Rascon v. HardimanRascon v. Hardiman
Peter Francis Geraci, Chicago, Ill., for plaintiff-appellee.
Before WOOD, CUDAHY and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge.
Plaintiff Elaine Rascon brought this action on behalf of her deceased husband, David Rascon, under
I
Plaintiff Elaine Rascon brought this suit on behalf of her deceased husband, David Rascon, under
The incident in question took place on March 29, 1980 at the Cook County Correctional Facility where David Rascon was a pretrial detainee. Rascon was held in the facility‘s Residential Treatment Unit (RTU), a ward designed to house inmates who are believed to have mental problems or who have been unable to fit into the general prison population. On March 29, Rascon became involved in an altercation with two inmates named Teeters and Kimbrough in the kitchen where all three were working. Teeters reported to Sergeant Pearman that he had been attacked by “a Mexican with a blue T-shirt and long hair.” Teeters also told Sergeant Pearman that his alleged attacker “went up the stairs.” Tr. 441. Sergeant Pearman called upon Officers Paczkowski and Legenza to accompany him to find the inmate involved. At this juncture, the factual picture painted by the plaintiff differs radically from that painted by the defendants.
The plaintiff‘s version of the incident in question is derived chiefly from the deposition of Melvin Boyd, who was also an inmate at the facility at the time. Mr. Boyd‘s deposition was offered into evidence because Boyd, who had subsequently been released from the correctional facility, was unavailable to testify at the trial. According to Mr. Boyd‘s deposition testimony, after the Teeters incident, Mr. Rascon returned to a dormitory room on the first floor adjacent to the kitchen area. The three guards found him there and took him to the stairwell. Boyd followed them. According to Boyd, when they reached the third floor landing, the officers proceeded to beat Rascon severely. Prior to the commencement of the beating, Rascon did not struggle with the officers or offer any resistance either physical or verbal. During the course of the beating, Rascon was kicked between the legs by one of the officers. At that point, he began to scream in pain; the officers stopped the beating when they noticed that Rascon‘s pants were covered with blood. Thе officers instructed Rascon to drop his pants so that they could ascertain the source of the blood. However, there was too much blood for the officers to make such a determination. Therefore, they instructed Rascon to shower so that they could examine him better. They also sent Boyd to get a clean change of clothing for Rascon. When Rascon returned from the shower, he had a rag between his legs and he was dripping blood and water on the floor. Thereupon, the officers escorted Rascon to the hospital. Officer Stein, who was seated at a desk at the top of the stairwell, observed thе incident but did not interfere.
The plaintiff also presented the testimony of Dr. Mohammed Tabib, the urologist who examined Rascon at the emergency room of Cook County Hospitаl on March 29, 1980. He testified that Rascon gave a history of being beaten and kicked in the perineum. Dr. Tabib‘s diagnosis was urethral trauma with leakage around the urethra. Tr. 368-75. Following treatment, Rascon was returned to the RTU. His hospital bills, which amounted to $9,300, were not paid as of the date of oral argument, although the county claimed to have absorbed this expense. Additional testimony given by Mr. Boyd indicated that corrections officers frequently inflicted beatings on RTU inmates.
At the close of the plaintiff‘s case, the defendants made a motion for a directed verdict as to defendants Stein, Hardiman (the Executive Director of the Cook County Department of Corrections) and Elrod (the Sheriff of Cook County). This motion was granted as to Hardiman and Elrod but denied as to Stein. Near the close of the defendants’ case, the jury was excused for a day while the court and the parties considered jury instructions. At that time, the magistrate also reconsidered her ruling with respect to defendants Hardiman and Elrod and put them back in the case. The defendants’ motions for mistrial or for a continuance to prepare a new theory of defense were denied.
At the close of the defendants’ case, the motion for a directed verdict as to Stein, Elrod and Hardiman was renewed. The jury returned a vеrdict for the plaintiff and assessed the following damages:
Compensatory Punitive
Richard J. Elrod $50,000 $100,000
Phillip T. Hardiman 50,000 100,000
Howard Pearman 40,000 25,000
Mark Paczkowski 40,000 25,000
Edward Legenza 40,000 25,000
William Stein -0- 1,000
On July 27, 1985, the defendants filed a motion for judgment n.o.v., or, in the alternative, for a new trial. On March 8, 1985, the court granted judgment n.o.v. as to defendant Elrod and denied judgment n.o.v. as to all other defendants. This appeal followed.
II
The issues on this appeal are whether the evidence elicited at trial was sufficient, as a matter of law, to support verdicts against William Stein and Phillip Hardiman; whether admission of Melvin Boyd‘s deposition testimony was proper; whether evidence relating to David Rascon‘s mental health was properly excluded; and whether statements made by David Rascon to the health care professionals who treated him at the Cook County Hospital was properly admitted. As a preliminary matter, we note that the standards by which we review denials of motions for judgment n.o.v. or for new trials are quite stringent. The standard of review for the denial of a judgment n.o.v. is a demanding one. This court has stated that, “[t]he motion should be denied where the evidence, along with all inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that [people] in a fаir and impartial exercise of their judgment may reach different conclusions.” McKinley v. Trattles, 732 F.2d 1320, 1323-24 (7th Cir.1984) (quoting Kolb v. Chrysler Corp., 661 F.2d 1137, 1140 (7th Cir.1981); see Bass by Lewis v. Wallenstein, 769 F.2d 1173, 1182 (7th Cir.1985). The test for granting a new trial is equally stringent--we may reverse such a refusal only upon a finding that the errors at trial were sufficiently substantial to deny the defendants a fair trial. Perry v. Larson, 794 F.2d 279, 285 (7th Cir.1986); see Taliferro v. Augle, 757 F.2d 157, 161 (7th Cir.1985); 9 J. Moore, W. Taggart & J. Wicker, Moore‘s Federal Practice p 110.08, at 124 (2d ed. 1983). With these standards in mind, we proceed to consider the issues presented to us for review.
Phillip Hardiman is the Executive Director of the Cook County Department of Corrections. In this capacity, Director Hardiman oversees the day-to-day operation of the Cook County Jail and the RTU including supervision of the guards and the inmates. Additionally, he is rеsponsible for formulation and execution of policy and rules and regulations in effect at the Cook County Jail. Tr. 231. According to the plaintiff, Phillip Hardiman is liable for the violation of David Rascon‘s constitutional rights by the guards under Hardiman‘s supervision. She alleges that Mr. Hardiman knowingly permitted the RTU to be operated without the disciplinary rules and regulations used in other parts of the facility. This conscious abrogation of the established disciplinary system, coupled with the failure to substitute any other system, permitted the infliction of ad hoc summary punishment upon the inmates by prison personnel. This approach to discipline in the RTU amounted, the plaintiff submits, to a policy of deliberate or reckless indifference for the safety of the prisoners, including Mr. Rascon. We must determine whether such a theory will support liability under
In Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.1983), this court stressed that “[s]ection 1983 creates a cause of action based upon personal liability and predicated upon fault. An individual cannot be held liable in a Sec. 1983 action unless he caused or participated in an alleged constitutional deprivation.” (emphasis in original); see also McBride v. Soos, 679 F.2d 1223, 1227 (7th Cir.1982); Adams v. Pate, 445 F.2d 105, 107 (7th Cir.1971). “Without a showing of direct responsibility for the imprоper action, liability will not lie against a supervisory official. A causal connection, or an affirmative link, between the misconduct complained of and the official sued is necessary.” Wolf-Lillie, 699 F.2d at 869. In short, “[i]ndividual liability for damages under section 1983 is predicated upon personal responsibility.” Schultz v. Baumgart, 738 F.2d 231, 238 (7th Cir.1984).
Moreover, the Supreme Court has recently made clear that a showing of mere negligence on the part of state officials is insufficient to implicate an individual‘s due process rights for purposes of a claim under
To recover for damages under
42 U.S.C. Sec. 1983 , a plaintiff must establish defendant‘s personal responsibility for the claimed deprivation of a constitutional right. Duncan v. Duckworth, 644 F.2d 653, 655 (7th Cir.1981). However, a defendant‘s direct participation in the deprivation is not required. An official satisfies the personal responsibility requirement ofsection 1983 if she acts or fails to act with a deliberate or reckless disregard of plaintiff‘s constitutional rights, or if the conduct causing the constitutional deprivation occurs at her direction or with her knowledge and consent.
Id. at 369 (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir.1982)).
To the extent that Mr. Hardiman is sued in his official capacity, this action operates as a claim against the government entity itself. Monell v. Department of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978); see Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Malak v. Associated Physicians, Inc., 784 F.2d 277, 283 (7th Cir.1986); Schultz v. Baumgart, 738 F.2d 231, 238-39 (7th Cir.1984); Wolf-Lillie, 699 F.2d at 870. It is well-settled that a claim against a state or local agency or its officials may not be premised upon a respondeat superior theory. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037; Rizzo v. Goode, 423 U.S. 362, 375, 96 S.Ct. 598, 606, 46 L.Ed.2d 561 (1976); Malak, 784 F.2d at 283; Soderbeck v. Burnett County, 752 F.2d 285, 292 (7th Cir.), cert. denied, 471 U.S. 1117, 105 S.Ct. 2360, 86 L.Ed.2d 261 (1985). “[T]ortious conduct, to be the basis for municipal liability under Sec. 1983, must be pursuant to a municipality‘s ‘official policy‘....” Pembaur, 106 S.Ct. at 1298; see Monell, 436 U.S. at 691-95, 98 S.Ct. at 2036-38. Moreover, the Supreme Court has recently indicated that, “[p]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.” Tuttle, 105 S.Ct. at 2436; see Malak, 784 F.2d at 283. Thus, to state a claim against Director Hardiman, the plaintiff was required to show that the actions of the offending officers were taken pursuant to an official--albeit impermissible--policy.
Director Hardiman also testified that this procedure was effective in all areas of the jail except one--the RTU. The inmates in the RTU were treated differently from the general population of the jail. Tr. 245. As Officer Legenza testified, “[a] person with psychiatric problems cannot be trusted in a lockup cell by himself because of the fact of possible suicide and self-mutilation. That‘s why the psychiatrist must be spoken to first before any type of disciplinary action is taken against this particular inmate.” Tr. 327. Psychiatric intervention in the RTU at the Cook County Jail is mandated by the federal consent decree entered into in Harrington v. DeVito, No. 74 C 3290 (N.D.Ill. Oct. 19, 1978). According to the further testimony of Officer Legenza:
If the individual is too unstable to be disciplined, then that particular case or that particular charge will be dismissed and that person will be put in a dormitory that is designed for the people that have more severe problems than others. But by the same token, if that same person is fit for disciplinary action, the doctor or clinical psychologist will design a program to discipline this individual.
Tr. 329.
On redirect, plaintiff‘s counsel was able to elicit from Officer Legenza that the procedure employed with respect to RTU inmates was implemented on a de facto basis--it was not formally outlined in any of the rules and regulations in effect at the jail. Tr. 331-32. In essence, the defendants admitted that the formal procedures for disciplinary actions against inmates were suspended in the RTU in favor of what was characterized as an ameliorative policy of resolving the matter informally through the intervention of a mental health professional. According to the defendants, this procedure operated not as a deprivation of rights but “rather [as] an accommodation extended to the mentally ill.” Appellants’ Br. at 27.
There is, however, another provision of the rules and regulations with respect to discipline which does not seem to have been abandoned in the RTU. According to that provision:
Disciplinary action is one of many essential elements in correctional treatment. When applied reasonably and with fairness it not only assists in protection of health, safety, and security of all persons within a correctional facility, but is also a positive factor in maintaining the morale of inmates and staff alike. No judicial decision precludes appropriate disciplinary action for misconduct that is imposed in a fair manner.
Tr. 247-48.
As noted at the beginning of this discussion, Mrs. Rascon argues that, when all formal procedures for processing disciplinary matters were abandoned in the RTU, an informal system of discipline filled the void. Mrs. Rascon contends that, far from indicating that RTU inmates received no punishment at all, the evidence indicates that covert, physical, summary punishment was substituted for the suspended formal disciplinary procedures. She argues that, where there is no formal system by which to discipline a class of inmates, corrections officers concluded that such measures are the only means by which to assure discipline in the facility.
This theory, if supported by competent evidence after a fair trial, could justify a finding of liability against Mr. Hardiman in his individual and official capacities. However, while this theory of liability can be rather succinctly stated at this point in the litigation, our examination of the trial record makes it disturbingly clear that this theory of liability was not clearly before the trial court throughout the litigation. Instead, it fully emerged rather painfully in the lengthy and disjointed sessions of the magistrate and counsel as the trial progressed. Indeed, it is quite apparent that the magistrate did not realize the gist of the plaintiff‘s theory until well into the trial.
This problem was further worsened by the magistrate‘s action in taking the case with respect to Director Hardiman and Sheriff Elrod from the jury and then returning it to them later. While this action is not error per se, it is likely that, in this case, it had a substantial effect on the jury. This case clearly meets the standard for a new trial. We reverse because we find that the action taken below was “inescapably wrong.” Taliferro, 757 F.2d at 161. Accordingly, the jury‘s verdict cannot stand, and we remand for a new trial on the issue of Director Hardiman‘s liability.
B. Officer Stein
Defendant William Stein is not alleged to have personally inflicted any injury upon Mr. Rascon. Rather, the evidence showed that he was seated at a desk on the third floor at the time of the incident involving Mr. Rascon and the officers. The plaintiff submits that Mr. Stein was able to observe the incident, but he did not intervene. The jury awarded no compensatory damages and $1,000 in punitive damages against Mr. Stеin. He claims that the evidence was insufficient, as a matter of law, to support the verdict.
The leading case treating the duty of an officer to intervene to prevent summary punishment was decided by this court. In that case, Byrd v. Brishke, 466 F.2d 6 (7th Cir.1972), this court stated:
We believe it is clear that one who is given the badge of authority of a police officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. That responsibility obviously obtains when the nonfeasor is a supervisory officer to whose direction misfeasor officers are committed. So, too, the same respоnsibility must exist as to nonsupervisory officers who are present at the scene of such summary punishment, for to hold otherwise would be to insulate nonsupervisory officers from liability for reasonably foreseeable consequences of the neglect of their duty to enforce the laws and preserve the peace.
Id. at 11. The reasoning of the Byrd court has been adopted by other courts considering an officer‘s duty to intervene. See Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986); Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir.1982), cert. denied, 459 U.S. 1171, 103 S.Ct. 816, 74 L.Ed.2d 1014 (1983); Putman v. Gerloff, 639 F.2d 415, 423 (8th Cir.1981); Harris v. Chanclor, 537 F.2d 203, 206 (5th Cir.1976); Skevofilax v. Quigley, 586 F.Supp. 532, 543 (D.N.J.1984); McQurter v. City of Atlanta, 572 F.Supp. 1401, 1415 (N.D.Ga.1983); Davidson v. Dixon, 386 F.Supp. 482 (D.Del.1974), aff‘d, 529 F.2d 511 (3d Cir.1975). We have found no cases rejecting this reasoning.
We do not retreat from this general principle of law. However, we believe that, under the circumstances of this case, the question of Mr. Stein‘s liability was not fairly presented to the jury. The jury received but one cryptic instruction with respect to Mr. Stein‘s liability:
One who is given the badge of authority of a corrections officer may not ignore the duty imposed by his office and fail to stop other officers who summarily punish a third person in his presence or otherwise within his knowledge. This responsibility exists as to non-supervisory and supervisory officers who are present at the scene.
Tr. 860. The evidence of precisely what Mr. Stein saw is, even when all possible inferences in favor of the plaintiff are drawn, extraordinarily thin. It is entirely possible that the jury could have reached a determination of liability against Mr. Stein on the impermissible theory that he hаd been negligent in failing to perceive that the other officers were inflicting illegal summary punishment rather than using lawful force to subdue a violent inmate. The former determination would not support liability under
C. Boyd‘s Deposition
The appellants argue that the district court should not have accepted Mr. Boyd‘s deposition into evidence. They argue that there was not a proper showing that Mr. Boyd was unavailable to testify at the trial, that certain portions of the deposition were prejudicial and should have been excluded and that extrinsic evidence with respect to Mr. Boyd‘s credibility were wrongfully excluded.
(a) At the trial ... any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with ... the following provisions:
* * *
(3) The deposition of a witness, whether or not a party, may be used by any pаrty for any purpose if the court finds:
* * *
(D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena....
The party seeking to admit the deposition, must prove that the requirements of the rule have been met. United States v. Pelton, 578 F.2d 701 (8th Cir.), cert. denied, 439 U.S. 964, 99 S.Ct. 451, 58 L.Ed.2d 422 (1978). At trial, plaintiff called a private investigator and process server, Michael R. Chiapetta, who had been hired to serve Boyd, to testify concerning his good faith and diligent efforts to serve Boyd. The magistrate stated that she was “satisfied that diligent efforts were made to subpoena Boyd and that he was not available to testify under Rule 32(a)(3)(D).” R. 166 at 10. The record supports this conclusion. Moreover, the appellants’ attorney was present at the deposition and was afforded an opportunity to cross-examine Mr. Boyd at that time. As long as the deposition testimony meets the requirements of the Federal Rules of Evidence, admission of deposition testimony is within the sound discretion of the trial court. Reeg v. Shaughnessy, 570 F.2d 309 (10th Cir.1978); United States v. Bowen, 411 F.2d 923 (5th Cir.1969); see Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 844 (7th Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 780, 83 L.Ed.2d 775 (1985). We find that the deposition testimony of Mr. Boyd was properly admitted.
Appellants’ claim that they were unduly prejudiced by the nonappearance of Mr. Boyd and by admission of Mr. Boyd‘s testimony that prison beatings were frequent and common occurrences is without merit. We agree with the district court that Boyd‘s testimony, Tr. 184-85, with resрect to other beatings at the facility was essential to Rascon‘s claim of a policy of substituting summary punishment for disciplinary procedures. The appellants had every opportunity to cross-examine Boyd with respect to his allegations at the time of the deposition. They took full advantage of that opportunity. Moreover, they did not object to the scope of Mr. Boyd‘s testimony. Failure to object at the time of the deposition results in waiver of those objections and renders the testimony admissible. See Kirschner v. Broadhead, 671 F.2d 1034 (7th Cir.1981).
D. Evidence of Rascon‘s Mental Health
Appellants argue that the trial court improperly disallowed testimony which would have established that the appellants were aware of Mr. Rascon‘s background at the time of the incident. They argue that testimony that they were aware of Rascon‘s suicide attempt, his history of mental illness and that he was charged with attempted arson would have helped to justify their actions in subduing Rascon on the stairwell.
In this case, the magistrate refused to receive evidence of the decedent‘s mental health history because she believed it to be of little probative value especially considering that there was other substantial evidence admitted with respect to Rascon‘s mental and emotional health. Tr. 119, 196, 304. The magistrate indicated that she refused to admit the history “because to classify Rascon as a ‘mental case’ would suggest that it would be reasonable to subdue him based on a supposed status rather than his conduct at the time.” R. 166 at 21. We cannot disagree with this assessment.3
Appellants contend that the admission into evidence of Rascon‘s hospital records, which contained statements by Rascon to the treating physician and nurse regarding the source of his injuries was error.
At trial, Dr. Tabib, Rascon‘s treating physician at the Cook County Hospital on March 29, 1980, was permitted to testify, over objection, that Rascon was “alleged to have been beaten by authorities,” Tr. 377, and that his injuries resulted from a beating inflicted by police officers. Tr. 378-79.
III
The trial in this case was far from perfect. Upon consideration of the entire record, we are convinced that many errors were made which rendered part of the verdict unfair. Accordingly, we hold the following: The denial of the motion for a new trial with respect to Director Hardiman‘s liability wаs wrong. The question of Mr. Stein‘s liability must also be retried. The admission of Mr. Boyd‘s deposition testimony was proper; the exclusion of certain evidence with respect to Mr. Rascon‘s mental health background was proper; any error in admitting evidence that Mr. Rascon informed treating health care professionals that he had been beaten by the police was, at most, harmless. Accordingly, the judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this decision. Circuit Rule 18 will apply. The parties will bear their own costs of this appeal.
SO ORDERED.