NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 12 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICKAIL MYLES, an individual, Nos. 23-55487 23-3198 Plaintiff-Appellee,

v. D.C. No. 3:15-cv-01985-JAH-BLM COUNTY OF SAN DIEGO, by and through the San Diego Sheriff's Department, a public entity; J. BANKS, Deputy, an individual, MEMORANDUM*

Defendants-Appellants.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted January 15, 2025 Pasadena, California

Before: GOULD, FRIEDLAND, and BENNETT, Circuit Judges.

Defendants-Appellants the County of San Diego and officer Jeremy Banks

appeal from the district court’s denial of their post-trial motions after a jury found

them liable for violations of 42 U.S.C. § 1983, Monell,1 the Bane Act, and for

negligence. The district court denied Defendants’ motions for qualified immunity

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). and a remittitur or in the alternative a new trial. Defendants also appeal the district

court’s issuance of discovery sanctions against Defendants and the assessment of

attorneys’ fees.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court’s

denial of qualified immunity and discovery sanctions. We reverse the district court’s

denial of Defendants’ motion for a remittitur or in the alternative a new trial and

remand. We vacate the district court’s assessment of attorneys’ fees.

1. The district court did not err in finding that Defendant Banks was not

entitled to qualified immunity. We review the denial of qualified immunity de novo.

See Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023). “Because the jury found for

[Myles] on [his] excessive force claims,” we “accept the jury’s findings of fact,

‘including the [Defendants’] subjective intent,’ unless the [Defendants] demonstrate

that those findings were unsupported by the evidence.” Rodriguez v. Cnty. of Los

Angeles, 891 F.3d 776, 794 (9th Cir. 2018) (quoting A.D. v. Cal. Highway Patrol,

712 F.3d 446, 459 (9th Cir. 2013)).

Myles’s rights were clearly established. We have recognized that “no

particularized case law is necessary for a deputy to know that excessive force has

been used when a deputy sics a canine on a handcuffed arrestee who has fully

surrendered and is completely under control.” Mendoza v. Block, 27 F.3d 1357,

1362 (9th Cir. 1994). And we have affirmed that:

2 [T]he use of such weapons (e.g., pepper sprays; police dogs) may be reasonable as a general policy to bring an arrestee under control, but in a situation in which an arrestee surrenders and is rendered helpless, any reasonable officer would know that a continued use of the weapon or a refusal without cause to alleviate its harmful effects constitutes excessive force.

LaLonde v. Cnty. of Riverside, 204 F.3d 947, 961 (9th Cir. 2000).

Taking the trial evidence in the light most favorable to Myles, Myles was

handcuffed and not resisting arrest when Banks deployed the police dog on him. Our

precedent clearly established that deploying a police dog on a handcuffed and fully

compliant suspect constituted excessive force.

2. The district court did not abuse its discretion by reinstating Myles’s earlier

dismissed Monell claim as a discovery sanction. We review “the imposition

of discovery sanctions under Rule 37 for abuse of discretion.” Henry v. Gill Indus.

Inc., 983 F.2d 943, 946 (9th Cir. 1993) (quoting Fjelstad v. Am. Honda Motor Co.,

762 F.2d 1334, 1337 (9th Cir. 1985)). “Findings of fact related to a motion for

discovery sanctions are reviewed under the clearly erroneous standard.” Adriana

Int’l Corp. v. Thoeren, 913 F.2d 1406, 1408 (9th Cir. 1990).

Myles argues that the district court’s discovery sanction is insulated from our

review because the revival of his Monell claim “amounts to a denial of partial

summary judgment of [his] Monell claim, which is not reviewable on appeal.”

Myles is correct that “generally [we] will not review a denial of a summary judgment

motion after a full trial on the merits.” Banuelos v. Constr. Laborers’ Tr. Funds for

3 S. Cal., 382 F.3d 897, 902 (9th Cir. 2004). But that principle does not apply because

the sanctions relied on facts that were not subsequently adjudicated by the jury. See

Pavon v. Swift Transp. Co., 192 F.3d 902, 906 (9th Cir. 1999). For example, the

jury did not decide whether the County withheld relevant evidence.

Turning to Defendants’ challenge, the district court did not abuse its discretion

by reinstating Myles’s Monell claim. The Stroh report, for example, is responsive

to Myles’s discovery request for “[a]ny and all DOCUMENTS which refer to the

health, licensing, ownership, possession, control, training, and evaluation of the K-

9 which attacked PLAINTIFF during the INCIDENT.” The district court did not err

in finding that failing to disclose the Stroh report prevented Myles from deposing

relevant witnesses. And the Stroh report was relevant to Myles’s claim that the

County violated Monell because it failed “to supervise, monitor or train its

employees.”

3. The district court did not abuse its discretion in giving a jury instruction

that the County concealed evidence. Adverse jury instructions imposed as discovery

sanctions are reviewed for abuse of discretion. See In re Oracle Corp. Sec. Litig.,

627 F.3d 376, 386 (9th Cir. 2010) (discussing spoliation of evidence sanctions).

First, in discovery Myles requested any and all documents “pertaining to the

surveillance of Plaintiff and others.” But the County had hired a private investigator

“to perform a surveillance of plaintiff to assess” Myles’s claimed injuries, which

4 was not disclosed to Myles. Second, the County failed to disclose the Critical

Incident Review Board (“CIRB”) reports, which were also responsive to Myles’s

discovery requests. The district court did not err in finding that Myles was

prejudiced by those violations.

4. The district court did not give the jury an improper withholding of evidence

instruction by misstating that the defendants, and not defendant, withheld evidence.

Defendants did not object to the district court judge’s mistaken use of “defendants”

rather than, for example, “the County” or “the County defendant.” “When a

defendant does not object to jury instructions at trial,” we “review those instructions

for plain error.” United States v. Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005). “In

evaluating jury instructions, ‘we consider how the jury would have reasonably

understood the challenged instruction in the context of the instructions as a whole.’”

United States v. Moran, 493 F.3d 1002, 1009 (9th Cir. 2007) (alterations omitted)

(quoting United States v. Warren, 25 F.3d 890, 897 (9th Cir. 1994)).

The district court judge’s misstatement did not render the instructions, taken

as a whole, misleading. The sentence preceding the error clarified that “the Court

has determined that the County of San Diego willfully concealed evidence in this

case.” The jury was also told it could consider the challenged instruction in deciding

“[w]hether the conduct of the Defendant County of San Diego was a purposeful

5 attempt to deprive Mr. Myles of his right to a fair trial in this matter,” thus making

clear that it was referring to the conduct of the County of San Diego.

5. The district court abused its discretion in denying Defendants’ motion for

a remittitur or in the alternative a new trial. We review for abuse of discretion the

district court’s decision to deny remittitur or a new trial. See Gasperini v. Ctr. for

Humans., Inc., 518 U.S. 415, 436, 438 (1996). We review a jury’s award of damages

for substantial evidence. In re Exxon Valdez, 270 F.3d 1215, 1247–48 (9th Cir.

2001).

There is minimal trial evidence of physical trauma to Myles. Myles had no

plans for treatment or medication and had no follow-up appointments following the

incident. There was little evidence of lasting physical injury to Myles. He did not

suffer any permanent impairment from the dog bite apart from some small scars.

Myles does not have a reduced physical or intellectual capacity.

Myles’s expert testified that Myles may have suffered a traumatic brain injury

(“TBI”) because Banks struck his head, but Myles was not diagnosed with a

concussion, and he did not have further testing. Further, Myles’s expert conceded

that he was “assuming” that any damage to Myles’s brain identified in his

examination was due to the incident.

For emotional damage, Myles testified that the incident left him paranoid,

despondent, and humiliated. Defendants’ expert Dr. Dean Delis testified that Myles

6 had PTSD, stress, and emotional damage following the incident. But Delis also

testified that Myles presented “well within the normal range” for “anxiety,

depression, irritability, [and] stress” and that “there w[ere] no findings on the

psychological questionnaire of any elevations that would signal significant

emotional symptoms and problems.” Myles’s injuries were not significant enough

to warrant $5 million in compensatory damages.

“We have searched for cases in which an appellate court affirmed a

comparable damages award on similar facts. We were unable to find any, and

[Myles] did not bring any to our attention. Nor did we find any comparable district

court cases.” Bell v. Williams, 108 F.4th 809, 834 (9th Cir. 2024). The difference

between Myles’s compensatory damages award and the lack of any award even close

to this one in any other case with similar or worse injuries “confirms our conclusion”

that the jury’s award was clearly excessive. Id. at 835.

Additionally, Myles’s attorneys made improper and prejudicial remarks

during opening and closing statements that could have inflamed the jury and

prejudicially affected the damages amount. A new trial or remittitur is warranted

when attorney misconduct “sufficiently permeate[d] [the] entire proceeding to

provide conviction that the jury was influenced by passion and prejudice in reaching

its verdict.” Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 516–17 (9th Cir.

7 2004) (quoting Kehr v. Smith Barney, Harris Upham & Co., 736 F.2d 1283, 1286

(9th Cir. 1984)).

During his opening statement, Myles’s attorney stated that “we’re going to

ask you, obviously, for significant damages for what they did to [Myles], and also

for what they need to do to reform and change their policies.” This statement could

be reasonably interpreted as requesting the jury to punish the County for its policies

rather than compensate Myles. In his closing arguments, Myles’s counsel also made

inflammatory statements, including that “revenge is a dish best served cold,” and

requesting damages “[n]ot just to make this man whole but to say that the county

itself had policies in place that need to change” and that the County “need[ed] to be

accountable.”

The district court thus abused its discretion in denying Defendants’ motion for

a new trial or remittitur because the damages award was “grossly excessive or

monstrous.” Del Monte Dunes v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir.

1996). We therefore remand this case to the district court to give Myles the option

8 between a remittitur or a new trial on damages only.2 The maximum amount of any

such remittitur to be set by the district court is $1,500,000.3

6. Defendants argue that the district court abused its discretion by granting

$5,837,820 in attorneys’ fees. Because we remand to the district court on the issue

of Myles’s damages, we vacate the grant of attorneys’ fees as a matter of course.

See Idaho Potato Comm’n v. G&T Terminal Packaging, Inc., 425 F.3d 708, 723 (9th

Cir. 2005). Although we vacate the award, we take the opportunity to identify some

concerns with the original grant of attorneys’ fees.

First, Myles’s attorneys Balaban and Greene submitted insufficient time

records. We have found that “abbreviated time records, submitted in a form not

reasonably capable of evaluation, do not satisfy the ‘burden of submitting detailed

time records justifying the hours claimed.’” Stewart v. Gates, 987 F.2d 1450, 1453

2 If Myles chooses not to accept the remittitur and chooses to pursue a new trial on damages only, some portions of the liability phase of trial will not be relevant. For example, the district court could not instruct the jury that the County withheld evidence, because that would be irrelevant to damages. And the jury would not hear testimony about Banks’s misconduct unrelated to Myles or other officer misconduct that did not involve Myles or the damages suffered by him. 3 “[T]he Supreme Court has recognized an appellate court’s authority to order remittitur of compensatory damages . . . .” Bell, 108 F.4th at 831 (citing Gasperini, 518 U.S. at 439). We have set the remittitur amount when “objective evidence clearly identified the correct damages amount” and have suggested an upper limit, allowing the district court to set a remittitur amount under that limit, when we lack such evidence. Id. at 835. Because we lack objective evidence of Myles’s emotional damages, we set an upper limit to the district court’s remittitur amount.

9 (9th Cir. 1993) (quoting Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th

Cir. 1986)). Balaban and Greene’s explanations lack any detail of what they did,

when they did it, and how long it took. The district court applied a reduction to their

hours, but it is hard to evaluate whether that reduction is sufficient given the lack of

information in Balaban and Greene’s submissions.

Second, Myles’s attorneys’ rates appear to be on the high end of prevailing

rates in San Diego. Myles’s attorneys relied on the declaration of Carol Sobel, but

in contrast to the firms Sobel surveyed, Myles’s attorneys worked for small, local

firms, and the subject matter of this case was far less complex. Myles’s attorneys’

rates are on the high end of Sobel’s range, which suggests that their rates may have

been set above the prevailing rates in the market.

Third, the district court applied a 1.3x multiplier to Myles’s attorneys’

lodestar. But there is a “strong presumption that the lodestar is sufficient” and “an

enhancement may not be awarded based on a factor that is subsumed in the lodestar

calculation.” Perdue v. Kenny A., 559 U.S. 542, 546, 553 (2010).

The district court awarded a multiplier for three reasons. First, the lodestar

did not adequately capture how well Myles’s counsel performed. Because of the

remittitur, the size of the verdict has changed, so the ultimate verdict may not be

outsized compared to the lodestar. Second, the district court reasoned that

Defendants’ behavior upended Myles’s attorneys’ preparation and led to

10 considerable effort, stress, and anxiety. These features, however, should already be

included in the lodestar. Third, the district court reasoned that Defendants’ conduct

made the litigation more expensive and high risk. But risk is already built into the

attorneys’ rates. The district court may have found Defendants’ behavior

objectionable, but the district court had other remedies at its disposal to deter

inappropriate attorney conduct such as monetary and discovery sanctions.

The district court will determine the appropriate attorneys’ fees on remand,

either following an accepted remittitur, or following a new damages trial. Because

the size of the verdict will have changed, and for the other reasons discussed above,

the district court will need to reassess its original grant of attorneys’ fees.

***

We affirm the district court’s denial of qualified immunity and discovery

sanctions against Defendants.4 We reverse the district court’s denial of Defendants’

motion for a new trial or in the alternative a remittitur of damages. We vacate the

district court’s grant of attorneys’ fees as a matter of course. The parties shall each

bear their own costs on appeal.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART

AND REMANDED.

4 We grant Defendants’ motions for judicial notice. No. 23-3198, Dkt. No. 17; No. 23-55487, Dkt Nos. 22, 64. We deny Myles’s motion for sanctions. No. 23- 55487, Dkt No. 37.

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