Herrera v. Valentine

• Decision Date: 13 July 1981
• Docket Number: Nos. 79-1958,80-2202,s. 79-1958
• Citation: 653 F.2d 1220
• Parties: Cleo R. HERRERA, Special Administrator of the Estate of Jo Ann Yellow Bird, deceased, Appellee, v. Clifford VALENTINE, individually and as a police officer of the Gordon, Nebraska, Police Department, and the City of Gordon, Nebraska, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1220

653 F.2d 1220

Cleo R. HERRERA, Special Administrator of the Estate of Jo Ann Yellow Bird, deceased, Appellee, v. Clifford VALENTINE, individually and as a police officer of the Gordon, Nebraska, Police Department, and the City of Gordon, Nebraska, Appellants.

Nos. 79-1958, 80-2202.

United States Court of Appeals Eighth Circuit.

Submitted March 9, 1981.

Decided July 13, 1981.

Frank E. Piccolo, LeRoy Anderson, argued, Murphy, Pederson, Piccolo & Anderson, North Platte, Neb., for appellants.

Douglas J. Sorensen, argued, Schear, Sorensen, Strickman, Tooby & Turner, Oakland, Cal., for plaintiff and appellee Jo Ann Yellow Bird, and Cleo R. Herrera, Sp. Administrator of the Estate of Jo Ann Yellow Bird, deceased.

Before HEANEY and HENLEY, Circuit Judges, and PECK, ^* Senior Circuit Judge.

HEANEY, Circuit Judge.

This matter comes before the Court for a second time. We originally remanded the case to the district court to determine the amount that Jo Ann Yellow Bird is entitled to for attorney's fees and expenses. The district court has made its determination. We now reach the merits of the appeal and affirm the judgment of the court below except insofar as it relates to the award of attorneys' fees and expenses.

I

On September 15, 1976, Jo Ann Yellow Bird, an Indian woman visibly in the later months of pregnancy, was kicked in the stomach by Clifford Valentine, a police officer employed by the City of Gordon, Nebraska. Valentine was attempting to arrest Yellow Bird's husband at the time of the incident. As Yellow Bird went to the aid of her husband, Valentine kicked her in the abdomen, throwing her to the ground. After he had kicked her, Valentine handcuffed her and forced her into the back of his patrol car. Yellow Bird's pleas for medical attention were ignored. Instead of driving her a few blocks to the nearest hospital, Valentine drove her nearly twenty miles to the county jail. On the way to the jail, Valentine stopped the car and threatened to take Yellow Bird out into the country and shoot her. She was arrested and jailed; her requests for counsel were also ignored. As a result of the beating and inattention to her medical needs, she suffered physical and emotional injuries; her unborn child died in her womb and was delivered dead two weeks later.

Thereafter, Yellow Bird filed a lawsuit in federal district court alleging violations of her federal civil rights, as well as various state law claims. She named fourteen parties as defendants in the case, including Valentine and the City of Gordon. After a lengthy trial, the jury returned a verdict that found the City of Gordon and Valentine liable for violating Yellow Bird's federal civil rights. The jury awarded the plaintiff $300,000 in compensatory damages. The defendants' post-trial motions challenging the verdict were denied and this appeal followed.

On appeal, the appellants contend that the trial court erred by: (1) improperly submitting to the jury Yellow Bird's state law claims against the appellants; (2) permitting Yellow Bird to amend her complaint to conform to the evidence establishing a claim against the City under 42 U.S.C. § 1983; (3) denying their post-trial motions, which asserted that the verdict imposes liability vicariously upon the City and, alternatively, that there is insufficient evidence to sustain the verdict against the City and Officer Valentine; (4) instructing the jury that it could compensate Yellow Bird for the loss of her constitutional rights independent of any compensation due her for physical and emotional injury; (5) sustaining an excessive verdict; and (6) awarding excessive attorneys' fees and expenses.

II

The appellants make a number of arguments relating to Yellow Bird's claims under state law. We need not reach these issues, however, since the jury rendered a verdict for all the defendants on each of Yellow Bird's state law claims. Assuming arguendo, that appellants' arguments are compelling, we could do no more than what the jury has already done render a judgment against Yellow Bird on her state law claims.

The appellants' arguments only reach a level of significance if we were to agree with their more fundamental assertion that the jury verdict is irreconcilably inconsistent, and that the jury actually intended to find against the defendants on state law grounds. For the reasons stated below, we determine that the trial court properly allowed Yellow Bird to amend her pleadings to conform to the evidence adduced at trial, and that the jury's verdict is not irreconcilably inconsistent. Accordingly, the appellants' arguments relating to Yellow Bird's state claims are without significance.

III

Near the conclusion of the trial, the plaintiff moved to amend her complaint to conform to the evidence adduced at trial by adding a claim against the City of Gordon under 42 U.S.C. § 1983. The City contends that the trial court abused its discretion by permitting the amendment, arguing that the City had not anticipated a civil rights claim and had not prepared a defense.

Rule 15(b) of the Federal Rules of Civil Procedure permits parties to amend their pleadings to adequately reflect the case as it was actually tried in the courtroom. The Rule authorizes the trial court to permit the amendment when an unpleaded issue is tried with the express or implied consent of the parties. The Rule also authorizes the court to permit the amendment when evidence is challenged as outside the scope of the pleadings. Fed.R.Civ.P. 15(b). The purpose of the Rule is to "promote the objective of deciding cases on their merits rather than in terms of the relative pleading skills of counsel * * *." 6 C. Wright & A. Miller, Federal Practice & Procedure, § 1491 at 454 (1971); see Wallin v. Fuller, 476 F.2d 1204, 1210 (5th Cir. 1973).

The Rule contemplates that amendments to pleadings should be allowed with liberality. Moreover, "it is a settled rule of practice that the trial court is vested with sound discretion in granting or refusing an amendment to pleadings, and the extent of this Court's review is limited to the question of abuse of this discretion." Gallon v. Lloyd-Thomas Co., 264 F.2d 821, 823 (8th Cir. 1959); see Nielson v. Armstrong Rubber Co., 570 F.2d 272, 276 (8th Cir. 1978).

We conclude that Yellow Bird's civil rights claim was tried with the implied consent of the City of Gordon, and that the district court did not abuse its discretion by allowing the plaintiff to amend her complaint. The plaintiff effectively placed the City on notice of her intention to prove a civil rights claim against it as early as in her opening statement. Yellow Bird actually began to prove her section 1983 case against the City with her first witness. Early in the trial, the plaintiff introduced evidence that established the City's informal policy or custom of mistreating Indians generally, and Mr. and Ms. Yellow Bird specifically. Moreover, the City introduced evidence on the same issue as part of its defense. This record demonstrates that the trial court was correct in reasoning that the amended complaint "merely amplifies some of the allegations that have been proven here in this case."

IV

The City asserts that Yellow Bird's claim against it is based solely upon the doctrine of respondeat superior. It is clear that a municipality cannot be held vicariously liable under section 1983 for the acts of its employees. Monell v. Department of Soc. Serv., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); cf. Parratt v. Taylor, --- U.S. ----, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Cotton v. Hutto, 577 F.2d 453, 455 (8th Cir. 1978); Sebastian v. United States, 531 F.2d 900, 904 (8th Cir.), cert. denied, 429 U.S. 856, 97 S.Ct. 153, 50 L.Ed.2d 133 (1976). Yellow Bird does not, however, assert that the City is liable under the doctrine of respondeat superior. Her claim is that the City's failure to properly hire, train, retain, supervise, discipline and control Valentine and the other police officers directly caused her tortious injury. See Owen v. City of Independence, 445 U.S. 622, 655 n.39, 100 S.Ct. 1398, 1418 n.39, 63 L.Ed.2d 673 (1980). Under that theory, Yellow Bird was obligated to prove, by a preponderance of the evidence, that the City breached a duty owed to her and that that breach proximately caused the deprivation of her constitutional rights. See Turpin v. Mailet, 619 F.2d 196, 201-202 (2d Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); McClelland v. Facteau, 610 F.2d 693, 695-697 (10th Cir. 1979).

In order to prove her case, Yellow Bird had to establish that the City had notice of prior misbehavior and that its failure to act upon such knowledge caused her injury. "(W)here senior personnel have knowledge of a pattern of constitutionally offensive acts by their subordinates but fail to take remedial steps, the municipality may be held liable for a subsequent violation if the superior's inaction amounts to deliberate indifference or to tacit authorization of the offensive acts." Turpin v. Mailet, supra, 619 F.2d at 201. ¹

If a municipality fails to train its police force, or if it does so in a grossly negligent manner so that it inevitably results in police misconduct, "the municipality exhibits a 'deliberate indifference' to the resulting violations of a citizen's constitutional rights." Leite v. City of Providence, 463 F.Supp. 585, 590 (D.R.I.1978); cf. Goodman v. Parwatikar, 570 F.2d 801, 803 (8th Cir. 1978); Freeman v. Lockhart, 503 F.2d 1016, 1017 (8th Cir. 1974). Moreover, a municipality's continuing failure to remedy known unconstitutional conduct of its police officers is the type of informal policy or custom that is amenable to suit under section 1983. See Monell v. Department of Soc. Serv., supra, 436 U.S. at 690-691 & n.56, 98 S.Ct. at 2035-2036 & n.56.

A

We are satisfied that Yellow Bird proved her case against the City of Gordon. ² It is undisputed that racial tension was at a...