ESTATE OF Christopher A. MORELAND, Deceased by Gary R. Moreland and Linda Tuttle, Co-Personal Representatives, Gary R. Moreland, in his official and individual capacity, Linda Tuttle, in her official and individual capacity, et al., Plaintiffs-Appellees, Cross-Appellants, v. Erich DIETER and Michael Sawdon, Defendants-Appellants, and Joseph Speybroeck, in his individual and official capacities, Sheriff of St. Joseph County, Defendant, Cross-Appellee.
Nos. 03-3734, 03-3735.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 30, 2004. Decided Jan. 14, 2005.
395 F.3d 747
The ALJ‘s assessment of Schmidt‘s credibility did not run afoul of the applicable analytical framework. The decision notes not only the absence of objective medical evidence to support the severity of the pain to which Schmidt testified, but goes on to consider that Schmidt‘s daily living activities were not significantly restricted, that he was not receiving any active treatment or therapy for his conditions at the time of the hearing, that he was not using any prescription medication, and that his alleged pain did not prevent him from engaging in substantial gainful activity for several months after he allegedly became disabled. By considering these factors and explaining how they factored into his credibility analysis, the ALJ properly followed the requirements for evaluating the credibility of a claimant‘s subjective complaints. Further, we find that the ALJ‘s conclusions in this regard are supported by substantial record evidence. Schmidt‘s contentions to the contrary are nothing more than a rehash of the medical records that do not point to any specific evidence contradicting the ALJ‘s conclusions. In the end, we conclude that the ALJ‘s credibility determination is not patently wrong, is supported by substantial evidence, and is sufficiently detailed that we are able to trace its path of reasoning. See Knight, 55 F.3d at 315; Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001).
The decision of the district court is AFFIRMED.
Martin W. Kus (argued), Newby, Lewis, Kaminski & Jones, Laporte, IN, for Defendants-Appellants in No. 03-3734.
David E. Ballard (argued), Hardig, Lee & Groves, A. Howard Williams, Doran-Blackmon, South Bend, IN, for Defendant-Appellee Joseph Speybroeck in No. 03-3735.
Before ROVNER, WOOD and SYKES, Circuit Judges.
SYKES, Circuit Judge.
This is an action under
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 spray1 from his waist, and sprayed Moreland‘s face from a distance of roughly four or five inches. Coleman took cover underneath a blanket as pepper spray filled the air, but he heard a struggle between Moreland and Moffa and at one point heard what he said was “the sound of a 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
The officers handcuffed Moreland behind his back and dragged him out of the drunk tank to a nearby elevator. They set him down on the floor in front of the elevator and prepared to take him to the shower on the fourth floor to wash off the pepper spray. Two other officers, Albright and Holvoet, accompanied Moreland in the elevator to the fourth floor. Moffa, who had been hit by pepper spray ricocheting off Moreland, stayed behind on the first floor. Moreland thrashed about as he was taken upstairs; Albright and Holvoet tried to restrain him by pinning him to the elevator floor.
When the elevator doors opened at the fourth floor cell block, Dieter was waiting to meet them. Holvoet told Dieter that Moreland was the guy “who got Moffa sprayed.” Albright testified that he thought this comment was a signal from 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
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
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 ap
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
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 reasonable 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
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
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
MR. KUS: Objection; based on hearsay, Your Honor. He has to believe a certain set of witnesses and 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 (1983). Rather, they challenge the size of the awards as constitutionally excessive under BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); and State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003).
In Gore the Supreme Court “instructed courts reviewing punitive damages to consider three guideposts: (1) the 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 decisionmaker‘s caprice.‘” Id. (quoting Cooper Industries, 532 U.S. at 436; quoting Gore, 517 U.S. at 587).
The degree of reprehensibility is the most significant factor. Campbell, 538 U.S. at 419. The defendant‘s conduct is evaluated according to five variables: (1) whether the harm was physical or economic; (2) whether the conduct evinced an indifference to or reckless disregard for the health or safety of oth
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.
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. In a recent case, this court upheld a punitive damages award of more than 37 times the size of the underlying compensatory damages in a case involving only minor, albeit highly troublesome, physical injury (bedbug bites). See Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676-78 (7th Cir. 2003).
The court emphasized in Mathias that “the judicial 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.
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 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.
Because Moreland was a pretrial detainee in the jail at the time of his death in custody, the plaintiffs’ claim falls within the
Unconstitutional policies for purposes of § 1983 liability fall into three
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 undeveloped 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) 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 memo 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
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.2 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 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 (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,
III. Conclusion
We conclude that the district court did not abuse its discretion under
AFFIRMED.