that Stroh’s actions were reasonable. Hartsell, however, misconstrues the court’s ruling—by denying summary judgment to the County, the
4 excessive force “was one for the jury” and upholding denial of motion for
judgment as a matter of law).
2. Rule 59(a) Motion for a New Trial. Hartsell argues that he is entitled to
a new trial because counsel for the County made several prejudicial comments
during trial that improperly influenced the jury’s verdict. First, counsel referred to
Stroh as a “respected officer” during the County’s opening statement; second,
counsel used the phrase “Deputy Stroh and his family” during closing argument;
and third, counsel referred to Hartsell as a “drug dealer” who was suing for a
“payday” during closing argument.
We review a district court’s denial of a motion for new trial under Rule
59(a) for abuse of discretion. Molski v. M.J. Cable, Inc., 481 F.3d 724, 728 (9th
Cir. 2007). To assess whether improper comments were sufficiently prejudicial to
warrant a new trial, the court considers “whether counsel’s misconduct so
permeated the trial as to lead to the conclusion the jury was necessarily influenced
by passion and prejudice in reaching its verdict.” Cooper v. Firestone Tire &
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL A. HARTSELL, No. 21-56045
Plaintiff-Appellant, D.C. No. 3:16-cv-01094-LAB-LL v.
COUNTY OF SAN DIEGO; TRENTON MEMORANDUM* STROH, San Diego County Deputy Sheriff,
Defendants-Appellees,
and
DOES, 1-15,
Defendants.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
Submitted March 16, 2023** Pasadena, California
Before: PAEZ, CHRISTEN, and MILLER, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Michael Hartsell (“Hartsell”) appeals the district court’s order denying his
post-trial motions for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b), or alternatively for a new trial under Rule 59(a). A jury found in
favor of Deputy Trenton Stroh (“Stroh”) and the County of San Diego
(collectively, “the County”) on Hartsell’s claims for battery, negligence, and
violation of his Fourth Amendment rights under 42 U.S.C. § 1983. We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
1. Rule 50(b) Motion for Judgment. While fleeing arrest in May 2015,
Hartsell was bitten by a San Diego Sheriff’s Department canine. The dog, at the
direction of its handler, Stroh, entered a bush where Hartsell was hiding and bit
onto his left arm. Although Hartsell complied with Stroh’s commands to show his
hands after he was bitten, Stroh did not immediately command the dog to let go.
Instead, Stroh ordered Hartsell to crawl several feet forward out of the bush before
removing the dog from his arm. At trial, the sole issue before the jury was whether
Stroh used excessive force by failing to release the dog from its bite sooner.1
Hartsell challenges the jury’s verdict in favor of the County, arguing that the
evidence at trial established that Stroh acted unreasonably in violation of the
Fourth Amendment.
1 Prior to trial, the district court found that Stroh’s initial deployment of the dog was a reasonable use of force as a matter of law.
2 “We review de novo the district court’s denial of a Rule 50(b) renewed
motion for judgment as a matter of law. The test is whether ‘the evidence,
construed in the light most favorable to the nonmoving party, permits only one
reasonable conclusion, and that conclusion is contrary to that of the jury.’” Est. of
Diaz v. City of Anaheim, 840 F.3d 592, 604 (9th Cir. 2016) (citation omitted).
Under this deferential standard of review, we must uphold a jury verdict “if it is
supported by substantial evidence that is adequate to support the jury’s findings,
even if contrary findings are also possible.” Dunlap v. Liberty Nat. Prods., Inc.,
878 F.3d 794, 797 (9th Cir. 2017) (citation omitted).
The district court did not err by rejecting Hartsell’s Rule 50(b) motion. To
determine whether an officer used excessive force, the court inquires “whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Est. of
Diaz, 840 F.3d at 604-05 (citing Graham v. Connor, 490 U.S. 386, 397 (1989)).
To assess objective reasonableness, courts consider the factors set forth in Graham
v. Connor, including “the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is
actively resisting arrest or attempting to evade arrest.” 490 U.S. at 396.
Applying the Graham factors and considering the totality of the evidence,
the jury’s verdict is supported by substantial evidence. The evidence at trial
3 showed that Stroh faced a difficult decision about how to release the dog safely.
Both Hartsell and the dog were located inside a dense bush, partially secreted from
Stroh’s view. Stroh and other officers testified that they are trained to physically
remove a biting dog while simultaneously issuing a verbal command, because it is
the safest way to ensure the animal does not bite again. Stroh testified that he
could not safely enter the bush to physically apprehend the dog, and he feared
issuing a verbal command would cause the dog to bite another part of Hartsell’s
body. Based on this evidence, the jury reasonably concluded that Stroh’s decision
to instruct Hartsell to crawl from the bushes before disengaging the dog was not an
excessive use of force.
As Hartsell argues, some of the evidence at trial weighed in his favor. He
complied with Stroh’s commands, he was not known to be violent, and he was in
his underwear and was unlikely to have a weapon. Nonetheless, “[w]hen each of
the Graham factors is analyzed, the record does not ‘permit[] only one reasonable
conclusion . . . contrary to that of the jury.’” Est. of Diaz, 840 F.3d at 605
(alterations in original) (quoting White v. Ford Motor Co., 312 F.3d 998, 1010 (9th
Cir. 2002)). In light of the evidence supporting the jury’s verdict, Hartsell is not
entitled to judgment as a matter of law.2 See id. at 604 (holding that question of
2 Hartsell also argues that the district court’s summary judgment ruling contradicts the jury’s finding that Stroh’s actions were reasonable. Hartsell, however, misconstrues the court’s ruling—by denying summary judgment to the County, the
4 excessive force “was one for the jury” and upholding denial of motion for
judgment as a matter of law).
2. Rule 59(a) Motion for a New Trial. Hartsell argues that he is entitled to
a new trial because counsel for the County made several prejudicial comments
during trial that improperly influenced the jury’s verdict. First, counsel referred to
Stroh as a “respected officer” during the County’s opening statement; second,
counsel used the phrase “Deputy Stroh and his family” during closing argument;
and third, counsel referred to Hartsell as a “drug dealer” who was suing for a
“payday” during closing argument.
We review a district court’s denial of a motion for new trial under Rule
59(a) for abuse of discretion. Molski v. M.J. Cable, Inc., 481 F.3d 724, 728 (9th
Cir. 2007). To assess whether improper comments were sufficiently prejudicial to
warrant a new trial, the court considers “whether counsel’s misconduct so
permeated the trial as to lead to the conclusion the jury was necessarily influenced
by passion and prejudice in reaching its verdict.” Cooper v. Firestone Tire &
Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991).
Hartsell failed to argue that counsel’s comments were prejudicial in his new
trial motion, likely waiving this issue. See Steam Press Holdings, Inc. v. Haw.
court merely found that a reasonable jury could return a verdict for Hartsell, not that it must. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
5 Teamsters, Allied Workers Union, Loc. 996, 302 F.3d 998, 1005 (9th Cir. 2002).
But even considering the merits, the statements Hartsell identifies did not
sufficiently prejudice the jury to warrant a new trial. The County’s counsel made
each statement only once during opening and closing arguments, and Hartsell’s
counsel never objected or moved for a mistrial on those grounds. See Kehr v.
Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286 (9th Cir. 1984)
(upholding district court’s denial of Rule 59(a) motion). The comments in
question did not permeate the trial or necessarily influence the jury in reaching a
verdict.
3. Evidentiary Rulings. Finally, Hartsell challenges the district court’s
ruling excluding two pieces of evidence: 1) evidence that the dog bit Stroh five
weeks after the incident; and 2) evidence that the dog failed to perform
satisfactorily on past bite-and-release evaluations. We review a district court’s
evidentiary rulings for abuse of discretion. Muniz v. Amec Constr. Mgmt., Inc.,
623 F.3d 1290, 1294 (9th Cir. 2010). “A party seeking reversal for evidentiary
error must show that the error was prejudicial, and that the verdict was ‘more
probably than not’ affected as a result.” Boyd v. City & County of San Francisco,
576 F.3d 938, 943 (9th Cir. 2009) (quoting McEuin v. Crown Equip. Corp., 328
F.3d 1028, 1032 (9th Cir. 2003)).
The district court did not abuse its discretion by excluding evidence that the
6 dog bit Stroh after the incident. As the court determined, the dog’s propensity to
bite was irrelevant to the issue of whether Stroh should have released the dog
sooner. Hartsell argues that Stroh could have testified about the painful effects of
being bitten by a dog, and Stroh’s testimony could have proved that Hartsell was
recoiling out of pain while being bitten. But no one at trial disputed that dog bites
are painful. The issues of Hartsell’s pain and his reaction to that pain were
adequately presented to the jury through Hartsell’s own testimony and other
evidence in the record.
The district court did not abuse its discretion by excluding evidence of the
dog’s subpar training evaluations with former handlers. At trial, Hartsell intended
to pursue the theory that Stroh “knew that [the dog] had some issues with releasing
upon command” when he became its handler. But upon further questioning by the
court, Hartsell’s counsel admitted that Stroh never said he had reviewed the
problematic evaluations, nor did Stroh “describe[] any problems that he was aware
of with [the dog].” The court held that Hartsell could not question Stroh about the
prior evaluations, but Hartsell could admit the evidence through the testimony of a
competent witness.
On appeal, Hartsell argues that the dog’s evaluation history “was known to
the canine evaluators,” and was “directly relevant to whether Stroh’s conduct was
reasonable.” But Hartsell still does not address whether Stroh himself knew about
7 the problematic evaluations. Absent that knowledge, it is doubtful that Hartsell
could have elicited helpful information from Stroh by questioning him about the
evaluations. Hartsell has not shown that exclusion of the evaluations was
prejudicial or that the verdict was “more probably than not” affected by their
absence. Boyd, 576 F.3d at 943 (citation omitted).
AFFIRMED.3
3 Hartsell filed a Motion to Transmit Physical Exhibits under Circuit Rule 27-14 (Dkt. No. 42), seeking to present two additional photographs that he failed to include in his excerpts of record. We deny the motion. The photographs are neither “[un]available on the electronic district court docket” nor “necessary to resolution of an issue on appeal.” Circuit Rule 27-14. Hartsell’s Request for Judicial Notice (Dkt. No. 13) is denied.