Petition for Writ of Certiorari — Estate of Moreland ex rel. Moreland v. Speybroeck

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Supreme Court of the Anited States

EsTATE OF CHRISTOPHER A. MORELAND, Deceased

by Gary R. MoreLAnpD 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.,

Petitioners,

Vv.

JOSEPH SPEYBROECK, in his individual and official

capacities, Sheriff of St. Joseph County,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

GEOFFREY NELS FIEGER

Victor S. VALENTI

Counsel of Record

FigGER, FisGER, KENNEY & JOHNSON, P.C.

19390 West TEN MILE Roap

SOUTHFIELD, MI 48075-2463

(248) 355-5555

(248) 355-5148 Fax

Counsel for Petitioners

Becker Gallagher Legal Publishing, Inc. 800.890.5001

QUESTION PRESENTED FOR REVIEW

Is a County Sheriff subject to 42 U.S.C. § 1983 liability

as the official policymaker where the actual practice toward

detainees at his jail with respect to medical care and discipline

was so constitutionally defective under the Fourteenth

Amendment that a jury could find a direct causal link between

the plainly obvious need for better and different training, the

jailers’ disregard or ignorance of the written policies, and a

detainee’s torture death at the jail?

PARTIES TO THE PROCEEDINGS

AND CORPORATE DISCLOSURE STATEMENT

The names of all parties to the proceedings in the Court

whose judgment is sought to be reviewed here, are disclosed

in the caption of the case. Petitioners are individuals, the

parents of Christopher Moreland, deceased.

TABLE OF CONTENTS

Page

Question Presented for Review ................. i

Parties to the Proceedings and Corporate Disclosure

ES ONE Seal k sd wes ON os eee a ek 8 ok ii

I 5s was Sade ko bk oOo ee wee ill

Wiataeteiien . oj. 6 Ais kk. vi

Petition for Writ of Cestionari . ww ees l

ES Grr anna wats obec Wak ae l

Pee Ge ES es eS ek 1

Statutory and Constitutional Provision Involved ..... 1

nN 8 5h -6 9 Say sa ee so 2

I. Overview of the Case ..... ee aes 2

Il. The District Court Opinion ........... 8

Ill. The Court of Appeals Opinion ......... 9

Reason for Granting the Petition ............... 9

Seneca,

I. Sheriff Speybroeck Is Subject To Official Liability

Where The Actual Practice Toward Detainees

With Respect To Medical Care And Jail Discipline

Was So Constitutionally Inadequate Under The

Fourteenth Amendment That There Was A Direct

Causal Link Between The Plainly Obvious Need

For Better And Different Training, The Jailers’

Disregard Of The Written Policies And Mr.

Moreland’s Torture Death ............... 11

A. Tee Agplowile law ... ww ccc cnces 11

B. The Court Of Appeals Affirmance Conflicts

With Harris, Farmer And Brown Because

Petitioners Presented Facts From Which A

Jury Could Find That Speybroeck Had

Constructive Notice Of The Jail’s

Unconstitutional Practices, But Was

Nonetheless Deliberately Indifferent To

Detainees’ Serious Medical Needs, To The

Serious Deficiencies Between Training And

Actual Practice In The Use Of The Restraint

Chair And Pepper Spray, To The Jailers’ Code

Of Silence, And To The Overcrowded

EE is ee oe ye ae 14

1. Restraint Chair/OC-10 Pepper Spray/Code

SPU ob bile es he 18

II. If The Issue Raised Is Not Certworthy, The Court

Should Nonetheless, In The Exercise Of Its

Supervisory Power, Reverse And Remand For

Trial Because The Decisions Below So Far

Departed From The Accepted And Usual Course

Of Judicial Proceedings That They Amount To A

Miscarriage Of Justice. 2... ccc tans 20

Comite kG aa eee 22

Appendix

Appendix A - 1/14/05 - Seventh Circuit Opinion .. la

Appendix B - 4/2/02 - District Court Order ..... 23a

Appendix C - 3/20/02 - District Court

Memorandum and Order ............-.2.--. 25a

TABLE OF AUTHORITIES

Page

Cases

Allen v. Muskogee, Okla..,

119 F.3d 837 (10° Cle. 1997) 2... cc ccc cc ccc 13

Board of County Comm'rs v. Brown,

520 U.S. 397, 117 S.Ct. 1382,

137 L.Ed.2d 626 (1997) ............. 10, 12, 15

Brown v. Bryan County, 219 F.3d 450 (5" Cir. 2000),

cert. den. 532 U.S. 1007, 121 S.Ct. 1734,

149 L.Ed.2d 658 (2001)... ..............2.. 13

City of St. Louis v. Praprotnik, 485 U.S. 112,

108 S.Ct. 915, 99 L.Ed.2d 107 (1988) ......... 11

Farmer v. Brennan, 511 U.S. 825,

114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)... .. passim

Harris v. City of Canton, 489 U.S. 378, 390,

109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)... .. passim

Jones v. City of Chicago,

856 F.2d 985 (7 Cir. 1988) ................ 9

Members v. Paige,

140 F.3d 699 (7 Cir. 1998)... 2... 2... 21

Monell v. Dep't of Social Services, 436 U.S. 658,

98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ... 11, 16,17

Pasquino v. Prather,

uae fle gs a ete 21

Pembaur v. City of Cincinnati, 475 U.S. 469,

106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) ........ 11

Rivas v. Freeman, 940 F.2d 1491 (11" Cir. 1991) .... 14

Vineyard v. County of Murray, Ga..,

he ee fis S| eee ge 13

Wilson v. City of Chicago,

Te be legs | rrr ee 19

Woodward v. Correctional Medical Services of Illinois,

368 F.3d 917 (7 Cir 2004) ......... 9, 14, 15, 17

Young v. City of Augusta, Ga.,

pe flit aes ere 13

Constitutional and Statutory Provisions

U.S. Const. Amend. XIV, Sec. 1 ............. 2, 11

PEC BA BD 6 oe cece se eeccededes eaee 1

GBUBE SU cc vecececsosntucenusees passim

Rules

ate ieee nee ee 10

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully petition this Court for a writ of

certiorari to review the order rendered in this case by the

United States District Court for the Northern District of

Indiana, Hammond Division and affirmed by the Seventh

Circuit Court of Appeals.

OPINIONS BELOW

The January 14, 2005 panel opinion for the Seventh

Circuit is reported at 395 F.3d 747 (7° Cir. 2005) and is

reprinted at App. 1a-32a. The March 20, 2002 order of the

United States District Court for the Northern District of

Indiana, Hammond Division is unreported, but is printed at

App. 25a-32a. The April 2, 2002 order denying clarification

and reconsideration is unreported but is printed at App. 23a-

24a.

STATEMENT OF JURISDICTION

The Seventh Circuit issued its opinion on January 14,

2005. This petition for certiorari is timely in that Petitioners

have filed it within 90 days of January 14, 2005. The Court

has jurisdiction pursuant to 28 U.S.C.§1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

Petitioners rely upon 42 U.S.C. §1983 which states in

relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress . . .

Petitioners also rely upon the Fourteenth Amendment of

the Constitution of the United States, Section 1 of which

provides in relevant part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty or property, without due process of

law;...

STATEMENT OF THE CASE

I. Overview

This is an action under 42 U.S.C. §1983 for deprivation

of civil rights arising out of the beating death of pretrial

detainee Christopher Moreland in the St. Joseph County,

Indiana jail.- The Seventh Circuit affirmed a substantial, but

uncollectible, jury verdict against two former St. Joseph

County sheriff’s deputies, Erich Dieter and Michael Sawdon,

but also affirmed on Petitioner’s cross-appeal of the district

court’s order granting summary judgment to Respondent

Joseph Speybroeck, the Sheriff of St. Joseph County, on the

official capacity claim based on policy or custom. Petitioners

ask this Court to grant certiorari to review the summary

judgment dismissal of Sheriff Speybroeck or alternatively to

summarily reverse the summary judgment and remand to the

United States District Court for the Northern District of

Indiana for trial.

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

year old Christopher Moreland was arrested by officers of the

Mishawaka Police Department for driving under the influence

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 who was drunk and upset. He was held for about

two hours at the Mishawaka Police Department and then

transferred to the St. Joseph County Jail. Although obviously

inebriated, Moreland entered the jail under his own power,

and at approximately 5:50 a.m. was placed in the “drunk

tank” along with three other detainees.

Moreland pounded or kicked the drunk tank door calling

for a blanket. He directed a racial slur at a black man,

Donald Coleman, who had a blanket. By the time shift

supervisor Sergeant Paul Moffa responded to the disturbance

and entered the drunk tank with Deputy Holvoet, Moreland

was sitting, passive and non-threatening. When Moreland

again requested a blanket, Moffa reached forward with his

hands on either side of Moreland’s neck, threw Moreland

forcefully to the concrete floor, removed a canister of OC-10

spray from his waist and sprayed Moreland’s face.

As Coleman covered up with the blanket to avoid the

pepper spray, he heard a loud thump “like the sound of a

basketball bouncing off concrete.” Another detainee in the

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

dropping a watermelon.” Both detainees surmised that this

was the sound of Moreland’s head hitting the concrete.

Moffa and Holvoet cuffed Moreland behind his back and

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

Holvoet and another officer, Shawn Albright, accompanied

Moreland to the fourth floor to wash off the pepper spray.

Moffa, who had been hit by pepper spray ricocheting off

Moreland’s face, stayed behind to wash the pepper spray from

himself.

Erich Dieter and Sergeant Moffa were pals, and when

Holvoet and Albright got off the elevator at the fourth floor

with Moreland, Holvoet told Dieter that “this is the guy that

got Moffa sprayed.” Albright took this as a hint to Dieter

that Moreland “needs a little bit of payback.” Albright saw

Dieter immediately lift Moreland into a standing position and

quickly walk him, still cuffed, into the shower where Albright

heard a thump as Dieter ran Moreland into the back wall.

Dieter or another officer turned on the hot water, which

exacerbates 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 control 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 ina seated, upright position. Moreland remained

SEO Lie ate

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 was still strapped in the chair. Officers who arrived

on the fourth floor shortly thereafter noticed the unmistakable

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

restraint chair and forcibly put him back into the shower

again. Some time later they put Moreland back in the

restraint chair and moved him into a nearby “attorney’s

room,” out of view of the other inmates. About 6:30 a.m.

Albright and another deputy, Tracy Derda, returned to the

fourth floor with a spit mask requested by Moffa, who had

been called upstairs by Dieter. Moreland was in the restraint

chair, not moving, still cuffed from behind, slouched back in

the chair with his head cocked to the right and his eyes

Closed.

Connie Spicer, the jail’s medication aide who had no

assessment authority, was also there. Moreland’s face was

still orange-red from dye in the pepper spray. He was

soaking wet, his head was leaning back, eyes closed, he was

moaning and not responsive to questions. Spicer told Dieter

and Moffa that Moreland needed to go to the hospital, but she

said Moffa, Dieter and Sawdon did not want him sent there.

<a ee ene tia alll

Spicer did not know that she could order Moreland be taken

to the hospital.

Moffa denied that he did not want Moreland taken to the

hospital because he was covering up and hoping Moreland

would survive at the jail. Instead, he claimed he wanted the

day shift to take Moreland to the hospital because the shift

was changing, and he did not want to pay overtime. Even

though Deputies Derda and Albright agreed that someone on

the fourth floor “beat his ass,” neither reported the abuse

because the “unwritten code” prohibited them from reporting

fellow officers.

Two day shift officers, Wilson and Johnson, found

Moreland 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 the 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.

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 at the St. Joseph County Jail.

The complaint alleged that Sheriff Speybroeck, in his -

official capacity, as a custom, practice or policy, was

deliberately indifferent to the jail staff's use of excessive force

and to the need to better train employees to respond to

EE Sa ee ENE

detainees’ serious medical needs. Discovery established that,

at the time of Moreland’s death, the jail was in violation of a

federal consent decree requiring Speybroeck to keep the

inmate population at or below 300, or 350 on weekends. At

the time of Moreland’s death, the Jail housed 360 inmates.

The Jail was also short two deputies that day.

Petitioners’ expert George Kirkham stated by affidavit that

the jailers “violated widely accepted standards and practices

regarding supervision and control of jail inmates” by twice

spraying Moreland with pepper spray (once while restrained

in the restraint chair), despite the fact that Moreland at no

time posed a physical threat to any officer or inmate in the

Jail. Kirkham said that, “No reasonable prudent, well-trained

officer would have believed that the degree of force used

against Christopher Moreland was lawful or in any way

justifiable.” Kirkham further opined that “The use of OC 10

spray, the lack of attention to policy regarding the use of OC

10 spray and the custom and practice of using OC 10 spray

for verbal altercations reflect deliberate indifference on the

part of the Sheriff as well as a custom and practice regarding

the inappropriate use.” As to medical treatment, Kirkham

said:

There was a lack of training regarding the appropriate

steps to be taken in a medical emergency. This lack

of training was evidenced by the fact that despite the

awareness that all personnel understood that Mr.

Moreland needed emergency medical attention, no one

understood the steps that needed to be taken to obtain

this treatment. This lack of training indicates a

custom and practice of the County of deliberate

indifference to medical needs.

Petitioners’ other jail procedures expert Ken Katsaris

stated that Jail “administration should have been aware of the

custom and practice of the use of OC that the officers were

using to guide them as to when to use OC spray that differed

from the written policy and established practice.” He also

stated that “There is no credible evidence of any training on

the use of the restraint chair,” even though there was a policy.

As to medical care, Mr. Katsaris said:

The indifference to Moreland’s medical needs, even

after he was discovered to have two separate head

injuries, one occurring and evaluated at approximately

6:45 a.m. and the other discovered at 9:45 a.m. was

due to a lack of policy training as to who has authority

to send a prisoner to the hospital for medical care.

Nurse Gachunja [Spicer] believe she needed to call

and get authority from her supervisor, when in fact by

their own policy any correctional officer could have

called an ambulance and evaluated Moreland if he was

found to be injured.

II. The District Court Opinion

On March 20, 2002, just three business days after

receiving Moreland’s brief in opposition to summary

judgment that provided substantial evidence of Speybroeck’s

official deliberate indifference to serious medical needs, lack

of training and supervision at the jail as supported more than

300 pages of depositions, affidavits and other documentary

evidence, the district court dismissed the Sheriff. The judge

dismissed even though Speybroeck’s brief and exhibits never

addressed the denial of medical care claim pled in the

complaint. The crux of the opinion holding that Speybroeck

was not deliberately indifferent consisted of a Sphinx-like

thirty-four lines that are devoid of any factual analysis or of

any statement of the judge’s reasons for finding no genuine

issue of material fact.

Ill. The Court Of Appeals Opinion

On appeal, Moreland again asserted that from the evidence

presented, a jury could find that Speybroeck had constructive

notice that despite their training, jail deputies frequently

misused the restraint chair and were deliberately indifferent to

detainees’ serious medical needs. Nonetheless, the Seventh

Circuit said that “the evidence is insufficient to raise a jury

question on plaintiffs’ claim against the sheriff.” The panel

stated that the incidents of improper use of OC-10 spray “do

not amount to ‘a widespread practice’ that is ‘permanent and

well-settled’ so as to constitute an unconstitutional custom or

policy about which the sheriff was deliberately indifferent.”

Then, in response to the argument that jail personnel were

inadequately trained to recognize the signs of serious head

injury and otherwise respond to a medical emergency, the

Court said “[t}here is no evidence that the policies, customs,

or practices of the department were deficient” because, citing

its decision in Woodward v. Correctional Medical Services of

Illinois, 368 F.3d 917 (7" Cir 2004), one cannot infer a

custom or practice from a single incident.”

REASON FOR GRANTING THE PETITION

The issue of 42 U.S.C. official liability has little practical

significance in those cases where the governmental unit

indemnifies employees for compensatory damages awards for

constitutional torts they commit in the course of their

employment. See Jones v. City of Chicago, 856 F.2d 985,

995 (7" Cir. 1988). But when, as here, the applicable Indiana

indemnification statutes make the collection of any meaningful

compensatory damages against the individual jailers doubtful,

one major reason to submit the official liability claim is to

find a source to satisfy the jury’s award to Christopher

Moreland’s Estate.

Moreover, the official liability claim against Sheriff

Speybroeck is critical because it raises significant public

issues regarding the enforcement of the statutory will of

Congress. It also facilitates the development of systemic

evidence of deliberate indifference to police brutality. By

discovering the attitudes of police and jail officials toward

important disciplinary issues, the future course of police and

jail practices are positively influenced. This case directly

conflicts with this Court’s well established proposition that

where the risk is clearly very great and the need for better and

different training and supervision is plainly obvious, even a

single violation of federal civil rights is sufficient to trigger

official liability. Harris v. City of Canton, 489 U.S. 378,

390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989); Farmer v.

Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811

(1994); Board of County Comm’rs v. Brown, 520 U.S. 397,

409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). The Court of

Appeals decision in this case loses sight of these principles.

Further, Supreme Court Rule 10 identifies considerations

employed by the Court in deciding whether to exercise its

discretion to grant certiorari. One of these considerations is

whether the Court of Appeals decision “has so far departed

from the accepted and usual course of judicial proceedings, or

sanctioned such a departure by a lower court, as to call for an

exercise of this Court’s supervisory power. That consideration

is present here. The decisions below represent a gross

miscarriage of justice that warrants the Court’s review. Even

if the Court concludes that the issue raised by the Petition is

ence aaa

not certworthy, the Court should summarily reverse and

remand for trial on Sheriff Speybroeck’s official liability.

I. Sheriff Speybroeck Is Subject To Official Liability

Where The Actual Practice Toward Detainees With

Respect To Medical Care And Jail Discipline Was So

Constitutionally Inadequate Under The Fourteenth

Amendment That There Was A Direct Causal Link

Between The Plainly Obvious Need For Better And —

Different Training, The Jailers’ Disregard Of The

Written Policies And Mr. Moreland’s Torture Death.

A. The Applicable Law

To establish a claim against Sheriff Speybroeck in his

official capacity, Petitioners must establish that Moreland’s

rights were violated as a result of a custom or policy of the

Sheriff's Department. Monell v. Dep’t of Social Services , 436

U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). An

unconstitutional custom or policy can take three forms:

(1) an express policy that, when enforced, causes a

constitutional deprivation, see, e.g., Monell, 436 U.S.

at 690; (2) “a widespread 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,’” City of St.

Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct.

915, 99 L.Ed.2d 107 (1988); or (3) an allegation that

the constitutional injury was caused by a person with

“final policymaking authority.” Praprotnik, 485 US.

at 123: Pembaur v. City of Cincinnati, 475 U.S. 469,

106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).

Here, despite the existence of policies, the clear custom

and practice at the jail was not to follow them. Speybroeck

knew that the Jail was overcrowded, that the staffing was

inadequate and that the shortage of staff in the overcrowded

jail created an environment certain to lead to the use of

excessive force. The evidence establishes a shocking failure

to train and monitor deputies’ use of OC-10 to control inmates

and a shocking failure to train deputies and medical staff on

when, how and who had authority to send inmates to the

hospital for medical treatment.

In Harris v. City of Canton, 489 U.S. 378, 1095 S.Ct.

1197, 103 L.Ed.2d 412 (1989), the Supreme Court stated:

“But it may happen in light of the duties assigned to

specific officers or employees the need for more or

different training is so vbvious, and the inadequacy so

likely to result in the violation of constitutional rights,

that the policymakers of the city can reasonably be

said to have been deliberately indifferent to the need.

In that event, the failure to provide proper training

may fairly be said to represent a policy for which the

city is responsible, and for which the city may be held

liable if it actually causes injury.” 489 U.S. at 390.

In Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 |

L.Ed.2d 811 (1994), the Supreme Court, discussing Harris in |

the context of the state of mind requirement of a governmental

entity, explained that the inquiry focuses on liability based on

obviousness or constructive notice. Thus, the inference of

requisite knowledge to establish deliberate indifference can be

drawn from circumstantial evidence. In Board of County

Com’rs of Bryan County v. Brown, 520 U.S. 397, 409, 117

S.Ct. 1382, 137 L.Ed.2d 626 (1997), the Supreme Court held

that evidence of a single violation of federal rights can trigger

eee eee

municipal liability if the violation was a “highly predictable

consequence” of the municipality’s failure to act.

On remand, the Fifth Circuit held that a single decision of

the sheriff not to train a reserve deputy before putting him on

the street to make arrests constituted an actionable policy for

which the county could be liable. Brown v. Bryan County,

219 F.3d 450 (5" Cir. 2000) cert. den. 532 U.S. 1007, 121

S.Ct. 1734, 149 L.Ed.2d 658 (2001). The Court relied in

part on footnote 10 in Harris, where, as the Fifth Circuit put

it, the Supreme Court indicated that because it was a “moral

certainty that police officers are required to arrest fleeing

felons . . . when the city arms its officers to carry out this

task, there is thus an obvious need to train officers in the

constitutional limitations of the use of deadly force. This

need for training is so obvious that the failure to train is

deliberate indifference to constitutional rights.” 219 F.3d at

459.

The Fifth Circuit said the jury in Brown could have found

that what the reserve deputy did to the plaintiff was the

plainly obvious consequence of the sheriff’s failure to train

and supervise him. See also: Allen v. Muskogee, Okla. , 119

F.3d 837, 842 (10" Cir. 1997) [“evidence of a single violation

of federal rights, accompanied by a showing that a

municipality has failed to train its employees to handle

recurring situations presenting an obvious potential for such

a violation, is sufficient to trigger municipal liability.”];

Young v. City of Augusta, Ga. , 59 F.3d 1160, 1171-1173 (11"

Cir. 1995) [based on affidavits, it was possible that the need

for more and better training was obvious and hence city

should not be given summary judgment]; Vineyard v. County

of Murray, Ga., 990 F.2d 1207 (11" Cir. 1993) [sufficient

evidence of inadequate training and supervision, as well as

deliberate indifference including inadequate procedures for

recording and following up on complaints against officers and

lack of police report in plaintiff's arrest]; Rivas v. Freeman,

940 F.2d 1491 (11" Cir. 1991) [inadequate training and

policies concerning correct and accurate identification of

suspects and ensuring that suspects are accounted for while

incarcerated].

This egregious case fits separately within Harris and its

progeny. A jury could find that Speybroeck was deliberately

indifferent in allowing unwritten customs and practices to

flourish, and that he breached his duty to train his jail deputies

to recognize and effectively handle emergency medical

conditions.

B. The Court Of Appeals Affirmance Conflicts With

Harris, Farmer And Brown Because Petitioners

Presented Facts From Which A Jury Could Find

That Speybroeck Had Constructive Notice Of The

Jail’s Unconstitutional Practices, But Was

Nonetheless Deliberately Indifferent To Detainees’

Serious Medical Needs, To The Serious Deficiencies

Between Training And Actual Practice In The Use

Of The Restraint Chair And Pepper Spray, To The

Jailers’ Code Of Silence, And To The Overcrowded

Conditions.

In affirming the summary judgment, the Court of Appeals

ignored the holdings of Harris, Farmer and Brown. This is

best-demonstrated by the Seventh Circuit panel’s strained

effort to distinguish its own recent decision in Woodward v.

Correctional Medical Services of Illinois, 368 F.3d 917 (7"

Cir. 2004). In fact, Woodward correctly applied the Supreme

Court precedents and is virtually “on all fours” with the

instant factual scenario.

a Ei ten en

In Woodward, the Court affirmed the jury’s § 1983 verdict

against Correctional Medical Services [“CMS”], a private

contractor, for its staff's violations of written policies and

procedures such that CMS “tolerated if not encouraged the

custom or practice that encompassed deliberate indifference to

the substantial danger posed” to suicidal inmates. 368 F.3d

920. Plaintiff's expert attributed decedent’s suicide to a

“system failure” resulting from CMS’s practice of ignoring its

own policies and procedures. Although the expert had no

quarrel with the specific procedures, the fact was CMS

systematically ignored them.

Noting that CMS was treated the same as a municipality

for purposes of § 1983, the Seventh Circuit found that there

was enough evidence for the jury to conclude the CMS’s

actual practice, as opposed to its written policy, toward

persons in serious need of medical treatment was so

inadequate that there was a direct causal link between the

deviation from established policy and the suicide. In so

ruling, the Court explicitly rejected defendants claim that “the

plaintiff's failure to introduce evidence of any suicide at the

Lake County jail besides Farver’s dooms plaintiffs efforts to

prove a custom or practice.” 368 F.3d 929. Emphasizing

that CMS does not get “a one free suicide” pass, the Court

reminded that under Bd of Comm’rs of Bryan City v. Brown,

supra, 520 U.S. at 409, evidence of a single violation of

federal rights can trigger municipal liability if the violation

was a “highly predictable consequence” of the municipality’s

failure to act. In sum, deliberate indifference was

demonstrated by CMS’s condoning of its employees not

following policies. /d.

The Seventh Circuit purported to distinguish Woodward

from this case, but the Court inconsistently stated that even

though “a single violation of federal rights can trigger § 1983

under Monell v. New York City Dep’t of Soc. Servs., supra,

if the violation was ‘a highly predictable consequence’ of the

failure to act, here Plaintiffs failed to show that “an

unconstitutional policy, custom or practice existed at the time

the plaintiff's rights were violated.” App 21a. This

unconstitutional custom or practice is exactly what Plaintiffs

here established by setting forth the wealth of evidence

regarding the Jail’s “actual practice” with respect to medical

care and detainee discipline. The Seventh Circuit’s circuitous

reasoning places the decision in this case squarely at odds

with the fundamental principles for establishing municipal

liability articulated in Harris, Farmer and Brown.

Factually, here as to the denial of medical care, Sgt.

Gruler, the first shift commander who arrived at 7 a.m. on

October 27, 1997, admitted to the grand jury that he had no

idea what the medical procedures were: .

“Q. (by Grand Juror) I have a question. As shift

commander, were you responsible for the

entire jail during your shift?

A Under the code, yes.

Q. Then under your supervision, who was

actually responsible for this inmate’s health

that day? Would it be you, the nurse, the

people on the fourth floor?

A. The actual medical attention would have been

the medical staff. They have been told of the

situation undoubtedly because the nurse has

been called prior to my arrival.

So, in essence, it is a medical staff situation.

My officers were there also to help and assist,

but also as security.”

Third shift jail commander, Sgt. Paul Moffa, and Nurse

Spicer, both knew Moreland needed to go to the hospital, but

did absolutely nothing in response to a clear medical

emergency. Both the district court and the Court of Appeals

were provided with a color photograph showing the obvious

wound to Moreland’s left forehead area. Speybroeck’s brief

and exhibits below never addressed the denial of medical care

claim. His affidavit and exhibits never addressed whether the

individual defendants or anyone else at the Jail received any

medical policy training.

Here, as in Woodward, whatever policy Speybroeck

claimed to have had in place was ignored. As Woodward

makes clear, “ignoring a policy is the same as having no

policy in place in the first place.” 368 F.3d 929. Under

Monell and Harris, whether a local government has displayed

a policy of deliberate indifference to the constitutional rights

of its citizens is generally a jury question. The conflict with

prevailing Supreme Court § 1983 municipal liability authority

in this case cannot be reconciled. A jury should have been

permitted to decide whether Sheriff Speybroeck was liable in

his official capacity. :

Jailer Tracy Zenz was also unaware of medical policy

when she testified before the grand jury. Grand jury

witnesses including Deputy Wilson stated he relied upon

Nurse Connie Spicer, an aide licensed under Indiana law to

dispense pills only, to decide if Moreland needed medical

attention. But, Spicer claimed that she did not know that she

could order that Moreland be taken to the hospital. Inmate

trustee, Thomas King, was instructed by Deputy Otis to watch

over Chris Moreland and make sure he keeps breathing, yet

no nurse or deputy ever appeared from 7:00 a.m. to 9:45 a.m.

There was only one written policy for emergency medical

procedure to be utilized within the jail, yet no one understood

Ee Pent gee ene BRO to) A REL ea Le Se Owe. Sy ee eee eas,

aaa Aa

or followed its directives and it is painfully obvious that

Gruler, the person Speybroeck had put in shift command of

the entire jail did not know that he had the duty and authority

to act on medical emergencies.

1. Restraint Chair/OC-10 Pepper Spray/Code of |

Silence

As Supreme Court § 1983 jurisprudence makes clear, the

usual way in which an unconstitutional policy is inferred, in

the absence of direct evidence, is by showing a series of bad

acts and inviting the court to infer from them that the

policymaking level of government was bound to have noticed

what was going on and by failing to do anything must have

encouraged or at least condoned the misconduct of

subordinate officers. Here, beyond the lack of medical care

evidence, there was other evidence that raises an inference of

official deliberate or reckiess indifference from the use of |

pepper spray and the restraint chair for discipline and from

the “code of silence” testimony.

Speybroeck’s affidavit filed with his summary judgment |

response asserted that he delegated authority to subordinate

personnel at the Jail including the Assistant Chief of Police,

the Jail Warden and the Jail Administrator, for purposes of

day-to-day administrative duties because, “I could not be

everywhere and know everything at all times during the

operation of the jail facility or the department as a whole.”

Speybroeck further stated that he met with jail command staff

“on a daily basis to discuss issues involving the operating of

the jail; however, it was impossible for me to read every

report or document generated by the operation of the St.

Joseph County Jail.” This plea of ignorance is tantamount to

admitting that Speybroeck not only turned a blind eye, but in

fact was doing so to insulate himself from liability, i.e. by | /

never looking at the OC-10 reports, Speybroeck would never

know what is happening at the Jail and there could never be

any Official responsibility. Speybroeck’s conduct is the

equivalent of throwing complaints into a wastepaper basket or

telling subordinates to pay no attention to them. See Wilson

v. City of Chicago, 6 F.3d 1233, 1240 (7" Cir. 1993).

A jury could conclude that Speybroeck’s Exhibit H to his

summary judgment brief which is a memo to detail

commanders on the issue of documentation is an admission

that jail deputies were not writing OC-10 reports. The exhibit

corroborates Shawn Albright’s code of silence statements in

his grand jury testimony. Moreover, Speybroeck’s expert

affidavit relating to OC-10 use indicated that Speybroeck must

authorize each use of the pepper spray which would amount

to hundreds of incidents authorized by Speybroeck including

the incident on August 23, 1997 when Dieter and Sawdon

sprayed detainee Daniel Grimm in the face while he was

locked in the restraint chair. The Sheriff knew full and

complete reports were not being provided, yet in Mr.

Grimm’s case some six weeks after the “documentation

memo,” no action was taken per the written policy on Use of

Force.

Additional evidence also included Moffa spraying detainee

Casimer Wawrzynniak on June 18, 1997 when he refused to

stop kicking the door of the drunk tank. Similarly, on

November 16, 1996, Dieter sprayed Robert Coaron in the

face while he was locked in the restraint chair. A jury could

connect these incidents into a pattern of abusive use of OC-10

to which Sheriff Speybroeck turned a blind eye. Further,

despite the promulgation of orders on the appropriate use of

OC-10 spray, from the time Speybroeck took office on

January 1, 1990 through Christopher Moreland’s death, there

were 217 OC-10 spray incidents, yet contrary to the

procedures, there are no instances where the spraying was

videotaped, and there were no instances where photos were

taken.

This evidence of ongoing violations of jail policies

buttresses the claim that Speybroeck had actual or constructive

notice such that he may be constitutionally culpable for the

wide departure of actual Jail practice from written policy.

The constitutional factfinder should have been allowed to

consider this evidence that Speybroeck failed to adequately

train his employers. A jury could find deliberate indifference

in Speybroeck’s condoning of employees not following

policies. As this Court clearly recognized in Farmer v.

Brennan, supra 511 U.S. at 841-843 and n.8, if the risk is

obviously very great, the jury must be permitted (though it is

not required) to draw an inference that despite the official’s

denials and absence of direct evidence of his state of mind, he

knew of the risk.

II. If The Issue Raised Is Not Certworthy, The Court

Should Nonetheless, In The Exercise Of Its Supervisory

Power, Reverse And Remand For Trial Because The

Decisions Below So Far Departed From The Accepted

And Usual Course Of Judicial Proceedings That They

Amount To A Miscarriage Of Justice.

The materials submitted with the summary judgment

response provided substantial evidence of Speybroeck’s

official deliberate indifference to serious medical needs, lack

of training, supervision and existence of a defacto policy

directly contrary to written policy. Summary judgment was

granted on the medical needs claim even though Speybroeck

never addressed it. The district court’s opinion granting

summary judgment was a “boilerplate recitation of the Rule

56 standard but with no discussion of the evidence.”

Members v. Paige, 140 F.3d 699, 701 (7 Cir. 1998). The

district judge’s reasons are simply not apparent from the

opinion. In Pasquino v. Prather, 13 F.3d 1049, 1051 (7"

Cir. 1994), the Court in the context of Circuit Rule 50

vacated and remanded a § 1983 qualified immunity denial for

a more plenary explanation because the opinion “should leave

no doubt that reasons and explanations must be given by a

district judge as to what facts and law have led him to reach

the ruling at bar.” The Sphinx-like district court opinion

likewise failed that test.

The district court’s unreviewable opinion resulted in the

perpetuation of this error at the Court of Appeals. The Court

failed to apprehend how a jail where the staff did not

understand or refused to follow the appropriate steps to be

taken in a medical emergency, routinely misused OC-10

spray, misused the restraint chair, failed to file OC-10

incident reports and engaged in a code of silence pattern of

inaction could establish an unconstitutional policy, custom, or

practice on the part of the official policymaker. The decisions

below dismissing Speybroeck represent a gross miscarriage of

justice that warrants at least a summary reversal.

At the summary judgment hearing and at the Court of

Appeals, Petitioners presented specific facts establishing a

policy or practice of official acquiescence in the constitutional

torts committed at the St. Joseph County Jail from which a

jury could conclude that Sheriff Speybroeck engaged in a

custom or policy of failing to train or supervise jail personnel.

To properly effectuate the Congressional purpose of 42

U.S.C. § 1983 it is essential that there be a public trial

examining official liability for civil rights violations in

egregious cases like the October 25, 1997 torture death of

Christopher Moreland in the St. Joseph County, Indiana jail.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted. Alternatively, the Court should

summarily reverse the summary judgment and remand to the

United States District Court for the Northern District of

Indiana for trial.

Respectfully Submitted,

Geoffrey Nels Fieger

Counsel of Record

Victor S. Valenti

Fieger, Fieger, Kenney & Johnson, P.C.

19390 West Ten Mile Road

Southfield, MI 48075-2463

(248) 355-5555

(248) 355-5148 Fax

Counsel for Petitioners

act ite rusia Ais

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 03-3734 & 03-3735

[Filed January 14, 2005]

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,

Vv.

ERICH DIETER and MICHAEL SAWDON,

Defendants-Appellants,

and

JOSEPH SPEYBROECK, in his individual

and official capacities, Sheriff of

St. Joseph County,

Defendant, Cross-Appellee.

Nem eee eee ee ee”

‘

Appeals from the United States District Court

for the Northern District of Indiana, Hammond Division

No. 99 C 607

Allen Sharp, Judge

Before ROVNER, WOOD and SYKES, Circuit Judges.

OPINION

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. Defendants 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 compensatory 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 damages 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 judgment 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 influence

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. Although 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.

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 spray’ 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 basketball 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 Moreland’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

' 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.

ie lasses la LA ia ivPoL nar AeA ant Rha Monte A ls 68 Br 8 I> 4 8

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 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 exacerbates 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 control

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 was still strapped

in the chair. Officers who arrived on the fourth floor shortly

thereafter reported noticing the unmistakable 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

restraint 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 “attorney’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

unresponsive. 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

“y

“s

was ending and transferring Moreland to the hospital 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

Moreland 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.

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

judgment 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 interviews

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 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

applies 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 decisions regarding jury guidance and evidentiary

matters, the appellate court must give special deference to the

rulings of the trial court.” Jd. 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

investigators 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 conversation

with defendant provided context for the recorded conversation

and was not hearsay). The defendants argue instead that the

interrogators’ questions were at times inflammatory 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,

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 interview

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

depressed about what might happen to him. Richmond

appears 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 defensive throughout. When Dieter is left

alone in the interview 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, 93 L. Ed. 2d 115 (1986). In weighing the probative

value of the challenged evidence against the danger of unfair

prejudice under Rule 403, the district court is engaged in “a

comparison of intangibles” and is thus “afforded a special

degree of deference: ‘only 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.

10a

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

interviews 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 admission

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 ‘negative 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 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.

eed ee ak lan thes Waele

lla

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

admission 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.

579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (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

dissatisfaction 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:

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

He has to believe a certain set of witnesses and

12a

testimony--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 excused 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

assessing 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, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). Rather, they

Se eS ee

13a

challenge the size of the awards as constitutionally excessive

under BMW of North America, Inc. v. Gore, 517 U.S. 559,

116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996); Cooper

Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S.

424, 121 S. Ct. 1678, 149 L. Ed. 2d 674 (2001); and State

Farm Mutual Automobile Insurance Co. v. Campbell, 538

U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003).

In Gore the Supreme Court “instructed courts reviewing

punitive damages to consider three guideposts: (1) the degree

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 comparable

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 decision maker’s caprice.’” Jd. (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. Jd. We presume 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

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damages, is so reprehensible as to warrant imposition of

further sanctions to achieve punishment or deterrence.” Jd.

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.

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 repeatedly

before the defendants ultimately ceased abusing him. In the

end, the defendants placed Moreland in the attorney’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

reprehensibility 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.

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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 physical

violence, disregard of obvious medical needs, and subsequent

deceit.

The ratio between the compensatory and punitive damages

in this case does not test the limits of constitutionality,

although we acknowledge that both the compensatory and

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. Ina 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

function 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

identified a single appellate case questioning the

constitutionality 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,

pointing out that the amount of the punitive damages in those

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

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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.

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

reprehensibility 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

sufficient evidence to create a jury question as to

Speybroeck’s § 1983 liability. We review de novo the grant

of summary judgment, construing the record and all

reasonable inferences drawn from it in the light most

17a

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. FJJED. 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 previously

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, 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.” /d.

This requires the plaintiffs to show that “deliberate action

attributable to [the sheriff] directly caused the deprivation of

[Morelend’s] civil rights.” Jd. (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. /d. That a different or better policy might

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

was being deliberately indifferent.” Jd.

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

18a

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 policy making 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

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 construed 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)

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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 incidents). 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

personnel in 1997 regarding the filing of incident reports

constitutes an admission that OC-10 reports were not being

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

The meme specifies when officers must file incident reports

as a general matter. The jail policy on pepper spray instructs

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 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

incidents 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

20a

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 -

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

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

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

“permanent and well settled” so as to constitute an

unconstitutional 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

deliberate 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

> 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).

2la

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

inadequately 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, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (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 showing that an unconstitutional

policy, custom, or practice existed at the time the plaintiff's

rights were violated; it says only that the plaintiff need not

show that the policy, practice, 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

discretion under Rule 403 by admitting the videotaped

interviews of the defendants and excluding evidence that the

22a

defendants were acquitted of criminal charges; also, the

court’s limiting instruction regarding this evidence was not

inappropriate in any way. The defendants’ Daubert challenge

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 infavor of

Speybroeck.

AFFIRMED

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

No. 3:99cv0607

[Filed April 2, 2002]

ESTATE OF CHRISTOPHER A.

MORELAND, by GARY R. MORELAND

and LINDA TUTTLE,

Co-Personal Representatives,

GARY R. MORELAND, LINDA TUTTLE,

in their official capacity,

GARY R. MORELAND, LINDA TUTTLE,

in their individual capacity,

GARRETT MORELAND, Decedent’s

Brother, and EVIE MORELAND,

Decedent’s Sister,

Plaintiffs

PAUL MOFFA, ERICH DIETER,

MICHAEL SAWDON, ST. JOSEPH

COUNTY, INDIANA, a public entity,

ST. JOSEPH COUNTY POLICE

DEPARTMENT, OMEGA HEALTH

GROUP INC. dba Memorial Home Care Inc.

we eee ae eae ee ae ae (ae we we ww OS eS

24a

(“Memorial”), LARRY BROWN, R.N.,

and CONNIE GACHUNJA, QMA,

Defendants

ORDER

This Court heard extensive argument in open court in this

case on March 18, 2002, and engaged in extensive dialogue

with counsel. As a follow up, the plaintiffs have filed an

extensive motion on March 28, 2002, attaching a transcript of

that proceeding, which was, at the time of the ruling,

complained of keenly in this Court’s memory. Also, the

pleadings are attached and they are well known, as certainly

the decision of the Supreme Court in Canton v. Harris, 489

U.S. 378 (1989). |

It is not the intent of this Court to elongate the dialogue

with counsel, and no personal or professional offense is

intended. This case has been on file since October 21, 1999,

and has been through pleadings and discovery stage and, at

least as to the Office of the Sheriff, summary judgment stage.

This Court is not disposed to modify the decision entered on

March 20, 2002, and that decision stands without

modification. Counsel for plaintiffs and the remaining

defendants are expected to be ready to go forward with trial

as now scheduled. Specifically, the plaintiffs’ motion for

clarification and reconsideration filed March 28, 2002, is now

DENIED. IT IS SO ORDERED.

DATED: April 2, 2002

/s/

ALLEN SHARP, JUDGE

UNITED STATES DISTRICT COURT

25a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

No. 3:99cv0607

[Filed March 20, 2002]

ESTATE OF CHRISTOPHER A.

MORELAND, Deceased, by GARY R.

MORELAND and LINDA TUTTLE,

Co-Personal Representatives,

GARY R. MORELAND, LINDA TUTTLE,

in their official capacity,

GARY R. MORELAND, and LINDA

TUTTLE, in their individual capacity,

GARRETT MORELAND, Decedent’s

Brother, and EVIE MORELAND,

Decedent’s Sister,

Plaintiffs

JOSEPH E. SPEYBROECK,

PAUL MOFFA, ERICH DIETER,

MICHAEL SAWDON, OMEGA HEALTH

GROUP INC. dba Memorial Home Care Inc.

eer Ne eee eee ae ae ae ia ae iw aS a aS DS ™

. —

ae ata aoe na at UL aa A

26a

(“Memorial”), LARRY BROWN, R.N.,

and CONNIE GACHUNJA, QMA,

Defendants

a a a

MEMORANDUM AND ORDER

This case was filed on October 21, 1999 in the South

Bend division of this Court, purporting to assert claims under

42 U.S.C. § 1983, and to invoke this Court’s federal question

jurisdiction under 28 U.S.C. § 1331 and § 1343(3). A very

significant and helpful proceeding was had with counsel

present in South Bend, Indiana on the afternoon of March 18,

2002, and a very considerable clarification took place at that

some references in the record, it was conceded and admitted

that Joseph E. Speybroeck is a defendant in this case in his

official capacity as the Sheriff of St. Joseph County, Indiana

at the relevant time, and in his individual capacity. It was also

conceded that the relevant state law claims which may be

referred to in the original complaint are now the subject of a

State court proceeding in St. Joseph County, Indiana, and are

not claimed to be before this Court. What is now claimed to

be before this Court are issues of liability and damages

including punitive damages related to claims under § 1983.

Joseph E. Speybroeck, both in his official and individual

capacities, has filed a motion for summary judgment under

Rule 56, Federal Rules of Civil Procedure (Fed.R.Civ.P.),

and the principal focus of the proceeding on March 18, 2002

was that motion.

Summary judgment is proper if the pleadings, depositions,

answers to interrogatories and admissions on file, together

with any affidavits, show that there exists no genuine issue as

Scitech

re ee

27a

to any material fact and that the moving party is entitled to

judgment as a matter of law. FED.R.CiIv.P. 56(c); Celotex

Corp v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242 (1986); Bragg v. Navistar Int’l

Trans. Corp., 164 F.3d 373 (7" Cir. 1998). Celotex

addressed the initial burdens of the parties under Rule 56, and

Anderson addressed the standards under which the record is

to be analyzed within the structure of Rule 56.

The initial burden is on the moving party to demonstrate,

“with or without supporting affidavits,” the absence of a

genuine issue of material fact and that judgment as a matter of

law should be granted in the moving party’s favor. Celotex,

477 U.S. at 324 (quoting Fed.R.Civ.P. 56); Larimer v.

Dayton Hudson Corp., 137 F.3d 497 (7th Cir. 1998). A

question of material fact is a question which will be outcome

determinative of an issue in the case. The Supreme Court has

instructed that the facts material in a specific case shall be

determined by the substantive law controlling the given case

or issue. Anderson, 477 U.S. at 248. Once the moving party

has met the initial burden, the opposing party must “go

beyond the pleadings” and “designate ‘specific facts shows

that there is a genuine [material] issue for trial.’” Jd. The

nonmoving party cannot rest on its pleadings, Weicherding v.

Riegel, 160 F.3d 1139 (7th Cir. 1998); Waldridge v.

American Hoechst Corp., 24 F.3d 918 (7th Cir. 1994); nor

may that party rely upon conclusory allegations in affidavits.

Smith v. Shawnee Library Sys., 60 F.3d 317, 320 (7th Cir.

1995).

During its summary judgment analysis, the court must

construe the facts and draw all reasonable inferences in the

light most favorable to the nonmoving party. Bombard v. Fort

Wayne Newspapers, Inc., 92 F.3d 560 (7th Cir. 1996).

Furthermore, it is required to analyze summary judgment

28a

motions under the standard of proof relevant to the case or

issue. Anderson, 477 U.S. at 252-55. Applying the above

standard, this Court addresses defendants’ motion.

It needs to be emphasized here as it was in that proceeding

that none of the other remaining defendants have joined in this

motion for summary judgment. So the focus here must be and

is the possible liability status of Joseph E. Speybroeck in this

case.

The first question with regard to former Sheriff

$peybroeck is whether he is entitled to immunity under the

Eleventh Amendment of the Constitution of the United States

as a state official. As a textual matter, it was necessary to

examine Article 6, Section 2 of the Constitution of Indiana as

it was amended most recently in 1984. A facial examination

of that provision of the Constitution fails to establish the

Office of Sheriff of the various counties of the State of

Indiana as a state official for purposes of the Eleventh

Amendment. Comparisons to the Offices of Prosecuting

Attorney are not particularly helpful in this regard. Article 7

of the Constitution of Indiana is the judicial article and

Section 16 of the judicial article creates the Office of the

Prosecuting Attorney, which, along with the circuit judges are

Clearly state officials under the Indiana Constitution and for

purposes of the Eleventh Amendment. Thus far in this

analysis, one cannot justify the conclusion that the elected

Sheriff in St. Joseph County, Indiana on October 25, 1997

was a State official. This Court has given close attention to

McMillian v. Monroe County, Alabama, 520 U.S. 781

(1997), and has made a close comparison with the provisions

in the State Constitution of Alabama, as well as in the

aforesaid provisions of the Constitution of Indiana, and there

are significant differences. Thus, McMillian is not authority

29a

here to hold that the Sheriff of St. Joseph County, Indiana in

1997 was a state official.

Recent decisions by the Court of Appeals of the Seventh

Circuit dealing with the Sheriff in Illinois is worth at least a

passing reference. Two cases from that circuit address part of

the problem. See DeGenova v. Sheriff of DuPage County, 209

F.3d 973 (7th Cir. 2000), and Franklin v. Zaruba, 150 F.3d

682 (7th Cir. 1998). Obviously, both of these cases represent

a judicial spin on McMillian. Neither would justify a finding

here that the Sheriff of St. Joseph County, Indiana in 1997

was a State official for purposes of the Eleventh Amendment.

Thus, any decision here with referenee to the status of Mr.

Speybroeck in this case cannot be bottomed on Eleventh

Amendment. immunity.

In the briefs and in oral argument, some effort was spent

by Speybroeck to find a way to tag him under Harlow v.

Fitzgerald, 457 U.S. 800 (1982). That concept is not available

here as a basis of dismissing Speybroeck from this case, and

is not here invoked.

These two preliminary decisions leave two more difficult

ones. One under Monell v. Dept. of Social Services, 436 U.S.

658 (1978), and as to Speybroeck, the issue of deliberate

indifference under Farmer v. Brennan, 511 U.S. 825 (1994),

Wilson v. Seiter, 501 U.S. 294 (1991), and Estelle v. Gamble,

429 U.S. 97 (1976). Joseph E. Speybroeck was not a personal

participant in any of the relevant events that involved

Christopher A. Moreland on or about October 25, 1997 at the

St. Joseph County Jail in South Bend, Indiana. Both before

and since the Supreme Court’s decision in 1978 in Monell, it

is clear that the concept of respondeat superior is not available

in the context of this case. See, for example, the earlier case

of Adams v. Pate, 445 F.2d 105 (7th Cir. 1971), and a

30a

plethora of later cases, including Rascon v. Hardiman, 803

F.2d 269 (7th Cir. 1986).

Remembering that Speybroeck is the only defendant

prosecuting a motion for summary judgment here, and

remembering that he was not personally present or personally

involved in any of the incidents involving this decedent, one

has to stretch the concept of deliberate indifference a great

deal to hold him here under it. See McGill v. Duckworth, 944

F.2d 344 (7th Cir. 1991), cert. denied, 503 U.S. 907 (1992).

See also DelRaine v. Williford, 32 F.3d 1024 (7th Cir. 1994).

Much more factually pointed are Boucher v. Brown County,

272 F.3d 484 (7th Cir. 2001), and especially the opinion of

Judge Posner in Proffitt v. Ridgeway, 279 F.3d 503 (7th Cir.

2002). The concurring opinion of Judge Ripple at 279 F.3d

508 is not at odds with the reasoning here. Egebergh v.

Nicholson, 272 F.3d 925 (7th Cir. 2001) is not a basis to keep

Speybroeck in this case, but itmay have relevance in the trial

of the claims as to the other defendants.

It has been clearly established under § 1983 that

negligence will not suffice as a basis for liability in the

context of this case. See Davidson v. Cannon, 474 U.S. 344

(1986), and Daniels v. Williams, 474 U.S. 327 (1986). In the

absence of direct personal participation, there is another legal

peg here invoked and that is the failure to train under Canton

v. Harris, 489 U.S. 378 (1989). It needs to be remembered

that the standard under Canton is also deliberate indifference.

See also Pacelli v. DeVito, 972 F.2d 871 (7th Cir. 1992),

Salazar v. Chicago, 940 F.2d 233 (7th Cir. 1991), Holmes v.

Sheahan, 930 F.2d 1196 (7th Cir. 1991), cert. denied, 502

U.S. 960 (1992), Maul v. Constan, 928 F.2d 784 (7th Cir.

1991), and Graham v. Sauk Prairie Police Comm., 915 F.2d

1085 (7th Cir. 1990). The proof against Speybroeck fails

these tests.

3la

Try as they will, the plaintiffs in this case simply cannot

make a jury issue with reference to the deliberate indifference

of Speybroeck in this case, and while the Eleventh

Amendment is not a basis for his being released, the lack of

an appropriate deliberate indifferent issue is. This is true even

if the case could survive scrutiny under Monell, which this

Court believes that it cannot. So, at the end of the day, the

case will proceed, if at all, against the remaining deputy

sheriffs and health care providers.

In accord with the discussions held in open court on

March 18, 2002, it is important for the remaining parties and

their counsel to understand the general and particular way in

which the trial of this case before a jury of eight persons will

be conducted. Since there are no state law issues, the case

will proceed as a trial on the basis of deliberate indifference

against the remaining defendants sans Speybroeck. The only

issue that will be presented to the jury in the first stage of that

trial will be that of liability under Section 1983 as to the

remaining defendants. That issue will be tried, argued and

instructed upon and hopefully decided by the jury. In the

event that the plaintiffs prevail at that stage of the trial, the

second stage will involve the determination of damages after

evidence on that subject and appropriate instructions and

argument. It will be submitted to the same jury.

It is most respectfully requested that in addition to what

must be now intensive trial preparation, that lead counsel for

both the plaintiffs and remaining defendants should again

confer in depth with regard to the possible settlement of this

case, and the services of an experienced and able magistrate

judge will be available.

IT IS SO ORDERED.

32a

DATED: March 20, 2002

/s/

ALLEN SHARP, JUDGE

UNITED STATES DISTRICT COURT

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