Opinion
No. C00-0034
September 5, 2002
Robert F Wilson, Cedar Rapids, IA; Kay Marie Johansen, Day, Rettig, Peiffer Johansen, PC, Cedar Rapids, IA, Attorneys for Plaintiff.
Todd Davis Tripp, Linn County Attorney Office, Linn County Courthouse, Cedar Rapids, IA, for Defendants.
ORDER
This matter comes before the court pursuant to defendant Lynn Johnson's motion for judgment as a matter of law (docket number 44), the plaintiff's motion for attorney fees (docket numbers 45 and 56) and the plaintiff's bill of costs (docket number 51). This case was tried to a jury and a verdict was returned in favor of the plaintiff and against defendants Johnson and Serbousek on June 5, 2002.
Defendant Johnson moved for judgment as a matter of law during the trial and ruling on the motion was reserved. The defendant now renews his objection. He argues that the plaintiff failed to meet his burden on the excessive force claim, that he is entitled to qualified immunity for his actions, and that the court should reduce the punitive damages award because of the pre-trial remedial actions taken by the Linn County Corrections Center. The plaintiff moves for attorney fees as the prevailing party pursuant to 42 U.S.C. § 1988.
Factual Background
The plaintiff was a contract painter. He spent the afternoon of September 10, 1999 at the Starlite Lounge and consumed alcoholic beverages after finding out that the painting project scheduled for that day had been postponed. As he drove away from the Starlite Lounge, a Cedar Rapids police officer observed his truck swerving on 1st Avenue and pulled it over. The plaintiff was arrested for operating while intoxicated at approximately 6:00 p.m. The plaintiff told the arresting officer that he suffered from panic attacks and requested that he be allowed to retrieve his medication from his truck. The plaintiff's medication was not given to him. He was taken to the Linn County Correction Center for processing. Initially, the plaintiff was acting normally, but as the processing progressed the plaintiff became disruptive, belligerent, and assaultive. As a result of the plaintiff's behavior, the jailors decided to place the plaintiff on the personal restraint device. He was secured to the device at approximately 6:45 p.m. Defendant Johnson was the supervisor who decided that the plaintiff should be placed on the restraint device. It was also defendant Johnson that determined how long the plaintiff would remain on the restraint device. The Correction Center inmate log sheet indicated that the plaintiff was last heard being disruptive at 8:00 p.m. The plaintiff was banging his head against the board so hard that it could be heard on the videotape of the booking area. While on the board, the plaintiff had his hair pulled by deputy sheriff defendant Serbousek. The plaintiff remained on the board until approximately 12:00 a.m. During the time the plaintiff was on the board, he was not allowed to get up or go to the bathroom. After learning of her husband's arrest, the plaintiff's wife called the Linn County Corrections Center to inform them that her husband suffered from panic attacks and that he needed medication to control the attacks.
The personal restraint device at issue is a board with five restraint points. The detainee or prisoner is placed face down on the board, with his head to one side, and leather restraints are placed around each wrist and ankle. Additional straps are placed over the elbows and above the knees. Usually a Velcro strap or a padded helmet is used to secure the person's head. The plaintiff's head was not secured while he was on the board because there was no strap for the head that day.
The plaintiff had three theories as to how he had been subjected to excessive force. He claims that the mere fact of placement on the restraint was excessive force. Second, he claims that he was left on the restraint long after any justification for the placement abated. Finally, he claims that he was abused while on the restraint. On June 5, 2002 the jury returned a verdict in favor of the plaintiff and against defendant Johnson for being placed on a personal restraint device in the Linn County Corrections Center for an excessive amount of time. The jury refused to find that plaintiff's initial placement on the restraint constituted excessive force. The jury awarded the plaintiff actual damages of $1.00 and punitive damages against defendant Johnson in the amount of $11,500. In addition, the jury awarded $1.00 in compensatory damages and $5,850.00 in punitive damages against defendant Serbousek. Plaintiff's claims relating to the denial of medical care were rejected by the jury.
Excessive Force
Defendant Johnson argues that he is entitled to judgment as a matter of law on the excessive force claim. He claims that the award of nominal damages is evidence that the jury did not find that the defendant used excessive force. The defendant cites cases explaining the two prong analysis used to evaluate whether excessive force was used under the Eighth Amendment. The analysis asks whether the defendant acted with sufficiently culpable state of mind (subjective prong) and whether the injury or deprivation was sufficiently serious (objective prong). Hudson v. McMillian, 503 U.S. 1, 5 (1992). The plaintiff points out that the Fourth Amendment is applicable, not the Eighth Amendment, because at the time of restraint the plaintiff was a pretrial detainee. In analyzing claims of excessive force under the Fourth Amendment the defendant's actions must be viewed in the context of whether they were objectively reasonable. Graham v. M.S. Connor et al., 490 U.S. 386, 394 (1989).
The Fourth Amendment reasonableness standard applies to plaintiff's detention. When the plaintiff was placed on the board, he was an arrestee. See Andrews v. Neer, 253 F.3d 1052, 1060 (8th Cir. 2001) (If the victim [of excessive force] is an arrestee, the Fourth Amendment's "objective reasonableness" standard controls). The Court in Andrews said:
While we have not drawn a bright line dividing the end of the arrestee's status and the beginning of the pre-trial detainee's status, it is clear that the state may not punish a pretrial detainee. citing, Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000); Bell v. Wolfish, 41 U.S. 520, 535 (1979); Williams-El v. Johnson, 872 F.2d 224, 229 (8th Cir. 1989).
The question is whether the officers' actions are "objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Winters v. Adams, 254 F.3d 758, 765 (8th Cir. 2001) quoting, Graham, 490 U.S. at 397. In Wilson v. Spain, 209 F.3d 713, 715-716 (8th Cir. 2000), the Eighth Circuit Court of Appeals said:
Between arrest and sentencing lies something of a legal twinght zone. The Supreme Court has left open the question of how to analyze a claim concerning the use of excessive force by law enforcement beyond the point at which arrest ends and pretrial detention begins, and the circuits are split. This court has applied the Fourth Amendment to situations very similar to this case. In Moore v. Novak, 146 F.3d 531 (8th Cir. 1998), law enforcement officers at a jail used force against an arrestee who was being violent and disruptive during the booking process. We held that the district court appropriately applied the Fourth Amendment to Moore's excessive force claims. Similarly, in Maynard v. Hopwood, 105 F.3d 1226 (8th Cir. 1997) we applied Fourth Amendment standards not only to the act of arrest, but also to use of force against an arrestee who was restrained in the back of a police car.
The Eighth Amendment protections apply to claims of excessive force brought by those who have been convicted of a crime and are serving their sentences. See Whitley v. Albers, 475 U.S. 312, 318-322 (1986); Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000). The plaintiff was merely being processed at the Linn County Corrections Center. Clearly the Fourth Amendment "objective reasonableness" standard applies to the plaintiff's excessive force claim.
The plaintiff claims that defendant Johnson used excessive force in leaving him on the restraint board for five hours. The placement of a disruptive and belligerent arrestee on the board cannot be said to be unreasonable. However, the jury determined that leaving the plaintiff on the board for five hours was unreasonable. This device is more than just uncomfortable. It is a restraint that should be used only for the amount of time necessary to restore order. Here, plaintiff presented evidence showing that he was held long after the need for such a restraint had ended. The jury found for the plaintiff on the excessive force claim and that determination will not be disturbed by this Court on a motion for judgment as a matter of law. Under the Fourth Amendment reasonableness standard, the jury was justified in finding that the defendant's decision to leave the plaintiff on the board for five hours was unreasonable.
Qualified Immunity
A government official who performs discretionary functions is protected from suit under the doctrine of qualified immunity as long as the official's conduct did not violate clearly established statutory or Constitutional rights of which a reasonable person would have known.Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); White v. Armentrout, 29 F.3d 357, 360-61 (8th Cir. 1994). In order to lose qualified immunity, a state official must violate an inmate's clearly established Constitutional rights. Brown v. Nix, 33 F.3d 951, 953 (8th Cir. 1994). The contours of a clearly established right must be sufficiently clear that a reasonable official would understand what conduct violates that right. The test focuses on the objective reasonableness of an official's act. Id.
This is not to say that an official action is protected by qualified immunity unless the very action in question has been previously held unlawful, but is to say that in the light of preexisting law the unlawfulness must be apparent. Anderson v. Creighton, 483 U.S. 635, 640 (1987). In other words, although an official is not always immune from liability merely because there is no case establishing a Constitutional right in identical circumstances, if there is a legitimate question as to whether the more particularized Constitutional right exists under the facts of the case, it cannot be said that the official' s action violated clearly established law. Brown v. Frey, 889 F.2d 159, 165 (8th Cir. 1989).
The qualified immunity inquiry involves a two-step process. First, this court must determine whether the plaintiff has alleged a violation of a Constitutional right. Second, this court must determine whether that Constitutional right was clearly established at the time the official acted. Saucier v. Katz, 533 U.S. 194, 201-202 (2001); Siegert v. Gilley, 500 U.S. 226 (1991); Munz v. Michael, 28 F.3d 795, 799 (8th Cir. 1994).
The Eighth Circuit Court of Appeals has taken a broad view of what constitutes clearly established law for the purposes of qualified immunity. For the law to be clearly established, it is only necessary that the unlawfulness of the official's act be apparent in view of pre-existing law. Id. Thus, the proper inquiry is an objective, fact-specific question determined by examining the facts at issue under clearly established law at the time. Sellers By and Through Sellers v. Baer, 28 F.3d 895, 899 (8th Cir. 1994). Without this fact-specific inquiry, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights. Bills v. Dahm, 32 F.3d 333, 335 (8th Cir. 1994). Plaintiff bears the burden of proving that the law was clearly established at the time of the acts in question. Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989).
As noted above, the Eighth Circuit Court of Appeals has made it clear that the appropriate level of inquiry focuses on the factual circumstance presented to the official at the time of his actions. Sellers, supra, at 900; Bills, supra, at 335. See also Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989); Melton v. City of Oklahoma City, 879 F.2d 706, 729 (10th Cir. 1989) (holding qualified immunity analysis requires the court to consider the operation of the rule in the context of the circumstances with which the official was confronted).
In order to be clearly established, the specific acts of officials do not have to be proscribed by decisions of this circuit or another court with direct jurisdiction over the institution. Johnson-El v. Schoemehl, 878 F.2d 1043, 1049 (8th Cir. 1989). While the identity of a court and its geographical proximity may be relevant in determining whether a reasonable official would be aware of the law, a per se rule limiting "clearly established law" to binding precedent has been rejected. Id. An examination of past cases regarding the same or similar practices is sometimes required. Id. Factually analogous cases are highly relevant to the qualified immunity inquiry when the Constitutional right in question is subject to a balancing test. Bartlett v. Fisher, 972 F.2d 911, 918 n. 3 (8th Cir. 1992).
In the absence of binding precedent, a court should look to all available decisional law including decisions of state courts, other circuits, and district courts. Romero v. Kitsap Co., 931 F.2d 624, 629 (9th Cir. 1991). The Eleventh Circuit Court of Appeals has held that the case law of one other circuit cannot settle the law of the Eleventh Circuit to the point of it being "clearly established." Hansen v. Soldenwagner, 19 F.3d 573, 578 n. 6 (11th Cir. 1994). However, a lone district court case from another jurisdiction cannot sufficiently have established the law to enable reasonable officials to anticipate that their conduct might give rise to liability for damages. Brown v. Grabowski, 922 F.2d 1097, 1118 (3d Cir. 1990).
The plaintiff claims that his constitutional right to be free from excessive force was violated by the defendant. The excessive force in this case was leaving the plaintiff on the restraint board for over five hours. There is no case law in this circuit determining whether placing an arrestee who suffers from panic attacks on a restraint board for five hours is excessive or not. However, the inquiry does not need to be that specific. The defendant admitted that the plaintiff was left on the board too long. It was clearly established at the time the plaintiff was placed on the board that arrestees could not be punished. It was also clear that the plaintiff was no longer being disruptive after an hour and fifteen minutes on the board. As a result, leaving the plaintiff on the board for five hours was not reasonable and contrary to the clearly established principle that arrestees and pre-trial detainees cannot be punished. The defendant is not entitled to qualified immunity.
Punitive Damages
The defendant argues that the punitive damages awarded to the plaintiff for the conduct of defendant Johnson should be reduced based on the pre-trial revision of the Linn County Corrections Center policy regarding the maximum time a person can be placed on the board. The court will disturb an award of punitive damages only when such an award is determined to be "grossly excessive." See BMW of North America, Inc. v. Gore, 517 U.S. 559, 568 (1996); Watkins v. Lundell, 169 F.3d 540, (8th Cir. 1999). The Supreme Court in BMW considered three guideposts to determine if punitive damages are grossly excessive: 1) the degree of reprehensibility of the parties' actions; 2) the ratio between the actual harm inflicted and the punitive damages; and 3) the difference between the punitive damages and the civil penalties authorized or imposed in comparable cases. The degree of reprehensibility is "perhaps the most important indicium of the reasonableness of a punitive damages award."See id. The degree of reprehensibility is also indicative of the constitutionally permissible size of the punitive damage award. The higher the degree of reprehensibility, the larger the punitive damages award it can support. Therefore, the punitive damages should be roughly proportionate to the enormity or gravity of the offense.
In this case, the jury could find that the defendant's action warranted an award of punitive damages. The plaintiff was strapped face down to a board for five hours. He was left on the board for at least three hours after he was no longer being disruptive, according to the jailor's log sheet. The plaintiff was suffering from a panic attack and the jailors were aware of this because of his behavior and a call from his wife. The plaintiff was not allowed to get up to go to the bathroom even after his disruptive behavior ended. The $11,500 awarded to the plaintiff in punitive damages against defendant Johnson is not grossly excessive.
On May 28, 2002, the plaintiff moved to amend the complaint to specifically name the John Doe defendants as defendants Johnson, Serbousek and Riniker. This matter had been discussed at the final pretrial conference and the defendants did not object to this amendment. Defendant Johnson is currently employed with the Linn County Sheriff's Office, and defendant Riniker moved to Dubuque but was still available at the time of trial. Defendant Serbousek died approximately one year prior to the motion to substitute him as a party defendant. Accordingly, Assistant County Attorney Todd Tripp was able to accept service on behalf of defendants Johnson and Riniker, but was unable to do so for defendant Serbousek. Mr. Tripp announced this fact on the first morning of trial. The plaintiff made no effort to determine whether an estate had been opened and made no effort to effect service of process on defendant Serbousek. Linn County agreed to be responsible for any compensatory damages returned against defendant Serbousek. Linn County refused to be responsible for any award of punitive damages.
Thus, defendant Serbousek was never served. Neither he nor his estate was ever given an opportunity to hire counsel to defend against the claim of punitive damages. When the court brought this to plaintiff's attention at the hearing on post-judgment motions, counsel for plaintiff believed that he could serve Mr. Serbousek's estate and possibly have Linn County found responsible for the award of punitive damages against defendant Serbousek pursuant to the Collective Bargaining Agreement that protected defendant Serbousek while he was still in the sheriff's employ.
Given the fact that defendant Serbousek was not served and his estate was not given an opportunity to defend the punitive damage claim, the award of punitive damages cannot stand. The county's position was clear. It could not accept service on his behalf and was unwilling to be responsible for anything other than an award of compensatory damages against defendant Serbousek. On the court's own motion, the court hereby sets aside the award of punitive damages against defendant Serbousek.
Attorney Fees
The plaintiff filed a motion for attorney fees as the prevailing party in this case. The plaintiff was represented by two attorneys in this matter. Each has submitted fee applications to this court evidencing the amount of time spent preparing and trying this case. Title 42 U.S.C. § 1988 authorizes the payment of attorney fees to the prevailing party in a section 1983 case. Section 1988 states, "In any action or proceeding to enforce a provision of section . . . 1983, . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . ."
In determining the appropriateness of attorney fees, the court will employ the "lodestar" method. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Under the lodestar method, the court multiplies the number of hours reasonably expended by the relevant market rate for legal services. See Jensen v. Clarke, 94 F.3d 1191, 1203 (8th Cir. 1996). In determining the reasonableness of the requested fees, courts use the twelve factors initially set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir 1974), and referred to by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 430 n. 3:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case (5) the customary fees; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
The attorneys who represented the plaintiff are competent and experienced. Ms. Johansen's hourly rate of $125 per hour is reasonable for an attorney with her experience. Mr. Wilson's $175 per hour rate is also reasonable.
However, this was a relatively simple case. There were only 14 witnesses called over a 2-1/2 day trial. It is excessive to claim 85 hours of trial preparation time and 140 hours of pretrial investigation for this non-complex case. It did not require two attorneys. After reviewing the bills, this court finds that there was duplication in the time spent in preparing and trying this case. The court believes that the plaintiff's lawyers should be compensated for 2/3 of the combined trial preparation, investigation, and trial hours. The time spent resisting post-judgment is somewhat excessive. The court reduces each bill by 30 hours and adds 20 hours for Ms. Johansen's post-judgment work.
Based on the foregoing,
IT IS ORDERED that the defendant Johnson's motion for judgment as a matter of law is denied, the plaintiff's bill of costs is approved, and the plaintiff's motion for attorney fees is granted as follows: Ms. Johansen shall be awarded Twenty-Three Thousand Six Hundred Seventy-Five Dollars ($23,675) (189.40 hours x $125/hour) as fees. Mr. Wilson shall be awarded Nineteen Thousand Eight Hundred Twenty-Seven Dollars and fifty cents ($19,827.50) (113.30 hours x $175/hour) as fees. Costs in the amount of Two Thousand Two Hundred Two Dollars and eighty-one cents ($2,202.81) are taxed to defendant Johnson. The judgment for punitive damages against defendant Serbousek is hereby set aside. The Clerk of Court shall enter judgment accordingly.