Harris v. Pirch

• Citation: 677 F.2d 681
• Decision Date: 14 May 1982
• Docket Number: 81-2019,Nos. 81-1724,s. 81-1724
• Parties: Brenda HARRIS, Appellee, v. Paul PIRCH, individually and as Sheriff of Johnson County, Missouri; Lawrence Kipping, individually and as Deputy Sheriff of Johnson County, Missouri, Appellants. Douglas Rusher.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 681

677 F.2d 681

Brenda HARRIS, Appellee, v. Paul PIRCH, individually and as Sheriff of Johnson County Missouri; Lawrence Kipping, individually and as Deputy Sheriff of Johnson County Missouri, Appellants Douglas Rusher.

Nos. 81-1724, 81-2019.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 11, 1982.

Decided May 14, 1982.

Robert L. Langdon, Bradley, Langdon & Bradley, Lexington, Mo., for appellee Brenda Harris.

C. B. Fitzgerald, Fitzgerald & Fitzgerald, Warrensburg, Mo., for appellants.

Before HENLEY and McMILLIAN, Circuit Judges, and HUNGATE, ^* District Judge.

McMILLIAN, Circuit Judge.

Paul Pirch, sheriff, and Lawrence Kipping, deputy sheriff, appeal from a judgment entered in the District Court for the Western District of Missouri finding them liable for damages under 42 U.S.C. § 1983 to Brenda Harris based on her involuntary emergency commitment to the Western Missouri Mental Health Center (Mental Health Center) for observation and testing in August, 1979. Defendants Kipping and Douglas Rusher, deputy sheriff, were charged with committing Harris without proper authority and against her will. Defendant Pirch was charged with ordering and directing the commitment. After a jury trial the district court entered final judgment upon a jury verdict finding Pirch liable for $5,000 actual and $25,000 punitive damages and Kipping liable for $10,000 actual and $50,000 punitive damages. Rusher was found not liable. In addition, the district court awarded Harris $14,635.60 in attorney's fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988.

On appeal Pirch and Kipping argue that the district court erred in refusing to grant their motions for directed verdict and for judgment notwithstanding the verdict on the basis that there was no evidence that Pirch was involved in the incident and that Kipping acted reasonably and in good faith in taking Brenda Harris into custody for evaluation. ¹ For the reasons discussed below, we reverse and remand and order the district court to enter judgment for appellants.

We have carefully reviewed the record before us and conclude that there is insufficient evidence to support the jury's verdict. In passing upon a motion for judgment notwithstanding the verdict, we examine the evidence in the light most favorable to sustaining the jury's verdict and give the prevailing party the benefit of all reasonable inferences which may be drawn from the evidence. Hannah v. Haskins, 612 F.2d 373, 376 (8th Cir. 1980); Cleverly v. Western Electric Co., 594 F.2d 638, 641 (8th Cir. 1979). Judgment notwithstanding the verdict must be granted if the evidence, so viewed, was such that reasonable persons could not differ as to the conclusion that the plaintiff's proof had failed to meet its burden as to an essential element of the cause of action. Davis v. Burlington Northern, Inc., 541 F.2d 182, 186 (8th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976). "The verdict ... must be supported by substantial evidence; a mere scintilla is not enough." Singer Co. v. E. I. Du Pont de Nemours & Co., 579 F.2d 433, 440 (8th Cir. 1978) (citations omitted).

The uncontroverted facts establish the following. On August 7, 1979, Robert Harris telephoned the Odessa, Missouri, Police Department requesting aid for a family dispute in which his ex-wife, Brenda Harris, was allegedly trying to kill him. The couple had been divorced on July 7, 1978, but were at that time living together with their two daughters at the home Brenda Harris had been awarded in the dissolution. Two deputy sheriffs from Lafayette County, Missouri, responded to the call but determined that the Harris home was located in Johnson rather than Lafayette County. The Johnson County Sheriff's Office was notified and Deputy Kipping responded. When Kipping arrived at the Harris house the Lafayette officers informed him that Brenda Harris had been hospitalized on February 25, 1979, for an overdose of Thorazine, a tranquilizer, and that Brenda Harris had allegedly threatened Robert and his girlfriend with a knife on a previous occasion.

Kipping interviewed Brenda and Robert separately. Robert told Kipping that Brenda was trying to kill him, that she had previously threatened him and his girlfriend with a knife, and that she had attempted suicide by overdosing on February 25, 1979. Brenda told Kipping that Robert was trying to kill her and that she wanted him arrested. Brenda suffered a black eye and some bruises in the dispute but refused the officers' offer of medical assistance. Kipping did not arrest Robert but ordered him to leave the home. On August 9 and 10, 1979, Brenda went to Dr. Keith Broughton, her personal physician, and obtained prescriptions for Verstran, a tranquilizer, and RuLar, a sleeping aid.

At some time between 8:00 p. m. and 9:00 p. m. on the following Sunday evening, August 12, 1979, Kipping, while on duty, received a telephone call from Robert Harris stating that Brenda had told him that she had taken some pills of her new prescription and that she was going to kill herself. Kipping telephoned Judge Pam Kline of the Circuit Court of Johnson County, Probate Division, for advice. Kipping described Robert's telephone call and the August 7 family dispute and also told Judge Kline that the Lafayette officers had told him that Brenda Harris had recently been hospitalized for overdosing and that it was alleged that she had threatened Robert's girlfriend with a knife. Judge Kline offered to hold a civil commitment hearing but Kipping declined, stating that there might not be enough time. Judge Kline then read Mo.Rev.Stat. § 202.123 (1979), repealed by Laws 1980 p. 503 § 1, the emergency provision of Missouri's civil commitment statute, to Kipping over the phone. The provision provides in pertinent part:

3. ... a peace officer may take, a person into custody for evaluation and treatment for a period not to exceed ninety-six hours only when ... peace officer has reasonable cause to believe that such person is suffering from a mental disorder and presents a likelihood of serious physical harm to himself or others which is imminent unless immediately taken into custody ... (the peace officer shall) complete an application ... which shall be based upon his own personal observations ... and shall contain the information required in subsection 1 .... ²

Judge Kline told Kipping that she could not advise him in a specific situation but advised him to telephone the prosecuting attorney and Norman Thomas, a psychiatric social worker at the Mental Health Clinic, or Rosetta Thompson, director of the Mental Health Center.

Kipping was not able to contact the prosecuting attorney but did discuss the situation with Thomas. Thomas told Kipping that if Kipping had information to believe that Brenda was dangerous to herself, she would need to be evaluated at the Western Missouri Mental Health Center, the nearest in-patient mental health facility. The facility is located in Kansas City, Missouri, approximately fifty miles from the Harris home.

Kipping arranged for ambulance service and requested Deputy Sheriff Rusher to accompany him to the Harris home. They arrived at the home at approximately 10:30 p. m. When Brenda answered the door and saw the officers she was already upset. Kipping told her about Robert's telephone call and said that he, Kipping, was worried about her. Brenda became agitated, told Kipping that "it was a lie" and yelled obscenities at Kipping. Kipping asked her if she had taken any medication and she replied that she had only taken her prescription and showed Kipping a partially empty bottle of pills. After being at the home for approximately ten minutes, Kipping made the determination that she had overdosed and told her that he was going to send her to the Mental Health Center for an emergency evaluation.

Brenda and Kipping then spoke, by telephone, to Dr. Broughton. Kipping told Dr. Broughton that Brenda was acting irrationally and that she had telephoned Robert threatening suicide. Dr. Broughton told Brenda to go to the Mental Health Center so that she could be examined and released. After the telephone call, Clarence Kirby, Brenda's neighbor and former brother-in-law, saw the ambulance and went to the Harris home. Brenda requested Kirby to stay with her children, gathered five bottles of prescription medicine ³ and a diet Pepsi, and sat down on the stretcher. At some time prior to Brenda's departure, the ambulance driver informed Kipping that Brenda's vital signs were normal. Neither Kipping nor Rusher accompanied Brenda to the Mental Health Center and neither filled out the application form for emergency commitment required under Mo.Rev.Stat. § 202.123.

Brenda was examined and released after a thirty-minute stay at the Mental Health Center. Dr. Nasim Osman, the examining physician, found no evidence of drug abuse or psychiatric symptoms. Robert had driven to the Mental Health Center but Brenda refused to see him and also refused the Center's offer of transportation. Brenda took a cab to an aunt's home and the aunt drove Brenda home. Brenda arrived home sometime after 3:00 a. m. The following day, August 13, 1979, Brenda contacted the Johnson County Sheriff's Office concerning her assault complaint against Robert arising from the August 7 dispute. Kipping advised her that she would have to come to the office and sign a complaint. At that time Kipping apologized for the events of the preceding evening. Harris subsequently filed the present § 1983 action against Pirch, Kipping and Rusher alleging that her constitutional rights had been infringed by the arrest and involuntary commitment.

At trial it was established that Harris had been hospitalized for an overdose on February 25, 1979. ⁴ In addition, Brenda testified that she had confronted Robert and his girlfriend with a knife in August, 1978, and that she had told Robert about her new tranquilizer...