Mary Elizabeth Dunn, Plaintiff-Appellee-Cross-Appellant v. Mike Denk, Defendant-Appellant-Cross-Appellee

54 F.3d 248

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 1, 1995
• Docket: 93-1964, 93-9066
• Status: Published

Opinions

POLITZ, Chief Judge:

Mike Denk, a Texas Department of Public Safety officer, appeals an adverse jury verdict in Mary Elizabeth Dunn’s civil rights lawsuit. Dunn cross appeals, seeking a new trial on damages. We affirm in part, vacate in part, and remand for further proceedings.

Background

Viewing the evidence most favorably to the jury’s verdict we find the following scenario. On a weekend pass from a mental hospital, Dunn was being driven home by her friend, Hassan Keshari. As they approached an intersection Keshari spotted trooper Denk, who recently had cited him for minor traffic infractions. ‘Watch,” Keshari told Dunn, “he is going to pull me over.” Keshari was right. Although he came to a full stop at the intersection before turning, Denk stopped him and issued a ticket for “cutting the corner.” Denk also took Dunn’s driver’s license to ticket her for not wearing a seatbelt. A check of her license revealed an outstanding warrant for failure to appear in relation to a speeding ticket.¹ Denk told Dunn to exit her vehicle; when she stood up, he informed her that she was under arrest. Shocked, Dunn collapsed into her seat. Despite Keshan’s protestation that she had just left the hospital, Denk pulled her from the car. The motion was such that she was thrown, face down, into a ditch by the side of the road.² With his knee in the small of Dunn’s back Denk handcuffed her, pulled her up by her arms, placed her in the squad ear, and transported her to jail where he called her a “bitch.” Denk filed a charge of resisting arrest which the district attorney declined to prosecute.

Dunn brought suit under 42 U.S.C. § 1988, charging Denk with malicious prosecution and the use of excessive force. A jury returned a verdict for Denk on the former and for Dunn on the latter, awarding $10,000 in punitive damages but no compensatory damages. After unsuccessfully seeking post-judgment relief, Denk appealed the adverse judgment and Dunn cross appealed the failure to award actual damages.

Analysis

1. Qualified immunity.

Although no longer required,³ at the time of this incident significant injury was a necessary element of an excessive force claim.⁴ Accordingly, to defeat Denk’s qualified immunity defense Dunn was obliged to prove a significant injury.⁵ Denk maintains the evidence of such was legally insufficient.

Physically, Dunn suffered only bruises but her psychological injury was substantial. The evidence reflects that the incident sidetracked her recovery from depression. According to Dr. Richard C. Bibb, her psychiatrist:

I felt that she was traumatized emotionally, and our term for that in the psychiatric field is post traumatic stress syndrome- What Ms. Dunn was left with was just an unforgettable event which ... will endure probably the rest of her life, which will leave her prone to anxiety and panic in situations that are usually considered routine, that will have a very subtle effect on her psychic stability for an undetermined period of time, which could be years.

This was more than mere “transient distress” which does not meet the “significant injury” threshold.⁶ Denk insists, however, that psychological harm, no matter how severe, did not constitute significant injury under clearly established law at the time of the arrest. We are not persuaded. It was clearly established before January 1990, when Denk arrested Dunn, that both physical and psychological injuries were compensable in civil rights actions.⁷ We developed a significant injury requirement to weed out complaints that were “so minor as to occasion only a tort claim, not a constitutional invasion.”⁸ As a matter of law, however, this circuit has never restricted the injuries giving a claim constitutional dimension to merely those of a physical nature. To the contrary, as early as 1987 we recognized that psychological injury sufficed to support a constitutional cause of action. In Lynch v. Cannatella, an excessive force ease, we held that an allegation of “a change in personality ... as if [the plaintiff was] becoming crazy”⁹ stated a sufficient injury to withstand summary judgment on the ground of qualified immunity. In Hinojosa v. City of Terrell, Texas,¹⁰ although we found that the momentary fear experienced by the plaintiff when a police officer pointed a gun at him did not rise to the level of a constitutional violation, we expressly declined to impose a requirement of physical injury.¹¹

The dissent conflates factual and legal sufficiency. In a footnote in Johnson v. Morel we stated, ‘We think it unlikely that such a significant injury will be caused by unnecessary force without significant physical injury.”¹² The dissent interprets this footnote as a statement of law whereas the majority actually was making a factual observation. As a factual matter, it may well be that a significant injury usually will be physical, as precedents such as Hinojosa and Wisniewski v. Kennard¹³ reflect. The case at bar, however, is exceptional; the evidence of record was sufficient for the jury to find significant injury in Dunn’s emotional trauma.¹⁴

The dissent also suggests that Dunn did not satisfy Johnson’s causation requirement — that the injury “resulted directly and only from the use of force that was clearly excessive to the need”¹⁵ — because her trauma in part stemmed from her emotional vulnerability at the time of her arrest. The dissent misconstrues the Johnson causation requirement. The “directly and only” language was intended to distinguish between injuries resulting from excessive force and those resulting from the justified use- of force.¹⁶ It was not intended to displace the venerable rule that a tortfeasor takes his victim as he finds him¹⁷ or to immunize the exacerbation of a pre-existing condition, leaving the weakest and most vulnerable members' of society with the least protection from police misconduct.¹⁸ The evidence supports a finding that the emotional trauma which Denk inflicted on Dunn was a significant injury distinct from the depression for which she was hospitalized, resulting “directly and only” from the use of excessive force.¹⁹

2.Juror misconduct.

Denk contends that juror Chester Cox dissembled during voir dire by not admitting to a prior arrest. Cox, by affidavit, insists that he raised his hand but was overlooked. The record does not establish misconduct. Further, Denk’s attorney knew of the prior arrest early in the trial but chose to remain silent until the return of an adverse verdict. The delay waives the objection.²⁰

Denk also complains that a previous reprimand in his personnel file was mentioned during jury deliberations, even though the personnel file was excluded from evidence. Two jurors apparently learned of the rebuke from a newspaper article which the district court directed the jury to disregard. The bare mention of a prior reprimand does not raise a reasonable possibility of prejudice, particularly in light of the court’s admonishment.²¹ The district court did not abuse its discretion in denying Denk’s motion for a new trial.

3. Damages.

After finding excessive force, the jury awarded $10,000 in punitive damages but no compensatory damages. We agree with the parties that the denial of compensatory damages was inconsistent with the finding of liability, which presupposed significant injury. We are not persuaded that the inconsistency demonstrates impermissible compromise. The jury obviously struggled mightily to reach a verdict; it succeeded in doing so. Its confusion over the appropriate allocation of damages does not undermine our confidence that in reaching its verdict it found the use of excessive force.²² We accordingly affirm the finding of liability and remand for a new trial limited to the issue of damages, both compensatory and punitive.

Denk further challenges the award of punitive damages. We find ample support in the record for such an award. We do not reach the procedural and legal objections²³ because of our decision to order a partial new trial.

4. Attorney’s fees.

The district court awarded Dunn $17,500 in attorney’s fees of the $65,500 requested. Nonetheless Denk claims the award was excessive, noting that Dunn obtained only $10,000 in damages compared to the $200,000 sought.²⁴ This method of weighing the value of legal services fails to take cognizance of the degree of success obtained.²⁵ The award was not an abuse of discretion. On cross appeal, Dunn maintains that she is entitled to additional attorney’s fees if she wins higher damages on retrial. We do not reach that argument; it is premature.

AFFIRMED as to liability, VACATED and REMANDED for further proceedings as to damages consistent herewith.

1 . The evidence reflects that Dunn had attended driver's school to have the ticket dismissed but that the requisite paperwork had not been completed.

2 . According to Denk's measurements the ditch was about two feet deep and the edge was approximately seven feet from the side of the highway.

3 . Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

4 . Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc).

5 . Wells v. Bonner, 45 F.3d 90 (5th Cir.1995).

6 . Johnson, 876 F.2d at 480.

7 . See, e.g., Hinshaw v. Doffer, 785 F.2d 1260 (5th Cir.1986); Keyes v. Lauga, 635 F.2d 330 (5th Cir.1981).

8 . Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). Shillingford spoke in terms of "severe injury”; when we adapted the Shillingford test to meet the requirements of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we used the term "significant injury.” There is no indication that we intended a "significant injury” to be more severe than a "severe injury.” See Brown v. Glossip, 878 F.2d 871 (5th Cir.1989).

9 . 810 F.2d 1363, 1376 (5th Cir.1987).

10 . 834 F.2d 1223 (5th Cir.1988), cert. denied, 493 U.S. 822, 110 S.Ct. 80, 107 L.Ed.2d 46 (1989).

11 . See also Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986) (recognizing the constitutional claim of arrestee's daughter, who suffered only emotional trauma in the defendants' assault on the family trailer home).

12 . Johnson, 876 F.2d at 480 n. 1.

13 . 901 F.2d 1276 (5th Cir.), cert. denied, 498 U.S. 926, 111 S.Ct. 309, 112 L.Ed.2d 262 (1990). In Wisniewski, we found that a prison escapee’s complaints of fright and bad dreams resulting from his treatment upon apprehension did not present a jury question of significant injury.

14 . The dissent advances policy arguments against recognition of nonphysical significant injury. Its arguments are moot in light of Hudson. In any event, its complaint that a traumatic experience for one person might cause mere transient distress for another highlights a problem with the significant injury requirement itself, not with the acceptance of psychological injury as potentially significant; it puts the focus on the effect of the officer's action on the plaintiff rather than on the relationship between the need for force and the amount of force exerted, where it properly belongs.

15 . 876 F.2d at 480.

16 . Id.; see also Hay v. City of Irving, Texas, 893 F.2d 796 (5th Cir.1990); Huguet v. Barnett, 900 F.2d 838 (5th Cir.1990).

17 . Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989).

18 . Unlike the dissent, the majority reads Wells as holding that the exacerbation of the plaintiff’s pre-existing shoulder injury was not significant. The dissent's interpretation is foreclosed by circuit precedent.

19 . Denk also asserts that Hudson requires proof , that the defendant acted "maliciously and sadistically to cause harm.” 503 U.S. at 6, 112 S.Ct. at 999. Hudson was an eighth amendment case. Dunn's fourth amendment claim is governed by Graham, which adopts an objective reasonableness test.

20 . Garcia v. Murphy Pacific Marine Salvaging Co., 476 F.2d 303 (5th Cir.1973).

21 . Cf. Bolton v. Tesoro Petroleum Corp., 871 F.2d 1266 (5th Cir.) (brief mention of extraneous information, corrected by jury foreman, does not create a reasonable possibility of prejudice), cert. denied, 493 U.S. 823, 110 S.Ct. 83, 107 L.Ed.2d 49 (1989).

22 . To impeach the verdict, Denk submits the affidavit of a juror who subsequently recanted her vote. It is well established that a juror may not testify to the course of deliberations or to the jury’s mental processes. Fed.R.Evid. 606(b); United States v. Straach, 987 F.2d 232 (5th Cir.1993).

23 . Denk contests the district .court's entry of a judgment for $1 in nominal damages and argues that punitive damages may not be assessed without the award of compensatory damages.

24 . Defendant's motion for summary judgment on the grounds of qualified immunity was denied. We affirmed, 954 F.2d 722 (5th Cir.1992) (memo).

25 . Cf. TK’s Video, Inc. v. Denton County, Tex., 24 F.3d 705 (5th Cir.1994).