Doe v. Sullivan County, TennesseeDoe v. Sullivan County, Tennessee
- Reporters:
- Before:
- Nathaniel R. Jones, Suhrheinrich, Joiner
Defendants Sullivan County, Mike Gardner, and Lynn Hawkins appeal a jury verdict in favor of plaintiff John Doe for injuries sustained while incarcerated. Plaintiff in turn appeals directed verdicts for the remaining defendants and pretrial orders limiting evidence and denying his motion to add new defendants. For the reasons that follow, we reverse and remand for further proceedings.
I
On September 6, 1986, plaintiff was arrested on third-degree burglary charges for the theft of comic books, pens, and a calculator. The next day plaintiff was placed in the Sullivan County Jail (“Jail“). On September 11, 1987, plaintiff pled guilty to a misdemeanor and was sentenced to a six-month term of imprisonment at the Jail. At the time of his incarceration, plaintiff was nineteen years old, weighed 125 pounds, and suffered from “an obvious mental disability.” J.A. at 15.
Plaintiff was placed in a cell with nine or ten other inmates from September 6 to October 10, 1986. During this period, inmate Tyrone Ross reportedly began harassing plaintiff. On October 1, as prison employees were removing another inmate from the cell, the remaining inmates werе “slammed” together to separate them from the inmate being removed. While so separated, Ross sexually assaulted plaintiff by inserting a toothbrush into his anus. Ross was subsequently charged with and convicted of the attack.
Plaintiff filed this suit under
Shortly before trial, Sullivan County moved to disqualify plaintiff‘s counsel Everett Mechem because it wished to call him as a witness. The district court granted the motion on October 3, 1988, and this court subsequently denied plaintiff‘s motion for a writ of mandamus ordering the district court to vacate its order. In re Mechem, 880 F.2d 872, 875 (6th Cir.1989). Mechem reentered the case after Sullivan County revealed Mechem would not be called as a witness. On May 19, 1989, the district court denied plaintiff‘s motion to add jailers Baker and Peters as defendants.
A jury trial began on September 20, 1989. At trial, prison expert Gordon Kamka testified that plaintiff should have been placed in protective custody while at the Jail due to his slight build and mental disability. Kamka conducted a risk assessment of the Jail and concluded that “there was a risk of harm for every inmate in that facility.” J.A. at 502. His analysis of jail records аnd inmate interviews revealed a pattern of violence among inmates and infrequent security checks by guards. During trial, the court granted plaintiff‘s motion to dismiss Deputy Sheriff Conner. At the close of plaintiff‘s proof, the court granted the directed verdict motions of Deputy Sheriffs Murph and Lynch because “no evidence was adduced showing that the deputies either knew or should have known that an assault on the plaintiff was highly foreseeable.” Id. at 83. In granting directed verdict motions in favor of former County Executive Lon Boyd and current County Executive Keith Westmoreland, the district court found “that no proof was adduced showing that either Mr. Boyd or Mr. Westmoreland committed any act against plaintiff or created any policy proximately causing harm to the plaintiff.” Id. at 82-83. Finally, the court granted a directed verdict for all defendants on plaintiff‘s claim that inadequate lighting and overcrowding caused plaintiff‘s injuries.
At the close of evidence, the court instructed the jury to consider plaintiff‘s
Plaintiff on appeal challenges the directed verdicts, various rulings at trial, and the calculation of damages. Sullivan County, Gardner, and Hawkins appeal the denial of their directed verdict motion, the jury instructions, and the exclusion of Deputy Murph‘s testimony, as well as the state lаw judgment.
II
We first consider whether the court erred in directing a verdict against plaintiff on the claim that “systemic deficiencies” at the prison caused plaintiff‘s injuries in violation of the
whether there was sufficient evidence to raise a material question of fact for the jury.... “[T]he trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made.”
Frost v. Hawkins County Bd. of Educ., 851 F.2d 822, 826 (6th Cir.) (quoting Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978)), cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988). The motion is properly granted where “there is ‘either a complete absence of proof on the issues or no controverted issues of fact upon which reasonable men could differ.’ ” Arthur S. Langenderfer, Inc. v. S.E. Johnson Co., 917 F.2d 1413, 1419 (6th Cir.1990) (quoting Milstead v. International Bhd. of Teamsters, 580 F.2d 232, 235 (6th Cir.1978)), cert. denied, --- U.S. ----, 112 S.Ct. 51, 116 L.Ed.2d 29 and cert. denied, --- U.S. ----, 112 S.Ct. 274, 116 L.Ed.2d 226 (1991).
We have recently reaffirmed that
the legal standard applicable to determining whether a violation of the eighth amendment occurred in the context of an assault upon an inmate is whether the defendants’ conduct amounted to a ‘deliberate indifference’ to a risk of injury to the plaintiff. The Supreme Court in Whitley [v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ] concluded that in order to support an action under section 1983, plaintiffs must establish something more than lack of ordinary due care, inadvertence or error. Instead, the conduct must be ‘obdurate’ or ‘wanton’ i.e., a recklessness or callous neglect. This standard is designed to strike an appropriate balance between the deference that should be accorded to prison officials in their administration of the prison and the constitutional right of prisoners to be free from cruel and unusual punishment.
Roland v. Johnson, 856 F.2d 764, 769 (6th Cir.1988); see also Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 2327, 115 L.Ed.2d 271 (1991).
Plaintiff‘s evidence at trial indicated that (1) overcrowding аt the Jail necessitated more staff to decrease the risk of violence, (2) the cells were dark, (3) more jailers were needed, (4) fourteen-day mental and physical evaluations were not performed, and (5) security checks often were not performed every thirty minutes, as required by jail procedures. Plaintiff argues that, had these conditions not obtained, the assault would not have occurred.
Viewing this evidence, as we must, in a light most favorable to the plaintiff, we cannot conclude that these conditions caused the assault. As offensive as these conditions may have been, they do not support plaintiff‘s
Plaintiff also argues that the district court erred in directing a verdict in favor of defendants Lynch and Murph on the claim that they were deliberately indifferent to his safety. The evidence against Lynch consisted exclusively of plaintiff‘s testimony that Lynch knew of the harassment:
Q: Do you recall Officer Lynch and another deputy ... asking you if, if anybody was bоthering you or if you needed to be moved?
A: Yes, sir.
Q: And what did you tell them?
A: I told them, told them that, that I would be like to put [sic] in another cell if it‘s possible. They asked me why, and I said that I believed that Tyrone has been harassing me and I think he‘s sexually assaulted me.
....
Q: Are you certain that you told Officer Lynch that Tyrone Ross was harassing you and you wanted to be moved?
A: Yes.
J.A. at 454-55. Although the parties dispute whether this exchange occurred before or after the assault, we believe that the district court correctly ruled that it occurred after. Plaintiff repeatedly contradicted himself on when he notified Lynch of Ross‘s harassment. For example, plaintiff conceded that “[t]he only thing I blame myself for is not, not telling any of the guards the next day after it [the rape] had happened; that‘s the only thing I blame myself for.” Id. at 442. Plaintiff‘s admissions on cross examination similarly called into question the veracity оf his prior testimony:
Q: Now, on these visits to the nurse, you did not make any statements to the nurse to the effect that you were being harassed by Tyrone Ross or being bothered with any type of a sexual assault, did you?
A: No.
Q: And, in fact, the only time that you ever told anybody at the jail that you were having problems in cell block 3 was after Officer Murph overheard you talking to your mother about it, is that correct?
A: Yes, sir.
Id. at 450. In addition, Dr. Kutty, the prison psychiatrist who treated plaintiff following the rape, testified that plaintiff never told him that he informed the jailers of the harassment as it occurred. Id. at 462. We believe that the court correctly directed a verdict for Lynch. Other than plaintiff‘s self-contradictory testimony, no evidence suggested that Lynch acted with deliberate indifference to plaintiff‘s safety.
The evidence against Murph was equally deficient. Although plaintiff allegеs that security checks were not performed every thirty minutes, as required by prison regulations, plaintiff rests this allegation on the fact that each security check was not logged. Murph, however, offered undisputed testimony that every security check was made but that each check may not have been logged. Because this testimony went unchallenged, we cannot but conclude that plaintiff offered insufficient evidence of Murph‘s deliberate indifference to withstand a directed verdict. Accordingly, we affirm the directed verdicts in favor of defendants Lynch and Murph.
III
Plaintiff next claims that the district court improperly limited the introduction of evidence relating to defendant Gardner‘s earlier felony conviction. When plaintiff‘s counsel on cross-examination sought to elicit details of the conviction, the district court stopped the questioning on the ground that “the number of felonies doesn‘t have anything to do with his credibility. The fact that he has been convicted of a felony does affect his credibility; and other than that, it has no purpose at all....” J.A. at 667.
The Supreme Court has held that, in the civil context,
Although Green clearly establishes that the court must admit evidence of a witness‘s prior convictions in civil trials, less clear is the scope of evidence of circumstances relating to and surrounding the conviction that must be admitted. We are inclined to believe that Green would require admission to the extent urged by the plaintiff in this case, namely, the nature of the crime, the number of counts, and the date of the dispositiоn. Upon review of the record, however, we conclude that the court‘s refusal to admit details of Gardner‘s conviction did not affect a substantial right of plaintiff. See
IV
Plaintiff next urges that the denial of his motion to add jailers Waterson, Peters, and Baker as defendants constitutes reversible error. In denying plaintiff‘s motion, the district court relied principally upon Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986). The Supreme Court, interpreting
(1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.
Schiavone, 477 U.S. at 29, 106 S.Ct. at 2384. Following the Court‘s holding in Schiavone, we noted that
where the complaint alleges in substance that the new defendants committed the illegal acts and are officials of the original defendant, that relationship may imply receipt of sufficient notice. All that we add concerning the inquiry of whether the new defendants knew or should have known that the suit should have been brought against them is that it is a patently factual inquiry and left to the district court.
Berndt v. Tennessee, 796 F.2d 879, 884 (6th Cir.1986) (citations omitted) (footnote omitted).
The sole issue before us is whether the three additional jailеrs “must or should have known that, but for a mistake concerning identity, the action would have been brought against [them] ... within the prescribed limitations period.” Schiavone, 477 U.S. at 29, 106 S.Ct. at 2384. Tennessee law provides that actions brought under the federal civil rights statutes must be commenced within one year after the cause of action accrued.
We believe that the court‘s finding was not clearly erroneous. Although as jailers the three defendants reasonably could be expected to have known of the instant suit, this alone is insufficient to impute to them knowledge of their future status as defendants. Many jailers and employees who were not named as defendants were aware of and even deposed in this case. It cannot seriously be maintained, however, that knowledge of their interest in the matter should be imputed to all of them. Plaintiff offers no grounds for why jailers Waterson, Peters, and Baker should have been uniquely aware that they were parties in interest. We therefore affirm the district court‘s denial of plaintiff‘s motion to add the three additional defendants.
V
As a final matter, plaintiff challenges the district court‘s limitation of defendants’ liability under state law to $40,000. The court so ruled pursuant to Act of May 25, 1982, ch. 950, 1985 Tenn.Pub.Acts 842, amended by
Plaintiff relies on
While we agree that defendants Gardner and Hawkins could be liable for any state law award in excess of the $40,000 cap, plaintiff has conceded throughout these proceedings thаt any award based on state law would be subsumed within the
VI
Defendants Sullivan County, Gardner, and Hawkins ask us to reverse the denial of their motion for a directed verdict, arguing that because the court dismissed the counts against jailers Lynch and Murph, it was obliged to direct a verdict for them as well on the basis of City of Los Angeles v. Heller, 475 U.S. 796, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (per curiam). In Heller, the plaintiff brought suit under
neither Monell v. New York City Dept. of Social Services, 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978), nor any other of our cases authorizes the award of damages against a municipal corporation based on the actions of one of its officers when in fact the jury has concluded that the officer inflicted no constitutional harm. If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might havе authorized the use of constitutionally excessive force is quite beside the point.
Heller, 475 U.S. at 799, 106 S.Ct. at 1573. Defendants argue that because the claims were dismissed against Murph and Lynch, Heller precludes liability against them as well. We believe defendants misunderstand the logic of Heller.
A
The Court in Heller was careful to point out that the officer in that case had not claimed qualified immunity and, thus, that the jury‘s verdict established with legal certainty that Heller had not suffered a constitutional deprivation. Heller, 475 U.S. at 799, 106 S.Ct. at 1573; see also Frost v. Hawkins County Bd. of Educ., 851 F.2d 822, 827 (6th Cir.) (interpreting Heller as holding that municipality cannot be liable where jury finds that plaintiff suffered no constitutional deprivation), cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988). Thus, Heller simply reaffirmed that a determinative issue in
In the instant case, the district court dismissed the claims against Murph and Lynch after they asserted qualified immunity, yet accepted the jury‘s determination that plaintiff suffered a deprivation of his constitutional rights while incarcerated and that Sullivan County, Gardner, and Hawkins were liable for this deprivation. That defendants Lynch and Murph were immune from suit in no way casts doubt on the reasonableness of the court‘s or the jury‘s findings. We therefore affirm that the district court did not commit error in denying the motion to dismiss defendants Gardner, Hawkins, and Sullivan County.
Defendants also maintain that a directed verdiсt in their favor was required given the insufficiency of the evidence supporting plaintiff‘s
Plaintiff‘s evidence, of course, presented a much different picture of conditions at the Jail. Norman Cox, who testified as defendants’ prison expert, stated on cross-examination that the level of violent incidents in August and September of 1986 reached approximately four incidents per month for every 100 inmates. One jailer testified that inmates told him every day that they were in danger and wanted to be moved. Viewing this evidence in the light most favorable to plaintiff, Frost, 851 F.2d at 826, we believe the district court ruled correctly in denying the directed verdict motions of Sullivan County, Gardner, and Hawkins on plaintiff‘s
VII
Sullivan County, Gardner, and Hawkins next argue that the jury instructions incorrectly set forth the standards under which they could be found liable under the
A. Eighth Amendment Instructions
The district court instructed the jury with respect to plaintiff‘s
Now, plaintiff‘s Eighth Amendment claim is brought against two policymakers for the Sullivan County Jail and against Sullivan County. In order to prove this claim, the burden is on the plaintiff to еstablish the following by a preponderance of the evidence:
One, a pervasive risk of harm existed at the jail prior to the time that the plaintiff was incarcerated there in September 1986.
Now, this element requires the plaintiff to show that his being assaulted was not an isolated incident. A pervasive risk of harm can be established on evidence showing that inmates at the jail felt unsafe; that jail operations invited a risk of harm; or that a high incident [sic] of violence occurred at the jail.
Now, the second element of the offense charged which must be proven is that the plaintiff belonged to a class of individuals likely to be attacked.
....
Now, third, the policies controlling at the jail, the plaintiff must prove that the policies controlling at the jail exhibited a deliberate indifference to the threat to the plaintiff‘s physicаl safety.
Now, under this third element, deliberate indifference can be established on evidence showing that despite an unreasonable risk of harm, the defendants failed to guard against this risk; or that customs, practices or policies at the jail facilitated the risk of harm.
And then the fourth element the plaintiff must prove is that the policies at issue was [sic] the proximate cause of injury and consequential damages to the plaintiff.
Now, deliberate indifference is more than mere “recklessness” on the part of any county official. “Recklessness” requires only proof that a reasonable man would have appreciated the great degree of risk of physical harm to the plaintiff. In order for an act to be “deliberate,” the particular official must have been shown to have been aware that adverse consequences from his action were certain or substantially certain to cause the injury.
Now, before you can find that any defendant was deliberately indifferent, the plaintiff must prove that the individual defendant was aware that a particular act or inaction was certain or substantially--substantially certain to deprive the plaintiff of his constitutional rights and that the defendants decided to act or not to act in spite of that knowledge.
J.A. at 722-24.
Although these instructions are essentially the same as those proposed to the court by the defendants, they now object that (1) the district court stated that the jury must find a “pervasive risk of harm” where defendants preferred “pervasive risk of homosexual attack,” (2) the court allowed the jury to consider the inmate‘s appearance and intelligence level in determining whether he wаs likely to be attacked, and (3) the jury was not instructed that a constitutional violation does not occur each time an inmate is attacked. After careful consideration, we do not believe that these objections warrant reversal. The instructions accurately stated each element that plaintiff was required to establish under the
B. Fourteenth Amendment Instructions
The court‘s instructions with respect to plaintiff‘s
[U]nder the fourteenth amendment, an individual cannot be deprived by the government of life, liberty or property without due process of law. Now, due process is that which protects the individual from arbitrarily losing his protected interest, requiring that the individual be notified of the deprivation and given an opportunity to dispute it. A protected liberty interest may be created through statutes, rules, regulations or policy statements. In this case, plaintiff had a liberty interest protected by the Fourteenth Amendment to be classified according to his physical and mental attributes and the nature of the crime for which he was convicted. Pursuant to this liberty interest, plaintiff can recover if you find the following by a preponderance of the evidence.
One, that the plaintiff was deprived of his liberty interest without due process of law;
and, second, that the deprivation proximately caused the plaintiff to be injured.
Now, since the injuries cannot be presumed to flow from every violation of constitutional or state law rights, plaintiff must also prove by a preponderance of the evidence that the defendants’ acts or omissions proximately caused his injuries. Now, a proximate cause of an injury is a cause which in natural and continuоus sequence produces the injury and without which the injury would not have occurred. A defendant‘s act in order to be a proximate or legal cause of a plaintiff‘s injuries need not have been the whole cause or the only factor in bringing them about. It is enough if the act was a substantial factor in causing the plaintiff‘s injuries.
J.A. at 724-25.
Liberty interests protected by the
We think the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of fоrce is challenged as excessive and unjustified.... Because this case involves prison inmates rather than pretrial detainees or persons enjoying unrestricted liberty we imply nothing as to the proper answer to that question outside the prison security context by holding, as we do, that in these circumstances the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishment Clause.
Id. at 327, 106 S.Ct. at 1088; accord Walker, at 1455 (requiring that prisoner‘s claim predicated on stabbing incident in prison be brought under the
While we agree that a showing of wantonness is required to establish a violation of an inmate‘s substantive due process rights, we find that issue irrelevant to the case at bar for the simple reason that the
Similarly, Whitley and Walker address the overlap only between inmate claims arising under both the
Plaintiff clearly rested his underlying liberty interest on state law. Whether state law establishes a protected liberty interest requires a close examination of the language of the relevant statutes and regulations. Thompson, 490 U.S. at 461, 109 S.Ct. at 1909. For instance, the use of “explicitly mandatory language” in connection with “specified substantive predicates” that limit the decisionmaker‘s discretion will support the conclusion that the State has created a liberty interest. Id. at 463, 109 S.Ct. at 1910. “If this liberty interest exists as a function of state law, then the prisoner or inmate is entitled ‘to those minimum procedures appropriate under the circumstances and required by the Due Process clause to insure that the state-created right is not arbitrarily abrogated.’ ” Martucci v. Johnson, 944 F.2d 291, 294 (6th Cir.1991) (quoting Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)).
This court has stated that “where substantive limitations have in fact been placed on the discretion of prison officials in classifying inmate‘s [sic] security status, a protectible liberty interest has been created.” Beard v. Livesay, 798 F.2d 874, 879 (6th Cir.1986). In the instant case, entry classification procedures were governed by the Sullivan County Jail Manual of Policy and Procedures (“Manual“). The Manual contains explicit mandatory language regarding classification. The section entitled “Policy :--Classification of Inmates,” states that
[f]or the preservation of the security and order of the detention facility, its staff and inmates, every inmate will be classified upon admission [to] the facility, and will be assigned housing according to the classification.
J.A. at 208 (emphasis added).4 The following subsection entitled “Procedure” contains equally explicit mandаtory language ensuring that “[t]he Jail Administrator, Chief Jailer, or Booking Officer, will review the admissions records and any existing facility records concerning the inmate,” and that “[t]he Booking Officer will then assign a classification code.” Id. at 209 (emphasis added). Moreover, the Manual sets forth specific substantive predicates that limit prison officials’ discretion in classifying inmates. Of particular relevance to the instant case, the procedures require prison officials to consider an inmate‘s “History of Violent or Disruptive Behavior,” “Evidence of Homosexuality or Vulnerability to attack,” and “Evidence of Mental or Physical Handicap.” Id. The regulations thus established a protectible liberty interest in classifying plaintiff with regard to his safety and mental disabilities.
The Supreme Court has recently reiterated that, under the rubric of procedural due process, “the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990). Thus, where procedural due process is alleged, “[t]he constitutional violation actionable under
To determine what procedural protections are constitutionally required in the given case, several factors come into play:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government‘s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Whether the postdeprivation remedies provide constitutionally adequate recourse will turn on “whether predeprivation procedural safeguards could address the risk of deprivations of the kind ... allege[d],” Zinermon, 494 U.S. at 132, 110 S.Ct. at 987, or “whether predeprivation safeguards would have any value in guarding against the kind of deprivation ... allegedly suffered.” Id. at 135, 110 S.Ct. at 988. The above determination, in turn, will rest on such issues as whether the deprivation was predictable, whether a predeprivation process is possible, and whether the defendants’ conduct was “authorized” in the sense that “[t]he State delegated to [state employees] the power and the authority to effect the very deprivation complained of ... and also delegated to them the concomitant duty to initiate the procedural safeguards set up by state law.” Id. at 138, 110 S.Ct. at 990.
As this synopsis illustrates, whether state officials deprived a complainant of procedural due process is an extremely intricate and complex inquiry requiring the balancing of many competing concerns. The instructions in the case at bar, we believe, fail to reflect this complexity. On the instructions given, the jury could have returned a verdict for plaintiff on the legally uninformed determination that defendants deprived plaintiff‘s liberty interests “arbitrarily” and “without due process of law.” In making this determination, the jury was not asked to consider whether plaintiff‘s constitutional interest in adequate procedure was satisfied by postdeprivation state law remedies, or even whether a predeprivation hearing was a meaningful possibility under the circumstances. Given the extreme brevity of the charge, we believe it quite possible that the jury was confused or misled as to the basis for which it properly could have found defendants liable under the
VIII
Defendants next insist that the district court committed reversible error in preventing the testimony of Murph, who was present at the time of the rape.
The court had already granted Murph‘s motion for a directed verdict when defense counsel sought to admit Murph‘s testimony. After excusing the jury, the court stated that it would reconsider its directed verdict for Murph if his testimony cast doubt on that ruling. Murph chose not to testify. At the close of trial, defendants again sought to offer Murph‘s testimony into evidence. At this point, the district court disallowed the testimony on the ground that, given the evidence already proffered by both parties, Murph‘s testimony would be repetitive. Our review of the record compеls us to conclude that these rulings by the court did not amount to an abuse of discretion.
IX
As a final matter, Sullivan County argues that plaintiff is not entitled to a state law judgment based on negligence because the state has not waived its sovereign immunity from suit for alleged civil rights violations. Sullivan County rests its contention on the Tennessee Governmental Tort Liability Act (“GTLA“),
[a]nyone incurring any wrong, injury, loss, damage or expense resulting from any act or failure to act on the part of any deputy appointed by the sheriff may bring suit against the county in which the sheriff serves; рrovided, that the deputy is, at the time of such occurrence, acting by virtue of, or under color of his office.
In Jenkins v. Loudon County, 736 S.W.2d 603 (Tenn.1987), the Supreme Court of Tennessee held that section 29-20-205 did not preclude an award for damages flowing from a deputy sheriff‘s violation of plaintiff‘s civil rights sought pursuant to the provisions of
The district court justified its award of $40,000 under state law on the grounds that the violation of plaintiff‘s civil rights also constituted negligence. We instruct the district court on remand to consider whether plaintiff is entitled to an award under state law in light of the jury‘s verdict under the
X
For the reasons stated above, we find that the error in the district court‘s instructions is such that there is no way of determining if the jury‘s verdict was predicated on the