Douglas M. HAINES, Plaintiff-Appellant, v. Anthony L. FISHER, individually, and in his official capacity as Torrington Police Department Sergeant; Mike Alan Reeve, individually, and in his official capacity as Torrington Police Department Patrolman; Kraig Daniel Murphy, individually, and in his official capacity as Torrington Police Department Dispatcher; Town of Torrington, Defendant-Appellees.
No. 95-8016.
United States Court of Appeals, Tenth Circuit.
April 29, 1996.
1503
Walter Urbigkit, Frontier Law Center, Cheyenne, Wyoming, for plaintiff-appellant.
Before KELLY, BARRETT and JONES *, Circuit Judges.
Douglas M. Haines (Haines) appeals from (a) an order of the district court granting summary judgment in favor of the Town of Torrington, Wyoming (Torrington) on his
The relevant facts of this case were concisely set forth in the district court‘s Order of November 22, 1994:
* The Honorable Nathaniel R. Jones, Senior Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.
This case arises out of a practical joke or prank played by three police officers and a police dispatcher on plaintiff [Haines] on February 18, 1994. Plaintiff was the local 7-Eleven clerk and was working the night shift alone on the night of the incident at issue. The three police officers and police dispatcher were employed by the Town of Torrington, Wyoming.
The shift supervisor that evening was Sergeant Tony Fisher, one of the defendants. While he was on duty that night and while he was training Officer Gerrard how to conduct building searches with officer Michael Reeve, defendant Fisher concocted a plan to pull a practical joke on plaintiff.1 He shared his idea with on duty officers Reeve and Gerrard and dispatcher Kraig Murphy, who all agreed to participate in pulling the practical joke on plaintiff.
The plan called for Reeve to disguise himself as a robber who would hold up the 7-Eleven store during the plaintiff‘s shift. He wore a trenchcoat belonging to the Town, which was used in its McGruff Crime Prevention program, over the pants and shoes he had worn with his uniform that evening. He did not wear his police uniform shirt, but instead wore a turtleneck. Over his face, Reeve wore a balaclava mask that also belonged to the Town. He carried the Town‘s M-16 automatic rifle, loaded with blanks, under the trenchcoat. On the end of the barrel of the M-16, the defendants had placed a large plastic garbage bag, intended to catch any residue that might result when the blanks were fired.
Murphy, the dispatcher, put the plan into action by telephoning plaintiff at the 7-Eleven and advising him that he should be on the lookout for an individual who was possibly armed in the area of the 7-Eleven store. Murphy described for plaintiff a man who would look as Reeve would look in his robber regalia.
When he entered the store, Reeve was supposed to shoot off the M-16 shortly after entering the store. However, he forgot that the gun‘s safety was engaged and the gun would not operate when he attempted to pull the trigger. Reeve then ordered plaintiff to get off the telephone and to get on the floor. At some point the M-16 was discharged although there is a factual dispute about when that happened. Plaintiff claims that Reeve pointed the M-16 at him and discharged the weapon when he was told to get on the ground—before he recognized that it was Officer Reeve in a robber costume. Defendants claim that the gun was not discharged until after plaintiff recognized Reeve before becoming prone on the ground, when he rose up and threw a cleaning rag at Reeve and exclaimed, “Nice try, Mouse!” Defendants contend that the blanks were fired away from plaintiff after he recognized Reeve. Defendants contend that after the event was over, everyone including plaintiff had a good hearty laugh over the practical joke among good friends.
(Appendix, Vol. III at 727-30) (footnote added).
Rumors of the event circulated in and about Torrington. Upon inquiry by Chief of Police Billy Janes, Fisher, Reeve, Gerrard and Murphy confessed what they had done and signed written statements regarding the incident. Following an investigation by the Wyoming Division of Criminal of Investigation (DCI), Fisher and Reeve were terminated.
Thereafter, Haines filed this action against Fisher, Reeve, and Murphy, in their individual and official capacities, and Torrington seeking damages for violation of his civil rights pursuant to
Torrington moved for summary judgment and Fisher and Reeve moved for partial summary judgment. The district court granted Torrington summary judgment on all of Haines’ claims, and granted Fisher and Reeve summary judgment on Haines’
The case proceeded to trial on Haines’ state law claims of negligence and intentional infliction of emotional distress against Fisher and Reeve. Before submitting the case to the jury, the district court withdrew the issue of negligence from the jury‘s consideration. (Appendix, Vol. X at 4463).
The jury returned a special verdict finding that: Haines had failed to prove by a preponderance of the evidence that Fisher and/or Reeve had assaulted him; Fisher and/or Reeve had not committed extreme and outrageous conduct on Haines; Haines suffered $0.00 in total damages; and the conduct of Fisher and Reeve did not amount to willful and wanton misconduct.
Thereafter, the court denied Haines’ motion for reconsideration of the partial summary judgment granted in favor of Murphy and granted Haines judgment against Murphy but ordered that Haines recover nothing from Murphy. The court also denied Haines’ motion for a new trial and his motion for judgment notwithstanding the verdict.
On appeal, Haines contends that the district court erred when it: (1) granted sum-
I.
Haines states that the district court erred when it granted summary judgment in favor of (a) Torrington on his
We review the district court‘s grant of summary judgment de novo, applying the same legal standards employed by the district court. Gehl Group v. Koby, 63 F.3d 1528, 1533 (10th Cir.1995). Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Hagelin for President Committee of Kan. v. Graves, 25 F.3d 956, 959 (10th Cir. 1994), cert. denied, 513 U.S. 1126, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995).
a.
Haines reasons that the district court improperly granted summary judgment in favor of Torrington on his
Haines states that municipal liability attaches under
Torrington responds that the district court did not err in granting it summary judgment on Haines’
In Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978), the Court, after concluding that municipalities are among the “persons” to which
Applying Monell to the facts herein, we hold that the district court did not err in granting Torrington summary judgment on Haines’
b.
Haines contends that the district court erred in granting summary judgment in favor of Fisher, Reeve, and Murphy on his
Haines reasons that the individual defendants overstepped their legitimate authority when each was on duty and being paid by Torrington at the time the plan was developed and effectuated. He states that they were able to stage the robbery only by the use of Torrington‘s gun, coat and mask. Haines argues that this retaliation, at the very least, raised genuine issues of material fact as to whether the officers were acting under color of state law.
Fisher and Reeve respond that the district court properly granted summary judgment in their favor on Haines’
Applying these standards, we hold that the district court did not err in granting summary judgment in favor of the individual defendants on Haines’
Haines acknowledges that the “acts of officers in the gambit of their personal pursuits are not under color of state law and do not impose liability.” Accordingly, if, as Haines alleged in his complaint, “the purpose behind one or more of the Defendants’ conduct was to scare [him] so that he would be intimidated by them and lured into their lurid alternative life style,” (Appendix, Vol. I at 006), the acts of the individual defendants would clearly fall within “the gambit of their personal pursuits” and could not be considered acts under color of state law.
Haines maintains that the district court improperly granted summary judgment in favor of Torrington on his state law claims.
Haines reasons that it “appears” that the district court granted Torrington summary judgment on “the basis ... that the officers were not acting within the course of their employment, in discussing, planning and participating in the incident.” (Appellant‘s Brief at 35). Haines states that since “[a]ll of the officers, except Reeve, were being paid by the Town at the normal place of work under the normal practice, using the town equipment,” and “[t]hey were reacting to a call they received in the normal scope of their employment as peace officers,” genuine issues of material fact made summary judgment inappropriate. Id. at 37.
Although the determination of whether one is acting within the scope of employment is generally a question of fact, “the determination of the definition of [scope of employment] or the standard under which it is ascertained is a question of law for the court.” Miller v. Reiman-Wuerth Co., 598 P.2d 20, 23 (Wyo.1979). Under
The acts of the individual defendants in planning and effectuating the staged robbery were not duties which Torrington had requested, required, or authorized the performance of. Hence the acts did not fall within the individual defendants’ scope of duties. Under these circumstances, we hold that the district court did not err in granting summary judgment in favor of Torrington on Haines’ state law claims.
II.
Haines maintains that the district court erred in refusing to instruct the jury on his negligence claim.
The grant or denial of an instruction is a matter of procedure controlled by federal law. Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1517 (10th Cir.1995). We review the district court‘s refusal to submit a proffered instruction for abuse of discretion. Wilson v. Union Pac. R.R., 56 F.3d 1226, 1230 (10th Cir.1995).
In his complaint, Haines alleged, in addition to his claims for violation of his rights under
Prior to trial, the court granted Torrington summary judgment on all of Haines’ claims, and partial summary judgment in favor of the individual defendants on Haines’
At the close of the evidence, but prior to submitting the case to the jury, the court ruled that it would not submit Haines’ negligence claims. (Appendix, Vol. X at 4463). The court instructed the jury on Haines’ remaining state law claims.
The jury returned a special verdict in which it found that: Haines had not been assaulted, the defendants did not commit extreme and outrageous conduct on him, the actions of the defendants did not amount to willful and wanton misconduct, and Haines had sustained $0.00 in damages.
On appeal, Haines contends, without challenging the court‘s instructions on assault, extreme and outrageous conduct, and willful and wanton misconduct, that the court erred in not additionally instructing on his claim that the defendants were negligent, i.e., in that the defendants “were aware of the actions of the Defendant[s] and had a duty to
It is uncontested that Fisher and Reeve participated in the staged robbery; they did exactly what they intended to do. The jury obviously believed that they did so as part of a prank or practical joke inasmuch as it found in their favor on Haines’ claims of assault, extreme and outrageous conduct, and willful and wanton misconduct. That being the case, we hold that the district court did not abuse its discretion by refusing to instruct on negligence, when, in Wyoming, “[i]ntent is not a factor of negligence since negligence precludes intended conduct.” Kobos by and through Kobos v. Everts, 768 P.2d 534, 538 (Wyo.1989).
III.
Haines reasons that the district court erred in submitting the issue of assault for jury determination. Haines acknowledges that the district court properly instructed that a plaintiff must prove the following to establish an assault:
- The defendants acted with the intent of making a contact with the person of the plaintiff or with the intent of putting the plaintiff in apprehension of such a contact; and
- The plaintiff was placed in apprehension of an imminent contact with his person by the conduct of the defendants; and
- Such contact appeared to be harmful or offensive.
(Appendix, Vol. X at 812).
Haines argues that because he established the elements of assault by showing that the defendants had agreed to a plan which was intended to scare him and that he had been scared and believed he had been shot when the gun discharged, the district court erred in denying his motions for a directed verdict and for judgment notwithstanding the verdict on his assault claim. Fisher and Reeve respond that there was conflicting evidence as to whether Haines was placed in immediate apprehension of bodily injury and whether the gun was discharged before or after Haines recognized his long time friend, Reeve.
We consider motions for directed verdict and judgment notwithstanding the verdict under the same standard. FDIC v. United Pac. Ins. Co., 20 F.3d 1070, 1079 (10th Cir.1994). We review the district court‘s denial of these motions de novo. Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, 516 U.S. 817, 116 S.Ct. 74, 133 L.Ed.2d 34 (1995). Under this standard, we may find error in the denial of such a motion only if the evidence points but one way and is susceptible to no reasonable inferences supporting the party opposing the motion. United Pac. Ins. Co., 20 F.3d at 1079.
We hold that the district court did not err in denying Haines’ motions for a directed verdict and for judgment notwithstanding the verdict. Fisher and Reeve presented evidence, obviously believed by the jury, that Haines was not placed in immediate apprehension of bodily injury and that he recognized that one of the pranksters was his friend Reeve.
IV.
Haines maintains that the district court erred in failing to award him damages against Murphy when Murphy defaulted without filing an answer to his complaint and did not dispute the evidence regarding liability.
Murphy did not file an appearance or respond. Prior to trial, the district court granted partial judgment in favor of all the individual defendants, including Murphy, on Haines’
On appeal, Haines contends that the district court erred in determining “that the entry of zero damages sustained by [him] on the verdict ... necessitated the finding of zero damages caused by Murphy,” and that “[i]t is not logically required to conclude that Murphy‘s violation of the plaintiff‘s rights which has been established by the default, caused [him] no damage.” (Appellants Brief at 46 and 50). We agree with the district court that this issue is controlled by Hunt v. Inter-Globe Energy, Inc., 770 F.2d 145 (10th Cir.1985).
In Hunt, H.B. and Lola Hunt (the Hunts) filed an action against defendants Inter-Globe Energy, John Corrente, and Forest N. Simon, alleging that the defendants had engaged in common law fraud and various breaches of state and federal securities laws in selling fractional working interests in oil and gas leases.
When Corrente failed to plead or otherwise defend, the court entered default judgment against him in favor of the Hunts for their investment of $30,000, interest, and attorney fees. Further, the court awarded expenses, and punitive damages of $300,000. The Hunts proceeded against Simon. After trial, a jury awarded the Hunts $30,000 in actual damages against Simon but did not award any punitive damages.
Thereafter, Corrente filed a motion to vacate the default judgment entered against him. Corrente argued, inter alia, that the default judgment should not have been entered against him until the matter had been adjudicated with regard to all defendants. The district court denied Corrente‘s motion.
On appeal, we reversed and remanded with instructions that the district court “reduce the default judgment to an amount consistent with the application of liability and damages against defendant Simon.” Hunt, 770 F.2d at 148. In so doing, we relied on Frow v. De La Vega, 15 Wall. 552, 82 U.S. 552, 21 L.Ed. 60 (1872):
In Frow, the plaintiff brought an action against Frow and thirteen other defendants.... Frow failed to answer timely.... The district court subsequently ... award[ed] a permanent injunction against Frow. After the entry of the final decree against Frow, the court proceeded to try the case and decided the merits of the case adversely to plaintiff and dismissed the complaint.
On appeal, the Supreme Court reversed the default judgment against Frow, concluding that when multiple defendants are alleged to be jointly liable and fewer than all defendants default, the district court may not render a liability determination as to the defaulting parties unless and until the remaining defendants are found liable on the merits.... This result avoids inconsistent liability determinations among joint tortfeasors.
Hunt, 770 F.2d at 147 (emphasis added).
We hold that the district court did not err when it entered judgment against Murphy, and simultaneously ordered that Haines recover nothing from him.
AFFIRMED.
NATHANIEL R. JONES, Senior Circuit Judge, concurring in part and dissenting in part.
I fully concur in Parts I(c), III and IV of the opinion and in the result reached in Parts I(a) and II.1 I respectfully dissent, however, from Part I(b).
Notes
While it is a standard principle that the acts of officers in the gambit of their personal pursuits are not under color of state law and thus are not grounds for liability, it is equally incontrovertible that “[a]cts of officers who undertake to perform their official duties are included whether they hew to the line of authority or overstep it.” Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945). Moreover, a defendant is said to be acting under color of state law when he exercises power “possessed by virtue of state law and [his actions are] made possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)).
This case does not involve merely a situation wherein Officer Reeve entered the 7-11 alone, disguised as a robber. If that were the only fact before the court, it is possible that such an action would not be considered taken under color of law. The defendants in this case, however, conspired to deprive Haines of his constitutional rights and effectuated their strategy by abusing the power they held under state law. Indeed, the defendants’ prank was a complicitous scheme which could only be accomplished through the use of their public positions, while performing their official duties.
In addition to the fact that the dispatcher and officers were on-duty and in uniform 2 (excepting Reeve, who wore other clothes belonging to the police department): (1) the defendants concocted the prank in response to Haines’ earlier call to report suspicious vehicles;3 (2) all material used to effectuate the prank was Torrington Police Department property, including the M-16 rifle, the blanks, the trench coat, the mask, the police cars, the radio, and the dispatch telephone system; (3) the plan was created and agreed to by all officers while in the police station working on training exercises; (4) the dispatcher, Murphy, called in his official capacity to warn Haines of potential danger; (5) Sgt. Fisher, using the police radio, radioed Murphy to direct him to make the call, and
It is true that almost anybody can stage a robbery; but, only police officers can use police radios, order dispatchers to make calls, and have police cruisers posted outside while uniformed men serve as lookouts to protect the malefactors from discovery or the public from harm. Under these circumstances, the defendants certainly employed power possessed by virtue of state law and their actions were made possible only because they were clothed with the authority of the state. See Atkins, 487 U.S. at 49, 108 S.Ct. at 2255. Thus, regardless of the impropriety, perversion and temerity of the defendants’ scheme, as a matter of law their actions were taken under color of law.