Mark Cowart v. ErwinMark Cowart v. Erwin
PRISCILLA R. OWEN, Circuit Judge:
Former prisoner Mark A. Cowart filed suit against four Dallas County Jail detention officers, including Special Response Team Officer Erwin, pursuant to
I
Cowart originally filed suit against the Dallas County Jail, Officer Erwin and various John Doe officers. After the district court dismissed the John Doe defendants and the Jail, we vacated the dismissal to permit discovery regarding the identity of other involved officers.1 Cowart ultimately proceeded against Erwin and three other detention officers—Officers Garrett, Weeks, and Holt—and asserted claims for excessive force and bystander liability under
At the hearing, Cowart testified that he handed a grievance form to an officer at the jail on April 22, 2009, just eight days after Cowart‘s altercation with the officers. Cowart did not receive a response from the jail‘s Grievance Board, however, prior to his May 21, 2009 transfer to the custody of the Texas Department of Criminal Justice. A grievance officer testified that no response, either interim or final, was issued because the Board never received a grievance from Cowart.
Crediting Cowart‘s testimony, the magistrate judge concluded that Cowart satisfied the PLRA‘s exhaustion requirement by handing his grievance to a jail staff member. He determined that the PLRA required nothing further,
At trial, the jury heard sharply divergent testimony regarding the altercation between Cowart and the detention officers. All parties agree that on April 14, 2009, several detention officers conducted a “shakedown” of the tank in which Cowart was housed. The officers ordered the inmates to line up against the wall and assume a submissive position—on their knees, hands behind their heads, and elbows touching the wall.
Cowart testified that he became uncomfortable in the position and asked to stand, but was denied permission to do so. He admitted that he stood up anyway, but was forced back to his knees by two officers—Garrett and Weeks—amidst the officers’ racial epithets. Cowart admitted that he “mouthed off” in kind.
According to Cowart, the interaction escalated quickly from there, and we consider the evidence in the light most favorable to him, as the prevailing party. Presumably in reaction to Cowart‘s verbal responses, Erwin walked in front of Cowart, who was on his knees and held in position by Garrett and Weeks, and punched him twice in the face. Immediately after, a “swarm” of officers took Cowart to the ground and began beating him; officers kicked, punched, and stomped upon Cowart, and sprayed him with mace. At some point, Cowart temporarily lost consciousness. Eventually, the officers attempted to lift Cowart to his feet exclusively by his arms—now handcuffed behind him—causing Cowart great pain. In response to his protests, Cowart
Cowart‘s testimony was largely corroborated by five inmate witnesses. Each recalled that multiple officers attacked Cowart and that Cowart was not resisting. However, while each inmate could identify Erwin, or an officer matching Erwin‘s description, none could identify Erwin‘s co-defendants as participants.
Testifying officers presented a different story. Erwin testified that she took Cowart down to the ground when he “came off the wall” and cursed at the officers. She denied punching Cowart. Other officers had difficulty recalling the events, but each testified that no officer punched, kicked, stomped upon, or otherwise used unreasonable force against Cowart. Multiple officers claimed Cowart was resisting and only minimal force was used to subdue him. An incident report completed by Erwin described Cowart as “belligerent” and reported that he was taken down with “minimal force.”
Despite the conflicting testimony, it is undisputed that Cowart was transported to Parkland Hospital later that evening. There, an emergency room physician diagnosed Cowart with contusions of the face, scalp, and neck, a neck sprain, and a ruptured eardrum, and noted that Cowart had tenderness and swelling on his right hand. At trial, the physician testified that such injuries were consistent with severe trauma. Cowart testified that he still experiences a ringing in his ear and has difficulty gripping objects due to nerve damage in one hand, which limits his employment options.
The jury returned a verdict finding Erwin alone liable on all claims and awarded Cowart $10,000 in compensatory damages and $4,000 in punitive
On appeal, Erwin challenges the district court‘s determination that Cowart complied with the PLRA‘s exhaustion requirement, as well as the district court‘s denial of her post-verdict motion for judgment as a matter of law and for new trial.
II
We review the district court‘s legal rulings regarding exhaustion of administrative remedies de novo and its factual findings for clear error.3
We review the district court‘s denial of a motion for judgment as a matter of law de novo, “applying the same standard as the district court.”4 When a case is tried to a jury, a motion for judgment as a matter of law “is a challenge to the legal sufficiency of the evidence supporting the jury‘s verdict.”5 “In resolving such challenges, we draw all reasonable inferences and resolve all credibility determinations in the light most favorable to the nonmoving party,” and will uphold the verdict “unless there is no legally sufficient evidentiary basis for a reasonable jury to find as the jury did.”6
Finally, we “review a district court‘s denial of a motion for a new trial for abuse of discretion.”7 But when the district court has denied a new trial motion, “[o]ur review is particularly limited” and “we must affirm the verdict unless the evidence—viewed in the light most favorable to the jury‘s verdict—
III
We first address Erwin‘s threshold argument that Cowart failed to exhaust administrative remedies. The PLRA requires prisoners to exhaust “such administrative remedies as are available” prior to filing a
It is undisputed that the Dallas County jail provides a two-step grievance procedure: First, a prisoner must submit a written grievance to any staff member at the jail (Step 1); second, a prisoner must appeal an adverse decision to the Detention Service Manager (Step 2). According to the jail‘s inmate handbook, the Grievance Board, upon receiving a grievance, “sends a[n] interim reply to the inmate showing grievance receipt, and the grievance
Erwin does not contest the magistrate‘s factual finding that Cowart submitted a Step 1 grievance to a jail staffer. She further acknowledges that the parties previously stipulated that Step 2 of the process was not at issue, given Cowart‘s transfer to TDCJ custody prior to the lapse of the Board‘s 60-day response period.13
Erwin contends that Cowart was required to appeal, or take some other action, when he failed to receive a timely interim response from the Board. Erwin asserts that Cowart was familiar with the grievance process and acknowledged that he “should have known” something had gone amiss when he did not receive a timely interim reply. Based on this argument and according to Erwin‘s timeline, Cowart had two weeks prior to his transfer to rectify the improper processing or non-receipt of his grievance. While we question Erwin‘s timeline, which assumes both that a jail staffer immediately delivered the Cowart‘s grievance and that the grievance was filed that same day, it is irrelevant to our holding.
Erwin primarily relies on this court‘s opinion in Wilson v. Epps.14 In Wilson, we held that when a prison fails to respond timely “at some preliminary step in the grievance process,” a prisoner is “entitle[d]” to “move on to the next step.”15 We explained that “it is only if the prison fails to respond at the last step of the grievance process that the prisoner becomes entitled to sue, because then there is no next step (save filing a lawsuit) to which the prisoner can
The grievance policies of the Dallas County Jail indicate that Wilson does not apply on the facts before us. The jail‘s Grievance Plan provides that “[i]f an inmate is not satisfied with a Board‘s findings, the inmate may appeal to the Detention Service Manager, Quality Assurance Unit.”18 The Plan further indicates that the “Board‘s findings” are delivered to an inmate in a “written reply . . . within 60 days of the initial grievance receipt.” An interim response does not contain “findings” that a prisoner may appeal. Nor does any other provision in the plan permit an inmate to appeal the lack of a timely interim reply. Here, unlike in Wilson, the policies afforded Cowart no “next step” once the response period for an interim reply had lapsed, but pending his receipt of a written answer with findings.
Essentially, Erwin reads an additional requirement into the policies—one requiring prisoners to object in some way if they do not receive a timely interim reply. However, “[e]xhaustion is defined by the prison‘s grievance procedures, and courts neither may add to nor subtract from them.”19 The district court did not abuse its discretion in concluding that Cowart complied with the PLRA‘s exhaustion requirement.
IV
Erwin contends that insufficient evidence supports the jury‘s verdict on his
A
In evaluating excessive force claims under the Eighth Amendment, the “core judicial inquiry” is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”20 Though “[t]he focus of this standard is on the detention facility official‘s subjective intent to punish,”21 intent is determined by reference to the well-known Hudson factors—“the extent of injury suffered, the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.”22 The amount of force used must be more than de minimis, “provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.‘”23 A plaintiff need not show significant injury, although the extent of the injury may supply insight as to the amount of force applied.24
Erwin concedes the evidence supports a finding that she punched Cowart twice in the face but claims the record supports nothing more. She further
Erwin‘s position is that the “objective evidence” offered at trial, which included photographs, medical records, and testimony from medical professionals, cannot be contradicted by Cowart‘s or other witnesses’ testimony. Erwin‘s “objective evidence” argument is derived from her misplaced reliance on two opinions in which this court considered objective evidence—in both cases, a videotape—to determine whether factual disputes existed at the summary judgment stage.25 Those cases are factually inapposite. In the present case, the objective evidence is not necessarily inconsistent with eye witness accounts of what transpired at the jail on the day in question. There were material factual disputes to be resolved by a factfinder, and we apply the long-standing principle of deference afforded to verdicts rendered by a jury. We “review all of the evidence from the record, draw all reasonable inferences in favor of the nonmoving party, and may not make credibility determinations or weigh the evidence.”26
The evidence in this case supports the jury‘s verdict finding Erwin liable for excessive force. We note that the questions put to the jury did not differentiate between Erwin‘s punches and the subsequent melee; the jury was simply asked whether the officers used excessive force. Accordingly, in reviewing the verdict, we consider whether the jury could have found that Erwin used excessive force by punching Cowart, by beating him further alongside other officers, or both.
Regardless, the jury was entitled to find an excessive force violation based on other Hudson factors, namely, the use of force despite the lack of a perceived threat or need for force. There was evidence that Cowart was restrained and non-threatening when Erwin punched him. This version of events, which we must accept at this stage, supports a finding of excessive force—“courts have frequently found constitutional violations in cases where a restrained or subdued person is subjected to the use of force.”28 It is notable that even Erwin testified that, assuming she had punched him, such force would be excessive.
Erwin suggests that no testimony tied her to the beating that followed her punches. However, Cowart and multiple inmate witnesses testified that Erwin participated in the fray. The testimony established that Cowart was
Erwin nevertheless claims that she is entitled to qualified immunity. Qualified immunity shelters state officials from liability only “to the extent that the officials’ actions do not violate clearly established statutory or constitutional rights.”29 “A public official is entitled to qualified immunity unless the plaintiff demonstrates that (1) the defendant violated the plaintiff‘s constitutional rights and (2) the defendant‘s actions were objectively unreasonable in light of clearly established law at the time of the violation.”30 In defining clearly established law, we must avoid a high level of generality and instead consider “whether the violative nature of particular conduct is clearly established.”31
We have little difficulty concluding that in 2009, the time of the incident, it was well-established, in sufficiently similar situations, that officers may not “use gratuitous force against a prisoner who has already been subdued . . . [or] incapacitated.”32 Reasonable officers had fair notice that such conduct under the circumstances violated Cowart‘s right to be free from excessive force.33
We do not address Erwin‘s challenges to the jury‘s findings of
B
Erwin challenges the jury‘s award of damages. Erwin first argues that the $10,000 in compensatory damages is unsupported by the evidence. The jury was instructed to consider damages for physical pain and mental anguish, physical impairment, and loss of earning capacity. When a damage award includes recovery for pain and suffering, which are “to a large degree, not susceptible to monetary quantification,” the jury “has especially broad leeway.”34
We are satisfied that the award of $10,000 in compensatory damages falls within the range of permissible awards supported by the evidence in this case. Cowart testified that he “was in so much pain and blood [was] everywhere,” that his arms and hands were “completely numb,” that he heard a “constant ringing” in his left ear, and that he was screaming from the pain. The inmate witnesses corroborated Cowart‘s report of pain and suffering at the scene. Photographs taken after the altercation show redness and injury to Cowart‘s face, ear, neck, and back. Medical records and testimony further support Cowart‘s account of his injuries and pain. A triage nurse observed bruising and redness on Cowart‘s face and neck and noted that Cowart was complaining of throbbing in his left eye and ear and his right hand, as well as diminished hearing. The treating physician diagnosed Cowart with a perforated ear drum, a neck sprain, multiple contusions, and swelling and tenderness on his right hand. When asked, the physician confirmed that
Erwin next asks this court to exercise its “discretionary moral judgment” and set aside the jury‘s award of $4,000 in punitive damages. She contends the award must be set aside because she lacked the requisite mental state and because the damages serve no deterrent value since Erwin no longer works in law enforcement. Erwin does not challenge the quantum of punitive damages, only the fact of their imposition.
A jury may award punitive damages in a
C
The record does not support Erwin‘s claim that the inmate witnesses fabricated a joint tale. The inmate witnesses were no more consistent in their accounts of the events than the testifying officers. Moreover, Erwin asked each inmate if they had conversed during cross-examination. Apparently the jury did not find the contrived-testimony theory convincing, and we do not “reweigh the evidence or assess the credibility of witnesses.”40
Erwin argues that the jury was confused by a particular interrogatory and read it to require a damages award. The jury sent a question to the district court during deliberations indicating that the jury was confused by a specific interrogatory and “d[id] not want to consider damages for the defendants.” We agree with the district court that a fair reading of the record indicates that the jury initially interpreted the interrogatory to permit damages in favor of the defendants, as opposed to Cowart. However, the district court‘s responses advised the jury that if it reached the issue of damages, damages could only be awarded to Cowart. The responses provided to the jury do not evince a mandatory damages instruction, as Erwin suggests.
Erwin maintains that she should not have been found solely liable because trial testimony indicated that multiple officers attacked Cowart. It is of course no defense to Erwin‘s liability that a jury did not find her co-defendants liable by a preponderance of the evidence. As both Cowart and
In sum, the result in this case does not reflect a miscarriage of justice and the district court acted within its discretion in denying Erwin‘s new trial motion.
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The judgment of the district court is AFFIRMED.
PRISCILLA R. OWEN
CIRCUIT JUDGE