Estate of Moreland Ex Rel. Moreland v. Dieter

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 03-3734 & 03-3735

ESTATE OF CHRISTOPHER A. MORELAND,

Deceased by GARY R. MORELAND and

LINDA TUTTLE, Co-Personal Representatives,

GARY R. MORELAND, in his official and

individual capacity, LINDA TUTTLE, in her

official and individual capacity, et al.,

Plaintiffs-Appellees, Cross-Appellants,

v.

ERICH DIETER and MICHAEL SAWDON,

Defendants-Appellants,

and

JOSEPH SPEYBROECK, in his individual and

official capacities, Sheriff of St. Joseph County,

Defendant, Cross-Appellee.

____________

Appeals from the United States District Court for

the Northern District of Indiana, Hammond Division.

No. 99 C 607—Allen Sharp, Judge.

____________

ARGUED SEPTEMBER 30, 2004—DECIDED JANUARY 14, 2005

____________

2 Nos. 03-3734 & 03-3735

Before ROVNER, WOOD and SYKES, Circuit Judges.

SYKES, Circuit Judge. This is an action under 42 U.S.C.

§ 1983 for deprivation of civil rights arising out of the death

of an inmate in the St. Joseph County, Indiana jail. Defen-

dants Erich Dieter and Michael Sawdon, former St. Joseph

County sheriff’s deputies, were found liable for violating

Christopher Moreland’s civil rights by wrongfully causing

his death by the use of unnecessary and excessive force. The

jury awarded substantial damages: $29 million in compensa-

tory damages and $27.5 million in punitive damages ($15

million against Dieter and $12.5 million against Sawdon).

On appeal Dieter and Sawdon assert evidentiary and

instructional errors and also challenge the punitive dam-

ages as unconstitutionally excessive. The plaintiffs cross-

appeal the district court’s order granting summary judgment

to Joseph Speybroeck, the sheriff of St. Joseph County. They

contend the evidence was sufficient to raise a jury issue

about official policy or custom in the jail for purposes of

§ 1983 liability against the sheriff. We affirm the judgment

against Dieter and Sawdon as well as the summary judg-

ment in favor of Sheriff Speybroeck.

I. Background

In the early morning hours of October 25, 1997, thirty-

year-old Christopher Moreland was arrested by officers of

the Mishiwaka Police Department for driving under the in-

fluence of alcohol. Moreland behaved erratically during his

arrest—for example, by hitting himself in the face—but the

police officers testified that Moreland’s behavior was not

unusual for someone drunk and upset. Moreland was held

for about two hours at the Mishiwaka Police Department

and then transferred to the St. Joseph County Jail. Al-

though obviously inebriated, Moreland entered the jail on

his own power and at approximately 5:50 a.m. was placed

in the “drunk tank” along with two other detainees.

Nos. 03-3734 & 03-3735 3

Almost as soon as he was in the drunk tank, Moreland

provoked a confrontation by directing racial slurs at

Reginald Coleman, one of the other detainees in the tank.

Sergeant Paul Moffa, the shift supervisor on duty that night,

responded to the disturbance and entered the tank with

another officer. Moffa grabbed Moreland by the neck or

shoulders, threw him to the floor, removed a canister of OC-

10 pepper spray1 from his waist, and sprayed Moreland’s face

from a distance of roughly four or five inches. Coleman took

cover underneath a blanket as pepper spray filled the air,

but he heard a struggle between Moreland and Moffa and

at one point heard what he said was “the sound of a basket-

ball bouncing off concrete.” The other inmate in the drunk

tank said it sounded like “a melon popping, like dropping a

watermelon.” They surmised this was the sound of More-

land’s head hitting the concrete floor.

The officers handcuffed Moreland behind his back and

dragged him out of the drunk tank to a nearby elevator.

They set him down on the floor in front of the elevator and

prepared to take him to the shower on the fourth floor to

wash off the pepper spray. Two other officers, Albright and

Holvoet, accompanied Moreland in the elevator to the fourth

floor. Moffa, who had been hit by pepper spray ricocheting

off Moreland, stayed behind on the first floor. Moreland

thrashed about as he was taken upstairs; Albright and

Holvoet tried to restrain him by pinning him to the elevator

floor.

When the elevator doors opened at the fourth floor cell

block, Dieter was waiting to meet them. Holvoet told Dieter

that Moreland was the guy “who got Moffa sprayed.” Albright

testified that he thought this comment was a signal from

1

OC-10 is a 10-percent solution of oleoresin capsicum. It causes

involuntary closure of the eyes, respiratory inflammation, and

temporary loss of muscular strength and coordination.

4 Nos. 03-3734 & 03-3735

Moffa to Dieter, his close friend, that Moreland had some

“payback” coming. Sawdon arrived on the fourth floor shortly

after Moreland and the others.

Dieter lifted Moreland up and hauled him over to the

shower. Witnesses testified that Dieter pushed Moreland

into the shower with such force that Moreland hit his head

against the far wall. Albright testified that Dieter held

Moreland from behind and accelerated toward the shower

until the two men smashed into the far wall, crushing

Moreland between the wall and Dieter’s own body. Dieter

or another officer turned on the hot water, which exacer-

bates the pain of pepper spray. In response to Moreland’s

cries from inside the shower (the defendants maintained he

was belligerent, but other officers and witnesses testified

that he was crying out for help), Sawdon said to the other

officers, “Hey, guys, do you want to see something funny?”

He then threw a five-gallon bucket of cold water over

Moreland. Other officers gathered outside the shower,

watching and laughing as Moreland, still handcuffed, lay

with his head in a shallow puddle of water, spit, and mucus,

trying to wash the pepper spray off his face.

Dieter and Sawdon then dragged Moreland from the shower

and strapped him into a “restraint chair.” Designed to con-

trol or impair an aggressive inmate who may endanger an

officer or another inmate, the “Pro-Straint Restraining

Chair” enables officers to shackle and tie down an inmate

while keeping him in a seated, upright position. Moreland

remained handcuffed while in the restraint chair. According

to several inmates who observed what happened from inside

their cells, Moreland sat in the restraint chair for several

minutes, cursing and yelling at the defendants and asking

them why they were doing this to him. According to the

inmates, Sawdon kept telling Moreland to shut up. Then

Sawdon went into the guard tower at the center of the floor

and came out with an OC-10 canister. He approached

Moreland and discharged the canister in his face while he

Nos. 03-3734 & 03-3735 5

was still strapped in the chair. Officers who arrived on the

fourth floor shortly thereafter reported noticing the unmis-

takable residual odor of an OC-10 blast. Some witnesses

also reported hearing the sounds of Moreland being beaten

during this time.

Dieter and Sawdon then removed Moreland from the re-

straint chair and forcibly put him back into the shower

again. Some time later the defendants put Moreland back

in the restraint chair and moved him into a nearby “attor-

ney’s room,” out of view of the other inmates. Connie Spicer,

the jail’s medication aide, arrived on the fourth floor around

this time and examined Moreland, whom she described as

slouched back in the restraint chair, moaning, and unre-

sponsive. She saw that Moreland had a cut above his left

eyebrow that had bled profusely. Dieter and Sawdon told

her that Moreland had slipped and fallen. She placed a

bandage over the cut. Spicer told the officers that Moreland

should be taken to the hospital; however, she testified that

Moffa, Dieter, and Sawdon did not want to do this because

their shift was ending and transferring Moreland to the hos-

pital would require them to remain at work. Spicer believed

(incorrectly, it seems) that she did not have the authority to

order the officers to transport Moreland to the hospital.

Moreland remained in the restraint chair in the attorney’s

room, and at 7 a.m. the night shift personnel, including the

defendants, left the jail.

Two day shift officers, Wilson and Johnson, found More-

land unconscious in the attorney’s room shortly after 7 a.m.

They noticed a large lump on the back of his head, injuries

to the front of his face, and a bandage over the cut above his

left eye. Wilson took Moreland, still unconscious, to the first

floor, changed his clothing, and placed him back in the

drunk tank. Spicer saw Moreland in the tank around 9:40

a.m., coughing and unresponsive. At 11:00 a.m., when she

checked on him again, Moreland had not moved. The next

time she checked Moreland was blue, cold, and lifeless.

6 Nos. 03-3734 & 03-3735

Moreland was pronounced dead at approximately 1:23 p.m.

The coroner and other forensic experts testified that the

cause of Moreland’s death was an acute subdural hematoma

that could only have occurred during the period of time

Moreland was confined in the St. Joseph County Jail.

Moreland’s estate and parents sued numerous parties,

most of whom either settled or were voluntarily dismissed.

Sheriff Speybroeck was sued in his official and individual

capacities; the district court granted his motion for summary

judgment. A trial was held on the claims against Moffa,

Dieter, and Sawdon. The jury found Dieter and Sawdon liable,

but could not reach agreement on Moffa and a mistrial was

declared as to him. The jury returned damages verdicts as

follows: $29 million in compensatory damages; $15 million

in punitive damages against Dieter and $12.5 million against

Sawdon. The case against Moffa was retried, resulting in a

verdict in his favor. Dieter and Sawdon appealed the judg-

ment against them, and the plaintiffs cross-appealed the

grant of summary judgment to Speybroeck.

II. Analysis

A. Admission of Videotaped Interviews of Defendants

St. Joseph County initiated an investigation of Moreland’s

death, and the defendants were interviewed several times

by investigators from the Special Crimes Unit. The inter-

views were videotaped, and the tapes were used in a federal

civil rights prosecution against the defendants, who were

acquitted. The defendants objected to the plaintiffs’ use of

the videotapes on hearsay grounds and pursuant to Rule 403

of the Federal Rules of Evidence. The district court allowed

portions of the videotapes to be played for the jury, with

occasional pauses for live witness testimony. The defendants

argue on appeal that the videotapes were unfairly prejudicial

and should have been excluded under Rule 403, especially

because the district court refused to admit evidence of the

Nos. 03-3734 & 03-3735 7

acquittals. They also appear to suggest that the district

court’s limiting instruction was inadequate.

We review the district court’s decision to admit or exclude

evidence for abuse of discretion, and the same standard ap-

plies to our review of the district court’s limiting instruction.

United States v. Fawley, 137 F.3d 458, 464 (7th Cir. 1998).

“Because the trial court is in the best position to make deci-

sions regarding jury guidance and evidentiary matters, the

appellate court must give special deference to the rulings of

the trial court.” Id. The defendants argued in the district

court that the videotaped interviews should be excluded

because the interrogators’ questions to Dieter and Sawdon—

some of which incorporated information gathered by inves-

tigators looking into Moreland’s death—were hearsay. They

now concede that the interrogators’ questions were not

hearsay because they were offered to provide context for

the defendants’ statements in the interviews and were not

offered for their truth. United States v. Woods, 301 F.3d 556,

561 (7th Cir. 2002) (informant’s side of recorded conver-

sation with defendant provided context for the recorded con-

versation and was not hearsay). The defendants argue

instead that the interrogators’ questions were at times in-

flammatory and so laden with information from other sources

in the investigation as to be unfairly prejudicial under

Rule 403. This prejudice, they assert, was compounded by

the district court’s refusal to admit evidence of the acquittals.

Having viewed the videotapes in their entirety, we find no

abuse of discretion. The jury saw what was actually the third

interview with Sawdon, recorded two days after Moreland’s

death. In this interview, which Sawdon himself requested,

Sawdon and the investigating officer, Sgt. Richmond, discuss

Sawdon’s admission that two days earlier he had prepared

a misleading report about Moreland’s death. Sawdon appears

concerned about the repercussions of his false report, and

Richmond tries to get him to come clean with the details of

the night Moreland died. But apart from the false report,

8 Nos. 03-3734 & 03-3735

Sawdon does not actually admit to any wrongdoing. He

blames Dieter for being too rough with Moreland but is not

sure whether Dieter truly injured him. Much of the inter-

view focuses on Sawdon’s state of mind, as he is extremely

depressed about what might happen to him. Richmond ap-

pears impatient but is generally friendly in the interview

(or was trying to appear so); he thanks Sawdon for coming

clean about the false report and expresses concern for

Sawdon’s emotional well-being. When Richmond leaves the

room, Sawdon breaks down crying.

Two videotaped interviews with Dieter were admitted, and

they are markedly different than Sawdon’s. After listening

at length to Dieter’s account of the night in question,

Richmond accuses him of lying, pointing out that Dieter’s

story is contradicted by the accounts of numerous witnesses.

At one point Richmond, visibly upset, abruptly leaves the

room and is replaced by another investigator, evidently a

friend of Dieter’s family, who adopts a conciliatory tone but

expresses suspicion that Dieter is not being truthful.

Dieter’s account of what he did to Moreland changes as the

interviews progress. For example, at first he says that he

“turned Moreland over” as Moreland lay on the floor, but

after questioning admits to dropping a handcuffed Moreland

to the ground from a height of roughly three feet and then

falling on top of him with his full weight. The tone of the

interviews is confrontational, and Dieter is evasive or de-

fensive throughout. When Dieter is left alone in the inter-

view room, he sits impassively, showing no emotion.

The videotapes were surely prejudicial, especially to

Dieter, but only unfairly prejudicial evidence is subject to

exclusion. Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 443

(7th Cir. 1984). Evidence is unfairly prejudicial under

Rule 403 “if it will induce the jury to decide the case on an

improper basis, commonly an emotional one, rather than on

the evidence presented.” United States v. Vretta, 790 F.2d

651, 655 (7th Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 179,

Nos. 03-3734 & 03-3735 9

93, L.Ed.2d 115 (1986). In weighing the probative value of

the challenged evidence against the danger of unfair preju-

dice under Rule 403, the district court is engaged in “a com-

parison of intangibles” and is thus “afforded a special degree

of deference: ‘[o]nly in an extreme case are appellate judges

competent to second-guess the judgment of the person on

the spot, the trial judge.’ ” United States v. Glecier, 923 F.2d

496, 503 (7th Cir.), cert. denied, 502 U.S. 810, 112 S.Ct. 54,

116 L.Ed.2d 31 (1991) (quoting United States v. Krenzelok,

874 F.2d 480, 482 (7th Cir. 1989)).

The danger of unfair prejudice was not so extreme here

that the district court’s decision to admit the videotaped in-

terviews is called into question. As a record of the defendants’

respective versions of the events leading up to Moreland’s

death, the tapes are highly probative of their actions, state

of mind, and credibility. The interviews are not so dramatic,

confusing, or misleading as to induce the jury to disregard

the other evidence or to decide the case on an improper

basis. The district court indicated its willingness to give the

defendants substantial leeway to introduce evidence

concerning Richmond’s interrogation techniques in order to

ameliorate any prejudicial effect of those techniques, but

the defendants passed up the opportunity.

We also reject the defendants’ argument that the admis-

sion of the videotaped interviews was unfairly prejudicial

because the jury knew they were connected to a criminal

investigation but was not allowed to hear evidence that the

defendants had been acquitted of the criminal charges

brought against them. Evidence of acquittal in a criminal

action is generally irrelevant and inadmissible in a civil

case involving the same incident “since it constitutes a ‘neg-

ative sort of conclusion lodged in a finding of failure of the

prosecution to sustain the burden of proof beyond a reason-

able doubt.’ ” Borunda v. Richmond, 885 F.2d 1384, 1387

(9th Cir. 1989). See also Donald v. Rast, 927 F.2d 379, 381

(8th Cir. 1991); Royal Exchange Assurance v. Fraylon, 228

10 Nos. 03-3734 & 03-3735

F. 2d 351, 354 (4th Cir. 1955). The district court did not

abuse its discretion in excluding the acquittal evidence, and

the videotaped interviews were not rendered unfairly

prejudicial under Rule 403 because of the absence of this

evidence.

Finally, the defendants appear to suggest that the district

court’s limiting instruction was inadequate, but this

argument is not developed. The court instructed the jury as

follows: “As you were informed at the outset of this trial, two

defendants on trial here [Dieter and Sawdon] were the

subject of criminal proceedings. Neither that fact nor the

result of those proceedings have any relevance to this case.”

The defendants have identified no authority, in this circuit

or elsewhere, casting doubt on the propriety of this kind of

instruction, and we have been unable to find any ourselves.

B. Dr. Lustgarten’s Expert Testimony

The defendants also challenge the district court’s admis-

sion of a portion of the testimony of Dr. Gary Lustgarten, a

board-certified neurologist and neurosurgeon who testified

concerning the cause of Moreland’s death. They argue that

Lustgarten’s opinion as to where Moreland received his

fatal injury was not scientific in the sense required by Rule

702 of the Federal Rules of Evidence and Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 597 (1993).

The parties dispute whether the defendants preserved

this issue for appeal. The record reflects that the defendants

challenged another expert’s testimony on Daubert grounds

before trial, and the district court expressed some dissatis-

faction with the requirements of Daubert as a general

matter. Then, during Lustgarten’s testimony, when the

plaintiffs’ attorney asked whether the expert had an opinion

as to where the injury that caused Moreland’s death

occurred, the defendants’ lawyer objected in the following

terms:

Nos. 03-3734 & 03-3735 11

MR. KUS: Objection; based on hearsay, Your Honor. He

has to believe a certain set of witnesses and testi-

mony—unless you’re talking about where in the body,

but I think he’s talking about where it occurred in the

location, so I’ll make that objection.

THE COURT: The objection is overruled.

It is hard to discern even the germ of a Daubert challenge

in this objection. The defendants’ Daubert challenge to the

testimony of a different expert hardly suffices to preserve

the argument against Lustgarten. Their failure to address

a Daubert challenge to Lustgarten’s testimony is not ex-

cused by the district court’s expression of dissatisfaction

with the requirements of Daubert. The issue was forfeited.

Plain error review of a forfeited evidentiary issue in a civil

case is available only under extraordinary circumstances

when the party seeking review can demonstrate that: (1)

exceptional circumstances exist; (2) substantial rights are

affected; and (3) a miscarriage of justice will occur if plain

error review is not applied. Stringel v. Methodist Hosp. of

Ind., Inc., 89 F.3d 415, 421 (7th Cir. 1996); Prymer v. Ogden,

29 F.3d 1208, 1214 (7th Cir. 1994). The defendants have not

even attempted to meet this standard.

C. Punitive Damages

The jury awarded $15 million in punitive damages against

Dieter and $12.5 million against Sawdon, in addition to as-

sessing compensatory damages at $29 million. The defendants

do not directly attack the punitive damages award—they do

not argue, for example, that the evidence is insufficient to

sustain an award of punitive damages under the “reckless

or callous indifference” standard for punitive damages in

§ 1983 actions. See Smith v. Wade, 461 U.S. 30, 55 (1983).

Rather, they challenge the size of the awards as constitu-

tionally excessive under BMW of North America, Inc. v. Gore,

12 Nos. 03-3734 & 03-3735

517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman

Tool Group, Inc., 532 U.S. 424 (2001); and State Farm

Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408

(2003).

In Gore the Supreme Court “instructed courts reviewing

punitive damages to consider three guideposts: (1) the de-

gree of reprehensibility of the defendant’s misconduct; (2)

the disparity between the actual or potential harm suffered

by the plaintiff and the punitive damage award; and (3) the

difference between the punitive damages awarded by the

jury and the civil penalties authorized or imposed in com-

parable cases.” Campbell, 538 U.S. at 418 (citing Gore, 517

U.S. at 575). Review of a constitutional challenge to a punitive

damages award is de novo, which operates to “ensure[ ] that

an award of punitive damages is based upon an ‘application

of law rather than a decisionmaker’s caprice.’ ” Id. (quoting

Cooper Industries, 532 U.S. at 436; quoting Gore, 517 U.S.

at 587).

The degree of reprehensibility is the most significant

factor. Campbell, 538 U.S. at 419. The defendant’s conduct

is evaluated according to five variables: (1) whether the harm

was physical or economic; (2) whether the conduct evinced

an indifference to or reckless disregard for the health or

safety of others; (3) whether the target of the conduct was

financially vulnerable; (4) whether the conduct involved

repeated actions; and (5) whether the harm was the result

of malice, trickery, or deceit, or mere accident. Id. We pre-

sume that the “plaintiff has been made whole for his injuries

by compensatory damages, so punitive damages should only

be awarded if the defendant’s culpability, after having paid

compensatory damages, is so reprehensible as to warrant

imposition of further sanctions to achieve punishment or

deterrence.” Id.

The defendants’ conduct in this case qualifies as truly

reprehensible. Taking the facts in the light most favorable

to the verdict, Roy v. Austin Co., 194 F.3d 840, 842 (7th Cir.

Nos. 03-3734 & 03-3735 13

1999), the defendants’ conduct was malicious and cruel,

evincing a clear intent to cause Moreland great pain and

suffering. To throw a man’s head against concrete when he

is handcuffed and presents no threat is clearly excessive

and malicious. To discharge a canister of pepper spray into

the face of a fully restrained, incapacitated individual is

vicious and unconscionable. Moreland was roughed up re-

peatedly before the defendants ultimately ceased abusing

him. In the end, the defendants placed Moreland in the at-

torney’s room, shackled and strapped into the restraint

chair, leaving his medical needs unattended.

The defendants’ assault on Moreland was sustained rather

than momentary, and involved a series of wrongful acts, not

just a single blow; and Moreland died from the injuries

inflicted by the defendants. All this exacerbates the repre-

hensibility of their behavior. Although it was not possible

to determine which of Moreland’s head traumas caused the

fatal hematoma, Moreland clearly received more than one

injury at the defendants’ hands. The evidence also shows

that the prolonged nature of the assault compounded

Moreland’s suffering. That the defendants knew Moreland

was suffering but continued to abuse him is obvious from

nearly all the testimony presented at trial. The jury clearly

disbelieved the defendants’ versions—that they were merely

reacting to Moreland’s own violent attempts to avoid being

restrained and showered.

Finally, the defendants lied to the nurse and filed false

reports to conceal their wrongdoing. The evidence supports

a conclusion that the defendants were utterly and callously

indifferent to Moreland’s rights, engaged in wanton physi-

cal violence, disregard of obvious medical needs, and sub-

sequent deceit.

The ratio between the compensatory and punitive dam-

ages in this case does not test the limits of constitutionality,

although we acknowledge that both the compensatory and

14 Nos. 03-3734 & 03-3735

punitive damages awards are very large. There is no set

formula for determining when the line is crossed, although

the Supreme Court in Campbell suggested that “single-digit

multipliers are more likely to comport with due process.”

Campbell, 538 U.S. at 425. In a recent case, this court

upheld a punitive damages award of more than 37 times the

size of the underlying compensatory damages in a case

involving only minor, albeit highly troublesome, physical

injury (bedbug bites). See Mathias v. Accor Economy

Lodging, Inc., 347 F.3d 672, 676-78 (7th Cir. 2003).

The court emphasized in Mathias that “the judicial func-

tion is to police a range, not a point,” and we cannot say that

the punitive damages in this case are beyond the range of

what is acceptable. The awards are roughly half the amount

of the compensatory damages. The defendants have not iden-

tified a single appellate case questioning the constitutional-

ity of a punitive damages award that is a fraction of the

underlying compensatory damages award. Nor have we.

On the third Gore guidepost the defendants cite several

excessive force cases decided by this and other courts, point-

ing out that the amount of the punitive damages in those

cases was much smaller than the awards here. But the cases

cited by the defendants are either quite dated or factually

distinguishable. Cf. Bell v. Milwaukee, 746 F.2d 1205, 1266-

67 (7th Cir. 1984) (upholding punitive damages of $25,000,

$150,000, and $350,000 for police officers’ participation in

conspiracy to conceal facts of a fatal shooting); Freeman v.

Franzen, 695 F.2d 485, 490 (7th Cir. 1982) (upholding $1,000

award against correctional officer for twice hitting the face

of a restrained prisoner); Hagge v. Bauer, 827 F.2d 101, 110

(7th Cir. 1987) (upholding $25,000 award to an arrestee

whose leg was broken as a result of officer’s kick); Bogan v.

Stroud, 958 F.2d 180, 186 (7th Cir. 1992) (upholding awards

of $5,000 and $1,000 against correctional officers who hit and

stabbed an inmate during altercation provoked in part by in-

mate slashing officer’s face); Thomson v. Jones, 619 F.Supp.

Nos. 03-3734 & 03-3735 15

745, 755 (N.D. Ill. 1985) (upholding award of $10,000 against

correctional officer for hitting a handcuffed prisoner and

causing hearing loss, and award of $5,000 against officer for

acquiescence in co-worker’s use of force); Brown v. Triche,

660 F.Supp. 281, 287 (N.D. Ill. 1987) (upholding award of

$15,000 against deputy sheriff for beating of inmate that

caused momentary unconsciousness, continuing pain “for

some time,” and humiliation). In light of the degree of repre-

hensibility of the defendants’ conduct and the nature of the

injuries inflicted, we conclude that the punitive damages

awards against Dieter and Sawdon are not unconstitutional.

D. Cross-appeal of summary judgment in favor of

Sheriff Speybroeck

The plaintiffs cross-appeal the grant of summary judgment

to Sheriff Speybroeck; they contend that they presented suf-

ficient evidence to create a jury question as to Speybroek’s

§ 1983 liability. We review de novo the grant of summary

judgment, construing the record and all reasonable infer-

ences drawn from it in the light most favorable to the non-

moving party, in this case the plaintiffs. Del Raso v. United

States, 244 F.3d 567 (7th Cir. 2001). Summary judgment is

appropriate when there are no genuine issues of material

fact and the moving party is entitled to judgment as a

matter of law. FED. R. CIV. P. 56(c); Cengr v. Fusibond Piping

Sys., Inc., 135 F.3d 445, 450 (7th Cir. 1998).

Because Moreland was a pretrial detainee in the jail at

the time of his death in custody, the plaintiffs’ claim falls

within the Fourteenth Amendment; however, we have pre-

viously noted that in this context a Fourteenth Amendment

claim is evaluated by the same legal standards as an Eighth

Amendment claim. Butera v. Cottey, 285 F.3d 601, 605 (7th

Cir. 2002) (citing Henderson v. Sheahan, 196 F.3d 839, 844

n.2 (7th Cir. 1999)). The plaintiffs must demonstrate that the

sheriff was deliberately indifferent to Moreland’s safety,

16 Nos. 03-3734 & 03-3735

that is, that the sheriff “was aware of a substantial risk of

serious injury [to Moreland] but nevertheless failed to take

appropriate steps to protect him from a known danger.” Id.

This requires the plaintiffs to show that “deliberate action

attributable to [the sheriff] directly caused the deprivation

of [Morelend’s] civil rights.” Id. (quoting Frake v. City of

Chicago, 210 F.3d 779, 781 (7th Cir. 2000)). Stated differently,

the plaintiffs must demonstrate that the sheriff made a

deliberate choice and that the injury was caused by the pol-

icy chosen. Id. That a different or better policy might have

been used “does not necessarily mean that the [Sheriff] was

being deliberately indifferent.” Id.

Unconstitutional policies for purposes of § 1983 liability

fall into three categories: “(1) an express policy that, when

enforced, causes a constitutional deprivation; (2) a wide-

spread practice that, although not authorized by written

law or express municipal policy, is so permanent and well

settled as to constitute a ‘custom or usage’ with the force of

law; or (3) an allegation that the constitutional injury was

caused by a person with final policymaking authority.”

Butera, 285 F.3d at 605 (citing Brokaw v. Mercer Cty., 235

F.3d 1000, 1013 (7th Cir. 2000)). The plaintiffs’ complaint

alleged that unconstitutional policies of the sheriff were

partly to blame for Moreland’s death, but in response to the

sheriff’s motion for summary judgment that claim seems to

have been dropped. The plaintiffs do not now argue that the

sheriff instituted policies that were reasonably certain to

result in Moreland’s death; indeed, their expert testified

that the jail policies in force at the time were adequate.

Their claim is rather that the sheriff’s deputies in the jail

routinely violated the department’s policies, and that the

sheriff was deliberately indifferent to this widespread pat-

tern of violations.

In their opening brief to this court, the plaintiffs failed to

discuss the facts relevant to their claim against the sheriff,

relying instead almost entirely on a series of string citations

Nos. 03-3734 & 03-3735 17

to affidavits and other documents in the record. We will not

scour a record to locate evidence supporting a party’s legal

argument. See Peters v. Renaissance Hotel Operating Co.,

307 F.3d 535, 547 n.10 (7th Cir. 2002). Perfunctory or

undeveloped arguments are waived. Colburn v. Trustees of

Ind. Univ., 973 F.2d 581, 593 (7th Cir. 1992); Hunter v.

Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986). In

their reply brief the plaintiffs have tried to flesh out their

argument with a more detailed discussion of the evidence.

Even if the initial underdeveloped argument is not con-

strued as a waiver, the evidence is insufficient to raise a

jury question on the plaintiffs’ claim against the sheriff.

The plaintiffs assert ongoing violations of jail policies in

three areas: (1) use of the OC-10 spray; (2) a federal order

requiring the sheriff to abate overcrowding in the jail; and

(3) provision of medical care to injured inmates. As to the

first of these, the plaintiffs point to tabulations of reported

incidents of OC-10 spray use in the jail during the years

1995 (128 incidents), 1996 (73 incidents), and 1997 (17 inci-

dents). They argue that this evidence demonstrates that the

sheriff was aware of a pattern of violations of jail policy on

the use of OC-10. But the number of pepper spray incidents,

without more, does not establish that pepper spray was

being routinely misused or that the jail’s OC-10 policy was

being violated.

The plaintiffs also contend that a memo sent to jail per-

sonnel in 1997 regarding the filing of incident reports con-

stitutes an admission that OC-10 reports were not being

filed, in violation of department policy. This is quite a stretch.

The memo specifies when officers must file incident reports

as a general matter. The jail policy on pepper spray in-

structs personnel to file an incident report “when chemical

agents are used,” and the memo clarifies that officers must

file incident reports (presumably including OC-10 incident

reports) before they go off duty from the shift during which

the incident occurred. This does not constitute an admission

18 Nos. 03-3734 & 03-3735

that jail personnel were not filing OC-10 reports at all or

that pepper spray was being misused. Furthermore, the

memo was from the jail warden, Major William Goss, not

Sheriff Speybroeck. At any rate, we fail to see how the report-

filing policy or practice was likely to lead to Moreland’s

death.

The plaintiffs also claim that there were six specific inci-

dents of improper use of OC-10 at the jail, but the record

evidence at the time of summary judgment points to only

three. Incident reports indicate that inmate Daniel Grimm

was sprayed after kicking the door of the drunk tank, then

brought to the fourth floor for a shower, then placed in a

restraint chair. While restrained, he spat on an officer and

was charged with felony battery with bodily waste. Grimm

sustained no injuries requiring medical care. In another

incident, inmate Robert Coaron freed his legs from the

shackles of a restraint chair and started kicking officers and

spitting in all directions. The officers warned him that he

would be sprayed if he did not desist; when he continued to

spit at them, Dieter sprayed him. Coaron sustained no

injuries requiring medical attention. In a third incident,

inmate Casimer Wawrzyniak was in the drunk tank making

loud noises and kicking the door. Officers opened the door

intending to remove him to another floor, Wawrzyniak rushed

the door and one of the officers sprayed him. He, too,

sustained no injuries requiring medical attention.

There is nothing in the summary judgment record to sug-

gest that these incidents involved a violation of the jail’s

policy on OC-10 use in the jail.2 Equally important, these

2

The plaintiffs have requested that we supplement the record

with Daniel Grimm’s trial testimony. This testimony was not in

the summary judgment record before the district court; therefore,

we will not consider it. Hildebrandt v. Illinois Dep’t of Nat. Res.,

347 F.3d 1014, 1024-25 (7th Cir. 2003).

Nos. 03-3734 & 03-3735 19

incidents do not amount to “a widespread practice” that is

“permanent and well settled” so as to constitute an uncon-

stitutional custom or policy about which the sheriff was

deliberately indifferent. In any event, to be liable, Sheriff

Speybroeck must have known there was a substantial risk

of serious harm to Moreland; the primary injury here is

Moreland’s death, not the pain he suffered when sprayed

with OC-10.

The plaintiffs also argue that Sheriff Speybroeck’s delib-

erate indifference to Moreland’s safety is demonstrated by

his knowing violation of a federal consent decree requiring

him to attempt to keep the inmate population at the jail

at or below 300, or 350 on weekends. The jail housed 360

inmates on the day of Moreland’s death, a Friday. The

plaintiffs have not linked jail overcrowding to Moreland’s

death.

Finally, the plaintiffs argue that jail personnel were in-

adequately trained to recognize the signs of serious head

injury and otherwise respond to a medical emergency. But

they have not brought forward any evidence of inadequate

training with respect to inmates’ medical care. The plaintiffs’

expert, Dr. George Kirkham, concluded that “there was a

lack of training regarding the appropriate steps to be taken

in a medical emergency,” but he based this conclusion on

the fact that Moreland himself was not treated adequately.

There is no evidence that the policies, customs, or practices

of the department were deficient. One cannot infer a custom

or practice from a single incident.

The plaintiffs cite Woodward v. Correctional Medical

Services of Illinois, 368 F.3d 917, 929 (7th Cir. 2004) for the

proposition that a single violation of federal rights can

trigger § 1983 under Monell v. New York City Dep’t of Soc.

Servs., 436 U.S. 658 (1978) if the violation was a “highly

predictable consequence” of the failure to act. But Woodward

does not relieve the plaintiff from the requirement of show-

20 Nos. 03-3734 & 03-3735

ing that an unconstitutional policy, custom, or practice ex-

isted at the time the plaintiff’s rights were violated; it says

only that the plaintiff need not show that the policy, prac-

tice, or custom resulted in past deprivations of rights.

Woodward, 368 F.3d at 929.

III. Conclusion

We conclude that the district court did not abuse its dis-

cretion under Rule 403 by admitting the videotaped inter-

views of the defendants and excluding evidence that the

defendants were acquitted of criminal charges; also, the

court’s limiting instruction regarding this evidence was not

inappropriate in any way. The defendants’ Daubert chal-

lenge to Dr. Lustgarten’s testimony was forfeited. The

punitive damages awards against Dieter and Sawdon are

not unconstitutionally excessive. We also conclude that

summary judgment dismissing the plaintiffs’ claim against

Sheriff Speybroeck was appropriate. We affirm the judgment

against Dieter and Sawdon and the summary judgment in

favor of Speybroeck.

AFFIRMED

Nos. 03-3734 & 03-3735 21

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-14-05