Hugo Sarmiento v. County of Orange

FILED

*

NOT FOR PUBLICATION OCT 22 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HUGO VANLID SARMIENTO, No. 09-55512

Plaintiff - Appellant, D.C. No. 8:06-cv-00586-DOC-AN

v.

MEMORANDUM*

COUNTY OF ORANGE; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted October 12, 2011 Pasadena, California

Before: LEAVY and WARDLAW, Circuit Judges, and SESSIONS, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable William K. Sessions III, U.S. District Judge for the District of Vermont, sitting by designation.

1 Following a jury verdict rejecting his civil rights claims, Hugo Sarmiento

appeals several of the district court’s rulings. We have jurisdiction pursuant to

U.S.C. § 1291, and we affirm in part, reverse in part, and remand for a new trial.

The district court abused its discretion in rejecting…

MEMORANDUM **

Following a jury verdict rejecting his civil rights claims, Hugo Sarmiento appeals several of the district court’s rulings. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm in part, reverse in part, and remand for a new trial.

The district court abused its discretion in rejecting Sarmiento’s proposed special verdict form, which would have allowed the jury to determine whether Orange County was liable for sanctioning excessive force in its sobering cells. Over Sarmiento’s timely objection, the district court provided the jury with a special verdict form that limited Orange County’s liability to the actions of deputies Matthew LeFlore and David Hernandez, Jr. Sarmiento’s Monell claim against Orange County is not so circumscribed, see Monell v. Dep’t of Soc. Servs. of City of N.Y, 436 U.S. 658, 664 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), was preserved for trial in the Final Pretrial Conference Order, and was fairly supported by evidence introduced at trial.

Sarmiento alleges that Orange County is responsible for the excessive force used by its deputies against him. 1 Sarmiento does not identify the particular Orange County deputies who used…

concurring in part, dissenting in part:

I concur in that portion of the majority’s disposition that affirms as to certain defendants. I dissent from that portion that reverses as to the County of Orange.

I disagree with the majority’s conclusion that the district court committed error in rejecting Sarmiento’s proposed verdict form. The majority remands for a new trial against Orange County on Sarmien-to’s claim that “unnamed deputies,” while acting pursuant to a custom, practice or policy, used unreasonable force. Sarmien-to did not articulate this theory of harm by “unnamed deputies” in the final pretrial order nor did he present this theory at trial. Sarmiento’s proposed verdict form contained erroneous questions for the jury. Therefore, the district court properly rejected Sarmiento’s proposed verdict form.

The final pretrial order states that the parties “will be precluded from presenting claims or defenses not set forth in this order, in the manner required by this order.”

Plaintiffs first claim is that deputies acted under color of law and that unreasonable force was used. The only persons identified as “deputies” are Hernandez and LeFlore. No reference is made to un…