George B. Oliver v. R. Falla , 258 F.3d 1277 ( 2001 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 27, 2001
THOMAS K. KAHN
CLERK
No. 00-10520
D. C. Docket No. 96-02096 CV-DMM
GEORGE B. OLIVER,
Plaintiff-Appellant,
versus
R. FALLA, Correctional Officer,
JOHN DOE, Correctional Officer,
in their individual and official capacity, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(July 27, 2001)
Before TJOFLAT, and DUBINA, Circuit Judges, and SHAPIRO*, District Judge.
DUBINA, Circuit Judge:
Appellant George B. Oliver (“Oliver”) commenced a 42 U.S.C. § 1983lawsuit against Miami-Dade County and Corrections Officers Renzo Falla
(“Falla”), Roger Rauno (“Rauno”) and Karim Muhammed (“Muhammed”)
following an altercation with these officers while Oliver was in the temporary
custody of the Dade County Jail. Oliver based his relief upon state law claims for
assault and battery and the Eighth Amendment because of the officers’ alleged use
of excessive force against him. At the close of the trial, the defendants made a
joint motion for directed verdict. The district court entered a directed verdict in
favor of Miami-Dade County and Muhammed. The district court denied the
motion as to Falla and Rauno. The jury returned a verdict in the officers’ favor,
except that it found that Falla used excessive or unreasonable force against Oliver
in violation of the Eighth Amendment. The jury did not award
Oliver compensatory or punitive damages. Oliver filed a motion for entry of
judgment awarding nominal damages and a motion for new trial. The district
_________________________
*Honorable Norma L. Shapiro, U.S. District Judge for the Eastern District of Pennsylvania,
sitting by designation.
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court denied his motions and Oliver timely appealed.1 For the reasons that follow,
we affirm.
BACKGROUND
Oliver testified at trial that while he was an inmate in the temporary custody
of the Dade County Jail, he overheard Falla call another inmate “stupid” or
something derogatory. Oliver said to his cell mate, Rocco Napolitano, that Falla
“didn’t have to do that . . . [t]hat man ain’t going to do nothing to him.” [R. Vol. 6,
p. 360]. Falla overheard Oliver’s comment and approached the cell and asked
Oliver what he said. Oliver responded, “You didn’t have to do that to the man.
You didn’t have to call him stupid.” [Id.]. Falla informed Oliver to stay out of his
business. Oliver replied that “Well, you put your business on Front Street when
you do it in the open like that.” [Id.].
According to Oliver, Falla then opened the cell door with his keys,
approached him and put his forehead against Oliver’s forehead. Falla told Oliver
to stay out of his business, and Oliver told Falla that if he touched him again,
Oliver would see Falla in court. Falla grabbed Oliver by the throat, slammed him
1
Oliver does not appeal the district court’s order granting a directed verdict for Miami-Dade
County and Muhammed.
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against a wall, and then threw him to the ground. Falla grabbed the back of
Oliver’s collar and “ran” him toward another wall. [Id. At 361]. After Oliver
slumped to the floor, Falla pressed his knee against the small of Oliver’s back and
pressed his hand hard between Oliver’s left ear and jawbone with the intention of
causing pain. Another officer joined in the attack which continued for several
minutes. Eventually, another officer approached and stopped the attack.
Oliver testified that he suffered a cut to his left knee, and he suffered neck
and back pain. He also testified that he broke his glasses during the incident.
Oliver, however, did not present any evidence of visible injuries, medical
expenses, or medical testimony confirming his injuries.
In contrast to Oliver’s testimony, Falla and other officers disputed Oliver’s
version of what took place. Falla specifically denied beating Oliver, hitting him in
the head, slamming his head against the wall, and throwing him across the room.
[R. Vol. 5, p. 182-83]. Officer Karim Abdul Mohammed testified that he was on
duty on the day of the alleged incident, and he had no knowledge of anything
occurring that day. [Id. at p. 205, 231]. Rauno also testified that he was on duty on
the day of the alleged incident, and he had no recollection of anything happening
between Falla and Oliver. [Id. at 241]. Additionally, authorities took photographs
of Oliver shortly after the alleged assault and these photographs showed no
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discernible injury. Thus, there was evidence before the jury indicating that
Oliver’s claims of injury were overstated.
Oliver did not request a nominal damages instruction or any interrogatory
verdict directed to nominal damages. The jury found in favor of the officers except
on Oliver’s Eighth Amendment claim. The jury found that Falla used excessive or
unreasonable force during the altercation and violated Oliver’s constitutional
rights; however, the jury did not award Oliver any damages.
ISSUE
Whether the district court erred in failing to grant Oliver nominal damages
based upon the jury’s finding that Falla used excessive force against Oliver.2
DISCUSSION
2
Oliver also argues on appeal that the district court erred in failing to grant his motion for
new trial because the jury did not award him compensatory and punitive damages. After reviewing
the record, we conclude that the district court did not abuse its discretion in denying the motion for
new trial. Oliver was the only witness to testify regarding his injuries. Oliver failed to produce any
medical testimony or records to corroborate his injuries. The jury heard Oliver’s testimony and the
officers’ testimony and concluded that Oliver did not suffer a compensable injury. The evidence
was sufficient to support such a finding. Likewise, the evidence was sufficient to support the jury’s
decision not to award punitive damages. A reasonable jury could conclude from the evidence that
Falla’s conduct was not malicious. The district court properly did not invade the jury’s province on
this issue.
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Oliver avers that Carey v. Piphus, 435 U.S. 247 (1978), mandates a
judgment of nominal damages because the jury found that Officer Falla used
excessive force against him in violation of the Eighth Amendment, although Oliver
failed to prove actual injury. Oliver relies on Carey’s holding that a 42 U.S.C. §
1983 plaintiff is entitled to nominal damages for the deprivation of procedural due
process even in the absence of actual injury. In Carey the Supreme Court
concluded that because the right to procedural due process is “absolute” in the
sense that it does not depend upon the merits of the plaintiff’s assertions, nominal
damages should be awarded for the deprivation of a procedural due process right,
even in the absence of an actual injury. Id. at 266. The Court noted that the
“elements and prerequisites for recovery of damages appropriate to compensate
injuries caused by the deprivation of one constitutional right are not necessarily
appropriate to compensate injuries caused by the deprivation of another.” Id. at
264-65. Thus, “these issues must be considered with reference to the nature of the
interest protected by the particular constitutional right in question.” Id. at 265.
Oliver’s reliance on Carey is misplaced for several reasons. First, Carey is a
Fourteenth Amendment procedural due process case; Oliver alleges an Eighth
Amendment violation. Second, the posture of Carey does not present any issue
related to the failure to request or object to jury instructions or any Seventh
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Amendment impediment to additur. The record in this case demonstrates that
Oliver did not request a nominal damages instruction nor did he object to the
absence of a nominal damages instruction. Third, Carey does not involve a jury
verdict. Here, a jury found in favor of the defendants, except on Oliver’s excessive
force claim against Falla. These distinctions are fatal to Oliver’s argument. Thus,
contrary to Oliver’s assertion, under the facts of this case, Carey does not mandate
an award of nominal damages.3
Our circuit has not addressed the issue of nominal damages in the Eighth
Amendment excessive force context.4 More specifically, our circuit has not
addressed the propriety of nominal damages in an Eighth Amendment excessive
force case where the plaintiff waived a request for nominal damages. We do find
guidance, however, in one of our precedents.
In Walker v. Anderson Elec. Connectors, 944 F.2d 841 (11th Cir. 1991),
plaintiff’s counsel did not request a nominal damages instruction nor did he object
3
The other cases Oliver cites do not support his assertion either. None of the cases discuss
waiver of nominal damages and none, with the exception of Gibeau v. Nellis, 18 F.3d 107 (2d Cir.
1994), involves an Eighth Amendment excessive force claim.
4
Cf. Slicker v. Jackson, 215 F.3d 1225, 1231-32 (11th Cir. 2000) (holding in § 1983 excessive
force case that district court erred in granting judgment for defendant as a matter of law on plaintiff’s
§ 1983 claim alleging violations of the Fourth, Fifth, and Fourteenth Amendments because “a § 1983
plaintiff alleging excessive use of force is entitled to nominal damages even if he fails to present
evidence of compensable injury.”).
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to the court’s failure to give such a charge. In Walker, which was a Title VII case,
plaintiff’s counsel made a strategic decision not to request nominal damages. We
held that “Fed.R.Civ.P. 51, which states that ‘[n]o party may assign as error the
giving or the failure to give an instruction unless that party objects thereto before
the jury retires to consider its verdict, stating distinctly the matter objected to and
the grounds of the objection,’ precludes Walker, at this late date, from objecting to
the fact that no jury instruction on nominal damages was given at trial.” Id. at
845. This court also noted that “[t]he federal court’s long standing policy against
additur, as an intrusion on the jury’s domain and violation of the Seventh
Amendment, also stands in the way of Walker’s request for one dollar in nominal
damages where the jury awarded none.” Id. Although the plaintiff relied on Carey
to support her position, this court declined to apply the rationale of Carey to
“purely statutory rights under Title VII.” Id. We did not specifically address
whether the plaintiff had waived her right to nominal damages, but we did imply
that a plaintiff could waive nominal damages by failing to request a charge on
nominal damages and by failing to object to the lack of such a charge.
Several other courts, in a variety of cases, have held that a plaintiff may
waive nominal damages. See Piaubert v. MacIntosh, No. 99-56820 (9th Cir. 2001)
(unpublished opinion) (holding that in a case against plaintiff’s attorneys alleging
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breach of duty, the plaintiff was not entitled to nominal damages because: plaintiff
did not argue nominal damages until after the jury returned its verdict; the plaintiff
did not raise issue to the jury; the plaintiff did not request a jury instruction on
nominal damages; and the plaintiff did not request or obtain any interrogatories in
the special verdict form to address either measure of damages); Salazaar v.
Encinias, No. 99-2248 (10th Cir. 2000) (unpublished opinion) (holding in a 42
U.S.C. § 1983 case alleging a Fourth Amendment excessive force claim that the
district court erred in amending the judgment to award nominal damages because
plaintiff waived any right to nominal damages); Alexander v. Riga, 208 F.3d 419,
429 (3rd Cir. 2000) (noting that in a racial discrimination suit, that the entitlement
to nominal damages is not automatic), cert. denied, 121 S.Ct. 757 (2001); Campos-
Orrego v. Rivera, 175 F.3d 89, 98 (1st Cir. 1999) (noting in a due process and
retaliation case that “it is incumbent upon the plaintiff to make a timely request for
nominal damages”); Cooper Distributing Co. v. Amana Refrigeration, Inc., 63 F.3d
262, 281-84 (3rd Cir. 1995) (holding in tort case that plaintiff was not entitled to
nominal damages because plaintiff did not request such an instruction, either by
choice or inadvertence, and thus, the plaintiff should bear the consequences);
Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir. 1991) (holding in 42 U.S.C. §
1983 case alleging Eighth Amendment deliberate indifference that plaintiff was not
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entitled to nominal damages because he did not object to the erroneous nominal
damages instruction that he proffered to the court); Sims v. Mulcahy, 902 F.2d 524,
534 (7th Cir. 1990) (holding in racial discrimination and Fourth Amendment case
that because Sims failed to advance any objection to the jury instructions or special
verdict with the required specificity, she waived her claim concerning the question
of whether the jury was legally required to award nominal damages); see also
Watchorn v. Town of Davie, 795 F.Supp. 1112, 1115 (S.D. Fla. 1997) (holding that
plaintiff waived a right to nominal damages in a 42 U.S.C. § 1983 excessive force
case by failing to request a separate line on the verdict form for nominal damages).
We find these cases persuasive and conclude that the request for nominal
damages is not automatic in an Eighth Amendment excessive force case. The
plaintiff must seek such damages, and if he fails to do so, he waives any
entitlement to such damages. That is the case here. Oliver did not request a
nominal damages jury instruction. In fact, Falla’s attorney stated during oral
argument that Oliver’s counsel vehemently opposed a nominal damages
instruction. Moreover, Oliver did not object when the district court failed to give a
nominal damages instruction. Accordingly, we conclude Oliver unequivocally
waived his right to nominal damages.
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Furthermore, we question whether nominal damages are appropriate in an
Eighth Amendment case, even if sought. This is so because in an Eighth
Amendment case, the plaintiff must show actual injury, whether it is compensable
or not. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (“The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes
from constitutional recognition de minimis uses of physical force, provided that the
use of force is not of a sort ‘repugnant to the conscience of mankind.’”) (citations
omitted). In light of Oliver’s unequivocal waiver of nominal damages, however,
we need not pass on this question.
CONCLUSION
The right to nominal damages is not automatic in an Eighth Amendment
excessive force case. A plaintiff can waive this right by failing to request nominal
damages in his jury instructions, and by failing to object to the absence of a jury
instruction on nominal damages. The facts of this case demonstrate that Oliver
clearly waived any request for nominal damages. Oliver’s counsel made a strategic
decision to seek compensatory and punitive damages only, probably thinking that
the jury would award nominal damages only if Oliver requested them.
Consequently, Oliver and his counsel waived the right to nominal damages at their
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own peril. For the foregoing reasons, we affirm the district court’s judgment
entered on the jury’s verdict.
AFFIRMED.
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