UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALICE JOHNSON KEBE, on behalf of
K.J., her minor daughter,
Plaintiff-Appellant,
v.
OFFICER BROWN,
Defendant-Appellee, No. 02-2098
and
JOHN DOE 1-5, Officer, Prince
George’s County Police
Department, District VI,
Defendant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Deborah K. Chasanow, District Judge.
(CA-00-1772-DKC)
Argued: September 23, 2003
Decided: January 22, 2004
Before LUTTIG, MICHAEL and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: John Christopher Belcher, Oxon Hill, Maryland, for
Appellant. Jay Heyward Creech, Upper Marlboro, Maryland, for
2 KEBE v. BROWN
Appellee. ON BRIEF: Rhonda L. Weaver, Associate County Attor-
ney, OFFICE OF LAW, Upper Marlboro, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case arises out of a complaint filed by the Appellant, Alice
Johnson Kebe ("Kebe"), on behalf of her teenage daughter, K.J.,
against certain Prince George’s County Police Officers. Kebe claimed
that the officers,1 particularly Corporal Parke Brown, violated her
daughter’s rights under 42 U.S.C. § 1983, and that he committed
common law battery and common law defamation, Counts I - III,
respectively. The district court granted partial summary judgment in
favor of Kebe on Count I, holding that the officers’ stop of K.J. vio-
lated her rights under § 1983, and the court granted summary judg-
ment in favor of Corporal Brown on Counts II and III, holding that
he was immune from suit. The issues of whether Corporal Brown
frisked K.J. and whether the frisk caused her any damages were tried
by jury. At the conclusion of the trial, the jury found in favor of Kebe
and awarded nominal damages in the amount of $1, and the jury
declined to award punitive damages. Kebe now appeals. As explained
below, we affirm the district court in all aspects.
I.
Corporal Parke Brown and his partner, Officer Gerald Knight, of
the Prince George’s County Police Department, responded to a 911
dispatch call on June 14, 1999. The call indicated that four or five
young black males, one of whom was carrying a large chain as a
weapon, were chasing another black male in a residential area in
1
No John Doe defendant was ever specifically identified or served.
KEBE v. BROWN 3
Beltsville, Maryland. After arriving in the vicinity where the boys
were allegedly seen, Brown and Knight stopped and exited their
police vehicle with their guns drawn. They encountered another group
of youths immediately thereafter. Knight frisked a young man who
allegedly fit the description of one of the suspects, ran a background
check on him, and eventually released him. Then, Brown pointed his
gun at the three remaining youths and ordered them to the ground,
frisking each for weapons. One of the remaining three youths was
K.J. The officers had not received any information about a female
being among the group of the alleged perpetrators, yet they proceeded
to stop and search her for weapons. At the time of the stop, K.J. was
wearing silk boxer shorts, a form-fitting tank top, and ballerina shoes,
under which no reasonable officer could have believed a weapon was
hidden.
Kebe appeals on the following four grounds: (1) the jury instruc-
tions misstated the law and misled the jury, because they inferred that
Corporal Brown’s liability was undecided; (2) the district court erred
by refusing to award Kebe’s attorney’s fees in response to the parties’
cross-motions for sanctions; (3) the district court erred by denying
Kebe a hearing on her motion for a new trial; and (4) the district court
erred by denying Kebe’s post-trial motion for attorney’s fees. We
reject each ground for appeal and affirm the judgment of the district
court.
II.
Kebe first challenges the district court’s jury instructions. Kebe
contends that the jury instructions, regarding the state of mind
required to establish Corporal Brown’s liability for the frisk, were
erroneous because the issue of liability had already been decided in
Kebe’s favor when the Court partially granted her motion for sum-
mary judgment. Kebe’s contention assumes that because she was
awarded partial summary judgment on the unlawfulness of the stop,
which presumes that Corporal Brown acted with the requisite mental
intent, that Corporal Brown also necessarily acted with the requisite
intent regarding the frisk.
Corporal Brown maintains that the jury instructions were not erro-
neous because the "district court made clear that the issue of liability
4 KEBE v. BROWN
was limited to the frisk as the court had already determined the [sic]
Brown was liable as to the stop." (Br. for Appellee, at 6.) Moreover,
Corporal Brown argues that any error caused by the jury instructions
was harmless, because the jury ultimately ruled in Kebe’s favor. We
agree with Corporal Brown, and hold that the instructions neither mis-
stated the law nor misled the jury.
We begin our analysis by noting that the accuracy and adequacy of
jury instructions are reviewed de novo. United States v. Morrison,
991 F.2d 112, 116 (4th Cir.), cert. denied, 510 U.S. 881 (1993). It is
the reviewing court’s responsibility to determine whether the instruc-
tions as a whole, "adequately informed the jury of the controlling
legal principles without misleading or confusing the jury to the preju-
dice of the [appellant]." Spell v. McDaniel, 824 F.2d 1380, 1395 (4th
Cir. 1988). In reviewing the "adequacy of [a trial court’s] . . . choice
of jury instructions," appellate courts accord trial courts considerable
discretion. United States v. Hassouneh, 199 F.3d 175, 181 (4th Cir.
2000); see also Bailey v. County of Georgetown, 94 F.3d 152, 155
(4th Cir. 1996) (same); Teague v. Baker, 35 F.3d 978, 985 (4th Cir.
1994) (same). Moreover, a "judgment will be reversed for error in
jury instructions ‘only if the error is determined to have been prejudi-
cial, based on a review of the record as a whole.’" Sturges v. Mat-
thews, 53 F.3d 659, 661 (4th Cir. 1995) (quoting Wellington v.
Daniels, 717 F.2d 932, 938 (4th Cir. 1983)).
In the instant matter, the district court instructed the jury as fol-
lows:
In this case, it has already been decided that Corporal
Brown did not have reason to stop [K.J.], nor cause to frisk
her. It is uncontested that the defendant stopped [K.J.] and,
thus, violated her Fourth Amendment right in that regard.
You will have to decide whether he also frisked her and,
thus, violated her Fourth Amendment [right] in that fashion
also.
Finally, to establish a claim under Section 1983 with regard
to the frisk against the defendant, the plaintiff must also
show that the defendant acted intentionally or recklessly. If
you find that the acts of the defendant were merely negli-
KEBE v. BROWN 5
gent, then, even if you find that the plaintiff was injured as
a result of those acts, you must return a verdict for the
defendant.
An act is intentional if it is done knowingly, that is, if it is
done voluntarily and deliberately, and not because of mis-
take, accident, negligence or other innocent reason.
(J.A. 237-38) (emphasis added). The court also defined the mens rea
elements for "reckless,"2 and "negligent"3 behavior in the instructions
to the jury. Id.
We find no error in the instructions given to the jury. In fact, this
Court upheld similar jury instructions in Sturges v. Matthews, 53 F.3d
659 (4th Cir. 1995). In Sturges, the personal representative of a sus-
pect, who died after losing control of his vehicle while being chased
by the police, brought a § 1983 action against the deputy sheriff, the
county, and the county sheriff. At the trial, the jury was instructed, in
part, as follows: "In the event you find based upon a preponderance
of the evidence that the plaintiff has not proved that the defendant
. . . acted intentionally or willfully and thereby violated the constitu-
tional rights of the decedent, then you would find for the defendant."
Sturges, 53 F.3d at 662. The personal representative appealed, chal-
lenging the portion of the jury instructions that required the jury to
find that the government actor had committed an intentional or willful
act. Id. at 661. We upheld the instructions on appeal, concluding that
they "were not misleading and contained an adequate statement of the
law to guide the jury’s determination." Id. at 662. In fact, we noted
that the district court’s instructions "repeatedly emphasized the
Brower requirement. . . ." Id. In Brower v. County of Inyo, the
Supreme Court held that in order to find a Fourth Amendment viola-
tion, "an intentional acquisition of physical control" is required,
because "the Fourth Amendment addresses ‘misuse of power,’ not the
2
"An act is reckless if improperly done in conscious disregard of its
known probable consequences." (J.A. 238.)
3
"An act is negligent if a defendant was under a duty or obligation rec-
ognized by law that required him or her to adhere to a certain standard
of conduct, to protect others against unreasonable risks, and he or she
breached that duty or obligation." (J.A. 238.)
6 KEBE v. BROWN
accidental effects of otherwise lawful government conduct." 489 U.S.
593, 596 (1989)(emphasis added)(quoting Byars v. United States, 273
U.S. 28, 33 (1927)). Based upon that principle, we affirmed the jury
instructions in Sturges.
Because the instructions in Sturges are very similar to the instruc-
tions given by the district court in the present case, we likewise con-
clude that it was not error for the court to instruct the jury in that
manner. Moreover, the district judge made clear in the instructions
that the necessary intent pertained only to the issue of the frisk, by
stating that Corporal Brown had already been found liable for the
unreasonable stop of K.J. (J.A. 237.) The Court also noted that no
determination had previously been made regarding Corporal Brown’s
mental state as to the frisk, and that it was, therefore, the jury’s
responsibility to determine if Corporal Brown wrongfully frisked K.J.
Accordingly, we conclude that the jury instructions pertaining to the
requisite intent for Kebe’s § 1983 claim were not erroneous, because
they did not mislead or confuse the jury nor misstate the law.
III.
Kebe also argues that the district court erred by failing to award her
attorney’s fees as requested in her motion for sanctions, filed pursuant
to Rule 37 of the Federal Rules of Civil Procedure. In her motion for
sanctions, Kebe alleged that Corporal Brown’s counsel committed
discovery violations concerning one of his key witnesses. Therefore,
she requested, as one possible sanction, that Appellee be made to pay
her attorney’s fees. A magistrate judge conducted a hearing pertaining
to the parties’ cross-motions for sanctions, and the judge denied both
motions, finding no factual support for either. Kebe never filed an
objection to the magistrate judge’s ruling.
Rule 72 of the Federal Rules of Civil Procedure states that a party
must file and serve a written objection to a magistrate judge’s order
on a nondispositive matter within ten days after being served with a
copy of the magistrate judge’s order. Fed. R. Civ. P. 72. Thereafter,
"a party may not assign as error a defect in the magistrate judge’s
order to which objection was not timely made." Id. The magistrate
judge’s order disposing of Kebe’s Rule 37 motion for sanctions is
undoubtedly a nondispositive matter covered by Rule 72. Therefore,
KEBE v. BROWN 7
because Kebe failed to file a written objection to the magistrate
judge’s order, any issues Kebe may have regarding that order have
been waived and may not be raised on appeal.
IV.
Next, Kebe contends that the district court erred by denying her
request for an evidentiary hearing in connection with her motion for
a new trial. Although Kebe frames this issue as a challenge to the
court’s denial of her request for an evidentiary hearing, she is essen-
tially arguing that it was error for the district court to deny her motion
for a new trial. We review the denial of a motion for new trial for
abuse of discretion. Bristol Steel & Iron Works, Inc. v. Bethlehem
Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994).
This Circuit has specifically recognized three instances in which an
appellate court must set aside a jury verdict and grant a new trial: "(1)
the verdict is against the clear weight of the evidence, or (2) is based
upon evidence which is false, or (3) will result in a miscarriage of jus-
tice even though there may be substantial evidence which would pre-
vent the direction of a verdict." Knussman v. Maryland, 272 F.3d 625,
639 (4th Cir. 2001) (internal citations omitted); see Atlas Food Sys.
& Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 594 (4th Cir.
1996).
As grounds for her motion, Kebe asserts the "prejudice associated
with the fact that [her] counsel was forced to spend the weekend
immediately preceding trial responding to Brown’s motion seeking to
bar Kebe from putting on its [sic] evidence of emotional damages,
rather than otherwise preparing for trial." (Br. for Appellant at 33.)
Kebe refers to Brown’s motion in limine, which was filed less than
a week before trial, in which his counsel sought to bar expert testi-
mony regarding K.J.’s mental state after the June 14, 1999 incident.
Kebe’s argument most closely falls under the third ground for a new
trial; that is by responding to the motion in limine, her counsel was
taken away from trial preparation, which resulted in a miscarriage of
justice.
Kebe’s argument is without merit for several reasons. First, it
appears from the record that the district court apparently denied
8 KEBE v. BROWN
Brown’s motion in limine because Kebe’s witness, Ms. Judith
Laverne Conway, was permitted to testify regarding K.J.’s emotional
state before and after the June 14, 1999 incident. (Tr. at 28-40, March
6, 2002). Therefore, the court decided the motion in limine in Kebe’s
favor. Second, Kebe has not demonstrated how she was prejudiced by
having to respond to Brown’s last-minute motion. Kebe fails to detail
how her trial preparation was detrimentally interrupted by responding
to the motion in limine. For those reasons, we conclude that the dis-
trict judge neither abused his discretion by denying Kebe’s motion for
a new trial nor her request for an evidentiary hearing regarding the
motion. We therefore affirm.
V.
Lastly, Kebe contends that the district court erred by denying her
post-trial motion for attorney’s fees, which was filed pursuant to 42
U.S.C. § 1988. We review the denial of a motion for attorney’s fees
for abuse of discretion. Johnson v. City of Aiken, 278 F.3d 333, 336
(4th Cir. 2002). We find no abuse of discretion in the district court’s
denial of Kebe’s motion, and affirm.
The very statute under which Kebe filed her motion states that "the
court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs." 42
U.S.C. § 1988 (emphasis added.) In denying Kebe’s motion, the dis-
trict court relied upon Farrar v. Hobby, 506 U.S. 103 (1992), and City
of Aiken. In Farrar, the Supreme Court held that a party who receives
only nominal damages is still deemed to be a "prevailing party" in the
context of awarding attorney’s fees under 42 U.S.C. § 1988. 506 U.S.
at 113. However, the Court also held that, although the nominal dam-
ages does not affect the "prevailing party" analysis, "it does bear on
the propriety of fees awarded under § 1988" because the "degree of
the plaintiff’s overall success goes to the reasonableness of a fee
award under Hensley v. Eckerhart, 461 U.S. 424 (1983)."4 Id. The
petitioners in Farrar received only nominal damages, and the
Supreme Court affirmed the denial of attorney’s fees, holding that
"[a] plaintiff who seeks compensatory damages but receives no more
4
In Hensley, the Court laid out twelve factors that bear on the reason-
ableness of an award of attorney’s fees. 461 U.S. at 430 n.3.
KEBE v. BROWN 9
than nominal damages" is the type of prevailing party that is entitled
to "no attorney’s fees at all." Id. at 115.
In City of Aiken, the jury awarded the appellees nominal damages
in the amount of thirty five cents, yet awarded "$81,994.61 in attor-
ney’s fees and costs." 278 F.3d at 336. When the fee was challenged
on appeal, we held, based on the reasoning of Farrar, that the "‘suc-
cess’ [of the appellees] was not sufficient to justify a § 1988 award."
Id. at 338 (quoting Farrar, 506 U.S. at 115). When a party seeks pri-
marily to recover monetary damages, and is awarded only nominal
damages, that party "has succeeded in only a technical sense." Id.
Accordingly, we vacated the awarding of attorney’s fees in City of
Aiken. Because Kebe sought only monetary damages in her civil
rights claim, as opposed to also seeking some form of injunctive relief,5
she falls squarely within the mandate of Farrar, which holds that
plaintiffs who seek compensatory and punitive damages, but are only
awarded nominal damages, may be denied an award of attorney’s
fees. Therefore, the district court did not abuse its discretion by deny-
ing Kebe’s motion for attorney’s fees.
VI.
For the reasons discussed above, we find no reversible error and
affirm.
AFFIRMED.
5
In her Complaint, Kebe requested $500,000 in compensatory damages
and $500,000 in punitive damages. (J.A. at 15.) However, on appeal, she
does not challenge the adequacy of the compensatory award, or the fail-
ure of the jury to award punitive damages.