Ben Worsham v. The City of Pasadena

881 F.2d 1336, 1989 U.S. App. LEXIS 13122, 1989 WL 91028

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 31, 1989
• Docket: 88-2770
• Status: Published

Opinions

JOHNSON, Circuit Judge:

The instant case followed a tortuous procedural path before finally coming to rest before this Court. Briefly, appellant Ben Worsham filed an action under 42 U.S.C. § 1983. Among the defendants were the City of Pasadena and several city officials in their individual and official capacities. The jury returned a verdict for Worsham against some of the defendants. After originally denying defendants’ motion for a new trial, the district court granted a new trial on the issues of liability and damages. All of the individual defendants were dismissed in their individual capacities; consequently, the new trial served to determine only the liability of the City.

The case was subsequently reassigned to another trial judge who granted the defendants’ motion for dismissal pursuant to Rule 12(b)(6). Worsham filed a timely appeal to this Court alleging first, that the district court abused its discretion in granting a new trial. Second, Worsham argues that even if a new trial was proper, the dismissal was not; consequently, he argues that the case should be remanded. We affirm the district court in all respects.

I. FACTS AND PROCEDURAL HISTORY

Worsham’s employment with the City of Pasadena, Texas (Pasadena), as a construction-site inspector, was interrupted when a letter from Mayor Jim Clark, dated February 2,1981, imposed on Worsham an indefinite term of suspension. Although the letter cited insubordination as the reason for the suspension, Worsham maintains that the Mayor’s action was the result of an ongoing dispute with Worsham’s superiors concerning their approval of a certain construction project which he had opposed. Worsham appealed his suspension to the City Council, which reinstated him at a meeting held on March 3, 1981.

On March 31, 1981, Worsham filed an action pursuant to 42 U.S.C. § 1983, claiming that the suspension of his employment violated his constitutional rights.¹ By the time the case was tried, Worsham had named as defendants Pasadena, several city officials in their individual and official capacities, and a private real estate development corporation along with its principal owner.

A jury returned a verdict for Worsham against Mayor Clark and Public Works Director W.K. Thomasset, Worsham’s supervisor. The court entered judgment against Clark and Thomasset in their individual and official capacities. The City was held liable for the actual damages awarded Worsham. Numerous post-trial motions were filed, including a motion for new trial, which the court denied. No liability was found against any of the other defendants.

After reconsidering his denial of the new trial motion, Judge Bue, who had presided over the trial of the case, granted a new trial in December of 1983, on the issues of liability and damages. Following the grant of new trial, all of the individual defendants were dismissed in their individual capacities. Consequently, the new trial served exclusively to determine the liability of Pasadena, both directly and as a consequence of the actions of city officials acting in their official capacities.

After Judge Bue’s retirement, the case was reassigned to Judge Hoyt. On July 12, 1988, Judge Hoyt granted defendants’ Fed.R.Civ.P. 12(b)(6) motion to dismiss. This appeal followed.

II. CONTENTIONS ON APPEAL

On appeal, Worsham attacks the propriety of the grant of new trial as well as the 12(b)(6) dismissal. First, he contends that Judge Bue abused his discretion in granting a new trial; as an alternative to this assertion, Worsham argues that any justifiable alteration should have been effectuated in a more narrowly tailored manner by either an order of remittitur or, at most, a new trial on the amount of damages only. Finally, Worsham submits that even if the new trial order was appropriate, Judge Hoyt’s 12(b)(6) dismissal of his case was not, and that remand for a new trial is appropriate.²

We find Worsham’s arguments unpersuasive and affirm both the new trial order and the 12(b)(6) dismissal. Since we affirm the new trial order in to to, we do not address the question of the appropriateness of a new trial on damages alone or of remittitur as an alternative.

III. DISCUSSION

A. New Trial

We turn first to the grant of a new trial on the issue of damages. A grant of a new trial for excessive damages will only be reversed if we conclude that the trial court abused its discretion. Richardson v. Communications Workers of America, 530 F.2d 126, 130 (5th Cir.), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976). Where the grant of a new trial is based upon the insufficiency of the evidence supporting the verdict, our inquiry focuses upon whether the verdict was against the great weight of the evidence. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir.1982). If so, the trial court has not abused its discretion in ordering a new trial. In a situation where, as here, the size of the verdict, and not the evidence presented, rests as the basis for the new trial, we consider this to be “a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses.” Great deference must be accorded the trial court’s judgment under these circumstances, and reversal occurs rarely. Reversal is appropriate only in “situations where we are pressed to conclude that there is ‘plain injustice’ or a ‘monstrous’ or ‘shocking’ result.” Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447, 448 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961).

In this case, Judge Bue properly identified the standard to which he was bound in granting the new trial motion. He analyzed the damage award and the evidence supporting it and concluded that the award not only was against the weight of the evidence on this point, but also shocking to the conscience. Because of the nature of the constitutional violations involved, he determined that the damages issue was inextricably linked to the liability issue. Accordingly, he felt that a complete retrial was appropriate. We find no clear abuse of discretion in this disposition of the motion.

After Judge Bue’s previous adjustment to eliminate attorney’s fees and costs, the total award to Worsham was $400,000, the amount he had claimed as actual damages throughout the trial. Judge Bue determined that there was simply no evidence to justify such a large award; in addition to Worsham’s inability to claim any lost wages because of the brief duration of his suspension, his assertion that he somehow had lost his ability to earn a decent living in the future was completely unsubstantiated.

The only evidence of any actual damages upon which an award could have been based was Worsham’s own highly speculative and unsupported testimony regarding his emotional distress and ruined reputation. After reviewing the evidence that went to the jury, Judge Bue concluded that it simply could not support a $400,000 award of actual damages.³

We next turn to the grant of a new trial on the liability issue; the question is whether Judge Bue was justified in ordering a new trial on the issue of liability as well. In Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 283 (5th Cir.1975), we held that in “a case in which the issue of liability was strongly disputed, and where the trial court itself determined the award of damages to have been grossly excessive,” it may be appropriate to require a new trial on both damages and liability. Furthermore, in Richardson, 530 F.2d at 130, we found that there was no “abuse of discretion in failing to limit the new trial to damages only,” even though remittitur was arguably a more appropriately tailored remedy. We reasoned that the liability issue was inseparable from the damages issue, as there were multiple defendants whose liability for allegedly wrongful acts over a period of several months depended upon the application of principles of agency-

Although the facts of this case are not identical to those in Richardson, we believe that they are sufficiently analogous so that we will not disturb the trial court’s discretionary determination that the two issues were too closely intertwined to justify retrial on the damages issue alone.

B. Dismissal

In reviewing the propriety of a dismissal pursuant to Rule 12(b)(6), this Court independently applies the same test employed at the trial level and asks whether it appears to a certainty that the plaintiff would not recover under any set of supporting facts which might be proved. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Judge Hoyt correctly concluded that it did so appear. Dismissal pursuant to Rule 12(b)(6) was proper.

The district court supported its conclusion that Worsham had failed to state a claim on which relief could be granted by asserting that “[pjlaintiff failed to state a municipal policy that deprived him of a constitutinoal right, failed to state more than a single instance of the alleged constitutional deprivation, assuming one existed, and failed to allege specific facts to overcome defendants’ official immunity.”⁴

Section 1983 provides for liability to be imposed upon any person who, acting under color of state law, deprives another of rights or privileges secured by the Constitution. It is well settled that local government units are “persons” within the meaning of this statute. The constitutional deprivation, however, must have its origin in what can fairly be said to be a policy of the municipality. The premise that the theory of respondeat superior does not apply in section 1983 actions brought against a municipality has become well entrenched in our jurisprudence. Municipal liability, based on the actions of city officials, exists only where it can be shown that the officials acted in accordance with an official government policy or firmly entrenched custom. Monell v. City of New York Dep’t of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

Justice O’Connor, writing for a plurality, recently reexamined the Court’s basis for Monell’s rejection of liability based on re-spondeat superior.

Aware that governmental bodies can act only through natural persons, the Court concluded that these governments should be held responsible when, and only when, their official policies cause their employees to violate another person’s constitutional rights. Reading the statute’s language in the light of its legislative history, the Court found that vicarious liability would be incompatible with the causation requirement set out on the face of § 1983.

City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 923, 99 L.Ed.2d 107 (1988). Praprotnik is one in a line of decisions since Monell, in which the Court has attempted to delineate when holding a municipality liable for acts of its officials constitutes impermissible vicarious liabilty, and when it amounts to permissible direct liability. As the Court first indicated in Monell, direct.liability is appropriate only when an injury is inflicted by “lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell 436 U.S. at 694, 98 S.Ct. at 2037.

Since the decision in Monell, the Supreme Court has considered several cases, similar to the instant case, involving isolated acts by governmental employees. The first case in Monell’s evolutionary lineage, City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985), indicates that a single incident of unconstitutional activity will not suffice to hold a municipality liable 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.” Id. 436 U.S. at 823-24, 98 S.Ct. at 2436-37.

The plurality decisions in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), and the more recent decision in Praprotnik, further discuss those circumstances under which a single act by a municipal officer can create municipal liability under section 1983. Our task is to determine whether such circumstances are present in the instant case. We conclude that they are not. Worsham argues that Justice Brennan’s language in Pembaur that “municipal liability may be imposed for a single decision by municipal policymakers under appropriate circumstances,”⁵ precludes the dismissal of his complaint because the acts of the mayor of Pasadena and the City’s director of public works caused him to suffer constitutional deprivations. We decline to accept Worsham’s invitation to interpret Pembaur and Praprotnik in such a manner. Such an interpretation would offend the policy underlying Monell as well as the language and application of its progeny. Specifically, we note that in Pembaur, Justice Brennan’s plurality opinion carefully confines the scope of potential liability for individual acts to those the city has “officially sanctioned or ordered.” Id. This includes situations in which the actions complained of are carried out by officials who are “responsible for establishing final government policy respecting such activity.” Id. 106 S.Ct. at 1299-1300.

This language is significant in two respects. First, it indicates that policymak-ing authority in areas other than the one implicated is not sufficient to impose liability on the City. Pembaur established that no matter how much power an official has, no municipal liability exists if that official does not set the policy at issue.⁶ Second, the language indicates that the employee must have final policymaking authority in that area. In Pembaur, Justice Brennan distinguished the exercise of power and discretion in the enforcement of a policy from the delegation of final authority to make that policy.

In Praprotnik, the Court provided further guidance as to where lies the boundaries between the two categories denominated in Pembaur. In her plurality opinion, Justice O’Connor stated that if an official’s actions are subject to review procedures, there has not been a complete delegation of power to terminate city employees so as to create municipal liability under Pembaur.7 A court, faced with the task of determining the existence, vel non, of municipal liability in a situation such as this, should “respect the decisions, embodied in state and local law, that allocate policymak-ing authority among particular individuals and bodies.” Praprotnik, 108 S.Ct. at 928. Consequently, the issue of “whether a particular official has ‘final policymaking authority’ is a question of state law.” Id. at 924 (quoting the plurality in Pembaur, 475 U.S. at 483, 106 S.Ct. at 1300) (emphasis in original).⁸

In the instant case, local law provided for review of the decision to terminate Wors-ham through the vehicle of appeal to the City Council. The Council ultimately reinstated Worsham. The plurality view in Praprotnik compels us to conclude that the existence of this meaningful review by the City Council indicates that the city officials who discharged Worsham were not, in that respect, final policymakers.⁹

We note that a recent Eighth Circuit decision supports our interpretation of Pra-protnik. In Williams v. Butler, 863 F.2d 1398 (8th Cir.1989) (en banc), the court concluded that the Supreme Court has conveyed a clear message that “an incomplete delegation of authority — i.e., [where] the right of review is retained will not result in municipal liability.” We agree with this interpretation. As Justice Brennan stated in Pembaur, “[t]he ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur, 106 S.Ct. at 1298. (emphasis in original).

The existence of effective review procedures prevents the employees from wielding final responsiblity in the instant case. While Rule 12(b)(6) dismissal could be improper in some cases where it is based solely on a theoretical right of review because a plaintiff may be able to demonstrate that such review is ineffective and meaningless, this is not the situation here. The City Council, not the two officials, was the repository of final policymaking authority; the prospect of liability under Monell was therefore foreclosed.

IV. CONCLUSION

As the Supreme Court noted in Pemb-aur, “Monell is a case about responsibility.” Applying the Monell doctrine, as distilled by Pembaur and Praprotnik, to the instant case, we conclude that ultimate responsibility under these facts lies not with the named officials, but with the City Council. Worsham failed to state a claim for municipal liability. For the aforementioned reasons, we affirm the district court’s new trial order and the subsequent 12(b)(6) dismissal of Worsham’s claim.

AFFIRMED.

1 . Worsham originally based his complaint upon alleged violations of procedural and substantive due process. He later changed his theory to rely heavily upon alleged violations of his first amendment rights. Although defendants now take issue with Worsham’s ability to add this claim, they objected neither to the introduction of evidence nor to the district court's charge. We consider defendants to have acquiesced in allowing this change of emphasis and to have waived any challenge which otherwise might have been raised on appeal.

2 . In answering Worsham’s claims, defendants maintain that we do not have jurisdiction to review the new trial order and may only determine the validity of the 12(b)(6) dismissal. Defendants contend that jurisdiction is absent because the appeal of the order granting a new trial occurred five years after the new trial was ordered. Defendants’ argument that we lack jurisdiction to review the new trial order is contrary to our holding in Wiggs v. Courshon, 485 F.2d 1281, 1283 (5th Cir.1973). We do not agree that our precedent established by that case contradicts any decision of the Supreme Court. Accordingly, because we are following a well settled rule of this Court in rejecting the jurisdictional challenge, we consider it unnecessary to address the merits of defendants' argument.

3 . Judge Bue also concluded, from Worsham’s testimony to the effect that he was trying to make an example out of the defendants, that the award must have been largely punitive in nature. In the new trial order, the court noted that the jury had been instructed that it could not award punitive damages unless it first awarded actual damages, which it apparently had not done. Judge Bue concluded that the award consisted largely, if not exclusively, of impermissible punitive damages.

4 . The district court’s final articulated ground for dismissal was extraneous because all individual defendants had been dismissed in their individual capacities. The court should have examined only whether the complaint stated a claim for municipal liability based upon the action or actions of these officials. We conclude that it did not.

5 . Pembaur, 106 S.Ct. at 1298.

6 . We have applied this reasoning in past cases. In McConney v. City of Houston, 863 F.2d 1180, 1184 (5th Cir.1989), we held that isolated instances of unconstitutional conduct by officials who are not policymakers "are inadequate to prove knowledge and acquiescence by policymakers."

7 . We note that Justice O'Connor's opinion indicates that the ratification of reviewable action of an official may, under limited circumstances, be deemed to create a municipal policy. However, the absence of such a ratification in the instant case forecloses the need for this Court to attempt to define the circumstances which must exist in order to create such a policy.

8 .Under the Praprotnik plurality view, the existence of final policymaking authority is a question of state or municipal law, not one of fact. Justice O’Connor rejected the argument that the determination of final policymaking authority could ever be a jury question. While Justice Brennan's concurrence takes issue with this holding, we are compelled to follow Justice O'Connor’s plurality opinion.

9 . A finding that either the mayor or the public works director possessed final policymaking authority with respect to Worsham’s termination is precluded, both as a matter of municipal law and as a matter of fact, by the existence of a meaningful review procedure which culminated in Worsham’s reinstatement.