Lewis v. Pugh ( 2008 )

                         FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                        Fifth Circuit
                                                                              August 18, 2008
                                           No. 07-40662                   Charles R. Fulbruge III
    LARRY PUGH, Former Police Officer,
    MARK JOHNSON, Former City of Jacksonville Police Chief; CITY OF
                       Appeals from the United States District Court
                             for the Eastern District of Texas
    Before JONES, Chief Judge, BARKSDALE and STEWART, Circuit Judges.
           Plaintiff-Appellee-Appellant Evelyn Lewis brought this 42 U.S.C. § 1983
    action after being sexually assaulted by Defendant-Appellant Larry Pugh, a
    former City of Jacksonville Police Officer, in March 2005. Lewis sought damages
             Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
                                           No. 07-40662
    against Pugh, as well as Defendants-Appellees City of Jacksonville (“City”) and
    former police chief Mark Johnson.              The district court granted summary
    judgment to the City and Johnson, but Lewis obtained a $300,000 jury verdict
    and judgment against Pugh. Lewis now appeals the district court’s grant of
    summary judgment to the City and Johnson, while Pugh appeals the jury verdict
    and judgment entered against him. For the following reasons, the judgment of
    the district court is AFFIRMED.
           In March 2005, Pugh offered Lewis a ride while she was walking home
    from a friend’s house early in the morning. Pugh, employed at the time as a City
    police officer, was in uniform, armed with a gun, and driving a police vehicle.
    Lewis accepted the ride and Pugh took Lewis to an abandoned trailer house and
    raped her. Pugh then drove Lewis home.
           Lewis asserts that she contacted City Police Detective Tonya Harris1 the
    next day, but was unable to reach her. Lewis eventually spoke to Harris and
    Assistant City Police Chief John Page, and Lewis told Page that Pugh had raped
    her. Page told her that he would like to talk to her in person, but Lewis told him
    that she would prefer to speak with Harris. Subsequently, Page attempted to
    contact Lewis to interview her, but was unable to reach her. A day or two after
    the initial report, Page came to Lewis’s house, but Lewis again said that she
    would feel better speaking to Harris. Eventually Lewis met with Harris and told
    her what had happened. At some point, Lewis also signed a written statement
    describing the rape.2
            In the record, Tonya Harris is also referred to as Tonya Sonntag and Sonya Sonntag.
    For consistency, in this opinion we will use the name Tonya Harris.
            According to the City, Page tried repeatedly to contact Lewis for an interview, but was
    unable to reach her until July 21, 2005. At that time she declined to repeat her accusations
    to Page. Page continued to try and reach Lewis to schedule her for a follow-up interview, but
    was unable to locate her until October 2005.
                                           No. 07-40662
           Lewis later spoke with Joe Evans, an investigator for the Cherokee County
    District Attorney, and told him about the rape.3 In October 2005, Lewis gave
    Evans a written statement. Lewis also spoke with the FBI about the incident.
           According to the City, on October 21, 2005, then-police chief Johnson and
    Page met with Evans and learned that Lewis had repeated her allegations to the
    district attorney. Johnson testified that he contacted Pugh that day and placed
    him on suspension. Johnson stated that Pugh did not serve as a City Police
    Department officer after that date. On February 8, 2006, after being notified by
    the FBI that Pugh had been arrested on charges of sexual assault, Johnson
    terminated Pugh’s employment with the City of Jacksonville.
           On August 6, 2006, Pugh assaulted Lewis in retaliation for Lewis’s report
    of the previous assault. Specifically, while driving his personal vehicle, Pugh
    offered Lewis a ride. When Lewis declined, Pugh confronted Lewis, wrapped his
    belt around her neck, and began dragging Lewis towards his van. Lewis was
    injured, but managed to get away from Pugh before he was able to place her in
    the van.
           In September 2006, Pugh plead guilty to charges stemming from his two
    assaults on Lewis and his assault on another woman. Specifically, he plead
    guilty to two counts of violations of 18 U.S.C. § 242, deprivation of rights under
    color of law, and one count of a violation of 18 U.S.C. § 1513(b), retaliation
    against a witness. Pugh was sentenced to a 12 year sentence on March 1, 2007.
           Lewis filed suit in federal district court under 42 U.S.C. § 1983 on August
    14, 2006, claiming that the assaults by Pugh violated her rights under the
    Fourth Amendment. Lewis also alleged that the City and Johnson were liable
    under § 1983 because of their failure to supervise Pugh, their hiring and
              The City and Johnson contend that they initiated contact with the district attorney’s
    office, informing the office of Lewis’s allegations.
                                          No. 07-40662
    retention of Pugh, and their tolerance of Pugh’s misconduct. Lewis also alleged
    state law assault and battery claims against Pugh based on Pugh’s August 9,
    2006 attack against her.
           In May 2007, the district court granted the City and Johnson’s motion for
    summary judgment, concluding that Lewis had failed to establish a genuine
    issue of material fact as to whether the City and Johnson acted with deliberate
    indifference in the supervision, hiring, training, and retention of Pugh. The
    district court also concluded that Lewis failed to produce evidence that any
    policies or procedures were the moving force behind Lewis’s injuries.
           Lewis’s claims against Pugh proceeded to trial in June 2007. Pugh
    stipulated to liability,4 so the jury determined only the amount of damages to be
    awarded to Lewis. On June 12, 2007, the jury returned a verdict awarding
    Lewis $50,000 in compensatory damages, as well as $250,000 in punitive
    damages. Subsequently, the district court entered final judgment against Pugh
    in the amount of $300,000 plus interest, and dismissed Lewis’s claims against
    the City and Johnson.
           Lewis now appeals the district court’s grant of summary judgment to the
    City and Johnson. In addition, Pugh, pro se, appeals the jury’s verdict against
           As noted above, the district court granted summary judgment to the City
    and Johnson on three claims: failure to supervise; deficient hiring or retention;
    and deficient procedures for the discovery of police misconduct. As an initial
    matter, Lewis’s brief makes no argument regarding her deficient hiring and
    retention claim, and, as such, we consider this issue waived. See St. Paul
            However, at trial, Pugh denied committing either of the assaults against Pugh. He
    admitted to pleading guilty to criminal charges and to signing a factual resume detailing the
    assaults, but stated that he only did so for the “benefit of his family,” not because he was
                                      No. 07-40662
    Mercury Ins. Co. v. Williamson, 
    224 F.3d 425
    , 445 (5th Cir. 2000) (arguments not
    raised on appeal are deemed abandoned); In re Tex. Mortg. Servs. Corp., 
    761 F.2d 1068
    , 1073 (5th Cir. 1985) (“[I]ssues not raised or argued in the brief of the
    appellant may be considered waived and thus will not be noticed or entertained
    by the court of appeals.”). Therefore, on appeal, we will only address Lewis’s
    claims of inadequate supervision and inadequate complaint policies and
          This Court reviews a district court’s grant of summary judgment de novo,
    applying the same standards as the district court. Strong v. Univ. Healthcare
    Sys., L.L.C., 
    482 F.3d 802
    , 805 (5th Cir. 2007). “Summary judgment is proper
    when there exists no genuine issue of material fact and the movant is entitled
    to judgment as matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “The evidence
    and inferences from the summary judgment record are viewed in the light most
    favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 
    423 F.3d 460
    465 (5th Cir. 2005).
          Lewis’s claims are brought under 42 U.S.C. § 1983. To state a claim
    pursuant to § 1983, a plaintiff must claim a violation of a right secured by the
    Constitution or laws of the United States and demonstrate the alleged
    deprivation was committed by a person acting under color of state law. See 42
    U.S.C. § 1983; Randolph v. Cervantes, 
    130 F.3d 727
    , 730 (5th Cir. 1997). Lewis
    has brought suit against the City, as well as against Johnson. A municipality
    may be held liable under § 1983 when its official policies or customs violate the
    Constitution. Monell v. Dep’t of Soc. Servs., 
    436 U.S. 658
    , 690-91 (1978).
    However, a municipality will not face liability under a respondeat superior
    liability theory. Monell, 436 U.S. at 691. Instead, the plaintiff must identify the
    specific policy or custom, and show that the final policy maker, through its
                                       No. 07-40662
    “deliberate conduct,” was the “moving force” behind the violation. Bd. of County
    Comm’rs of Bryan County v. Brown, 
    520 U.S. 397
    , 405 (1997). Lewis sued
    Johnson in both his individual and official capacity. This Court has explained
    that official-capacity suits should be treated as suits against the government
    entity, see Turner v. Houma Mun. Fire and Police Civil Serv. Bd., 
    229 F.3d 478
    483 (5th Cir. 2000); therefore, Lewis’s claims against Johnson in his official
    capacity merge with her claims against the City.
          Lewis first argues that the City and Johnson are liable because Johnson’s
    failure to adequately supervise Pugh caused her injury. The same standards of
    fault and causation apply to an individual supervisor’s liability and the liability
    of a municipality for failure to supervise. Doe v. Taylor Indep. Sch. Dist., 
    15 F.3d 443
    , 453 (5th Cir. 1994) (en banc). Thus we will analyze Lewis’s claims against
    Johnson in his individual capacity and her claims against the municipality
    together. To succeed on her claim, Lewis must show that: “(1) the supervisor
    either failed to supervise or train the subordinate official; (2) a causal link exists
    between the failure to train or supervise and the violation of [her] rights; and (3)
    the failure to train or supervise amounts to deliberate indifference.” Smith v.
    158 F.3d 908
    , 911-12 (5th Cir. 1998).
          With respect to the third prong, we have previously stated that:
    “Deliberate indifference is a stringent standard of fault, requiring proof that a
    municipal actor disregarded a known or obvious consequence of his action.”
    Estate of Davis v. City of N. Richland Hills, 
    406 F.3d 375
    , 381 (5th Cir. 2005)
    (quoting Brown, 520 U.S. at 410).         “For an official to act with deliberate
    indifference, the official must both be aware of facts from which the inference
    could be drawn that a substantial risk of serious harm exists, and he must also
    draw the inference.” Id. Proof of more than a single instance of lack of
    supervision causing a violation of constitutional rights is required before such
                                      No. 07-40662
    lack of training can constitute deliberate indifference. Thompson v. Upshur
    245 F.3d 447
    , 458 (5th Cir. 2001). Instead, the plaintiff must generally
    demonstrate that the municipality or supervisor had notice of a pattern of prior
    acts “fairly similar to what ultimately transpired.” Davis, 406 F.3d at 383; see
    also Thompson, 245 F.3d at 458.
          The record contains the following evidence regarding Lewis’s supervisory
    claim. First, in her deposition, Lewis states that Detective Harris told her that
    “they had a suspicion” about Pugh prior to his rape of Lewis. Second, Lewis
    points to the testimony of Johnson that in June 2005 he became aware that
    Pugh had molested a number of women, however he did not know whether these
    rapes occurred before or after the March 2005 rape of Lewis. Johnson also
    testified that he was subsequently suspended for failing to properly supervise
    the police department, and that he retired in June 2006. Third, Lewis presents
    evidence of a number of claims stemming from Pugh’s October 22, 2004 use of
    allegedly excessive force against a number of spectators after a high school
    football game at the Tomato Bowl in Jacksonville, Texas. Lewis produced the
    declarations of four spectators, all of whom allege that Pugh used excessive force
    against them and/or arrested them without probable cause.              Lewis also
    presented evidence that Johnson was aware of at least one of the Tomato Bowl
    complaints. Fourth, Lewis presents evidence that Investigator Evans, in the fall
    of 2005, interviewed several other women who stated that Pugh had assaulted
    them. There is no evidence in the record that these women had reported the
    assaults or filed complaints against Pugh prior to March 2005. Finally, Lewis
    points to the testimony of Assistant Police Chief John Page, who stated that in
    early June 2005 he became aware that a number of women, including Lewis,
    were alleging that Pugh committed sexual misconduct against them.
          Even accepted as true and taken as a whole, the above evidence is legally
    insufficient to support a finding of deliberate indifference. At most, this evidence
                                           No. 07-40662
    shows that, prior to Lewis’s March 2005 rape, Johnson had knowledge of four
    excessive force and unlawful arrest claims, all stemming from one incident – the
    Tomato Bowl arrests. There were no allegations of sexual misconduct related
    to the Tomato Bowl incident, nor did Lewis present any evidence that the City
    or Johnson had knowledge that Pugh committed any other sexual offenses prior
    to March 2005.5 We have stressed that to demonstrate “deliberate indifference,”
    a plaintiff must show “a pattern of similar incidents.” Davis, 406 F.3d at 382-83.
    Even assuming that the four Tomato Bowl incidents, all occurring on the same
    date, constitute a “pattern,” these incidents allegedly involved the use of
    excessive force during arrests, not sexual misconduct. While we have cautioned
    that “the specificity required should not be exaggerated,” our caselaw requires
    that “the prior acts be fairly similar to what ultimately transpired.” Id. at 383.
    “Prior indications cannot simply be for any and all ‘bad’ or unwise acts, but
    rather must point to the specific violation in question.” Id. Here, other than the
    fact that both incidents involved alleged violence committed by Pugh, there is
    little similarity between the allegedly excessive force used to effectuate the
    arrests at the Tomato Bowl and the intentional, violent, rape of Lewis. Given
    the dissimilarity between the two incidents, we cannot conclude that Lewis
    established a triable issue of fact with respect to whether Johnson and the City
    were “aware of facts from which the inference could be drawn that a substantial
    risk of serious harm exist[ed],” id. at 381, that Pugh was likely to commit a
             Lewis relies heavily on the testimony of Page and Johnson that in June 2005 they
    became aware of allegations of sexual misconduct by Pugh, and that some of the misconduct
    may have occurred prior to Lewis’s rape. However, this awareness arose only after Pugh’s rape
    of Lewis, and thus could not have put Johnson or the City on notice of any propensity for
    sexual violence by Pugh. See, e.g., Cano v. Bexar County, No. 07-50921, 
    2008 U.S. App. LEXIS 11990
    , at *6 (5th Cir. June 4, 2008) (“Of course, the investigations subsequent to the instant
    incident are not relevant because such incidents could not have informed [the] County’s
    judgment with respect to the instant claim.”). Lewis also produced other evidence of various
    claims of excessive force and sexual misconduct arising after the March 2005 rape of Lewis.
    However, again, because these incidents all occurred after Lewis’s rape, they could not have
    provided the City or Johnson with the required notice, and are not relevant to Lewis’s claim.
                                           No. 07-40662
    violent rape and assault. See also Roberts v. City of Shreveport, 
    397 F.3d 287
    294 (5th Cir. 2005) (rejecting plaintiffs’ proffered pattern where it required “an
    excessively high level of generality”). In sum, there is no conduct from which it
    could be reasonably concluded that Johnson or the City made a deliberate or
    conscious choice to endanger constitutional rights. Consequently, we affirm the
    district court’s dismissal of this claim.
           Lewis next argues that the City and Johnson are liable because Defendant
    Johnson had a policy of tolerating police misconduct, such as excessive force and
    unlawful arrests, and the City had inadequate procedures for documenting and
    investigating complaints of police misconduct.6 The district court appears to
    have addressed these claims together, and Lewis’s brief is unhelpful in
    determining whether she is alleging one unconstitutional policy or two.
    However, for the sake of completeness, we address these two distinct claims
           As discussed above, a municipality faces § 1983 liability only “when
    execution of a government’s policy or custom, whether made by its lawmakers
    or by those whose edicts or acts may fairly be said to represent official policy,
    inflicts the injury. . . .” Monell, 436 U.S. at 694. “Proof of municipal liability
    sufficient to satisfy Monell requires: (1) an official policy (or custom), of which
    (2) a policy maker can be charged with actual or constructive knowledge, and (3)
    a constitutional violation whose ‘moving force’ is that policy (or custom).” Pineda
    v. City of Houston, 
    291 F.3d 325
    , 328 (5th Cir. 2002). For a municipality to be
            Lewis’s briefing on this point is particularly confusing. Although Lewis identifies this
    argument as an issue in her “Statement of Issues,” she fails to specifically identify the exact
    policy or custom complained of and her argument section seems to focus only on her
    supervisory liability claim. Nonetheless, Defendants have briefed this issue, so despite the
    inadequacy of Lewis’s briefing, we will attempt to discern Lewis’s argument and address it on
                                      No. 07-40662
    liable on account of its policy, the plaintiff must show, among other things, either
    (1) that the policy itself violated federal law or authorized or directed the
    deprivation of federal rights or (2) that the policy was adopted or maintained by
    the municipality’s policymakers “with ‘deliberate indifference’ as to its known
    or obvious consequences.” Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking
    Task Force, 
    379 F.3d 293
    , 309 (5th Cir. 2004) (quoting Brown, 520 U.S. at 407).
    As chief law enforcement officer during the time in question, Johnson “may be
    held personally liable if he implemented ‘a policy so deficient that the policy
    itself is a repudiation of constitutional rights and is the moving force of the
    constitutional violation.’” Ibarra v. Harris County, 243 Fed. App’x 830, 836 (5th
    Cir. 2007) (quoting Cozzo v. Tangipahoa Parish Council, 
    279 F.3d 273
    , 289 (5th
    Cir. 2002)).
                   1.   Policy of Tolerating Police Misconduct
            First, Lewis has not sufficiently demonstrated that the City or Johnson
    had a custom of tolerating misconduct or inadequately responding to citizen
            In support of her claim that Johnson had a policy of tolerating police
    misconduct, Lewis points to the following incidents of police misconduct. First,
    she submitted evidence of police misconduct at the Tomato Bowl incident in
    2004.    In addition, she presented evidence of another incident of alleged
    excessive force by Pugh, occurring on October 2, 2005, when Pugh allegedly used
    excessive force against Larry Lacey during a traffic stop. Further, Lewis points
    to Johnson’s testimony that Pugh committed a number of other sexual assaults.
    Lewis also cites to an incident in which three officers allegedly maced and beat
    up a man named “Burke,” who was being held in the city jail for DWI. Finally,
    Lewis presented evidence that Johnson was suspended twice – once in 2003 for
    allegedly lying to the City Manager and again in 2006 for improperly managing
    the police department.
                                             No. 07-40662
           However, there is simply no evidence in the record that the City
    “tolerated” these incidents of misconduct or other incidents of this nature. To
    the contrary, the testimony in the record indicates that each of these incidents
    was investigated,7 and in some cases, including the case of Pugh, the officers
    were subsequently suspended. Lewis has presented no testimony that the City
    or Johnson condoned officers’ use of excessive force or unlawful arrests. Further,
    given the relatively few number of incidents of allegedly excessive force and
    unlawful arrests, we cannot conclude that such behavior was sufficiently
    “widespread and pervasive” to demonstrate a pattern of unconstitutional
    behavior. See Pineda, 291 F.3d at 329 (holding that eleven incidents of allegedly
    unconstitutional searches were insufficient to demonstrate a genuine issue of
    material fact as to whether there was a custom of unconstitutional searches);
    Castro v. McCord, 259 Fed. App’x 664, 669 (5th Cir. 2007) (evidence of three
    shooting deaths in five years prior to trial insufficient to establish a “persistent,
    widespread practice” of shootings by county officers); Roberts v. City of
    397 F.3d 287
    , 295 (5th Cir. 2005) (evidence that officer brandished
    his handgun during a traffic stop, committed one other incident of deadly force,
    and was accused of two other claims of excessive force insufficient to establish
    a “pattern” of unconstitutional conduct).
           In addition, even if Lewis could establish that the City and Johnson had
    a custom of tolerating misconduct that was maintained with deliberate
             Lewis argues that no investigation was taken after the Lacey incident, but her citation
    to Johnson’s deposition testimony does not support that assertion. During Johnson’s
    deposition, counsel for the City stated that he was unwilling to stipulate that no investigation
    had occurred, but would stipulate that “at this time I have seen no formal file of an internal
    affairs investigation.” Johnson then testified that he ordered Lieutenant Page to investigate
    the incident, but that he “[did]n’t remember if there was an actual internal affairs
    investigation, or if it was said, ‘Hey, turn this over to the FBI.’ I know we turned it over to the
    FBI immediately.” Nothing in the record supports Lewis’s assertion that the department never
    investigated the incident. Further, it is undisputed that the City held a community meeting
    in response to the incident.
                                          No. 07-40662
    indifference to the constitutional rights of the City’s residents, she failed to
    present any evidence that this custom was the “moving force” behind the
    complained of constitutional violation. As we said in Fraire v. City of Arlington,
    957 F.2d 1268
    , 1281 (5th Cir. 1992):
                [A] direct causal connection must exist between the
                policy and the alleged constitutional deprivation. This
                connection must be more than a mere ‘but for’ coupling
                between cause and effect. To form the basis of liability
                under § 1983, a municipal policy must be affirmatively
                linked to the constitutional violation and be the moving
                force behind it.
    (footnotes omitted). The actions of Pugh in raping and assaulting Lewis in
    March 2005 were entirely caused by Pugh. There is simply no evidence in the
    record that Pugh made the decision to rape Lewis for any reason related to any
    City policy or custom or understanding thereof which he may have had, or for
    any reason other than his own motivations for assaulting Lewis. In fact, Lewis
    herself has referred to Pugh as a “rogue” police officer. In sum, the evidence
    shows no causal connection between the City’s allegedly unconstitutional policy
    and the actions of Pugh. See Johnson, 379 F.3d at 310-11; Hardeman v. Kerr
    County, 244 Fed. App’x 593, 597 (5th Cir. 2007).
           Therefore, the district court properly dismissed Lewis’s claim based on an
    alleged custom of tolerating police misconduct.
                  2.     Inadequate Procedures for Recording Citizen Complaints
           Second, Lewis failed to present evidence sufficient to support her claim
    that the City should be held liable because it lacked proper procedures to process
    citizen complaints of police misconduct. Lewis directs the court to Johnson’s
    testimony that the police department logged only written complaints of officer
    misconduct, and did not keep records of verbal complaints.8 Lewis also points
            Regarding the police department’s handling of complaints, Johnson testified that if a
    person came into the police station complaining of officer misconduct, the lieutenant would
                                            No. 07-40662
    to the testimony of Leisha Mosley, who stated that she tried to file a complaint
    of excessive force with the Jacksonville Police Department, but that she was told
    by the woman at the front desk that they did not have any forms.
           “Knowledge on the part of a policymaker that a constitutional violation
    will most likely result from a given official custom or policy is a sine qua non of
    municipal liability under section 1983.” Burge v. St. Tammany Parish, 
    336 F.3d 363
    , 370 (5th Cir. 2003). Where, as in the present case, “an alleged policy or
    custom is facially innocuous, establishing the requisite official knowledge
    requires that a plaintiff establish that an official policy was ‘promulgated with
    deliberate indifference to the known or obvious consequences that constitutional
    violations would result.’” Id. (citing Piotrowski v. City of Houston, 
    237 F.3d 567
    579 (5th Cir. 2001)). It is undisputed that Johnson is a final policymaker and
    that Lewis suffered a violation of her Fourth Amendment rights, however Lewis
    has failed to produce any evidence that Johnson had knowledge that a Fourth
    Amendment violation would be a highly likely consequence of the record keeping
    policy. See Id. (affirming dismissal of § 1983 claim where plaintiff failed to
    produce sufficient evidence to establish deliberate indifference or knowledge on
    the part of the Sheriff that a Brady violation would be a highly likely
    consequence of the manner in which his office managed its records). Thus, the
    district court’s grant of summary judgment was proper.
    listen to the complaint, ask him to fill out a “packet,” and then to return the “packet” so the
    department could investigate the misconduct. If the “packet” was returned, the complainant
    would keep a copy, the officer accused of misconduct gets a copy, and the officer’s supervisor
    would get a copy in order to determine what investigation was necessary. Johnson testified
    that complaints made verbally of police misconduct were not documented or kept on file by the
    police department, but that written complaints were filed in the personnel file of the individual
    officer accused of misconduct. He testified that there was no central place where all complaints
    of excessive force or unlawful arrest were filed and that he wasn’t aware of whether the
    department’s current computer system contained a database of complaints. He indicated that
    the department was in the process of updating the computer system so that there would be a
    data bank of complaints.
                                      No. 07-40662
          Even assuming that Lewis could prove that the City and Johnson were
    “deliberately indifferent” in not documenting oral complaints of misconduct,
    Lewis’s claims were properly dismissed because she failed to establish the
    necessary “direct causal link” between this policy and the constitutional
    deprivation at issue – the rape committed by Pugh. See Johnson, 379 F.3d at
          We now turn to Pugh’s appeal of the judgment against him. On appeal,
    Pugh argues that both the compensatory and punitive damages awarded by the
    jury were excessive. In addition, Pugh contends that the verdict should be
    reversed because he received ineffective assistance of counsel.
          The jury awarded Lewis $50,000 in compensatory damages, as well as
    $250,000 in punitive damages.       An assessment of damages is not reversed
    unless it is clearly erroneous. Caldarera v. Eastern Airlines, Inc., 
    705 F.2d 778
    783 (5th Cir. 1983). Only where it is “so large as to shock the judicial conscience,
    so gross or inordinately large as to be contrary to right reason, so exaggerated
    as to indicate bias, passion, prejudice, corruption, or other improper motive” will
    we reverse a jury verdict for excessiveness. Id.
          Pugh argues that the award of $50,000 in compensatory damages was
    excessive because Lewis failed to mitigate her damages by promptly seeking
    treatment and failed to present sufficient evidence of pain and suffering related
    to the assaults. During the trial, Lewis described the March 2005 rape and the
    August 2005 assault, and the physical injuries she suffered.          She further
    testified that since the attacks, she has felt humiliated, been “scared to do
    anything,” “scared of the police,” and “scared to go out at night.” Lewis’s
    daughter, Kenzie Blow, testified that the rape was “devastating” for Lewis, and
    that, immediately after the rape Lewis was upset and scared. Blow testified that
    Lewis suffered physical injuries from the rape, including bruising. Further,
                                      No. 07-40662
    Blow indicated that, at the time of trial, Lewis was still affected and was “very
    scared and very paranoid.” Finally, Lewis presented evidence that she was
    taken to the hospital after the August assault and treated for physical injuries,
    including abrasions and multiple cuts and scrapes on her legs. Given the
    evidence and testimony presented at trial, the court is satisfied that there is
    sufficient evidence of physical injury, pain and suffering, and mental anguish to
    support the jury’s verdict. In short, we cannot say that an award of $50,000
    resulting from the rape and subsequent assault is enough to “shock the judicial
    conscience” of the court.
          In challenging the jury’s award of $250,000 in punitive damages, Pugh
    contends that the award is excessive, unfair, and contrary to the jury
    instructions.    We construe Pugh’s argument as a challenge to the
    constitutionality of the size of the punitive damages award. The Supreme Court
    has articulated three factors that courts should consider in determining whether
    an award of punitive damages is constitutionally excessive: (1) the defendant’s
    reprehensibility or culpability; (2) the relationship between the penalty and the
    harm to the victim caused by the defendant’s actions; and (3) the sanctions
    imposed in other cases for comparable misconduct. Cooper Indus., Inc. v.
    Leatherman Tool Group, Inc., 
    532 U.S. 424
    , 434-35 (2001). In the present case,
    we have no difficulty upholding the jury’s award. First, Pugh’s conduct, utilizing
    a position of trust to rape and assault a vulnerable woman, is particularly
    reprehensible.   Second, the ratio between the punitive and compensatory
    damages in this case is 5:1, a ratio not so disproportionate as to “jar one’s
    constitutional sensibilities.” TXO Production Corp. v. Alliance Resources Corp.,
    509 U.S. 443
    , 481 (1993) (indicating that a ratio between the punitive award
    and the potential harm of ten to one was not constitutionally infirm); see also
    Exxon Shipping Co. v. Baker, 
    128 S. Ct. 2605
     (2008) (adopting a punitive-to-
    compensatory damages ratio to determine maximum punitive damages award);
                                            No. 07-40662
    cf. Watson v. Johnson Mobile Homes, 
    284 F.3d 568
    , 574 (5th Cir. 2002)
    (remitting punitive damages to $150,000 where jury awarded compensatory
    damages of $4,000, a ratio of 37.5:1). Finally, the comparable criminal sanctions
    for Pugh’s conduct are serious, as indicated by the fact that he is currently
    serving a 12-year sentence for the rape and assault of Lewis. Therefore, we
    uphold the punitive damages award against Pugh.9
           Pugh also argues that he received ineffective assistance of counsel during
    this litigation. This argument is without merit. It is well settled that the
    constitutional right to the effective assistance of counsel does not apply in a civil
    context. See F.T.C. v. Assail, Inc., 
    410 F.3d 256
    , 267 (5th Cir. 2005).
           In conclusion, for the foregoing reasons, the judgment of the district court
    is AFFIRMED.
             In addition, Pugh did not move for a new trial or remittitur in the district court,
    thereby depriving the district court of the opportunity to correct any alleged imperfections in
    the jury award. Therefore, arguably, Pugh did not preserve this issue for appeal. See Carlton
    v. H.C. Price Co., 
    640 F.2d 573
    , 577 (5th Cir. 1981) (“We have held that ‘there can be no
    appellate review (of allegedly excessive or inadequate damages) if the trial court was not given
    an opportunity to exercise its discretion on a motion for new trial.’”) (quoting Baker v. Dillon,
    389 F.2d 57
    , 58 (5th Cir. 1968)).

Document Info

DocketNumber: 07-40662

Filed Date: 8/18/2008

Precedential Status: Non-Precedential

Modified Date: 12/21/2014

Authorities (27)

Turner v. Houma Muni Fire , 229 F.3d 478 ( 2000 )

Piotrowski v. City of Houston , 237 F.3d 567 ( 2001 )

Cozzo v. Tangipahoa Prsh Cncl , 279 F.3d 273 ( 2002 )

Watson v. Johnson Mobile Homes , 284 F.3d 568 ( 2002 )

Pineda v. City of Houston , 291 F.3d 325 ( 2002 )

Johnson v. Deep East TX Regn , 379 F.3d 293 ( 2004 )

Roberts v. City of Shreveport , 397 F.3d 287 ( 2005 )

Estate of Troy Davis v. City of N Richland , 406 F.3d 375 ( 2005 )

Monell v. New York City Dept. of Social Servs. , 436 U.S. 658 ( 1978 )

TXO Production Corp. v. Alliance Resources Corp. , 509 U.S. 443 ( 1993 )

Board of Comm'rs of Bryan Cty. v. Brown , 520 U.S. 397 ( 1997 )

Cooper Industries, Inc. v. Leatherman Tool Group, Inc. , 532 U.S. 424 ( 2001 )

Exxon Shipping Co. v. Baker , 128 S. Ct. 2605 ( 2008 )

Fred Baker v. Allen G. Dillon , 389 F.2d 57 ( 1968 )

Robert B. Carlton and Bobbie L. Carlton v. H. C. Price ... , 640 F.2d 573 ( 1981 )

Peter Joseph Caldarera, Jr., Etc. v. Eastern Airlines, Inc.,... , 705 F.2d 778 ( 1983 )

In the Matter of Texas Mortgage Services Corporation, ... , 761 F.2d 1068 ( 1985 )

maria-del-rosario-c-fraire-individually-and-as-next-friend-for-myra , 957 F.2d 1268 ( 1992 )

Jane Doe v. Taylor Independent School District, Mike ... , 15 F.3d 443 ( 1994 )

blanche-randolph-as-conservator-of-deborah-randolph-v-al-cervantes , 130 F.3d 727 ( 1997 )

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