Petition for Writ of Certiorari — City of Shepherdsville v. Rymer

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°

8401756" MAY 7 1985

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

CITY OF SHEPHERDSVILLE,

KENTUCKY,

BEN STILLWELL . . ° ° ° Peitioners

versus

PAUL DALE RYMER - - ° r Respondent

On Writ of Certiorari to The United States Court of Appeals

for the Sixth Circuit

<

PETITION FOR WRIT OF CERTIORARI

MARK E. EDISON

PORTER & EDISON

217 Buckman Street

Shepherdsville, Kentucky 40165

Telephone: (502) 543-2296

Counsel for Petitioners

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

Y|

QUESTIONS PRESE’.TED FOR PV VIEW

1. Did the United Saas Court of Appeals fer the.

Sixth Circuit commit error firming e judgement for

the Respondeit on the basis that “se “ Miomer, City of

Shepherdsville, Kentucky, either failea to “ram its police

officers or trained them in suck a feckless or grossly negli-

gent manner th@t the misconduct was vitable or sub-

stantially certain to result when Respondent failed to plead\

or prove this as a cause of action.

2. Did the United States Court of Appeals for the

Sixth Circuit commit error in affirming a judgment in an

amount of damages which, based om the facts presented

at trial, should have shocked the judicial conscience?

li

PARTIES TO THE PROCEEDING

All of the parties to the proceeding in the Court whose

judgment is sought to be reviewed are named in the caption

of this Petition as filed in this Court.

iil

TABLE OF CONTENTS

PAGE

Questions Presented for Review ................... i

Parties to the Proceeding ..... habeas Mau y cca Sain ii

Table of Authorities ...............ccceesecceceess iv

ac ein ws aod aki baee hs Uhd Koues 1- 2

GE. LG eG ad creed daddy cee¥etinserssts 2-3

Statutory Provisions Involved ..................... 3

I OE ON OID og occ ect c csc cceeenceseces 3- 6

Reasons for Granting the Writ .................... 6-25

ees. Seve rescuwbecdscveceuvens 25

ee eee 26

I is boa eo 544-00 abE Ks oate wnte Dasa eneks la-9a

Opinion and Order entered February 11, 1985, in

the United States Court of Appeals for the Sixth

as 5s on asin an wae ka 0 oe ona kee ewe la-7a

Judgment entered May 26, 1983, in the United States

District Court for the Western District of Ken-

DUS GIRS Ceci ila chee bas VEdRA CER pee ceed 8a-9a

iv

TABLE OF AUTHORITIES

Cases: PAGE

Monell v. New York City Dept. of Social Services,

Se ie ee ID i ok oo0 bene veevcen seis 6-7, 9-11

Owen v. City of Independence, 445 U. S. 622 (1980). 7,11

Rizzo v. Goode, 423 U. 8S. 362 (1976)......... 7, 11, 12, 15

Hays v. Jefferson County, Kentucky, 668 F. 2d 869

(36 Se Bae err err ere: 7, 12, 13, 15-17

Polk County v. Dodson, 454 U. S. 312 (1981)...... 13

Carey v. Piphers, 435 U. S. 247 (1978) ......... 7, 18-20

Boyd v. Madison County Mutual Ins. Co., 653 F. 2d

phi By Be es SER Siegen oer een 7, 20

Sengel v. Belcher, 522 F. 2d 488 (6th Cir. 1975)... 7,21

Smith v. Heath, 691 F. 2d 220 (6th Cir. 1982). ..7, 21, 23

Wheatley v. Ford, 679 F. 2d 1037 (2nd Cir.

RE ee Ge aed witne an GOAN e as ea obese EI 7, 23-25

Statutes:

28 United States Code §1254(1) ................. 2

42 United States Code §1983 ........... 3, 7, 10, 12, 15, 18

Miscellaneous:

Rule 17.1(a)(c) Rules of the Supreme Court of the

SI IE 68 swirl esd cecteehié Sees 8

Blacks Law Dictionary Revised Fourth Kdition 1968 14

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

City OF SHEPHERDSVILLE,

KENTUCKY,

BEN STILLWELL - -~ - - - Petitioners

v.

Pavut DaLE RYMER - - : - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice and Associate

Justices of the Supreme Court of the United States:

The Petitioners herein respectfully pray that a writ

of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Sixth

Circuit entered in this matter ou February 11, 1985.

OPINIONS BELOW

The February 11, 1985, opinion of the Court of

Appeals, whose judgment is herein sought to be re-

viewed, is printed as Rymer v. Davis, 754 F. 2d 198

(1985), and is reprinted in the Appendix to this Pe-

2

tition, pp. la-7a. The prior judgment of the United

States District Court for the Western District of Ken-

tucky, entered May 26, 1983, is unpublished and is re-

printed in the Appendix to this Petition, pp. 8a-9a.

JURISDICTION

The judgment of the Court of Appeals was entered

February 11, 1985. The jurisdiction of this Court is

invoked pursuant to 28, United States Code, Section

1254(1).

JURISDICTION ON WRIT OF CERTIORARI

Rule 17

CONSIDERATIONS GOVERNING REVIEW ON

CERTIORARI .1(a) (b) (c)

1 A review on writ of certiorari is not a matter

of right, but of judicial discretion, and will be granted

only when there are special and important reasons

therefor. The following, while neither controlling nor

fully measuring the Court’s discretion, indicate the

character of reasons that will be considered.

(a) When a federal court of appeals has rendered a

decision in conflict with the decision of another federal

court of appeals on the same matter; or has decided a

federal question in a way in conflict with a state court of

last resort; or has far departed from the accepted and

usual course of judicial proceedings, or so far sanc-

tioned such a departure by a lower court, as to call for

an exercise of this court’s power of supervision.

(b) When a state court of last resort has decided

a federal question in a way in conflict with the de-

3

cision of another state court of last resort or of a

federal court of appeals.

(c) When a state court or a federal court of appeals

has decided an important question of federal law which

has not been, but should be, settled by this Court, or

has decided a federal question in a way in conflict with

applicable decisions of this Court.

STATUTORY PROVISION INVOLVED

The case involves Title 42, United States Code,

Section 1983, which provides as follows:

**Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

state or territory or the District of Columbia, sub-

jects, or causes to be subjected, any citizen of the

United States or other person within the jurisdic-

tion thereof to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution

and the laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper

proceeding for redress. For the purposes of this

section, any Act of Congress applicable exclusively

to the District of Columbia shall be considered to

be a statute of the District of Columbia.”’

STATEMENT OF THE CASE

This is a civil rights action originally brought by

Paul Dale Rymer against the City of Shepherdsville,

Kentucky, Ben Stillwell, and numerous other Defend-

ants pursuant to 42 USC §1983.

4

The circumstances leading up to the bringing of the

above referenced action and its progressing to trial are

as follows:

On June 13, 1979, the Respondent along with num-

erous other individuals was traveling along Interstate

71 and Interstate 65 in the State of Kentucky. Re-

spondent, in his journey across Kentucky, became

involved in a protest action being carried on by various

truck drivers on the highways this day.

It is undisputed by any party that the Respondent

was a truck driver, who on this day was involved in

what is commonly termed a convoy traveling from

northern Kentucky to a point south of Shepherdsville,

Kentucky, where the convoy was stopped by law en-

forcement officials.

There is some disagreement as to the Respondent’s

position in this convoy, but, this has no relevance to

the action brought against these Petitioners.

* The convoy was halted by the joint actions of some

Kentucky State Police, some police of the City of

Shepherdsville, some police of the City of Lebanon

Junction, some police of the Bullitt County Police

force.

At the scene of this police stoppage the Respondent,

as well as three other truck Cvrivers, was arrested on

various charges, some filed by the Kentucky State Po-

lice, some filed by various City Police Officers.

Respondent received the injuries he complained of

at the scene of his arrest. He, as well as other arrested

parties, was taken to Shepherdsville, the county seat,

5

where the County Jail is located. At this time, Re-

spondent was offered medical treatment by an EMS

Technician and then lodged in the jail for the night.

On the following morning Respondent, as well as

the other arrested individuals, was taken before the

Honorable Judge Fredric N. Friske, Judge of the

Bullit District Court to enter his plea. After this was

done all were released, and the Respondent returned

to his home in Tennessee.

On a later occasion the Respondent returned to

Kentucky for a trial before the Bullitt Circuit Court

on some of the charges brought against him by the

Kentucky State Police. At that trial he was found

guilty of menacing by a jury, and a punishment was

set. At no time have the charges filed by the Petitioner,

Stillwell, ever been heard by any court.

This action was filed in the United States District

Court for the Western District of Kentucky on June

12, 1980, at which time the Petitioner, Stillwell, was

not named as a party defendant. He was, however,

subsequently joined on July 7, 1980, by the Respond-

ent’s First Amended Complaint which was permitted

to be filed pursuant to order of Court dated J uly 24,

1980.

This action came on for trial in the District Court

on May 23rd, 24th, and 25th, 1983. Prior to this time

numerous Defendants had been dismissed by the Court

and various claims of the Respondent had been

dismissed.

=

6

The testimony presented by Petitioner at trial,

which was the only evidence as to custom, policy or

practice of the Petitioner, City, was that since 1975,

in compliance with Kentucky Revised Statutes, all

police officers employed were required to attend train-

ing which was conducted by the Kentucky Department

of Justice, Bureau of Training.

The Petitioner, Stillwell, had attended and succes-

fully completed these required classes for four (4)

years prior to this incident in 1979.

Also during his nine (9) years of employment as

a police officer, the Petitioner, City, had not received

one (1) complaint as to his treatment, practices or pro-

cedures in the handling of prisoners or the public in

the conduct of his duties as a police officer.

At the trial of this action, before it was given to

the jury, the Court directed a Verdict in favor of three

(3) other Defendants. ‘he Court allowed the jury

to consider the issues as to the two (2) Petitioners

herein; and the Judgment was thereupon entered on

May 26, 1983.

Subsequent motions for a new trial or a judgment

Notwithstanding the Verdict by both Petitioners were

overruled.

REASONS FOR GRANTING THE WRIT

The judgment of the Court cf Appeals in this case

directly conflicts with the Opinion of the United States

Supreme Court in Monell v. New York City Dept. of

Social Services, 436 U. S. 658, 56 L. Ed. 2d 611, 98

7

S. Ct. 2018 (1978), holding that Congress did not in-

tend municipalities to be held liable unless action

pursuant to official municipal policy of some nature

caused a constitutional tort, and a municipality cannot

be held liable under $1983 on a respondeat superior

theory.

Also, its opinion directly conflicts with Owen v. City

of Independence, 445 U. 8S. 622 (1980), which states

when execution of a government’s policy or custom,

whether made by its lawnmakers or by those whose

edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government as an

entity is responsible under $1983. And Rizzo v. Goode,

423 U. S. 362 (1976), which requires a direct causal

link between the acts of the individual officer and the

supervisor defendants.

The Court of Appeals in this case is directly in

conflict with its own opinion in Hays v. Jefferson

County, Kentucky, 668 F. 2d 869 (1982), holding that

case law has limited §1983 so as not to reach isolated

instances where a negligent failure to adequately super-

vise, train or control was involved.

Petitioners further respectfully submit that the

- Court of Appeals in this case has misconstrued the

holdings of Carey v. Piphers, 435 U. 8. 247 (1978) ;

Bond v. Madison County Mutual Ins. Co., 653 F. 2d

1173 (7th Cir. 1981) ; Sengel v. Belcher, 522 F. 2d 438

(6th Cir. 1975); Smith v. Heath, 691 F. 2d 220 (6th

Cir. 1982) ; and Wheatley v. Ford, 697 F. 2d 1037 (2nd

Cir. 1982).

8

Based on the foregoing, it appears the Sixth Circuit

Court of Appeals ‘‘has rendered a decision in conflict

with the decision of another Federal Court of Appeals

on the same matter, . . . or has so far departed from

the accepted and usual course of judicial proceedings

. as to call for an exercise of this Court’s power

of supervision’; or ‘‘When . . . a federal court of

appeals has decided federal questions in a way in con-

flict with applicable decisions of this Court.’”’ Rule

17.1(a)(¢), Rules of the Supreme Court of the United

States.

I. Did the United States Court of Appeals for the Sixth

Circuit Commit Error in Affirming a Judgment for the

Respondent on the Basis That the Petitioner, City of

Shepherdsville, Kentucky, Either Failed to Train Its

Police Officers or Trained Them in Such a Reckless or

Grossly Negligent Manner That the Misconduct Alleged

Was Inevitable or Substantially Certain to Result, When

Respondent Failed to Plead or Prove This as a Cause

of Action? ‘

The Court of Appeals completely ignored what Re-

spondent had pled in his Complaint for relief.

Before looking into the precedents, this Court

should look closely at the Complaint and First Amended

Complaint filed in this action. The pertinent parts of

these pleadings are as follows:

Complaint, Paragraph Seven (7).

The City of Shepherdsville, acting by and through

its duly elected Mayor, James T. Sparrow, is a consti-

tutional entity authorized by act of the legislature of

the Commonwealth of Kentucky, was the employer of

9

the Defendants, Bobby Dennis and Nike Nalley and,

as such, is directly responsible for any judgment ren-

dered herein against Bobby Dennis and Mike Nalley,

jointly and severally.

First Amended Complaint, Paragraph Eight (8):

The City of Shepherdsville, acting by and through

its duly elected Mayor, James T. Sparrow, is a consti-

tutional entity authorized by act of the legislature of

the Commonwealth of Kentucky, was the employer

either directly or by deputation of the Defendants,

Bobby Dennis, Mike Nalley and Ben Stilwell, and as

such, is directly responsible for any judgment ren-

dered herein against Bobby Dennis, Mike Nalley or

Ben Stillwell, jointly and severally.

This Court should look at these pleadings to deter-

mine exactly what has been pled. If this strictly

sounds under the theory of Respondeat Superior, this

Court has previously ruled there was no recovery under

this theory, therefore, this issue should not have been

allowed to go to the jury as to the Petitioner, City of

Shepherdsville.

If, however, this Court interprets these clauses to

raise some duty on the Petitioner’s, City of Shepherds-

ville, part, then that duty must be the training and

retention of the Petitioner, Stillwell, as a police officer

of the City.

This issue has been dealt with in numerous federal

courts, and a history of their holdings is as follows:

Monell v. New York City Dept. of Social Services, 436

U. 8. 658 (1978)

10

‘‘On the other hand, the language of $1983 read

against the background of the same legislative his-

tory compels the conclusion that Congress did not

intend municipalities to be held liable unless action

pursuant to official municipal policy of some nature

caused a constitutional tort. In particular we con-

clude that a municipality cannot be held liable

solely because it employs a tort feasor or in other }

words, a municipality cannot be held liable under

§1983 on a respondeat superior theory.

We begin with the language of §1983 as passed:

“<Any person who, under color of any law, statute,

ordinance, regulation, custom or usage of any

State, shall subject, or cause to be subjected, any

person. . . to the deprivation of any rights, privi-

leges, or immunities secured by the Constitution

of the United States, shall, any such law, statute,

ordinance, regulation, custom or usage of the State

to the contrary notwithstanding, be liable to the

party injured in any action at law, suit in equity,

or other proper proceeding for redress.

The italicized language plainly imposes liability

on a government that under color of some official

policy ‘‘causes’’ an employee to violate another’s

constitutional rights. At the same time, that lan-

guage cannot be easily read to impose liability vi-

eariously on governing bodies solely on the basis

of the existence of an employer employee relation-

ship with a tort feasor. Indeed, the fact that Con-

gress did specifically provide that A’s tort became

B’s liability if B ‘‘caused’’ A to subject another

to a tort suggest that Congress did not intend

§1983 liability to attach where such causation was

absent.”’

ee ee eT ay a

11

Also in Monell, ibid, this Court concluded as follows:

‘“We conclude, therefore, that a local government

may not be sued under $1983 for an injury inflicted

solely by its employee or agents. Instead, it is

when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official

policy, inflicts the injury that the government, as

an entity, is responsible under §1983.’’

This was subsequently cited with approval in Owen

v. City of Independence, 445 U. 8. 622 (1980).

The only testimony or evidence as to official policy

of the City of Shepherdsville, was provided by Mayor

James T. Sparrow and Officer Ben Stillwell. The

policy of the City was and is to put trained officers

on the street. There is no showing in the evidence at

trial that any other policy, custom, or anything else

that ‘‘caused’’ any employee to violate the rights of

another. In point of fact, it is the established policy

of Petitioner, City, to train its employees to protect

the rights of individuals and no other policy was shown

or attempted to be shown.

This theory has been applied in another ease, Rizzo

v. Goode, 423 U. S. 362 (1976), wherein this Court

stated:

‘“There must be a direct causal link between the

acts of the individual officer and the supervisor

defendants”. . . ‘‘It is essentially the same con-

cept that requires the implementation or execu-

tion of a government policy or custom be shown

before liability can be imposed on a municipality.”’

12

One of the leading cases in the Sixth Circuit on this

issue is the case of Hays v. Jefferson County, Ky., 668

F. 2d 869 (1982). That Court established some guide-

lines for the imposition of liability on a municipality,

as follows:

The major impediment to simple negligence as a

basis for liability of supervisory officialf and mu-

nicipalities, however, is the Supreme Court’s de-

cision in Rizzo v. Goode, 423 U. S. 362, 97 S. Ct.

598, 46 L. Ed. 2d 561 (1976).

The Petitioner, City of Shepherdsville, as well as

most other cities in Kentucky, avails itself of the serv-

ices of the State in providing training for its police

officers.

This is done partly because of 42 U.S.C. §1983, and

partly because Kentucky law requires. The training

facilities are established and administered by the State

of Kentucky. The Court of Appeals seems to base its

decision somewhat upon the fact that Petitioner, Still-

well, had no specific class or training on arrest pro-

cedures. Are the Courts now going to dictate the

course of study necessary to comply with the policies

of 42 U.S.C. §1983? Would all training be considered

Does it mean nothing as to the liability of the City that

schooling is required and no prior complaints have been

received? Must each City across the United States

attempt to establish a comprehensive training facility

which will teach policemen how to react in all cireum-

tances, or is there some reason to believe that attend-

13

ance at the only State run training facility should be

adequate? This situation appears somewhat analo-

gous to that in Polk County v. Dodson, 454 U. S. 312

(1981). Are the Courts of this country going to dictate

how government is to be run, what schools our police

are to attend, what classes they are to take, what per-

formance level is to be attained before successful com-

pletion? Or should the local government be allowed

to establish a policy, which was here proven and un-

refuted, and onerate under that policy, or with the

supervision of each individual detail by the Courts?

Should the Court exercise some judicial restraint when

interfering with established City policy because they

do not like the classes offered by the State for training ?

The Court had not previously held the State offered

training inadequate or inappropriate, but by this de-

cision that seems to be its impact. Now what are the

majority of cities in Kentucky to do for proper train-

ing of their police officers?

The Sixth Circuit Court in Hays, ibid, said:

Where, as here, the constitutional violation was

not alleged to be part of a pattern of past mis-

conduct, a supervisory official or a municipality

may be held liable only where there is essentially

a complete failure to train the police force or train-

ing that is so reckless or grossly negligent that

future police misconduct is almost inevitable, e.g.

Leite v. City of Providence, 463 F. Supp. at 590,

or would properly be characterized as substantially

certain to result.. Rheuark v. Shaw, 477 F. Supp.

897 (N.D. Texas 1979).

14

This Court has established some guidelines to help

the lower federal courts in this type situation. There

must be a complete failure to train which is not the

case presented. The issue of what type training was

not at issue at trial in chief, and in fact was not pled

in the original or first amended complaints.

The Court further goes on to state if there is train-

ing, it must be so reckless or grossly negligent that

future police misconduct is almost inevitable.

Let us look to the specific guidelines established by

the Court of reckless or grossly negligent.

Blacks Law Dictionary, Revised Fourth Edition

1968, defines reckless: not recking, careless, heedless,

inattentive; indifferent to consequences. According to

circumstances it may mean desperately heedless, wan-

ton or willful, or it may mean only careless, inatten-

tive, or negligent.

Blacks Law Dictionary (ibid) defines grossly negli-

gent: The intentional failure to perform a manifest

duty in reckless disregard of the consequences as affect-

ing life or property of another; such a gross want of

care and regard for the rights of others as to justify

the presumption of willfulness and wantonness.

The Respondent in no way proved that the Peti-

tioner, City of Shepherdsville, fell within these guide-

lines. In fact, it can be seen that the Petitioner, City,

was attempting to carry out its duty to provide trained

individuals to enforce the law.

15

Hays, (ibid) also states:

Failure of supervisory officials to supervise, con-

trol or train offending individual officers is not

actionable absent showing that official either en-

couraged specific incident of misconduct or in some

other way directly participated in it; at minimum

plaintiff must show that official at least implicitly

authorized, approved or knowingly acquiesced in

unconstitutional conduct of offending officer.

Consider these guidelines with the Rizzo ( ibid)

holding;

there must be a direct causal link between the acts

of the individual officers and the supervisory de-

fendants’’

and this court will see that based on the pleadings this

cause of action was not pled, and based on the prece-

dents the Petitioner, City, has not failed in such a

manner as to fall within the guidelines established for

liability.

This entire argument and its proper outcome were

set forth by the Sixth Circuit Court in Hays (ibid),

The language and history of §1983 are silent as to

whether supervisory officials and municipalities

can be held liable for negligently having failed to

adequately train, supervise, and control individual

police officers who violate a plaintiff’s constitu-

tional rights. The language of §1983 providing

that a person who ‘‘subjects, or causes to be sub-

jected’’ another to a deprivation of constitutional

rights appears on its face to be broad enough to

encompass merely negligent deprivations. The

broad potential of this language is bolstered to

16

some extent also by the Supreme Court’s declara-

tion that ‘‘[s]ection [1983] should be read against

the background of tort liability that makes a man

responsible for the natural consequences of his

actions.’’ Monroe v. Pape, 365 U. 8. 167, 187, 81

S. Ct. 473, 484, 5 L. Ed. 2d 492 (1961). The trend

of the case law, however, has not been in this di-

rection. Rather, the case law has limited $1983

so as not to reach isolated instances where a negli-

gent failure to adequately supervise, train, or con-

trol was involved. See, e.g., Jamison v. McCurrie,

565 F. 2d 483 (7th Cir. 1977) ; Bonner v. Coughlin,

545 F. 2d 565 (7th Cir. 1976) (en banc); Parker

v. McKeithen, 488 F. 2d 553 (5th Cir.,), cert.

denied, 419 U. S. 838, 95 S. Ct. 67, 42 L. Ed. 2d 65

(1974) ; Edmonds v. Dillin, 485 F. Supp. 897 (N.D.

Ohio 1980); Rheuark v. Shaw, 477 F. Supp. 897

(N.D. Texas 1979); Leite v. City of Providence,

463 F. Supp. 585 (D.R.I. 1978); Schweiker v.

Gordon, 442 F. Supp. 1134 (B.D. Pa. 1977); cf.

Rizzo v. Goode, 423 U. 8S. 362, 370-71, 96 8S. Ct.

598, 603-604, 46 L. Ed. 2d 561 (1976). But see,

Carter v. Carlson, 144 U. 8S. App. D.C. 388, 447

F. 2d 358 (D.C. Cir. 1971), rev’d on other grounds

sub mom., District of Columbia v. Carter, 409 U.S.

418, 93 S. Ct. 602, 34 L. Ed. 2d 613 (1973).

A major part of the doctrinal foundation for re-

quiring a higher degree of culpability than ordi-

nary negligence is the concern that such a standard

would unduly impede or circumscribe the perform-

ance of official duties. The courts look for some

proof that a defendant has a culpable state of mind

—that the action or failure to act was to some de-

gree deliberate rather than inadvertent. ‘The ver-

bal formulations of this concept have varied from

17

gross negligence or recknessness, Owens v. Haas,

601 F. 2d 1242 (2nd Cir. 1979) ; White v. Rochford,

592 F. 2d 381 (7th Cir. 1979) ; Jenkins v. Averett,

424 F. 2d 1228 (4th Cir. 1970); Leite v. City of

Providence, 463 F. Supp. 585 (D.R.I. 1978);

Schweiker v. Gordon, 442 F. Supp. 1134 (E. D. Pa.

1977); Perry v. Elrod, 436 F. Supp. 299 (N. D.

Ill. 1977), to actions or failures to act which,

though not intended to harm the plaintiff, were

so likely to violate plaintiffs’ rights and cause them

injury that the harm was ‘‘substantially likely to

result,’”’ Rheuark v. Shaw, 477 F. Supp. 978 (N.D.

Texas 1979), to ‘‘purposeful non-feasance’’ in the

face of a duty to act, see Bonner v. Coughlin, 545

F’. 2d 565 (7th Cir. 1976), to an apparent require-

ment of intent, see Hdmonds v. Dillin, 485 F. Supp.

722 (N.D. Ohio 1980), but in practical terms the

underlying concept appears to be similar in the

vast majority of the cases.

All of the above, however, were disregarded by the

Court of Appeals in deciding this case.

II.

Did the United States Court of Appeals for the Sixth

Circuit Commit Error in Affirming a Judgment in an

Amount of Damage Which, Based on the Facts Pre-

‘sented at Trial, Should Have Shocked the Judicial

Conscience?

\

First, let us look to the jury’s verdict in this action,

for they awarded as follows:

Plaintiff recover from the Defendant, Ben Stillwell,

$32,000.00 as compensatory damages and $50,000.00

as punitive damages.

18

Plaintiff recover from the Defendant, City of

Shepherdsville, Kentucky, $25,000.00 as compensatory

damages.

Let us consider what are the compensatory dam-

ages based on and why are the awards different con-

cerning the Petitioners, when we are dealing with the

same injuries.

The Court in Carey v. Piphers, 435 U. 8S. 247,

stated:

‘“‘The cardinal principle of damages in Anglo-

American law is that of compensation for the in-

jury caused to plaintiff by defendants breach of

duty.”’ 2F Harper & F. James, Law of Torts

§25.1 p. 1299 (1956), . . . The Court implicitedly

has recognized the applicability of this principle

to actions under §1983 by stating that damages are

available under that section for actions ‘found

. . . to have been violative of . . . constitutional

rights and to have caused compensable injury . . .’

Wood v. Strickland, 420 U. S. at 319, 43 L. Ed. 2d

214, 95 S. Ct. 992.” . . . ‘*The lower federal courts

appear generally to agree that damages awards

under §1983 should be determined by the compen-

sation principle.’’

The Court also said in Carey (ibid):

It is less difficult to conclude that damages awards

under §1983 should be governed by the principle of

compensation that it is to apply this principle to

concrete cases. But over the centuries the com-

mon law of torts, has developed a set of rules to

implement the principle that a person should be

19

compensated fairly for injuries caused by the viola-

tion of his legal rights. These rules, defining the

elements of damages and the prerequisites for their

recovery, provide the appropriate starting point

for the inquiry under §1983 as well.

It is not clear, however, that common-law tort rules

of damages will provide a complete solution to the

damages issue in every §1983 case. In some cases

the interest protected by a particular breach of the

common law of torts may parallel closely the in-

terest protected by a particular constitutional

right. In such cases, it may be appropriate to

apply the tort rules of damages directly to the

§1983 action. . . . ‘‘In other cases the interest

protected by a particular constitutional right may

not also be protected by an analogous branch of

the common law of torts.’’ . . . ‘In those cases

the task will be the more difficult one of adapting

common-law rules of damages to provide fair com-

pensation for injuries caused by the deprivation

of a constitutional right.

The Court has established a foundation to which we

look in the computation of damages and that is to com-

pensate for the injuries received.

The courts have previously held:

‘Distress is a personal injury familiar to the law

customarily proved by showing the nature and cir-

cumstances of the wrong and its effect on the plain-

tiff. In sum, then, although mental and emotional

distress caused by the denial of procedural due

process itself is compensable under §1983, we hold

that neither the likelihood of such injury nor the

difficulty of providing it is so great as to justify

-

~~.

~

20

awarding compensatory damages without proof

that such injury was caused.’’ Carey v. Piphus

(ibid) at page 263.

In the case at bar the only statements as to mental

and emotional distress are those of the Respondent,

his wife, and a doctor. Two of these individuals state

that nothing of a permanent nature exist, and Re-

spondent was not questioned on this point.

The issue must be dealt with on a case by ease basis,

but in the case of Boyd v. Madison County Mutual Ins.

Co., 653 F. 2d 1173 (7th Cir. 1981), the Court states:

‘*Although mental and emotional distress caused

by the denial of First Amendment rights is com-

pensable, an award of damages for such injury

will not stand without proof that such injury

actually was caused.’’ . . . ‘‘The only evidence of

injury contained in this record was Nekolny’s

testimony that on learning he was terminated he

was ‘‘very depressed,’’ Dahn’s statement that she

was at one point subsequent to leaving her job,

‘fa little despondent and [lacking] motivation,’’

and Dumas’ testimony, on being asked whether he

looked for employment after losing his job, ‘‘ Well,

I didn’t work for six weeks, I was completely hu-

miliated, and I stayed close to home.”’

That evidence is insufficient to constitute proof of

compensable mental or emotional injury.

Although essentially subjective genuine injury in

this respect may be evidence by one’s conduct and ob-

served by others. Juries must be guided by appro-

priate instructions, and an award of damages must be

21

supported by competent evidence concerning the in-

I

A single statement by a party that he was ‘‘de-

pressed’’, ‘‘a little despondent’’ or even ‘‘completely

humiliated’’ (the latter in the context of explaining

why other employment was not sought), is not enough

to establish injury even when the statement is consid-

ered along with the facts of this case.

Based on the facts and the following the Petitioners

state the amount of the jury verdict shows that there

was a “‘bias, passion, or corruption on the part of the

jury’’, as required by the case of Sengel v. Belcher,

522 F. 2d 438 (6th Cir. 1975), and the excessiveness of

the award requires reversal by the Court.

Previously the Court said in Smith v. Heath, 691

F. 2d 220 (6th Cir. 1982):

‘‘The determination of the amount of damages to

be awarded is left to the discretion and good judg-

ment of the fact finder as guided by the facts of

the partciular case. Tullas v. Corley, 337 F. 2d

884 (1964).

When we examine the record, the good judgment

of the fact finder is called into question. By the courts

own instructions, it stated the law as follows:

‘‘Tn order for plaintiff to recover against him with

regard to that claim, the plaintiff must show by a

preponderance of the evidence that Defendant

Stillwell knowingly beat, bruised, and wounded

the plaintiff about the head and body.”’

22

Although sheer numbers of witnesses do not make

for a preponderance of the evidence, it should be viewed

somewhat questionable when all of the witnesses who

were present at the scene, who are not parties to this

action, state they did not see anyone strike Respondent.

He was not forced to make admissions against interest

to any person, but on two separate occasions to two

separate persons he did make these statements. Based

on these facts the preponderance of the evidence is that

Stillwell did not strike Rymer except as described in

perfecting the arrest, therefore, any damage award is

excessive and should be reversed. To do otherwise is

to ignore, disregard, or not consider the testimony of

any other person but to rely solely on two individuals,

Rymer and Stillwell, with all other proof being for

naught.

To ignore all of the facts which were adduced at

trial by both sides and to say that the jury exercised

discretion and good judgment in its findings is to make

<a, mockery of the judicial system. Not only did the

Petitioners’ witnesses testify as to not seeing Rymer

struck, but Rymer’s witnesses testified the same way.

To allow all of these facts to be ignored is to allow the

jury to decide this case solely on the basis of bias,

passion or corruption which are prohibited grounds

under our court system.

This award against these Petitioners should be suf-

ficient to shock the judicial conscience of this court, if

one does in fact exist,

23

Smith v. Heath (ibid) says:

‘‘The basic purpose of a section, 1983 damage

award is to compensate persons for injuries caused

by the deprivation of their constitutional rights.

Carey Vv. Piphers, 435 U.S. 247, 254, 98 S. Ct. 1042,

1047, 55 L. Ed. 2d 252 (1978) and the cases cited

therein.’’

There is an overabundance of proof in this record

that neither of these Petitioners did anything to de-

prive Respondent of any rights, constitutional or other-

wise, therefore the existing award or any award would

be excessive as to these parties.

Each ease concerning excessive damages must stand

on its own facts and its own circumstances. However,

in an effort to assist the Court it should look to Wheat-

ley v. Ford, 679 F. 2d 1037 (2nd Cir. 1982) for some

possible guidance where that Court stated:

[I-4] When reviewing a claim of excessive dam-

ages, an appellate court must accord substantial

deference to the jury’s determination of factual

issues. Wheatley v. Beetar, supra 637 F. 2d at

865; Music Research, Inc. v. Vanguard Recording

Society, Inc., 547 F. 2d 192, 195 (2d Cir. 1976).

In examining a lower court’s discretionary refusal

to set aside a verdict, an appellate court must view

the evidence and draw all factual inferences in

favor of the appellee. Grunenthal v. Long Island

R. R. Co., 393 U. S. 156, 159, 89 S. Ct. 331, 333, 21

L. Ed. 2d 309 (1968). Nevertheless, a judgment

eannot be upheld where the damages awarded are

so excessive ‘‘as to shock the judicial conscience.’’

See United States ex rel Larkins v. Oswald, 510

F. 2d 583, 589 (2d Cir. 1975) ; Caskey v. Village of

Wayland, 375 F. 2d 1004, 1007 (2d Cir. 1967).

24

When a judgment is grossly excessive, this Court

may order the plaintiff to remit excessive damages

or undergo a new trial. O’Gee v. Dobbs Houses,

Inc., 570 F. 2d 1084, 1089-90 (2d Cir. 1978) ; De-

Mauro v. Central Gulf SS Corp., 514 F. 2d 403, 405

(2d Cir. 1975). With these circumstances firmly

in mind, we examine the record to determine

whether a verdict of $55,000 was warranted.

Most of Wheatley’s alleged injuries were tem-

porary in nature. He testified that he was struck

with a ‘‘slapjack’’, that his bare feet were stomped

on, and that he was cuffed in the ears. His only

claim of permanency was a perforated eardrum in

his left ear, a slight loss of hearing in the upper

range and tinnitus, or ringing in the ear, a very

common ear-related complaint.

Moreover, although plaintiff produced evi-

dence that he had a punctured eardrum at the time

of his post-arrest physical examination. Dr. Shar-

fin, the examining physician, was unable to state

whether the puncture was a fresh one. Dr. Shar-

fin made no notation in his records of the bleeding

that would ordinary accompany a recent wound.

Furthermore, plaintiff did not mention the ear

injury at the time he made a report of police bru-

tality and requested medical attention. His first

complaint of tinnitus followed an altercation that

occurred during a period of unrelated incarcera-

tion. In any event, expert testimony tended to

show that any hearing loss resulting from the

punctured eardrum was very minor and would not

interfere with normal activity. [5] The foregoing

testimony simply will not support a verdict of the

magnitude of this award. While perhaps severe,

Mr. Wheatley’s temporary discomfort did not last

25

for long. The testimony is largely uncontradicted

that any permanent hearing impairment is very

minor. After careful review of the evidence, we

feel that an award of $2,500.00 is adequate com-

pensation for the injuries sustained. Accordingly,

the judgment of the district court is reversed and

the case remanded for a new trial, unless plaintiff

is willing to remit all damages in excess of $25,000.

Based on all of the aforegoing, it can be seen that

the jury in this action did not exercise good judgment

or sound discretion, but instead was ruled by passion,

prejudice, or bias and therefore their award of dam-

ages 1s excessive and should not be allowed to stand, for

it truly shocks the conscience of the court.

CONCLUSION

For all the reasons, and upon the authorities cited

and argued in this, their Petition, the Petitioners re-

spectfully pray that a writ of certiorari be granted.

May 7, 1985.

Mark E. Epison

PortTER & EDISON

217 Buckman Street

Shepherdsville, Kentucky 40165

Telephone: (502) 543-2296

Counsel for Petitioners

CERTIFICATE OF SERVICE

I, Mark E. Edison, a member of the Bar of this Court,

representing the Petitioners herein, do hereby certify that

I have this 7th day of May, 1985, served the foregoing Pe-

tition for Writ of Certiorari pursuant to Rule 28.3 of this

Court upon all parties required to be served to wit: Hon.

Harley N. Blankenship and Hon. Peter Perlman, by de-

positing three (3) copies of the said Petition in a United

States mailbox with first class postage prepaid, addressed

to Hon. Harley N. Blankenship, 515 Kaufman-Straus Build-

ing, Louisville Galleria, Louisville, Kentucky 40202, and

Hon. Peter Perlman, Peter Perlman Law Offices, P.S.C.,

388 South Broadway, Lexin ntu

Mark E. Epison

APPENDIX

la

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

No. 83-5586

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Paut D. Rymer, bck te - - Plaintiff-A ppellee,

v.

Trooper H. A. Davis, et al., - - - Defendants,

City or SHEPHERDSVILLE, KEnTUCKY,

AND Ben Stintpwett, - - # £Defendants-Appellants.

On Appeal from the United States District Court

for the Western District of Kentucky

Decided and Filed February 11, 1985

Before: Kritn and Jones, Circuit Judges; and Porter,

District Judge.*

Jonegs, Circuit Judge. This appeal presents the issue of

whether a city may be liable under 42 U.S.C. §1983 (1982)

when the city has failed to train its police officers or has

trained its police officers in a way that was so reckless or

grossly negligent that future police misconduct is almost

inevitable or substantially certain to result. We hold that

under the circumstances of this case, it was not error to find

the city liable for such a failure.

*The Honorable John W. Potter, Distriet Judge, United States

District Court for the Northern District of Ohio, sitting by desig-

nation.

2a

On June 13, 1979, Paul Dale Rymer participated in a

convoy on an interstate in Kentucky. The convoy was

stopped by law enforcement officials of the State of Ken-

tucky, the City of Shepherdsville, the City of Lebanon

Junction, and Bullitt County. Rymer and three other truck

drivers were arrested. Officer Ben Stillwell beat and

kicked Rymer violently during the arrest. Rymer was

treated by an emergency medical technician who recom-

mended that Rymer be taken to a hospital. Officer Still-

well rejected this recommendation. Rymer and the others

were jailed for the night. The next morning the arrested

individuals were taken to the county court to enter their

pleas. They were then released.

Rymer subsequently filed a complaint in the district

court under 42 U.S.C. § 1983. The complaint named

numerous defendants. The court dismissed the complaint

as to some of the defendants and directed a verdict as to

the other defendants except Officer Stillwell and the City

of Shepherdsville (City). The jury returned a verdict

against Stillwell for $32,000 as compensatory damages and

$50,000 as punitive damages and against the City for $25,-

000 as compensatory damages. A judgment was entered

upon that verdict on May 26, 1983. The defendants’ mo-

tions for both a new trial and judgment notwithstanding

the verdict were denied. Both defendants appeal and argue

that the amount of the award is excessive. Further, the

City argues that the district court erred by not dismissing

the City prior to submitting the case to the jury and, al-

ternatively, argues that its motion for judgment notwith-

standing the verdict should have been granted.

The City’s contention must be treated as a request for

a new trial because the City did not move for a directed

verdict and, therefore, judgment notwithstanding the ver-

dict in favor of the City would have been inappropriate.

A party against whom a verdict is rendered must comply

3a

with Federal Rule of Civil Procedure 50 to obtain appellate

review of a claim that he is entitled to judgment as a matter

of law. If a party moves fur judgment notwithstanding

the verdict after having failed to move for a directed ver-

dict at the close of the evidence, an appellate court cannot

order judgment for him. Fed. R. Civ. P. 50(b); see Trotter

v. Todd, 719 F. 2d 346, 250 (Sth Cir. 1983). If the evidence

was insufficient as a matter of law, however, the court can

order a new trial. C. Wright & A. Miller, Federal Practice

and Procedure §{§ 2537, 2540. Because the City is arguing

that the evidence was insufficient as a matter of law, we

will treat the City’s argument as a request for a new trial.

The evidence viewed most favorably to the non-moving

party, Rymer, showed that during Rymer’s arrest, Stillwell

beat and kicked Rymer many times and hit Rymer once in

the stomach and head with a nightstick. Stillwell refused

to accept an emergency medical technician’s suggestion that

Rymer needed x-rays. Evidence of the injuries included

photographs and the testimony of Rymer, the jailer, and

the Bullitt County Sheriff. The evidence further showed

that, at the time of the incident, the City had no rules or

regulations governing its police force. Nor did the City

require any pre-employment training. The initial training

received by the officers was on-the-job training. Although

the City required the officers to complete forty hours of

training each year after being hired, none of the training

received by Officer Stillwell instructed him on arrest pro-

cedures or treatment of injured persons. The City’s police

officers used their own discretion in the arrest and treat-

ment of persons suspected of criminal activity.

The theory of liability put before the jury in this case

was that it should find for the plaintiff, Rymer, if it found

by a preponderance of the evidence that the City trained its

police officers in a way that was so reckless or grossly

negligent that future police misconduct was almost in-

4a

evitable or substantially certain to result. This theory of

liability conforms to our decision in Hays v. Jefferson

County, 668 F. 2d 869 (6th Cir. 1982), cert. denied, 103 S.

Ct..75 (1983). In Hays, we held that “a municipality may

be held liable only where there is essentially a complete

failure to train the police force, or training that is so reck-

less or grossly negligent that future police misconduct is

almost inevitable . . . or would properly be characterized

as substantially certain to result . .. .” Id. at 874 (cita-

tions omitted). Hays has since been questioned by a num-

ber of courts because of our failure to recognize negligence

as a basis for liability of supervisory officials and munici-

palities. Branden v. Allen, 719 F. 2d 151, 153-54 (6th Cir.

1983) ; Lopez v. Ruhl, 584 F. Supp. 639, 649 & n.7 (W. D.

Mich. 1984); Means v. City of Chicago, 535 F. Supp. 455,

462 (N. D. Ill. 1982); see also Hirst v. Gertzen, 676 F. 2d

1252, 1263 (9th Cir. 1982). Because the district court in-

structed the jury on gross negligence, we are not presented

with the question of negligence as a basis for liability.

We are, however, presented with the question of

whether the City’s failure to train its police officers re-

garding arrest procedures was a proper basis for liability.

In Monell v. Department of Social Services, 436 U. S. 658,

694 (1978), the Supreme Court held that a municipality

may be held liable under section 1983 if either a munici-

pality’s official policy or one of its customs is the source

of the injury. The Court noted that the case unquestion-

ably involved official policy and that it, therefore, had no

need to address the full contours of municipal liability un-

der section 1983. Id. at 694-95.

To prevail against the City, Rymer had to show that he

was deprived of a coistitutional right either as a result of

a “policy statement, ordinance, regulation, or decision

adopted and promulgated by the City’s governing body” or

as a result of a “governmental ‘custom’ even though such a

5a

custom’ had not received formal approval through the City’s

official decisionmaking channels.” Williams v. Butler, 746

F. 2d 431, 435 (8th Cir. 1984) (quoting Monell, 436 U.S. at

691). In Hays, 668 F. 2d at 874, this Court joined a num-

ber of courts that have interpreted Monell to hold that a

municipal custom that authorizes or condones police mis-

conduct can be inferred when the municipality has failed

to train or has been grossly negligent in training its police

force. See, e.g., Herrera v. Valentine, 653 F. 2d 1220, 1224

(8th Cir. 1981) ; Owens v. Haas, 601 F. 2d 1242, 1246-47 (2d

Cir.), cert. denied, 444 U. S. 980 (1979); Popow v. City of

Margate, 476 F. Supp. 1237, 1245-46 (D. N. J. 1979); Leite

v. City of Providence, 463 F. Supp, 585, 590-91 (D. R. I.

1978) ; see also Means v. City of Chicago, 535 F. Supp, 455,

462-63 (N. D. Ill. 1982). Further, we implicitly agreed

with the Second Circuit, Owens, 601 F. 2d at 1246-47, that

official acquiescence may be inferred from the lack of train-

ing even in the fact of only a single brutal incident of police

misconduct. Hays, 668 F. 2d at 870-71, 874; see also Lette,

463 F. Supp. at 590. Contra Gilmere v. City of Atlanta, 737

1The type or amount of training necessary to avoid the inference

of a custom that authorizes or condones police misconduct is prop-

erly a jury question. We note, however, that numerous resources

are available to municipalities to guide them in supervising police

officers and in preventing instances of police brutality. See e.g.,

George C. Edwards, The Police on the Urban Frontier: A Guide to

Community Understanding (1968); Report of the National Ad-

visory Commission on Civil Disorder (1968) ; D. Hanna, A Guide to

Primary Police Management Concepts (1971) ; Institute on Police

Management for Supervisory and Administrative Personnel, Police

Management for Supervisory and Administrative Personnel (1963) ;

L. O’Donnell, Deadly Force: The True Story of How a Badge Can

Become A License to Kill (1983); L. O’Leary, The Selection and

Promotion of the Successful Police Officer (1979) ; H. Russell, Un-

derstanding Human Behavior for Effective Police Work (1976) ; P.

Whisenand, The Effective Police Manager (1981).

6a

I’, 2d 894, 904 (11th Cir. 1984); Languirand v. Hayden,

717 F. 2d 220, 227 (5th Cir. 1983).

It is not enough, however, that the plaintiff demon-

strate a general failure to train. There must exist a causal

relationship between the failure to train and the conduct of

the police officer. See Means v. City of Chicago, 535 F.

Supp. 455, 462 (N. D. Tl. 1982) (while evidence of a failure

to provide crowd control training might be relevant to a

charge of overreaction to crowd hostility, it would have

no bearing on an incident involving a single victim). In the

instant case, the plaintiff proved that the City had a

custom of allowing its police officers to determine when

and how to arrest without the benefit of supervisory regu-

lations. The City gave its officers carte blanche authority

to do as they wished during an arrest. See Williams v.

Butler, 746 F. 2d 431 (Sth Cir. 1984) (city had custom of

giving judges carte blanche authority in making personnel

decisions and are liable for constitutional injuries arising

therefrom). Further, Officer Stilwell had received no

training on arrest procedures or the treatment of injured

persons. The City’s failure to train its police officers and

the City’s bestowal of carte blanche authority to its police

officers were directly related to the ultimate abuse Rymer

received during the arrest. Consequently, Rymer had

introduced sufficient evidence to go to the jury. The jury

obviously concluded that the training received by Stillwell,

or the lack of it under the circumstances, was so reckless

or grossly negligent that future police misconduct was al-

most inevitable or substantially certain to result. Because

this finding is supported by the evidence, we uphold the

jury verdict.

Both the City and Stillwell argue that the amount of the

verdict was excessive. We disagree with the contention

that “the trial court abused its discretion by granting an

award so large as to shock the judicial conscience,” Thomp-

7a

son v. National Railroad Passenger Corp., 621 F. 2d 814,

827 (6th Cir.), cert. denied, 449 U. S. 1035 (1980), and thus

do not so find.

Accordingly, the judgment below is ArrirMep.

8a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 80-0309 L(A)

Paut Date RyMeER

v.

MIke NALLEY

Lanny BAKER

City oF SHEPHERDSVILLE, KENTUCKY

Ben STILLWELL

Crry or LEBANON JUNCTION

JUDGMENT *”

This action having been tried before a jury on May 23,

24, 25, 1983, the Court having ruled on the motions of

counsel, and the Jury having returned its verdict on May

25, 1983,

Ir Is OnpERED Anp Apsuncep that this action be and it is

hereby DisMissep as against defendants City of Lebanon

Junction, Kentucky, Mike Nalley, and Lanny Baker.

Ir Is FurtHer Orperep Anp Apgupcep that the plaintiff

recover from tie defendant Ben Stillwell $32,000.00 as

compensatory damages and $50,000.00 as punitive damages,

together with interest at the rate of 8.72 per cent until date

of payment.

Ir Is FurtHeR OrperED Anp Apgupcep that the plaintiff

recover from the defendant City of Shepherdsville, Ken-

tucky, $25,000.00 as compensatory damages, together with

interest at the rate of 8.72 per cent until the date of pay-

ment.

ee

Se

9a

Ir Is FurtHer Orperep Anp Apsupcep that costs shall

be paid by the defendants Stillwell and City of Shepherds-

ville, Kentucky.

This is a final and appealable judgment and there is no

just cause for delay.

May 26, 1983

(s) Charles M. Allen

Charles M. Allen, Chief Judge

United States District Court

Copies to counsel