United States Court of Appeals,
Eleventh Circuit.
No. 94-6304.
Josephine HARDIN, individually; Josephine Hardin, as
Administratrix of the Estate of Edie L. Houseal, Deceased,
Plaintiffs-Appellees,
v.
James HAYES, Sheriff of Etowah County; Robert Hitt, Chairman of
Etowah County Commission; Marion T. Smith; Billy Ray McKee,
Commissioner of Etowah County; Jesse F. Burns, Commissioner of
Etowah County; W.A. Lutes, Commissioner of Etowah County;
Lawrence Presley; Billy Ray Williams; John Morris; John Raley,
Defendants,
Gadsden, City of, a Municipal Corporation, Defendant-Appellant,
Birmingham, City of; R.L. Webb; Julius Walker, Intervenors,
United States of America, Amicus.
May 19, 1995.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-89-C-2164-M) U.W. Clemon, Judge.
Before KRAVITCH, ANDERSON and EDMONDSON, Circuit Judges.
PER CURIAM:
The City of Gadsden, Alabama (the "City"), appeals from a jury
verdict in favor of Josephine Hardin, as personal representative
for the estate of Edie L. Houseal, a jail inmate who died while
incarcerated by the City. In the second trial in this case, the
jury found in favor of Houseal's estate on both the 42 U.S.C. §
1983 claim (alleging deliberate indifference to Houseal's need for
mental health treatment) and the pendent wrongful death claim
(alleging negligence by City employees). Because we conclude that
the district court abused its discretion in ordering a new trial
after the first trial resulted in a verdict for the City, we
REVERSE and REMAND with instructions that the first verdict be
reinstated.
I.
Gadsden City Police1 arrested Edie Houseal on May 29, 1989,
after she called them claiming that her life was in danger. On the
way to the City jail, Houseal kicked and dented the rear door of
the squad car, screaming, somewhat incoherently, that someone was
preparing to kill her. Houseal was similarly disruptive throughout
her confinement, and periodically repeated her perception of a
continuing threat to her life.
Because the City jail was being renovated, Houseal spent her
days at the Etowah County jail and her nights at the City jail. On
May 30, while at the County jail, she was observed by one of the
other inmates smearing vomit on her own face; the inmate testified
that he reported this incident to the County jailers. Later that
afternoon, Houseal began to beat her head against the bars of her
cell. When the jail personnel arrived, Houseal grabbed a pen from
one of the jailers, stabbed the jailer in the hand, and stabbed
herself in the neck. City officers transported Houseal to a
hospital. Several of the officers told the emergency room
physician that in view of Houseal's behavior, they thought that she
did not belong in jail, and inquired if he could arrange for a
psychiatric examination. The physician's response was
noncommittal, and Houseal was released from the hospital
1
The tragic facts of this case were detailed, at the summary
judgment stage, in Hardin v. Hayes, 957 F.2d 845 (11th Cir.1992);
we thus focus primarily on the additional evidence adduced at the
first trial.
immediately after treatment and returned to the County jail.
On May 31, City Police Chief John Morris was apprised of the
pen-stabbing incident and ordered an immediate evaluation of
Houseal by a mental health professional. The evaluation, however,
was not arranged until the following morning, when Houseal was
interviewed by William Owens, a social worker with the
Cherokee/Etowah/DeCalb Mental Health Center. After Houseal denied
that she had ever been to a mental hospital, refused to consent to
voluntary commitment to a mental hospital, and declined to answer
further questions, Owens left to begin the paperwork necessary for
an involuntary commitment.
Upon Owens's departure, Houseal flooded her cell by running
water into a stopped-up sink. She was observed sticking her head
in the water and repeatedly falling down. One of the inmates also
may have seen her consuming fecal matter. After County Sheriff
James Hayes and County Chief Correctional Officer John Raley
observed Houseal pacing in her flooded cell, Hayes ordered Raley to
call the City and have Houseal removed. The City officer who took
the call testified that Raley told him that the County jailers were
unwilling to reenter the cell until City officers came. Before
City officers arrived, however, Houseal collapsed in her cell and
died. An autopsy revealed the cause of death to be asphyxia due to
a small bar of soap lodged in Houseal's hypopharynx; a smaller bar
of soap was found in her stomach. The Alabama State Medical
examiner concluded that Houseal's death was accidental.
Houseal's estate sued the City and a number of City and County
officials under § 1983 and the Alabama wrongful death statute.
Summary judgment was granted in favor of most of the individual
defendants on the § 1983 claim, see Hardin, 957 F.2d at 848-51;
the case then went to trial on both claims against the City and
Chief Morris in his individual capacity, and on the state-law claim
against Sheriff Hayes and Chief Raley. Hayes and Raley settled
during the first day of trial. The district court granted judgment
as a matter of law in favor of Morris at the close of the
plaintiff's case; the jury then returned a verdict in favor of the
City on both counts. The special interrogatory form indicated the
jury's findings that (i) the City was not "deliberately indifferent
to known serious medical needs of the decedent" and that (ii) the
City was not "neglectful or careless in its treatment of the
decedent." The district court, on its own motion, thereafter
ordered a new trial. 2 The second trial resulted in verdicts for
the plaintiff on both counts.
II.
A.
The trial court indicated, in both its oral and written
orders, that the new trial was being granted because the "jury's
verdict [was] contrary to the great weight of the evidence." See
Fed.R.Civ.P. 59(d) (if new trial granted sua sponte, "the court
shall specify in the order the grounds therefor"). Four months
after entering the written new trial order, however, the district
2
The City could not appeal this interlocutory order. See
Pate v. Seaboard R.R., 819 F.2d 1074, 1077 n. 4 (11th Cir.1987)
(Rule 59 orders not separately appealable); 11 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure § 2818 at 113-
14 & n. 37 (1973 & Supp.1994) (grant of new trial not
appealable).
court made the following observations in a "Memorandum of Opinion
Denying Motion for Recusal":
[This judge] had sat through the trial, heard and reviewed all
of the evidence; and, equally importantly, he had observed
the demeanor of each of the jurors throughout the trial. He
also had observed the facial expressions and reactions of
several of the jurors, including the one later selected as
foreman, as the black witnesses testified and as one of
plaintiff's counsel, Mr. Shipman, spoke sans a Southern drawl.
As the law does not require a futile act, there was no need
for further proceedings by this judge to determine whether the
verdict was supported by the evidence.
See Hardin v. City of Gadsden, 821 F.Supp. 1446, 1450
(N.D.Ala.1993).
Appellee contends that the foregoing passage constituted a
determination by the district court that the grant of a new trial
3
also was warranted by jury bias. We disagree. It is true that
"[s]ince an order granting a new trial is an interlocutory order,
the district court has plenary power over it" and may therefore
"reconsider, revise, alter or amend" that order at any time prior
to final judgment. Gallimore v. Missouri Pacific R.R. Co., 635
F.2d 1165, 1171 (5th Cir. Unit A Feb. 1981)4 (quoting 6A James W.
Moore, Moore's Federal Practice ¶ 59.13[2] at 59-258-59 (2d ed.
1979)); see also McIsaac v. Didriksen Fishing Corp., 809 F.2d 129,
135 (1st Cir.1987) (district court may reassess prior reasons for
grant of new trial). Additionally, if the district court intends
to grant a new trial on certain grounds, but fails to include those
3
Ms. Houseal was African-American; Ms. Hardin, the
administratrix of her estate, is African-American as well.
4
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc), this court adopted as binding precedent
decisions of the Fifth Circuit, including Unit A of that circuit,
handed down prior to October 1, 1981.
grounds in the order by oversight or omission, the court may
correct the error on its own initiative under Fed.R.Civ.P. 60(a).
See 6A James W. Moore & Jo D. Lewis, Moore's Federal Practice ¶
59.11 at 59-257 (2d ed. Supp.1994). The district court, however,
neither issued an order explicitly reconsidering the grounds for
its prior order, nor acted to correct a clerical error. Rather,
its remarks are at best ambiguous, as the last sentence of the
quoted passage appears to reaffirm the trial court's prior
conclusion that a new trial was warranted due to insufficiency of
the evidence. Accordingly, we decline appellee's invitation to
view the new trial order as resting on an alternative finding of
jury bias.5
B.
We review the district court's grant of a new trial for abuse
of discretion. Williams v. City of Valdosta, 689 F.2d 964, 973
(11th Cir.1982). The range of discretion afforded to the district
court is smaller, however, when, as here, the district court orders
a new trial because the jury verdict was "contrary to the great
weight of the evidence." Id. at 974-75 & n. 8. When "the trial
involves simple issues, highly disputed facts, and there is an
absence of "pernicious occurrences'," id. at 974, application of
this more rigorous standard of review "protect[s] a party's right
to a jury trial," and ensures that the district court does not
simply substitute its own credibility choices and inferences for
5
Because we construe the district court's order in this
manner, we express no opinion on whether a finding of jury bias
may be predicated solely on the district court's visual
observation of the demeanor of certain jurors during trial.
the reasonable choices and inferences made by the jury. Redd v.
City of Phenix City, 934 F.2d 1211, 1215 (11th Cir.1991).6
III.
In order to determine whether the jury verdict in the first
trial was against the great weight of the evidence, we must first
consider what the plaintiff was required to prove. To establish
municipal liability under § 1983, Hardin needed to show that (1)
Houseal's injury resulted from a constitutional violation, and (2)
the City was responsible for that constitutional violation. See
Collins v. City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct.
1061, 1066, 117 L.Ed.2d 261 (1992). Plaintiff's theory was that
the City was deliberately indifferent to Houseal's need for mental
health treatment, and that the delay in obtaining that treatment
caused Houseal great emotional pain amounting to "cruel and unusual
punishment" under the Eighth Amendment. 7 See Estelle v. Gamble,
429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)
(deliberate indifference to prisoner's serious medical needs can
violate Eighth Amendment); Mandel v. Doe, 888 F.2d 783, 787-88
6
A more deferential standard of review is appropriate, on
the other hand, if the district court's new trial order is
precipitated by jury misconduct or other prejudicial trial events
that "contaminate" the jury's deliberative process. See
Williams, 689 F.2d at 974-75 n. 8; Redd, 934 F.2d at 1215.
7
At trial, Hardin at times appeared to contend that the
relevant constitutional violation was the City's failure to
prevent Houseal's suicide. On appeal, however, Hardin explicitly
has abandoned this contention, and no longer asserts that
Houseal's death was a suicide. Rather, appellee now argues that
the relevant injury for the purpose of the federal claim was not
Houseal's death but rather her mental anguish during confinement.
Because it does not change the outcome of our analysis in this
case, we evaluate the sufficiency of the evidence in support of
the first jury verdict in light of the latter theory of the case.
(11th Cir.1989) (same). To prove deliberate indifference, Hardin
needed to demonstrate that the relevant City personnel acted with
subjective recklessness, i.e. that their conduct was very
unreasonable in light of a known risk that delay in mental health
treatment would cause Houseal mental anguish. See Farmer v.
Brennan, --- U.S. ----, ---- - ----, 114 S.Ct. 1970, 1978-79, 128
L.Ed.2d 811 (1994).8
By contrast, on the Alabama wrongful death claim, Hardin
needed only to demonstrate that City personnel were negligent in
their treatment of Houseal. See Ala.Code § 6-5-410(a) (1993).
Furthermore, for the purpose of the state-law claim, the relevant
injury was not the decedent's emotional pain resulting from the
delay in obtaining mental health treatment; rather, the pertinent
focus was on the fact of death itself. The question for the jury,
therefore, was whether the City officers' conduct in delaying
8
Under the second Collins factor, Hardin also needed to show
that the City was responsible for any purported constitutional
violation. Such municipal liability under § 1983 may not be
predicated upon a respondeat superior theory; rather, "recovery
from a municipality is limited to acts that are, properly
speaking, acts "of the municipality'—acts that the municipality
has officially sanctioned or ordered." Pembaur v. City of
Cincinnati, 475 U.S. 469, 478-80, 106 S.Ct. 1292, 1298, 89
L.Ed.2d 452 (1986). Because we conclude that a determination by
the jury that City personnel were not deliberately indifferent to
Houseal's mental health needs would not have been against the
great weight of the evidence, we need not consider whether any
deficient City policy existed. See City of Los Angeles v.
Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806
(1986) (per curiam) ("If a person has suffered no constitutional
injury at the hands of the individual police officer, the fact
that the departmental regulations may have authorized [a
constitutional violation] is quite beside the point.") (emphasis
in original); Williams v. Borough of West Chester, 891 F.2d 458,
466-67 (3rd Cir.1989) (where jailers were not deliberately
indifferent to risk of suicide by prisoner, unnecessary to
consider existence of deficient municipal policy).
treatment was unreasonable in light of the risk that Houseal would
asphyxiate by ingesting soap.9
The first jury's verdict on the wrongful death claim was not
against the great weight of the evidence. Even if many lower-level
City police officers and jailers knew, by the afternoon of May 30,
that Ms. Houseal was mentally ill and required mental health
treatment, the reasonableness of the one-and-a-half day delay in
obtaining that treatment must still be evaluated in light of the
foreseeability of the risk of death by asphyxiation. See Mobile &
O.R. Co. v. Williams, 221 Ala. 402, 129 So. 60, 64 (1931)
("Reasonable care requires conduct commensurate with the danger to
be reasonably apprehended."); W. Page Keeton et al., Prosser and
Keeton on the Law of Torts § 31 at 169-71 & n. 15 (5th student ed.
1984) (" "Foreseeability is an element of fault; the community
deems a person to be at fault only when the injury caused by him is
one which could have been anticipated because there was a
reasonable likelihood that it could happen.' ") (quoting Stewart v.
Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783, 786 (1970)).
At the first trial, plaintiff's own expert, Dr. Lindquist,
testified that his research revealed only two prior instances
nationwide (in a 400 person sample) of self-inflicted jail inmate
death due to ingestion of foreign objects. Dr. Lindquist further
9
The parties agree that, under Alabama law, the City's
liability for the negligence of employees acting in the line of
duty may be predicated on respondeat superior. See Ala.Code §
11-47-190 (1992); City of Birmingham v. Benson, 631 So.2d 902,
905 (Ala.1993) (§ 11-47-190 imposes respondeat superior liability
on municipalities for employee negligence); see also City of
Birmingham v. Moore, 631 So.2d 972, 973-74 (Ala.1994) (city held
vicariously liable for negligence of jailer in treating
seizure-prone prisoner).
conceded that, when he was deposed prior to trial, he had known of
no such instances; the two instances were uncovered by his
post-deposition research. Furthermore, Dr. Cruit, the ER
physician, testified that the human "gag reflex" would normally
prevent asphyxiation from an object lodged in the hypopharynx, as
the reflex should cause involuntary expulsion of that object.
Although Dr. Embry, the state pathologist, testified that he did
not think the "gag reflex" would prevent such asphyxiation, and
that Houseal's prior consumption of fecal matter made ingestion of
foreign objects foreseeable, the jury was certainly entitled to
conclude, in the face of the experts' disagreement, that the risk
of death by asphyxiation was quite attenuated (and that the delay
in treatment therefore was not unreasonable). See Redd, 934 F.2d
at 1215 ("When there is some support for a jury's verdict, it is
irrelevant what the [Court of Appeals] or the district judge would
have concluded," and grant of new trial is improper.).10
If the jury's conclusion that City personnel11 were not
10
Furthermore, Mr. Owens, the social worker who examined Ms.
Houseal, testified that an involuntary commitment procedure,
involving the retention of a guardian ad litem and the filing of
a probate petition in state court, could itself have taken three
to four days. The jury could have concluded that City officers
were aware of how long such involuntary commitment proceedings
could take, and that their one-and-one-half day delay therefore
was not unreasonable where, even if preliminary treatment had
been obtained on May 30, Houseal could still have been in jail,
and subject to the risk of asphyxiation, on the morning of June
1.
11
We need not, and do not, address the question of whether
any County officers may have acted unreasonably with respect to
the risk of Ms. Houseal's death. Sheriff Hayes and Chief Raley
settled with the plaintiff on the first day of trial, and neither
their conduct nor that of any of their subordinates is directly
at issue in this appeal.
negligent was not against the great weight of the evidence, then,
on the facts of this case, the jury's conclusion that City
personnel were not deliberately indifferent was a fortiori not
against the great weight of the evidence. See Farmer, --- U.S. at
----, 114 S.Ct. at 1978 ("deliberate indifference describes a state
of mind more blameworthy than negligence"). Although the claimed
harm at issue in the state and federal counts was somewhat
different, the conduct of City personnel to be evaluated by the
jury was the same. The ultimate question the jury needed to
answer, therefore, was also similar—was the period of delay in
obtaining mental health treatment (very) unreasonable in light of
the (known) risk of harm? In our view, the jury was entitled to
conclude that the likelihood and magnitude of Ms. Houseal's mental
anguish was not so great as to transmute that delay into
"deliberate indifference."12
IV.
For the foregoing reasons, we hold that the district court
abused its discretion in ordering a new trial after the first jury
verdict. Accordingly, we REVERSE the judgment entered upon the
verdict from the second trial, and REMAND with instructions that
12
We recognize that there was some trial testimony, albeit
controverted, that Ms. Houseal was, perhaps on more than one
occasion, physically assaulted by City police officers in her
cell. If these events in fact took place, we strongly condemn
such conduct. The plaintiff did not attempt, however, to
predicate either of her claims directly on these incidents.
Rather, to the extent that they were relevant at all, these
events simply added to the totality of information available to
the jury about the conditions of Ms. Houseal's confinement and
the consequent reasonableness of the delay in obtaining mental
health treatment. In our view, even in light of these
occurrences, the first jury's verdict still was not against the
great weight of the evidence.
the jury verdict from the first trial be reinstated.