Bennett v. PippinBennett v. Pippin
- Reporters:
- Before:
- Reavley, Patrick E. Higginbotham, Barksdale
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this case, a Texas sheriff and a county appeal a judgment awarding damages to a murder suspect that the sheriff raped. We affirm the award
I
We describe the pre-trial proceeding in some detail, given the unusual procedural posture that this case has reached. In a complaint filed in June of 1992, Ellen Bennett sued Presley Pippin in the Western District of Texas under
Three weeks later, attorney William W. Krueger, III, of the law firm of Ludlum & Ludlum, filed a motion to dismiss under
Shortly after discovery began with problems of insurance coverage in the background, Krueger and Ludlum & Ludlum withdrew as the attorney for the Sheriff and the Sheriff‘s personal attorney appeared for him. After various continuances and further discovery, Judge Belew granted leave to James Ludlum, also of Ludlum & Ludlum, to replace the Sheriff‘s personal counsel. Ludlum then moved to reopen discovery on behalf of “Presley Pippin, Jr., Individually and as Sheriff of Archer County, Texas, in his Official Capacity.” As we will explain, however, Archer County was not at this time a party and no one thought that they were.
Five days before trial was to have begun, the court entered an order, agreed to by the parties, that the case proceed to arbitration under
On the morning of February 10, Judge Kendall began the proceedings by announcing his inclination to reconsider the 12(b)(6) dismissal of Archer County. Judge Kendall stated that Judge Belew‘s dismissal had been based upon this circuit‘s heightened pleading standard for
Judge Kendall responded by expressing a desire to begin testimony that morning. While agreeing that a conflict of interest was possible in this type of lawsuit, the court saw no possibility that such a conflict would arise because the defense‘s pretrial filings had announced an intention to defend on the grounds that the sexual intercourse between Bennett and Pippin had occurred outside the scope of Pippin‘s duties as Sheriff. Finally, Judge Kendall concluded that Ludlum did represent both the Sheriff and Archer County, highlighting that Ludlum & Ludlum had initially filed the 12(b)(6) motion on behalf of the Sheriff individually and in his official capacity.1
After this exchange, Judge Kendall made the following rulings from the bench. First, he stated that the plaintiff would begin her case that day. Second, he would grant a 30 minute recess to allow Ludlum to notify Archer County officials of the reinstatement of the lawsuit against the Sheriff in his official capacity. Third, the judge stated that, because this was a bench trial, he would
The district court then granted a recess. When Ludlum returned from the recess, the trial commenced.2 Testimony from various witness established the following undisputed facts. Ms. Bennett shot her husband in the chest after a violent domestic dispute in which Mr. Bennett had ripped the phone out of the wall, assaulted Ms. Bennett, then pointed a gun at her. At the time, the Bennetts were renting a house in Archer County. Ms. Bennett drove her pickup truck to a nearby convenience store located across the county line in Wichita Falls and called the Wichita Falls authorities. The Wichita Falls authorities arrested and handcuffed Ms. Bennett at the store, impounded the pickup truck, and notified the Archer County Sheriff‘s Office of the incident. Sheriff Pippin radioed Wichita Falls and instructed them to hold Ms. Bennett until he arrived to take custody of her.
After retrieving Ms. Bennett from Wichita Falls, the Sheriff drove her back to the house. By this time, Archer County Deputy Sheriffs had arrived to secure the scene and to take Mr. Bennett to the hospital. After receiving a tour of the site from a Deputy, the Sheriff left to attend to a brush fire. A Deputy Sheriff drove Ms. Bennett to the Archer County Sheriff‘s Office, where she was fingerprinted, photographed, and given Miranda warnings. After Ms. Bennett described Mr. Bennett‘s assault and the subsequent shooting to the Deputy, she signed a statement. The Deputy asked Ms. Bennett not to leave the County without the authorization of the Sheriff‘s Office and drove her home. Ms. Bennett then left briefly in her husband‘s truck to find a phone to call a friend in Austin for consolation.
The Sheriff, in the meantime, attended to the brush fire, then traveled to the hospital and learned that Mr. Bennett would not be released from the hospital that evening. He returned to the Bennett household, found no one there, and sat on the porch until Ms. Bennett returned. The Sheriff testified that he had at least two reasons for returning to the house. The first was that he wanted to assuage Ms. Bennett‘s previously expressed concern that Mr. Bennett‘s friends would attack her as a result of the shooting. The second was that he was mildly aroused by the manner in which Ms. Bennett had touched him as he lit a cigarette for her during the drive from Wichita Falls to her house. At the time of his return to the house, the Sheriff was wearing his badge and gun.
At this point, the testimony of Ms. Bennett and the Sheriff diverged. According to Ms. Bennett, when she returned to the house, the two sat on the porch drinking coffee while the Sheriff questioned her about the shooting incident. After a while, the Sheriff touched her on the leg in a way that made her feel uncomfortable. In response, Ms. Bennett stated that she was tired and that she wished to answer any more questions the next day. Ms. Bennett saw the Sheriff off the porch, then went upstairs to bed and fell asleep. She awoke to find the Sheriff standing naked over her and attempting to remove her clothes. When she protested, the Sheriff responded that he was the Sheriff and could therefore do what he pleased. When she persisted in objecting, the Sheriff stated, “What are you complaining about? I could have thrown you in jail and sorted it out later.” The Sheriff then raped Ms. Bennett. Afterwards, the Sheriff ordered her to take a shower and not to tell anyone of the incident.
According to the Sheriff, Ms. Bennett returned shortly after his arrival at the house, and the two sat on the porch discussing their backgrounds and the difficulties in both of their marriages. The shooting that had occurred a few hours earlier did not happen to come up in conversation. After a while, the Sheriff helped Ms. Bennett remove her boots. The Sheriff then said, “Why don‘t we go get on the bed?” After Ms. Bennett put
Two days later, after receiving the Sheriff‘s permission to retrieve her pickup truck and to move her residence, Ms. Bennett left Archer County for Austin. She was subsequently no-billed by an Archer County grand jury. She reported the rape to the Austin authorities, and the Texas Rangers arrested the Sheriff. An Archer County grand jury, nine members of which the Sheriff knew by name, subsequently no-billed the Sheriff.
At the close of the evidence, the district court ruled for the plaintiff from the bench and later filed written findings of fact and conclusions of law. The court found that the Sheriff raped Ms. Bennett in the manner described in her testimony, and that in doing so the Sheriff deprived Ms. Bennett of her substantive due process right to bodily integrity. It held that the rape was under color of state law and that, because the Sheriff was the final policy maker of Archer County under Pembaur v. City of Cincinnati, 475 U.S. 469, 481-82, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986), the County was liable for the rape. The court also found that the Sheriff‘s actions violated state tort law. The court then awarded one million dollars in compensatory damages and an equal amount in punitive damages and held the County jointly and severally liable for the compensatory damages. The court also awarded attorneys’ fees and prejudgment interest.
After the court issued its findings of fact and conclusions of law, Archer County moved to intervene and for a new trial. The Sheriff individually and in his official capacity also moved for a new trial. The court denied these motions.
In this appeal, Archer County argues that the district court‘s reinstatement of the official capacity suit on the morning of trial violated its due process rights to notice, opportunity to be heard, and legal representation. The County also argues that the reinstatement violated the County‘s right to a trial by jury, and that the district court abused its discretion in denying its motion to intervene. Next, the County contends that the district court erred in holding it liable under state tort law. Further, the County claims that the district court erroneously held that the Sheriff‘s actions were under color of state law and constituted the policy or custom of Archer County. Finally, the County contends that the original 12(b)(6) dismissal of the complaint as to the Sheriff in his official capacity was correct, and asks us to reverse the reinstatement order and render judgment in its favor.
In a separate brief, the Sheriff repeats many of the arguments that the County makes and essentially argues that the County has been treated unfairly. It also argues that the district court‘s finding that the Ms. Bennett did not consent to sex was clearly erroneous, that the district court erred in certain evidentiary rulings, that the Judge was biased, and that the award of attorneys’ fees was too high.
II
We pause to dispel one source of confusion that persists in this litigation. Under Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991), Ms. Bennett‘s suit against the Sheriff in his official capacity is a suit against Archer County directly in everything but name. When a plaintiff sues a county or municipal official in her official capacity, the county or municipality is liable for the resulting judgment and, accordingly, may control the litigation on behalf of the officer in her official capacity. A suit against the Sheriff in his official capacity is a suit against the County. When Ms. Bennett sued the Sheriff in his individual and official capacity, she sued two defendants: the Sheriff and the County. As their briefs illustrate, the defendants have apparently considered this litigation as involving three parties: (1) the Sheriff individually; (2) the Sheriff in his official capacity; and (3) the County. The defendants have apparently equated the interests of the Sheriff individually with the interests of the Sheriff officially. Under Hafer, such is not the case. We will refer to Ms. Bennett‘s suit against the Sheriff in his
It follows that Archer County‘s contention that the district court erred in denying its post-trial motion to intervene is without merit. When the district court reinstated the suit against the Sheriff in his official capacity, the County again became a party to this lawsuit. At the risk of stating the obvious, one already a party to a lawsuit may not, at least it certainly need not, intervene in the same lawsuit. We affirm the district court‘s denial of the County‘s motion to intervene.
III
The County contends that we should reverse and render judgment in its favor because the complaint failed to state sufficient facts to support a cause of action and because Ms. Bennett failed to prove at trial that the Sheriff‘s rape constituted the County‘s policy or custom under Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38, 56 L.Ed.2d 611 (1978). We find neither of the County‘s arguments persuasive.3
A
The County argues that the complaint failed to allege facts sufficient to support a claim against it. We refuse to reach this issue.
The reinstatement order was functionally identical to a denial of a motion to dismiss, and this effective refusal to grant a 12(b)(6) dismissal was followed by a final judgment after a trial on the merits. After a trial on the merits, the sufficiency of the allegations in the complaint is irrelevant. A district court must deny a motion to dismiss under Rule 12(b)(6) unless the complaint fails to state any set of facts upon which relief could be granted. Conley v. Gibson, 355 U.S. 41, 45-47, 78 S.Ct. 99, 101-103, 2 L.Ed.2d 80 (1957).
At least seven circuits hold that “denial of summary judgment is not properly reviewable on an appeal from a final judgment entered after trial.” Whalen v. Unit Rig, Inc., 974 F.2d 1248, 1250 (10th Cir.1992) (collecting cases), cert. denied, 507 U.S. 973, 113 S.Ct. 1417, 122 L.Ed.2d 787 (1993); accord, Chesapeake Paper Products Co. v. Stone & Webster Engineering Corp., 51 F.3d 1229, 1234-37 (4th Cir.1995); Watson v. Amedco Steel, Inc., 29 F.3d 274, 277 (7th Cir.1994). The arguments for not considering an appeal from a denial of a
B
Citing Monell v. Department of Social Services, 436 U.S. 658, 688-91, 98 S.Ct. 2018, 2034-36, 56 L.Ed.2d 611 (1978), the County argues that the district court erroneously held it jointly and severally liable for Sheriff Pippin‘s rape because the Sheriff‘s actions did not constitute a policy of the County.
Our cases make clear that under Monell, “a single decision may create municipal liability if that decision were made by a final policymaker responsible for that activity.” Brown v. Bryan County, Oklahoma, 67 F.3d 1174, 1183 (5th Cir.1995) (emphasis in original); see also City of St. Louis v. Praprotnik, 485 U.S. 112, 124-25, 108 S.Ct. 915, 924-25, 99 L.Ed.2d 107 (1988); Turner v. Upton County, Texas, 915 F.2d 133, 136-37 (5th Cir.1990), cert. denied, 498 U.S. 1069, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). When a final policy maker makes the relevant decision, and when that decision is within the sphere of the policy maker‘s final authority, “the existence of a well-established, officially-adopted policy will not insulate the municipality from liability.” Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 754 (5th Cir.1993). State law determines whether a particular individual is a county or municipality final decision maker with respect to a certain sphere of activity. Praprotnik, 485 U.S. at 124, 108 S.Ct. at 924-25; Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 2723-24, 105 L.Ed.2d 598 (1989); Doe v. Rains County Independent School District, 66 F.3d 1402, 1407 (5th Cir.1995).
In this circuit, “[i]t has long been recognized that, in Texas, the county sheriff is the county‘s final policymaker in the area of law enforcement, not by virtue of the delegation by the county‘s governing body but, rather, by virtue of the office to which the sheriff has been elected.” Turner, 915 F.2d at 136 (citing and quoting from Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980)).5 The Turner court held a county liable for the actions of its sheriff in planting evidence and conspiring to force the plaintiff to plead guilty of the resulting charges, concluding that “[w]hen the official representing the ultimate repository of law enforcement power in the county makes a deliberate decision to abuse that power to the detriment of its citizens, county liability under
In this case, the Sheriff‘s actions were those of the County because his relationship with Bennett grew out of the attempted murder investigation and because, as we will explain, he used his authority over the investigation to coerce sex with her. The fact that rape is not a legitimate law enforcement goal does not prevent the Sheriff‘s act from falling within his law enforcement function. See Turner, 915 F.2d at 137-38 (holding a Texas county sheriff liable for planting evidence, presumably not a legitimate law enforcement goal).
IV
Certain of the County‘s other arguments are more persuasive. In particular, the County was denied its right to a jury trial, and we therefore reverse the judgment against it and remand for a new trial.
Under
The complaint included a demand for a jury trial. Under
Ms. Bennett contends that the County waived its right to a jury trial first, by agreeing to an arbitration conditioned upon a waiver of a jury trial, and second, by proceeding with the bench trial. Regarding the second alleged waiver, Ms. Bennett points out that the County Judge and Prosecutor were spectators to the bench trial knowing that the district court thought that the County had consented to a bench trial with Ludlum & Ludlum as the County‘s attorney. Ms. Bennett relies on Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th Cir.1987), in which we held that a party‘s participation in a bench trial without objection waived its previously established right to a jury trial.
We do not agree. In Casperone, the waiving party participated in the trial; in this case, the district court reinstated the County and proceeded to a bench trial one hour later, giving the County an insufficient opportunity to assert its rights. By the time the County Judge and Prosecutor arrived in the courtroom, trial to the court was well underway. Any attempt by the County to assert its right to a jury trial at that time would have been futile. The judge had already repeatedly stated that this was to be a bench trial and the court would start testimony that day. The judge‘s flexibility on issues of reopening discovery and recalling witnesses by necessity assumed that the trial would be to the court. The County did not waive its right to a jury trial by failing to make a futile motion.
Nor did the County participate in this trial via the representation of Ludlum & Ludlum. Ms. Bennett notes, correctly, that
Our disagreement with Ms. Bennett begins with her construction of
Upon reinstatement, the court required attorney Ludlum to protect all of the County‘s interests, despite his repeated statements that he represented the Sheriff only in his individual capacity. We do not find persuasive the view of the district court and the plaintiff that Ludlum & Ludlum continued to
For identical reasons, we find unconvincing Ms. Bennett‘s reliance on
For similar reasons, we find unpersuasive Ms. Bennett‘s argument that the County waived its right to a jury trial when the parties agreed to arbitrate the case pursuant to
We hold that the County did not waive its right to trial by jury. We reverse the judgment below against the County and remand for a new trial.6
V
The Sheriff individually argues that the district court erred in finding that he engaged in sexual intercourse with Ms. Bennett without her consent and that the rape was under color of state law. We do not agree.
We find no clear error in the district court‘s factual finding that the Sheriff raped Ms. Bennett. At bottom, this case turned on whether the district court believed Ms. Bennett or the Sheriff. The court believed Ms. Bennett, and that call belongs to the district court. We will not upset such a finding on appeal.7
VI
Sheriff Pippin‘s other arguments are also without merit. The Sheriff complains that the district court erred on a series of evidentiary rulings. The Sheriff further contends that these errors, together with other comments from the bench, demonstrated that the trial judge was personally biased against the Sheriff. We review the district court‘s evidentiary rulings for abuse of discretion, and we will reverse on the basis of evidentiary errors only if they resulted in substantial prejudice to the Sheriff. Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir.1990). We find any error in the district court‘s evidentiary rulings harmless. Regarding improper bias, the Sheriff must show that “there are reasonable grounds for finding that the judge could not try the case fairly, either because of the appearance or the fact of bias or prejudice.” United States v. Conforte, 624 F.2d 869, 881 (9th Cir.), cert. denied, 449 U.S. 1012, 101 S.Ct. 568, 66 L.Ed.2d 470 (1980). We find no hint of bias.
The Sheriff‘s first evidentiary complaint concerns the testimony of Austin Police Department Sergeant Robert Merrill, the first law enforcement official to hear of the Sheriff‘s rape. Ms. Bennett‘s counsel asked why Merrill had traveled 300 miles to testify in this case, and the district court overruled the defense‘s relevance and opinion objection. Sergeant Merrill then stated, “I felt like [Bennett] had unconsensual sex either by force, threat, or intimidation, and I don‘t think this case was handled properly through the criminal courts.” This statement did not substantially prejudice the Sheriff. The district court had already made clear that he would not consider Merrill‘s opinion of Bennett‘s credibility in making its own decisions on whom to believe, and the court‘s written memorandum does not rely upon it.
The Sheriff next objects to Bennett‘s testimony that she thought the Sheriff‘s questions to her on the porch shortly before the rape were normal law enforcement questions, on the ground that this testimony required expert knowledge. Bennett‘s state of mind at the time was relevant to the question of whether she later bowed to a show of authority or engaged in consensual sex. She was competent to testify to her own state of mind.
Third, the Sheriff objects that the district court allowed Bennett to compare her feelings in a bout of depression prior to the
Fourth, the Sheriff complains on relevance grounds that the district court allowed plaintiff‘s counsel, during cross-examination of the Sheriff, to elicit testimony that some suspects in potential homicide investigations would have difficulty refusing the advances of the officer in charge of the investigation, and that such suspects might be intimidated by the power of a sheriff. This testimony was relevant to the issue of willful disregard of the plaintiff‘s rights, a question raised by the request for punitive damages.
Lastly, the Sheriff complains that the district court sua sponte prevented the defense from questioning Bennett about her post-rape sexual activity. The Sheriff contends that this element was relevant to show that Bennett suffered little psychological harm from the rape.
We also find unconvincing the Sheriff‘s argument that the district court‘s evidentiary rulings, comments from the bench, and questioning of witnesses demonstrated improper bias. The evidentiary rulings of which the Sheriff complains either were correct or constituted harmless error. The district court‘s comments exhibited at most a sense of humor at a bench trial.8 Regarding the questioning of witnesses, the court extensively questioned all of the witnesses at the end of cross-examination, and the court was evenhanded.
VII
We REVERSE the judgment against the County entered by the district court and REMAND for a new trial. We AFFIRM the judgment against the Sheriff individually. The verdict and judgment against the Sheriff in his individual capacity determined no issue in the suit yet to be tried against the County.9 Because we have not affirmed the judgment in its entirety, we REMAND the issue of attorneys’ fees for resolution upon conclusion of the case in the district court.
Affirmed in part, reversed in part, and remanded.
Notes
It is possible that the district court considered the following portions of the Sheriff‘s testimony in deciding whether to believe the Sheriff‘s statement that Ms. Bennett consented to have sex:
[Plaintiff‘s counsel]: But she said several things like no, didn‘t she?
[The Sheriff]: She said one thing that was very coy.
[The Court]: What do you mean by that?
[The Sheriff]: Really not serious.
[Plaintiff‘s counsel]: Well, what was it that she said?
[The Sheriff]: “I don‘t know whether this is a good idea or not,” just sort of a smile on her face.
[Plaintiff‘s counsel]: You would refer to that, perhaps, as token verbal resistance?
[The Sheriff]: Yeah, I suppose so.
[The Court]: So you understood a no not to really mean no?
[The Sheriff]: Yes, sir.