262 F.3d 146 (2nd Cir. 2001), 00-7790, Provost v City of Newburgh

Docket Nº:Docket No. 00-7790, 00-7791
Citation:262 F.3d 146
Case Date:August 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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262 F.3d 146 (2nd Cir. 2001)





Docket No. 00-7790, 00-7791

United States Court of Appeals, Second Circuit

August 17, 2001

Argued: January 19, 2001

Appeal and cross-appeal from a judgment of the United States District Court for the Southern District of New York (George A. Yanthis, Magistrate Judge) awarding Plaintiff-Appellant Robert Provost one dollar in nominal damages and 10,000 in punitive damages following a trial and jury verdict on claims brought under 42 U.S.C. § 1983 alleging that the defendants arrested and incarcerated him in violation of his First and Fourth Amendment rights. Affirmed. Judge Newman dissents as to Defendant Roper.

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Robert N. Isseks, Middletown, NY (Steven M. Melley, of counsel), for Plaintiffs-Appellants-Cross-Appellees.

Monte J. Rosenstein, Middletown, Ny, for Defendants-Appellees and Defendant-Appellee-Cross-Appellant.

Before: Newman, Leval, and Sack, Circuit Judges.

Sack, Circuit Judge

Plaintiff Robert Provost1 appeals from a May 19, 2000 judgment of the United States District Court for the Southern District of New York (George A. Yanthis, Magistrate Judge) granting partial judgment as a matter of law to the defendants following a trial and a jury verdict for the

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plaintiff. One of the defendants in that trial, John Roper, cross- appeals the portion of the same judgment that awarded the plaintiff nominal and punitive damages against him in accordance with the verdict.

The underlying claims stemmed from an argument that occurred on February 24, 1995 at the Newburgh, New York police station between Provost and a receptionist, after which Provost was arrested and incarcerated for about two and a half hours. Provost filed suit under 42 U.S.C. § 1983 alleging that police officer John Roper and two other officers, including Roper's supervisor, Lieutenant Patrick Sorrentino, had deprived him of his rights under the First and Fourth Amendment applied to the defendants through the Fourteenth Amendment.2 During the course of the three-day trial, after both sides rested, the defendants made a motion for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a). The district court reserved decision and submitted the case to the jury. The jury returned a verdict awarding nominal and punitive damages to Provost against Roper and Sorrentino. The defendants then moved for judgment as a matter of law under Rule 50(b), or, in the alternative, for a new trial under Rule 59. The court granted the motion for judgment as a matter of law with respect to Sorrentino but denied the motions in all other respects. Provost appeals from the judgment, and Roper cross-appeals. We affirm in all respects.


Robert Provost was at all times relevant to this appeal the owner and operator of a half-way house for handicapped and mentally ill adults, most of them veterans. When he awoke on the morning of February 24, 1995, he learned that one such veteran-resident, Bob Stratton, had turned up at the Newburgh police station after an unexplained three-day absence.

Provost drove to Newburgh to retrieve Stratton and arrived at the police station at around nine in the morning. He then walked up to a bullet- proof reception window and asked to see Stratton. Dave Fisher, a parking officer seated behind the window, told Provost that he would be attended to "in a little while."3 Provost grew impatient; at intervals of about ten or fifteen minutes for the next hour, he returned to the window and asked that Fisher produce Stratton. On what would prove to be his last visit to the reception window, Provost grew angry and told Fisher, in Provost's words, "Look. I gotta get out of here. Get on that phone. Call somebody in the back. Get somebody out here to help me." To the officers on Fisher's side of the glass, Provost's comments sounded less polite, conveying "something to the effect of 'what do you mean you don't know where he is?'," "'I don't have time for this bullshit,'" and "'I can't sit around on my fat ass all day like you.'" Each of these officers testified that Provost was "shouting very loudly," "raising his voice," or "yelling and screaming" at Fisher. Provost conceded at trial that during the dispute he "yelled through the window," "hollered at" Fisher, and generally became "noisy." Without responding to Provost's final entreaty, Fisher picked up the phone next to him and made a brief call.

In the same room as Fisher, and behind the glass separating Fisher and Provost, were two police officers, John Roper and

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his supervisor Lieutenant Patrick Sorrentino. They heard Provost raising his voice to Fisher -- though Roper and a fellow officer testified that one was required to do so in order to be heard through the thick glass -- and Sorrentino told Roper to "go and handle the problem." Roper invited Provost into the hallway adjoining the glassed-in room and inquired as to the difficulty. Provost responded that he was frustrated by Fisher's inattention and anxious to retrieve Stratton. Roper testified that once he realized Provost was "not going to be calmed down," he decided to place Provost under arrest. During the arrest, Sorrentino and a third officer, Ulysses Otero, were apparently standing behind Provost. They witnessed the arrest, though Sorrentino testified at trial that he did not remember whether he saw Roper placing handcuffs on Provost.

Provost was escorted -- roughly, he claims -- down the hall and was then handcuffed to a bench, where the officers "scream[ed], sw[ore], [and] holler[ed]" at him. He was charged with disorderly conduct in violation of § 240.20(3) of the New York Penal Code. A person is guilty of this form of disorderly conduct "when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof... [i]n a public place, he uses abusive or obscene language, or makes an obscene gesture." N.Y. Pen. L. 240.20(3). The charging instrument against Provost described the behavior as the basis for his arrest thus:

[D]efendant did intentionally use abusive and obscene language in a public place - the police department lobby, saying to civilian police department employee Dave Fisher "I don't have time for your bullshit" and "I can't jerk around all day like you." Defendant did engage in this behavior in view of several civilian persons in the lobby.

Provost was detained for about two and a half hours. The charge was ultimately dismissed pursuant to N.Y. Crim. Pro. L. § 170.55.4

The Trial

Provost filed suit under 42 U.S.C. § 1983, alleging that Roper, Sorrentino, and Otero deprived him of his rights under the First and Fourth Amendment as applied to the Newburgh police officers through the Fourteenth Amendment by retaliating against him in response to the exercise of his right to free speech, subjecting him to a seizure by false arrest and imprisonment, and inflicting excessive force on him during the arrest.

The case went to trial on February 14, 2000 before Magistrate Judge Yanthis.5 Provost takes exception to three aspects of the trial. First, in support of his effort to obtain damages for emotional distress, Provost wished to testify about the instances of police brutality toward other detainees that he claimed to have witnessed during his incarceration. The defendants' counsel objected to this testimony and the court apparently issued its ruling excluding it at a sidebar that took place off the record. Provost was thus prevented from so testifying, but his counsel later noted his objection for the record, claiming that such evidence "would have been relevant... on the issue of emotional distress, post-traumatic stress, suffered by the plaintiff."

Second, Provost objected to the following portion of the court's instructions on punitive damages:

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The extent to which a particular sum of money will adequately punish the defendant and the extent to which a particular sum will adequately deter or prevent future misconduct may depend upon the financial resources of the defendant against which damages are awarded. Therefore, if you find that punitive damages should be awarded against the defendant, you may consider the financial resources of the defendant in fixing the amount of such damages.

Provost unsuccessfully argued that this language was improper because the defendants had not presented any evidence of their financial circumstances.

Third, during its deliberations, the jury sent a note to the court asking three questions: "Who pays punitive damages?", "Does it come out of defendant's personal income?", and "Who receives punitive damages?" Over Provost's objections, the court answered these questions by explaining to the jury that "[i]f you make an award of punitive damages against any individual defendant, in accordance with my instructions, that individual defendant pays the punitive damages," and that "[a]ny such award of punitive damages is the personal responsibility of the individual defendant." Provost requested that the court instruct the jurors "that they not concern themselves with who pays punitive damages."

Before the case was sent to the jury, the defendants moved orally for judgment under Fed. R. Civ. P. Rule 50(a) on the grounds, inter alia, that there was probable cause for Provost's arrest as a matter of law, that Provost's statements at the police station were not protected by the First Amendment, and that Lieutenant Sorrentino was not liable as a matter...

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