Tilson v. Forrest City Police Department

28 F.3d 802, 1994 WL 316418

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 5, 1994
• Docket: Nos. 93-1204, 93-1324
• Status: Published

Opinions

MAGILL, Circuit Judge.

The Forrest City Police Department (the Department) and Chief of Police Joe Goff (Goff) appeal the district court’s denial of their posttrial motions for judgment as a matter of law¹ and for a new trial. In this 42 U.S.C. § 1983 action, the jury found the Department and Goff to have violated the constitutional rights of Jessie Tilson (Tilson). We find that as a matter of law this verdict lacked a “legally sufficient basis for a reasonable jury to have found for [Tilson].” See Fed.R.Civ.P. 50(a). Hence, we reverse, finding that the district court erred when it denied the motion for judgment as a matter of law.

I. BACKGROUND

The facts underlying Tilson’s claim are disturbing. Tilson was arrested on April 4, 1989, by two Forrest City police officers, Bill Dooley and Dewey Ramsey, and taken to the St. Francis County jail.² Dooley and Ramsey testified at the trial that they arrested Tilson as a Missouri parole violator,³ while investigating Tilson in association with a recent murder.

On April 17, 1989, while still in the jail, Tilson was arrested for murder on a warrant issued by an Arkansas Circuit Judge. Bond was set on the warrant at $50,000. Such a warrant can be issued upon a finding by the judicial officer that there is reasonable cause to believe an offense has been committed and that the person to be arrested committed it. Ark.R.Crim.P. 7.1(b). On April 19, 1989, Til-son appeared before a municipal court judge who bound him over to the circuit court.

The record is unclear as to whether at that time Tilson received a probable cause hearing pursuant to Arkansas Rule of Criminal Procedure 8.3.⁴ The county prosecutor, aware that Tilson was incarcerated, never attempted to indict Tilson, file an information, or take steps to release Tilson.

Tilson remained in the St. Francis County jail for the next fourteen months, next appearing in court on June 11, 1990.⁵ On that day, pursuant to a newly filed petition for habeas corpus, Tilson was released, never charged with any crime.

This 42 U.S.C. § 1988 action was brought by Tilson claiming that Officers Dooley and Ramsey violated Tilson’s constitutional rights through the following acts: arresting him without probable cause,⁶ questioning him without an attorney, and failing to conduct properly the criminal investigation. Liability for Goff and the Department was premised on their failure to act to prevent Tilson’s continued unlawful incarceration. The suit originally included the St. Francis County Sheriff’s Department and the St. Francis County Sheriff; however, these parties were dismissed pursuant to a grant of summary judgment.

The jury found that neither Dooley nor Ramsey had violated Tilson’s constitutional rights.⁷ It did, however, return a verdict against both the Department and Goff (collectively, the defendants). The defendants filed motions for judgment as a matter of law and for a new trial. The district court denied both motions, and the defendants timely appealed.⁸

II. DISCUSSION

An appellate court reviews a district court’s denial of a posttrial motion for judgment as a matter of law under the same standard utilized by the district court. Morgan v. Arkansas Gazette, 897 F.2d 945, 948 (8th Cir.1990). The appeals court must consider the evidence in the light most favorable to the prevailing party and “affirm the denial of the motion if reasonable persons could differ as to the conclusions to be drawn from it.” Id. Bearing in mind the deference accorded by this standard to a juiy verdict, we still must reverse because assuming all the evidence was believed by the jury, the evidence was nonetheless insufficient to have found the defendants liable under § 1983.

For the jury to have found the Department or Goff liable in this § 1983 action, it must have had before it evidence of their direct participation in a constitutional deprivation. Cf. Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978) (responde-at superior cannot form the basis for liability under § 1983). Simply put, the evidence before this jury must have allowed it to identify (1) action on the part of Goff or the Department causing (2) one or more constitutional violations.

A. Liability under Section 1983

1. Goffs Liability

A supervisor, such as Goff, may be held liable under § 1983 if he directly participated in the constitutional violation, see Webster v. Gibson, 913 F.2d 510, 514 (8th Cir.1990),⁹ or if his failure to train or supervise the offending actor caused the deprivation,¹⁰ see City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 1204-05, 103 L.Ed.2d 412 (1989) (alleging failure to train); Bolin v. Black, 875 F.2d 1343, 1347 (8th Cir.) (alleging failure to supervise), cert. denied, 493 U.S. 993, 110 S.Ct. 542, 107 L.Ed.2d 539 (1989). The standard of liability for a failure to train police officers is deliberate indifference. City of Canton, 489 U.S. at 388, 109 S.Ct. at 1204-05. The standard of liability for failure to supervise is “demonstrated deliberate indifference or tacit authorization of the offensive acts.” Bolin, 875 F.2d at 1347.

2. The Department’s Liability

For the Department to be liable under § 1983 for a constitutional violation, a claimant must show that

the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the Department] or that a constitutional deprivation [was] visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.

Marchant v. City of Little Rock, 741 F.2d 201, 204 (8th Cir.1984) (quoting Monell, 436 U.S. at 690, 98 S.Ct. at 2035-36) (internal quotations omitted).

The inaction or laxness alleged by Tilson, lack of written procedures,¹¹ was not “officially adopted or promulgated.” However, inaction or laxness can constitute government custom if it is permanent and well settled. See Monell, 436 U.S. at 691, 98 S.Ct. at 2036. Such a government custom of laxness or inaction must be the moving force behind the constitutional violation. Id. at 694, 98 S.Ct. at 2037-38.

B. Constitutional Violations

Tilson’s complaint alleges the following constitutional violations: (1) arrest without probable cause, (2) unlawful incarceration for fourteen months, and (3) questioning him without an^ attorney and a valid waiver of his rights.¹² We consider Tilson’s allegations in turn.

1. Arrest without Probable Cause

Tilson’s primary allegation at trial was that both the April 4 and the April 17 arrest were unsupported by probable cause. Although the jury found that neither Dooley nor Ramsey violated Tilson’s constitutional rights, we nevertheless will consider these allegations.¹³ To establish the liability of Goff or the Department for an unlawful arrest, Tilson must have offered evidence to the jury allowing it to infer that Goff knowingly and directly participated in an arrest without probable cause, or that Goffs failure to train or supervise his subordinates or a custom of the Department caused the unlawful arrest. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38.

An examination of the record offers no such evidence. Tilson merely established that Goff knew of Tilson’s arrests and incarceration. Tilson offered no evidence which would have allowed the jury to have inferred that Goffs or the Department’s actions caused an arrest without probable cause. Had Tilson shown that Goff was “deliberately indifferent” to the use by Dooley or Ramsey of illegal methods of obtaining an arrest warrant, this would have been sufficient evidence to sustain the jury verdict against Goff. However, here, all we have is Goffs knowledge that Tilson had been arrested and a lack of written procedures. This evidence is as a matter of law insufficient to impose liability under § 1983.

2. Deprivation of Liberty

Two inquiries control liability for Til-son’s deprivation of liberty: Was Tilson unconstitutionally deprived of his right to liberty; ¹⁴ and, if so, were either Goff or the Department responsible for causing the deprivation?

We decline to reach the first question, see Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985) (“Prior to reaching any constitutional questions, federal courts must consider noneonstitutional grounds for decision.”) (internal quotes and citations omitted), because there was no evidence before this jury that any policy or custom of the Department or any direct action, failure to supervise, or failure to train on the part of Goff caused or was the moving force behind Tilson’s deprivation of liberty. See Monell, 436 U.S. at 694, 98 S.Ct. at 2037-38. To the contrary, the only relevant evidence before this jury was that Goff knew Tilson was incarcerated and that neither the Department nor Goff promulgated any written procedures to guide a criminal investigation. Section 1983 requires more. Tilson must have shown that Goffs lack of action caused Tilson’s deprivation of liberty. As to the Department, Tilson must similarly have shown some departmental custom was the moving force behind Tilson’s incarceration.

The facts before this jury indicated that Goff knew Tilson was incarcerated in the St. Francis County jail¹⁵ and that the Department lacked written procedures. Tilson did not establish that the police failed to follow proper procedures when they arrested Tilson and brought him to the St. Francis County jail. Tilson did not establish that a different police procedure might have caused a probable cause hearing to have occurred promptly. Significantly, Tilson did not establish that Goff or the Department “held” Tilson in the St. Francis County jail. See supra note 9. The only connection Goff and the Department had with Tilson’s detention related to their supervision of the arresting and investigating officers. We find that the evidence presented to the jury was insufficient as a matter of law to find that either the Department or Goff caused Tilson’s incarceration.

Because we find there was no legally sufficient basis upon which to hold either the Department or Goff liable for the deprivations inflicted on Tilson, we reverse the denial of the motion for judgment as a matter of law.¹⁶ Notwithstanding this holding, we are deeply offended by the substantial deprivations borne by Tilson. Moreover, it appears that at least one of the actors responsible for Tilson’s deprivation of liberty was never a party to this action: the Arkansas prosecutor who failed to charge Tilson with a crime or to bring him to trial.¹⁷

Although under our jurisprudence we cannot preserve a right of recovery for Tilson, we urge Arkansas to prevent a reoccurrence of this loss. The Arkansas Rules of Criminal Procedure do not mandate a time period within which a detainee must receive a preliminary hearing or an arraignment. In contrast, the Federal Rules of Criminal Procedure mandate a preliminary hearing within ten days of an incarcerated arrestee’s initial appearance. Fed.R.Crim.P. 5(c). A bright-line rule, such as the federal ten-day limit, is obviously necessary to protect the rights of individuals in such situations. If Arkansas had a similar rule, it is unlikely that Tilson would have spent fourteen months in jail. We can only hope that this case serves as the impetus for correcting what appears to be a grave deficiency in Arkansas procedures.

III. CONCLUSION

We reluctantly must reverse the district court’s denial of the Department and Goffs motion for judgment as a matter of law, and thus, we remand to the district court with instructions to enter judgment for the defendants. The cross-appeal is dismissed with prejudice.

1 . This motion previously was termed a "motion for judgment notwithstanding the verdict." Fed. R.Civ.P. 50(a), advisory committee's note.

2 . The dissent states Tilson’s April 4 arrest was made without a warrant. The factual scenarios surrounding Tilson's arrests appear much clearer to the dissent than to the majority. Although our holding does not rely upon a determination of the legality of Tilson’s arrest, in Arkansas a parole violator may be arrested without a warrant. See Ark.Code Ann. § 16-93-705(a)(4) (Michie 1987) ("Any parole officer may arrest a parolee without a warrant or may deputize any officer with power of arrest to do so by giving him a written statement setting forth that the parolee, in the judgment of the parole officer, violated conditions of parole.”); see also Cole v. Nebraska State Bd. of Parole. 997 F.2d 442, 444 (8th Cir.1993) (arrest by state actor of parole violator must be authorized by state law).

3 . The officers ran Tilson's name through the National Crime Information Center (NCIC) and in return received a teletype message that Tilson was wanted on an absconder warrant as a parole violator. See Dist.Ct.Ex.List (Teletype message dated April 4, 1989). The message received through NCIC gives the wanted person’s physical description and any identifying scars or tatoos. Tr. Vol. II, at 276. Dooley testified that on April 5, 1989, he contacted by telephone Robert K. Newsom, a Missouri parole officer, to confirm the teletype message. Id. at 278. Dooley also testified that after he obtained sufficient evidence to arrest Tilson for murder, he contacted the Missouri authorities to inform them that Tilson could not be extradited at that time. Id. at 279.

4 . Tilson appeared before a judicial officer when he was bound over to the circuit court. He may have, at least he should have, received an informal, non-adversarial determination of probable cause at that time. In Arkansas an initial appearance, pursuant to Arkansas Rule of Criminal Procedure 8.3, requires a judicial officer to inform the defendant of the charge and, "if unable to dispose of the case,” Ark.R.Crim.P. 8.3(c), the judicial officer shall "determine in a non-adversarial hearing whether there is probable cause for detaining the arrested person.” Id. We are unwilling to assume without further evidence' — - nor is it necessary to our holding — that because Tilson appeared before the judge and was advised of the penalties. Appellant's Br. at 25, he also received a probable cause hearing.

5 . Tilson had an attorney appointed for him on April 19, 1989. His attorney and the prosecutor made a joint motion for a psychiatric evaluation that was granted on May 4, 1989. The evaluation was not completed until December 4, 1989. The prosecutor testified that during this interval, under Arkansas law, he was prohibited from prosecuting Tilson.

6 . This claim relates to both arrests: the parole-violation arrest on April 4 and the murder arrest on April 17.

7 . The interrogatory given to the jury was as follows:

INTERROGATORY #2 INDICATE WHICH OF THE NAMED DEFENDANTS YOU HAVE FOUND TO HAVE VIOLATED THE PLAINTIFF’S CONSTITUTIONALLY PROTECTED RIGHTS. (Answer "YES” or "NO” as to each defendant.)

FORREST CITY POLICE DEPART- YES MENT

CHIEF JOE GOFF YES

SGT. BILL DOOLEY NO

OFFICER DUEY [sic] RAMSEY NO

Appellant's Br. at 26.

8 . Tilson cross-appealed, but he failed to identify in his brief the issues he raises on cross-appeal. In his notice of cross-appeal, Tilson asserts that the jury erroneously acquitted Dooley and Ramsey and requests an enhanced damage award. These issues were not briefed and thus are waived on appeal. See United States v. Simmons, 964 F.2d 763, 777 (8th Cir.), cert. denied, - U.S. -, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992).

9 . The dissent cites Webster to support its proposition that Goff's knowledge of Tilson's detention is sufficient evidence to support this jury verdict. See post, at 811. We disagree. We agree that Webster stands for the proposition that allegations of direct involvement, on the part of a supervisor are sufficient to state a claim under § 1983. 913 F.2d at 514. Webster reversed a district court's 28 U.S.C. § 1915 dismissal of a pro se complaint because it was neither "baseless” nor did it fail to state any "rational argument in law or fact.” Id. The Webster court did not extend the law so as to allow § 1983 relief for a plaintiff without any proof of causation. We note that the complaint at issue in Webster alleged that the "Sheriff of Ashley County on 9-30-88 detained me [the plaintiff] without a warrant.” Id. (emphasis added); see also Wayland v. City of Springdale, 933 F.2d 668, 670 (8th Cir.1991) ("The Springdale police held Wayland based only on the suspicion he was involved in the local theft.”) (emphasis added). Unlike the cases cited by the dissent in support for its position, Tilson was not held by the Department or Goff; rather, Tilson was held in the St. Francis County jail. See supra at 805 ("The suit originally included the St. Francis County Sheriff's Department and the St. Francis County Sheriff; however, these parties were dismissed pursuant to a grant of summary judgment.”).

10 . The jury instruction regarding Goff's liability reads as follows:

PLAINTIFF MAKES A CLAIM NOT ONLY AGAINST THE POLICE OFFICERS INVOLVED IN THE INCIDENT, BUT ALSO AGAINST THE CHIEF OF POLICE, JOE GOFF. IN ORDER FOR THE DEFENDANT CHIEF OF POLICE TO BE LIABLE TO THE PLAINTIFF, THE PLAINTIFF MUST SHOW THAT THIS OFFICIAL EITHER ENCOURAGED THE SPECIFIC INCIDENT OF MISCONDUCT OR IN SOME OTHER WAY DIRECTLY PARTICIPATED IN IT. AT A MINIMUM, PLAINTIFF MUST SHOW THAT THE DEFENDANT OFFICIAL AT LEAST OFFICIALLY AUTHORIZED, APPROVED, OR KNOWINGLY ACQUIESCED IN THE UNCONSTITUTIONAL CONDUCT OF THE OFFENDING OFFICERS. PERSONAL PARTICIPATION IN THE IMMEDIATE ACT WHICH VIOLATED THE PLAINTIFF’S RIGHTS IS NOT REQUIRED. IT IS SUFFICIENT IF THE SUPERIOR OFFICER SETS IN MOTION A SERIES OF ACTS BY OTHERS, OR KNOWINGLY REFUSES TO TERMINATE A SERIES OF ACTS BY OTHERS, WHICH HE KNOWS OR REASONABLY SHOULD KNOW WOULD CAUSE OTHERS TO INFLICT THE CONSTITUTIONAL INJURY.

Appellee’s Br. at 30. Although the court's instruction does not clearly articulate a failure-to-train-or-supervise claim, the language "knowingly refuses to terminate a series of acts by others" can be construed to state a failure-to-train claim. Because a failure-to-supervise claim must show tacit approval or authorization for the subordinate’s action, the statement in the instruction regarding knowing acquiescence or authorization in unconstitutional conduct can be construed to state a failure-to-supervise claim.

11 .We note that the dissent has reshaped Tilson’s claim. The dissent states that "Chief Goff ... never established procedures for the police department," post, at 812. Tilson established that there were no written procedures.

12 . Tilson made this allegation in his complaint; however, because the jury was not instructed on this alleged violation, we do not consider it here.

13 . By finding Dooley and Ramsey to be not liable, it is likely that the jury found that they had probable cause for the arrests. It is also possible that the jury found that Dooley and Ramsey were not liable because, although they lacked probable cause, they also lacked the requisite state of mind. See, e.g., Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986) (police officers retain qualified immunity for an unlawful arrest unless "the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable”). In the instant case, we note the jury received a good-faith defense instruction.

14 . We disagree with the dissent’s statement that "Tilson’s Fourth Amendment rights as explicated in Gerstein have been violated.” Post, at 813. We agree that there is no evidence indicating that Tilson received a probable cause hearing after his. initial arrest, and we agree that Tilson, at a minimum, had a due process right to an informal preliminary hearing at the time of his arrest. Parole " '[Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.’ ” Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)). See also Morrissey, 408 U.S. at 485, 92 S.Ct. at 2602 (explaining that a parole violator should receive an informal preliminary hearing where the arrest occurs); accord Gerstein v. Pugh, 420 U.S. 103, 121 n. 22, 95 S.Ct. 854, 867 n. 22, 43 L.Ed.2d 54 (1975).

15 . The dissent states that the jail was "part and parcel of the government structure of the City of Forrest City.” Post, at 813. We disagree based upon the record indicating that Tilson was incarcerated in the St. Francis County jail.

16 . The dissent ignores the basis for our holding: Tilson failed to offer the jury any evidence that the Department or Goff caused his deprivation of liberty for 14 months. Section 1983 cannot be premised on vicarious liability. Monell, 436 U.S. at 692, 98 S.Ct. at 2036-37. As disturbed as we are by the deprivations borne by Tilson, our inquiry under § 1983 does not end with a finding that a plaintiff has suffered a constitutional deprivation. The claimant must go further and prove that the defendant caused that deprivation. A court cannot remedy a deprivation unless the plaintiff proves his or her case and sues the correct defendants.

17 . Unfortunately, Tilson's statute of limitations appears to have run, see Ketchum v. City of West Memphis, 974 F.2d 81, 82 (8th Cir.1992) (Arkansas's general personal-injury statute of limitations period of three years applies to § 1983 claims), thus depriving him of the opportunity to bring a claim against the prosecutor. But see Lewellen v. Raff, 843 F.2d 1103, 1114 (8th Cir.1988) (finding that prosecutors were absolutely immune from liability for their actions when reviewing evidence and deciding whether to initiate a prosecution), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989).