Appendix — Bates v. Bruner

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GERALD C. BRUNER,

Plaintiff- Appel

Cross-Appeliant,

v. ON APPEAL from the

5 United States District

WADE DUNAWAY, et al., Court for the Eastern

Defendants, District of Tennessee.

Cross-Appellees

JAMES BATES, GREGORY TAYLOR,

CHRISTIAN CASTELLAW,

Defendants-Appellants. |

Decided and Filed August 11, 1982.

Before: MERRITT AND KRUPANSKY, Circuit Judges and

CECIL, Senior Circuit Judge.

Per Curiam. This is an appeal and cross-appeal from the Eastern

District of Tennessee wherein the plaintiff-appellee, cross-appel-

lant, Gerald C. Bruner (hereinafter referred to as plaintiff or

Bruner) asserts as error the district court’s grant of a new trial to

defendants after a jury verdict for the plaintiff. The defendants,

cross-appellees are James Bates (Bates), Gregory Taylor (Taylor),

Wade Dunaway (Dunaway), James Humphrey (Humphrey),

Richard Ingram (ingram), Steve Tinder (Tinder). Rick Fretz

(Fretz) and Christian Castellaw (Castellaw). Bates, Taylor and

Castellaw having been found liable to the plaintiff after a second

trial, are also appellants, contending that the trial judge erred in

denying their alternative motions for judgment notwithstanding

the verdict, new trial and remittitur.

Al

The instant action arose out of incidents occurring on April 23,

1979. Plaintiff alleged in his initiai complaint in the district court

that, on that date, defendants Bates, Taylor, Dunaway,

Humphrey, Ingram and Tinder, police officers for the City of

Knoxville, Tennessee, defendant Fretz, a reserve police officer for

that municipality, and defendant Castellaw, an explorer boy scout

acting as a reserve police officer, deprived him of rights secured

under the Constitution by subjecting him to severre beatings while

in the custody of said officers. The action was instituted pursuant

to 42 U.S.C § 1983.

Plaintiff testified at the first trial that he was asleep in his auto-

mobile, which was parked adjacent to a school building, when

Tinder woke him and requested that he exit the vehicle. Bruner

testified that Tinder then began striking him with a flashlight or

club and that, out of fear for his personal safety, he ran from the

scene.

Thereafter, according to plaintiff's testimony, he stopped briefly

at the home of Arthur Copeland (Copeiand) erroneously believing

it to be the residence of an acquaintance. After leaving Copeland's

residence, Bruner fled into an alley where he was confronted by

defendant Castellaw and struck on the head by an unidentified

individual.' | Thereafter Bruner stated that he was repeatedly

struck and kicked by other unidentified persons and he was

dragged down the alley. Plaintiff was then placed into an

ambulance and taken to the hospital for medical treatment.

The defendants each admitted their presence at various stages of

the incident but, with the exception of Tinder and Castellaw,

flatly denied striking the plaintiff in any manner.

Tinder testified that, while on patrol, he found Bruner asleep in

an automobile parked behind a school building. Tinder ordered

Bruner out of the automobile and began to frisk him. Bruner

thereupon assaulted Tinder provoking the officer to strike Bruner

with. his nightstick, after which Bruner pushed the officer to the

ground and fled the scene.

1 at the second trial Bruner specifically identified Casteliew as the individual striking

the initial biow in the alley. This change in testimony, however, plays no pert in the

Court's decision.

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testified that he was in the company of officers Bates

aylor when he heard Tinder’s call for help on the police

radio. Upon receiving the cali, Casteilaw and the two officers

gave chase. Castellaw encountered Bruner in an alley where,

Bruner in the side of the head with his flashlight.

Taylor testified that when he arrived in the alley Castellaw and

Dunaway, Humphrey and Ingram each testifed that they did not

arrive at the scene until after Taylor, Bates and Castellaw had

apprehended Bruner and that they (Dunaway, Humphrey, Ingram)

did not assist or participate in subduing Bruner. Fretz testified

that when he arrived at the alley Bruner was already handcuffed

and thai Fretz assisted other officers in restraining him. Fretz also

testified that he assisted in placing Bruner in the ambulance.

The first trial resulted in a jury verdict for plaintiff against all

defendants assessing damages in the amount of $300,000. The

district court however, on motion of the defendants, set aside the

jury verdict and ordered a new trial. The court’s order provided,

in pertinent part:

The suit is based upon an alleged violation of 42 U.S.C.

§ 1983, commonly referred to as the Civil Rights Act. In

erder for any of the defendants to be held [liable] under

that Act, personal involvement must be shown. See Monell

v. Dept. of Social Services, 436 U.S. 648 (1978); Sanberg

v.Daley 306 Fed. Supp. 277 (N.D. Ill. 1969); Salazar vy.

Dowd, 256 Fed. Supp. 220, 223 (D. Colo. 1966). The

proof failed to show that defendants Bates, Taylor,

Dunaway, Humphrey and Fretz were personally involved

in injuring plaintiff.

The plaintiff's motion for reconsideration of the new trial order

was denied and a new trial ensued.

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At the close of the evidence of the second trial the district judge

directed a verdict in favor of defendants Ingram, Dunaway and

Humphrey. The City of Knoxville had previously been dismissed

from the action. The jury returned a verdict in favor of plaintiff

against defendants Bates, Taylor and Castellaw and assessed

damages in the amount of $100,000. The jury found defendants

Tinder and Fretz not liable to plaintiff.

Thereafter the defendants moved for a judgment notwith-

standing the verdict or, alternatively, new trial or remittitur. The

plaintiff moved for a judgment notwithstanding the verdict as to

defendants Tinder and Dunaway, a new trial limited to the issue of

damages or, in the alternative, additur. The district judge denied

the parties’ respective motions and this appeal ensued.

With respect to the propriety of the district court’s grant or

deniai of a new trial, the following principles, recently affirmed by

this Circuit, govern this Court's review:

In ruling upon a motion for a new trial based on the

ground that the verdict is against the weight of the evi-

dence, a district judge must compare the opposing proofs

and weigh the evidence (Felton v. Spiro, 78 F. 576 (6th

Cir. 1897) Taft, J.), General American Life Ins. Co. v. Cen-

tral Nat'l Bank, 136 F.2d 821 (6th Cir. 1943), and “it is

the duty of the judge to set aside the verdict and grant a

new trial, if he is of the opinion that the verdict is against

the clear weight of the evidence ***** .”

“(C] courts are not free to reweigh the evidence and set

aside the jury verdicts merely because the jury could have

drawn different inferences or conclusions or because

judges fee! that other results are more reasonable.’ Tenant

v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35,64 S.Ct. 409,

412,88 L. Ed. 520 (1944); Werthan Bag Corp. v. Agnew,

202 F.2d 119, 122 (6th Cir. 1953). Thus, while the district

judge has a duty to intervene in appropriate cases, the

jury's verdict should be accepted if it is one which could

reasonably have been reached.

With respect to the applicable scope of review of a District

Court decision granting or denying a new trial on the basis

ot ue weight of the evidence, it is well settled that reversal

may be predicated only upon an abuse of discretion.

TCP Industries, Inc. v. Uniroyal, Inc. , 661 F.2d 542,546 (6th Cir.

1981), quoting Duncan v. Duncan 377 F.2d 49, 52-53 (6th Cir.

1967), cert denied, 389 U.S. 912 (1967). Thus, the district court

is afforded broad discretion in ruling on new trial motions. See

generally 10 C. Wright and A. Miller, Federal Practice and Proce-

dure § 2818 (1971).

in the instant case, as indicated, the district judge initially

granted the new trial motion because, in his opinion, the evidence

failed to demonstrate personal participation in the alleged wrong-

ful behavior by officers Bates, Taylor, Dunaway and Fretz. Plain-

tiff presently contends that even assuming arguendo the evidence

did not demonstrate personal involvement in the administering of

the beatings, the inaction of the “non-participating” officers while

Bruner was being assaulted subjects those officers to liability.

Plaintiff places primary reliance on Byrde v. Brishke, 466 F.2d 6

(7th Cir. 1972). in Byrde the plaintiff testified that he was beaten

by unidentified officers in the backroom of a tavern. Although the

plaintiff in Byrde was unable to specifically identify the individ-

uals who struck him, he was able to identify three officers who

were present at the time of the beating. The lower court directed a

verdict for the defendants at the close of the evidence. On appeal

the Seventh Circuit reversed, stating, in pertinent part:

We believe it is clear that one who is given the badge of

authority of a police officer may not ignore the duty

imposed by his office and fail to stop other officers who

summarily punish a third person in his presence or other-

wise within his knowledge. That responsibility obviously

obtains when the nonfeasor is a supervisory officer to

whose direction misfeasor officers are committed. So, too,

the same responsiblity must exist as to non-supervisory

officers who are present at the scene of such summary

punishment, for to hoid otherwise would be to insulate

non-supervisory officers from liability for reasonably fore-

seeable consequences of the neglect of their duty to

enforce the laws and preserve the peace. Accordingly, the

plaintiff was entitled to have his case against defendants

Moran, Pfeiffer and Finnin submitted to the jury upon his

having offered testimony that he was beaten by unknown

officers in their presence.

id. at 11. See also, Putnam vy. Gerloff, 639 F.2d 415 (8th Cir.

1981) (deputy’s failure to intervene in beating administered by

sheriff is sufficient to subject him to liability). Compare Dean v.

Gladney, 621 F.2d 1331 (5th Cir. 1980) (no evidence linking

officer to arrests for which other officer held liable, therefore

error for district court to hold that he was jointly and severally

liable with other officer).

This Circuit has approved the holding of Byrde in Smith v. Ross,

482 F.2d 33 (6th Cir. 1973) (per curiam). In Smith , although the

Court found that a deputy’s acts were not the cause of the harm

suffered by defendants,the Court stated:

We agree with appellants that a iaw enforcement officer

can be liable under §1983 when by his inaction he faiis to

perform a statutorily imposed duty to enforce the laws

equally and fairly, and thereby denies equal protection to

persons legitimately excercising rights guaranteed them

under state or federal law. Acts of omission are actionable

in this context to the same extent as are acts of commis-

sion.

The foregoing authority clearly counsels that it is not necessary,

in order to hold a police officer liable under §1983, to demon-

strate that the officer actively participated in striking a plaintiff.

Had the district court’s decision to grant a new trial rested solely

on a contrary interpretation of the law plaintiff's position would

be decidedly more persuasive.

However, as indicated, following the lower court's order granting

a new tria!, the plaintiff filed a motion to reconsider upon the

pronouncements of Byrde, supra. Nevertheless the Court refused

to vacate its earlier order, holding, in pertinent part:

But assuming for purposes of argumeit that plaintiff is

right in his contention that, under the circumstances of

this case, mere presence while a wrong is being committed

is sufficient to hold the une who is present liabie under the

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Act, the proof in the present case fails to show that all of

the defendants were present while the assault or other

wrongs were being committed. Thus, even under plaintiff's

theory, the proof was insufficient to hold those defendants

who were not present and who did not participate in the

assault liable in the present case.

The gist of this alternative holding is that the proof at trial, in

the view of the trial judge, failed to establish presence of some

defendants during the assault. This view is supported by the

record.

At the first trial, as previously indicated, the plaintiff was unable

to identify the officers present during the time he was beaten.

Officers Dunaway and Inaram testified that they arrived at the

scene after the plaintiff was subdued. The evidence tended to show

that the assault on Bruner occured prior to the time plaintiff was

subdued. Accordingly, and considering the fact that plaintiff's

necessarily circumstantial evidence was directly contradicted on

the whole, the trial court’s grant of a new trial was not an abuse of

discretion and therefore will not be disturbed on appeal.

Similarly, it was not error for the trial court to deny a judgment

notwithstanding the verdict or new trial after the second trial. The

evidence demonstrated that Bates, Taylor and Castellaw were

involved in restraining Bruner and the jury was entitled to deter-

mine that, in so doing, they had employed excessive and unreason-

able force.

With respect to the final issue, the defendants Bates, Taylor and

Castellaw assert that the trial judge erred in denying their motion

for remittitur on the $100,000 verdict. However, in general, courts

are reluctant to overturn jury verdicts on the grounds of excessive

or inadequate damages. Cross v. Thomson, 298 F.2d 186 (6th Cir.

1962). In light of the medical evidence adduced at trial indicating

that Bruner suffered a severe skull fracture the night of the inci-

dent which permanently diminished his intellectual capacity and

that Bruner presently has “‘post-traumatic epilepsy” requiring pre-

ventive medication, the facts of this case clearly do not warrant

interference with the jury’s award of damages.

In accordance with the foregoing, the judgment of the district

court is hereby Affirmed.

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UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

GERALD C. BRUNER

No. 3-80-164

JAMES BATES

GREGORY TAYLOR,

STEVE TINDER,

RICKY FRETZ, and

CHRISTIAN CASTELLAW

JUDGMENT

(Filed December 3, 1980)

This action came on for trial before the Court and a jury,

Honorable Robert L. Taylor, United States District Judge, presid-

ing, and the issues having been duly tried and the jury having duly

rendered its verdict,

it is Ordered and Adjudged that the plaintiff, Gerald C. Bruner,

recover of the defendants, James Bates, Gregory Taylor and

Christian Castellaw, the sum of One Hundred Thousand

($100,000) Dollars, with interest thereon at the rate as provided by

law, and his costs of action.

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It is Further Ordered and Adjudged that the plaintiff take no-

thing, that the action be dismissed on the merits, and that the

defendants, Steve Tinder and Ricky Fretz, recover of the plaintiff,

Gerald C. Bruner, their costs of action.

Dated at Knoxville, Tennessee this 3rd day of December. 1980.

Karl D. Saulpaw, Jr.

Clerk of Court

By /s/ Jean Medlock

Ag

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

NORTHERN DIVISION

GERALD C. BRUNER

v. CIV. 3-80-1464

JAMES BATES. ET AL

ORDER

(Filed December 23, 1980)

Before the Court are the plaintiff's motion for a new trial, or for

an additur and the defendants’ motion for a new trial or a remit-

titur, or for judgment notwithstanding the verdict. We are of the

opinion that there were questions of fact for the determination of

the jury, and that the determiniat

the jury, and that the determination by the jury is supported by

substantial evidence. In the opinion of the Court, it did not err in

its ruling on questions of evidence. The verdict awarded by the

jury is reasonable and should not be remitted. This Court is with-

out power to order an additur. Dimick v. Schiedt, 293 U.S. 474

(1935). It is, therefore, ORDERED that the various motions be,

and the same hereby are, denied.

Finally, the attorneys for the respective parties are asking for

attorneys’ fees under 42 U.S.C. 51988. The facts in this case were

disputed and the question of liability was a close one. Two trials

were necessitated. We see no justification in putting the taxpayers

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to further expense in the form of attorneys’ fees. See Oliver v.

Kalamazoo Board of Education , Nos. 79-1042, 79-1101 and 79-

1723 (C.A. 6, December 15, 1980), opinion of Weick, J., concur-

ting in part. The statute puts the question of attorneys’ fees “in

the discretion of the Court.” We are of the opinion that the facts

do not justify attorneys’ fees for either side. It is, accordingly,

ORDERED that the respective motions for attorneys’ fees be, and

the same hereby are, denied.

Enter:

/s/ Robert L. Taylor

United States District Judge

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UNITED STATES OF APPEALS

FOR THE SIXTH CIRCUIT

No. 81-5096/97

GERALD C, BRUNER Pere tite a

Cross-Appellant,

Vv.

Defendants

e ’

WADE DUNAWAY, €T AL., Cross-Appellee,

JAMES BATES, GERGORY TAYLOR, Setendente hagdians.

CHRISTIAN CASTELLAW,

BEFORE: MERRITT and KRUPANSKY, Circuit Judges and CECIL, Senior

Circuit Judge.

JUDGMENT

(Filed August 11, 1982)

APPEAL from the United States District Court for the Eastern

District of Tennessee.

THIS CAUSE came on to be heard on the record from the United

States District Court for the Eastern District of Tennessee and was

argued by counsel.

ON CONSIDERATION WHEREOF. It is now here ordered and

adjudged by this Court that the judgment of the said District

Court in this cause be and the same is hereby affirmed.

Ne costs taxed.

ENTERED BY ORDER OF THE COURT

John P. Hehman, Clerk

/s/ John P. Hehman

Clerk

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