IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31387
SONYA BENNETT,
Plaintiff-Appellant,
versus
ERNEST RHODES; ET AL.,
Defendants,
ERNEST RHODES; GREG PHARES;
CITY OF BATON ROUGE; S. MURPHY;
A. MUNOZ,
Defendants-Appellees.
Appeal from the United States District Court for
the Middle District of Louisiana
(USDC No. 97-CV-492-B)
_______________________________________________________
March 29, 2002
Before REAVLEY, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
Sonya Bennett appeals the take nothing judgment entered in her civil rights suit.1
She claims that the jury erred in failing to award her actual and punitive damages after it
found that appellees Ernest Rhodes, Arthur Munoz, and Stephen Murphy violated her
civil rights under 42 U.S.C. § 1983.
After the jury returned its verdict, finding liability but awarding no damages,
Bennett moved for a mistrial. On appeal she argues that after the jury rendered an
inconsistent verdict, the district court should have ordered the jury to deliberate further or
should have ordered a new trial. Bennett further argues that she was entitled to an award
of attorney’s fees, and also suggests that this court should make its own award of
damages.
At the outset we reject Bennett’s argument that the jury erred in failing to award
punitive damages. Bennett does not complain of the court’s instruction that punitive
damages were only warranted if, in addition to finding a constitutional violation and
actual damages, the jury additionally found that the defendants “acted with malice,
willfully, intentionally or with callous reckless indifference to plaintiff’s rights and that
punitive damages are warranted as punishment and as a deterrent to others.” The failure
to render an award of punitive damages does not render the jury verdict inconsistent, and
1
Appellees filed a notice of cross-appeal, but this notice was untimely and we
accordingly lack jurisdiction over it. Even if we had jurisdiction over the cross-appeal,
appellees failed to file a brief and have accordingly waived whatever arguments they
might have made.
2
Bennett does not otherwise persuade us that an award of punitive damages was compelled
by the evidence.
The issue of compensatory damages presents a closer question. On the liability
interrogatories, the jury found that Rhodes used excessive force, and that such conduct
was a cause in fact of damages sustained by Bennett. The jury also found that Munoz
and Murphy failed to take reasonable measures to protect Bennett from the use of
excessive force, and that this failure was a cause in fact of damages sustained by Bennett.
However, when asked what amount would fairly and adequately compensate Bennett for
her injuries, the jury answered with an award of zero dollars.
If a jury’s answers to special interrogatories are inconsistent, the case must be
remanded for a new trial, but the answers are considered inconsistent only if there is no
way to reconcile them. Gaia Techs., Inc. v. Recycled Prods. Corp., 175 F.3d 365, 372
(5th Cir. 1999). In the pending case, the answers are not irreconcilable. There was much
conflicting evidence from the witnesses regarding Bennett’s injuries. While there was
overwhelming evidence that Bennett had received injuries on the day in question, the jury
might well have concluded that some of the injuries were due to Bennett’s fight with her
boyfriend, Lionel Singleton, which had precipitated the police response, or from a
reasonable effort by Rhodes to fight off an attack from Bennett. Hence, while the jury
might have concluded that Bennett did indeed suffer some injury resulting from Rhodes’
use of excessive force, the jury might have been unable to find, by a preponderance of the
evidence, which injuries were caused by the excessive force and which injuries were
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caused by the non-excessive force used by Rhodes or were caused by the fight with
Singleton. Accordingly, the jury’s answers to the special interrogatories are not
irreconcilable.
Nevertheless, since the jury found that Bennett’s civil rights were violated, she
was at least entitled to an award of nominal damages. See Clarke v. Stalder, 121 F.3d
222, 225 n.4 (5th Cir. 1997), on rehearing en banc, 154 F.3d 186 (5th Cir. 1998); Taylor
v. Green, 868 F.2d 162, 165 (5th Cir. 1989). Further, an award of nominal damages
might support an award of attorney’s fees under 42 U.S.C. § 1988. See Hopwood v.
Texas, 236 F.3d 256, 278 (5th Cir. 2000); Hidden Oaks Ltd. v. City of Austin, 138 F.3d
1036, 1052 (5th Cir. 1998). We note that Bennett prayed for attorney’s fees below, and
conclude that a determination of the amount of attorney’s fees, if any, Bennett should
receive should be decided by the district court in the first instance.
Accordingly, we remand this case to the district court for entry of an award of
nominal damages, and for a determination of Bennett’s attorney fee request under 42
U.S.C. § 1988.
Judgment Vacated; Cause Remanded.
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