Campbell v. Flathead County Sheriff
| Decision Date | 13 September 1989 |
| Docket Number | No. 88-3866,88-3866 |
| Citation | 894 F.2d 1344 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Patrick James CAMPBELL, Plaintiff-Appellant, v. FLATHEAD COUNTY SHERIFF; Flathead County Sheriff's Department, Defendant-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before JAMES R. BROWNING, ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges.
Patrick James Campbell appeals from the judgment of the district court granting him relief on two of his section 1983 claims and dismissing the remainder of his claims. Campbell seeks reversal on the following grounds: (1) The district court erred in accepting Flathead County Sheriff's "legally inferior" evidence and in disregarding his substantial evidence; (2) The district court erred in denying him punitive damages; (3) The district court erred in dismissing his equal protection claims; (4) The district court erred in denying him compensatory damages; (5) The district court erred in denying his request for a jury trial; (6) The district court erred in denying his request that the clerk of the court issue subpoenas for 29 non-prisoner witnesses; (7) The district court erred in denying his motion for discovery sanctions; and (8) The district court erred in denying his request for attorney's fees and expenses.
We affirm.
Campbell filed a pro se civil rights complaint pursuant to 42 U.S.C. Sec. 1983 on September 13, 1983, alleging that the Flathead County Sheriff and the Flathead County Sheriff's Department (Flathead County) violated his constitutional rights, while he was incarcerated at the Flathead County Jail. Campbell's amended complaint alleged that:
defendants had denied him adequate law library access and case preparation materials as well as adequate alternative legal assistance, privacy in personal communications with attorneys, contact visits, outdoor exercise or recreation opportunities, receipt of publications of his own choosing such as Playboy and Penthouse Magazines, wage-earning employment, written rules and regulations for jail and its prisioners, particular hygiene items, adequate cell temperature and ventilation, indoor exercise and recreation opportunities, adequate and laundered bedding, adequate clothing, healthy and safe living conditions (i.e.--fire safety, adequate plumbing, adequate lighting, hygienic environment), reasonable incoming and outgoing mail delivery, prescribed medical care, and freedom from impermissible retaliatory consequences for filing his original complaint in federal court.
The district court assigned the case to Magistrate Jack Shanstrom. The magistrate held an evidentiary hearing on March 18, 1986. Following the hearing, the magistrate issued his findings and recommendation to the district court. The district court adopted the findings and recommendation of the magistrate on May 13, 1988. The district court's judgment and order (1) enjoined Flathead County from prohibiting receipt by inmates of publications such as Playboy and Penthouse magazines; (2) awarded Campbell nominal damages for deprivation of his right to adequate exercise and for unjustified censorship of mail; and (3) dismissed Campbell's remaining claims on the merits. Campbell filed a timely notice of appeal.
Campbell contends that the district court erred in dismissing most of his section 1983 claims because the district court accepted Flathead County's "legally inferior" evidence and disregarded his "substantial evidence in the record as a whole." Specifically, Campbell contends that the district court should not have accepted the affidavits submitted by Flathead County because the affidavits were hearsay and he had no opportunity to cross-examine the affiants. A district court's decision to admit evidence is reviewed for abuse of discretion. United States v. Turk, 722 F.2d 1439, 1441 (9th Cir.), cert. denied, 469 U.S. 818 (1984).
Flathead County submitted three affidavits in support of its motion for summary judgment. (CR 61, 62, 63). The district court filed an order stating that the summary judgment motion would be considered as part of the evidentiary hearing. (CR 70).
Campbell never objected to admission of the affidavits in the district court. Campbell objects for the first time on appeal. This court "does not review an issue not raised or objected to below except to prevent a manifest injustice." Professional Seminar Consultants v. Sino Am. Technology Exch. Council, 727 F.2d 1470, 1472 (9th Cir.1984).
In the instant matter, there is no showing of manifest injustice. Federal Rule of Civil Procedure 56(e) specifically provides that a party may submit supporting and opposing affidavits made on personal knowledge which set forth admissible facts. All three affidavits were based on personal knowledge of the affiants and set forth admissible facts. The district court did not err in considering the affidavits in support of Flathead County's summary judgment motion.
Although the affidavits would have been hearsay if admitted into evidence at the evidentiary hearing, there is nothing in the record to indicate that the affidavits were "admitted" into evidence. The record indicates only that they were properly submitted in support of Flathead County's motion for summary judgment.
Campbell also argues that the testimony of Flathead County's sole witness, Theodore Stollfuss, must be "distrusted" because his in-court testimony regarding gas fumes in the jail is "diametrically opposed [to] his sworn testimony given in his affidavit." The record shows that Stollfuss' sworn testimony was consistent with his sworn affidavit. In the affidavit, Stollfuss stated:
I have never known the jail to be inundated with vehicle exhaust fumes. Upon occasion, when the gas tank adjacent to the jail facility is filled with gasoline, I have detected an odor of the gasoline inside the jail. I have never detected the odor of vehicle exhaust fumes in any part of the jail, including that portion of the jail in which the Plaintiff was incarcerated.
(CR 61). At the hearing Stollfuss testified that he had never smelled motor vehicle fumes In any event, Campbell's claim is essentially an attack on the credibility of the witness. On appeal, we must accept the magistrate's determination regarding credibility. See United States v. Kerr, 876 F.2d 1440, 1444 (9th Cir.1989) ().
in the jail and had never detected the odor of gasoline in the prisoners' cells. (R.T. 310)
The district court properly considered the evidence presented.
Campbell contends that the district court erred in denying him punitive damages because the Sheriff was on notice of the constitutional violations through Campbell's complaint, and he failed to take any "remedial or corrective action" and he failed to testify.
The district court's decision to deny Campbell punitive damages was within the district court's discretion. See Professional Seminar Consultants, 727 F.2d at 1473 ().
In a section 1983 action punitive damages are appropriate if the plaintiff can show that the defendant acted with reckless or callous disregard for the plaintiff's rights or that the defendant intentionally violated federal law. Smith v. Wade, 461 U.S. 30. 51 (1983); see also Protectus Alpha Navigation Co. v. North Pac. Grain Growers, Inc., 767 F.2d 1379, 1385 (9th Cir.1985) ().
In the instant matter, the district court awarded Campbell nominal damages for deprivation of his right to adequate exercise and for unjustified censorship of his mail. The district court did not find that Flathead County acted in "reckless or callous" disregard for Campbell's rights and nothing in the record supports his claim. The district court did not err in denying Campbell punitive damages.
Campbell contends that the district court erred in dismissing his equal protection claim because he demonstrated that prisoners at the Flathead County Jail were "denied rights or privileges accorded to convicted felons confined in the Montana State Prison System." We review Campbell's equal protection claim de novo. See La Duke v. Nelson, 762 F.2d 1318, 1322 (9th Cir.1985) (), amended on other grounds, 796 F.2d 309 (1986).
The gravamen of a complaint for denial of equal protection is that similarly situated individuals are treated unequally. Mlikotin v. City of Los Angeles, 643 F.2d 652, 654 (9th Cir.1981). Campbell, as a prisoner at the Flathead County Jail, was not similarly situated to a prisoner in the Montana State Prison. Therefore, the Flathead County Sheriff is not required by the Constitution to grant the prisoners at the Flathead County Jail the same "privileges accorded to convicted felons confined in the Montana State Prison System." See id. at 653 . The district court did not err in dismissing Campbell's equal protection claim.
Campbell contends that the district court erred in denying him "substantial compensatory...
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