686 F.2d 1302 (8th Cir. 1982), 81-1747, Occhino v. United States

Docket Nº:81-1747, 81-1818.
Citation:686 F.2d 1302
Party Name:Richard L. OCCHINO, Appellant, v. UNITED STATES of America, Appellee. Richard Leo Anthony OCCHINO, Appellant, v. CITY OF DULUTH, MINNESOTA, a City Municipality; County of St. Louis, Minnesota, a County Municipality; Daniel J. Valure, Duluth Police Officer; Thomas M. Cich, Duluth Police Officer; Carl E. Hammerberg, Correction Agent, County of St. Lo
Case Date:August 25, 1982
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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686 F.2d 1302 (8th Cir. 1982)

Richard L. OCCHINO, Appellant,


UNITED STATES of America, Appellee.

Richard Leo Anthony OCCHINO, Appellant,


CITY OF DULUTH, MINNESOTA, a City Municipality; County of

St. Louis, Minnesota, a County Municipality; Daniel J.

Valure, Duluth Police Officer; Thomas M. Cich, Duluth Police

Officer; Carl E. Hammerberg, Correction Agent, County of St.

Louis, Minnesota; and Gregory J. Sertich, County Sheriff,

County of St. Louis, Minnesota, Appellees.

Nos. 81-1747, 81-1818.

United States Court of Appeals, Eighth Circuit

August 25, 1982

Submitted May 18, 1982.

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[Copyrighted Material Omitted]

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Meshbesher, Singer & Spence, Ltd., Cheryl Divine, Minneapolis, Minn., for appellant.

James M. Rosenbaum, U. S. Atty., Mary L. Egan, Asst. U. S. Atty., D. of Minnesota, Minneapolis, Minn., Barbara Shiels, Legal Intern, for appellee in No. 81-1747.

Alan L. Mitchell, St. Louis County Atty., Mary L. Peterson, Asst. County Atty., William P. Dinan, Duluth City Atty., Robert A. Plesha, Asst. City Atty., Duluth, Minn., for appellees in No. 81-1818.

Before LAY, Chief Judge, MARKEY, [*] Judge, and HENLEY, [**] Circuit Judge.

HENLEY, Senior Circuit Judge.

These appeals involve two consolidated cases arising out of separate incidents of alleged false imprisonment. Although Richard L. Occhino is the plaintiff-appellant in each case, the facts underlying each appeal are wholly unrelated.

In the first case, No. 81-1747, Occhino prevailed in a bench trial on his claim of false imprisonment under the Federal Tort Claims Act. 28 U.S.C. §§ 2671 et seq. (1976). The underlying incident of detainment occurred in April and May, 1977. Appellant appeals as insufficient the district court's 1 award of $4,000.00 in damages.

In the second case, No. 81-1818, the district court dismissed appellant's action for false imprisonment under 42 U.S.C. § 1983 on the ground that the action was barred by Minnesota's two-year limitation period governing actions for false imprisonment. Minn.Stat.Ann. § 541.07(1) (West Supp.1982). The underlying incidents of probation revocation and imprisonment pending assault charges occurred in October, November and December, 1975.

We affirm the award of compensatory damages in cause No. 81-1747. We affirm in part and reverse in part the district court's dismissal of appellant's Section 1983 claim in cause No. 81-1818.

No. 81-1747.

On January 7, 1977 appellant allegedly assaulted a federal protective officer in the federal courthouse in Duluth, Minnesota. He was subsequently charged with violation of 18 U.S.C. § 113(d), and was released on a personal recognizance bond.

The prosecution subsequently filed a motion for commitment on the ground that appellant was incompetent to assist in his defense. A court hearing was held on April 25, 1977, at the close of which the trial court issued a bench order, later reduced to writing, committing Occhino to the United States Medical Facility for federal prisoners at Springfield, Missouri, for a period of forty-five days. By the terms of the commitment order, the officials of the United States Medical Facility were to report to the trial court, and Occhino was to be returned to the committing court.

The commitment order did not mandate that appellant be transported forthwith or by a particular mode of transportation. In such circumstances, it was then the practice

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of the United States Marshal Service to transport persons by Bureau of Prison buses which travel set routes between the various federal institutions on a weekly or bi-monthly basis.

The facts of the trip to Springfield may be summarized briefly, although by brevity of the summary we do not intend to minimize the extent of appellant's injury. Transportation from Minnesota to Springfield, Missouri, took twenty-four days. Appellant was transferred first to the Hennepin County Jail, and then to the United States Correctional Facility at Oxford, Wisconsin. From there he was sent through federal penitentiaries at Terre Haute, Indiana, Marion, Illinois, and Leavenworth, Kansas. At each penitentiary he was subjected to a strip search on entry. He was held without opportunity for exercise for five days at the Terre Haute prison, and was allowed out of his cell for exercise only once during his fourteen-day stay at Leavenworth. He was transported on prison buses in the company of convicted persons. His hands were manacled. At one point during the transport, he was placed in leg irons.

After his stay at Springfield, appellant was returned to Minnesota in a trip extending over fourteen days. The return trip, however, was made by means of charter plane and automobile. Upon return to Minnesota and reinstatement of his bond, appellant was released on July 29, 1977 in Duluth. 2

Appellant subsequently filed a complaint alleging false imprisonment against various individual defendants and the United States. The claims against the individual defendants were eventually dismissed, leaving claims of negligence and false imprisonment against the government pursuant to the Federal Tort Claims Act. 28 U.S.C. § 2680(h) (1976).

The district court on June 15, 1981 found the government liable for false imprisonment of Occhino due to the unconscionable and unreasonable twenty-four day transfer period from Minneapolis, Minnesota to Springfield, Missouri. The court expressly found that appellant's stay at Springfield and transportation back to Minnesota were lawful in all respects. The court also found appellant's commitment to have been lawful and to have become unlawful only with the passage of time.

The court awarded Occhino compensatory damages in the amount of $4,000.00, in consideration of his loss of liberty, his emotional and physical distress, and his subjection "to a number of normal prison procedures and practices that could be deemed dehumanizing and degrading by an unconvicted person." The adequacy of that award is the subject of this appeal.

It is established that the amount of damages in a nonjury case is within the discretion of the trial court and cannot be overturned unless clearly erroneous. Taylor v. Pre-Fab Transit Co., 616 F.2d 374, 375 (8th Cir. 1980); Zatina v. Greyhound Lines, Inc., 442 F.2d 238, 242-43 (8th Cir. 1971). Moreover, we continue to adhere to the view that the inadequacy or excessiveness of an award is basically a matter for the trial court. We have intervened only in those rare situations where we are pressed to conclude that there is "plain injustice" or a "monstrous" or "shocking" result. Hysell v. Iowa Public Service Co., 534 F.2d 775, 786 n.8 (8th Cir. 1976), quoting Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961), later app. Hysell v. Iowa Public Service Co., 559 F.2d 468 (8th Cir. 1977).

Under our standards the present award cannot be said to require reversal or modification. The award in fact reflects careful assessment of the distinctive features of the false imprisonment involved in this case. The district court recognized, for example, that deprivation of liberty pursuant to a valid court order does not constitute false imprisonment. Mundt v. United States, 611 F.2d 1257, 1259 (9th Cir. 1980);

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Rosvall v. Provost, 279 Minn. 119, 155 N.W.2d 900, 904 (1968); Jacobson v. Rolley, 29 Ill.App.3d 265, 330 N.E.2d 256, 258 (1975); Zeitinger v. Mitchell, 244 S.W.2d 91, 96 (Mo.1951). The essence of appellant's injury, as correctly perceived by the court, was the harm stemming from delay. 3 This fact distinguishes the present case from those cited by appellant, in which it is necessary to compensation for an initially tortious detention in circumstances of false arrest. E.g., Thurman v. Cundiff, 2 Kan.App.2d 406, 580 P.2d 893 (1978) ($15,000.00 for false arrest and two-hour detention in jail); City of Evansville v. Cook, 162 Ind.App. 465, 319 N.E.2d 874 (1974) ($4,250.00 for detention in store for two hours); Nelson v. R. H. Macy & Co., 434 S.W.2d 767 (Mo.App.1968) ($2,500.00 for three-hour detention). Where, as here, the original detention is lawful, the humiliation of a wrongful arrest is not a factor in the court's damage award.

The district court also addressed appellant's contention that he suffered significant emotional distress from the uncertainty of the situation in which he found himself. We acknowledge that travel away from appellant's known destination undoubtedly resulted in a certain degree of anxiety. The district court's award, however, expressly took into account such physical and emotional distress as was apparent on the record.

The fact that a pretrial detainee is subject to some of the same restrictions as convicted persons does not in itself create an injury of constitutional dimension or otherwise, so long as the restrictions do not amount to punishment in the constitutional sense of that word. Bell v. Wolfish, 441 U.S. 520, 536-37, 99 S.Ct. 1861, 1872-1873, 60 L.Ed.2d 447 (1979). Here, the record shows that the shackling and searches to which appellant was subject were not in disproportion to the legitimate objectives of pretrial detention. There is nothing in the record to show that appellant was subjected to abuse, degradation or denial of the basic amenities of life. Compare Davis v. Smith, 638 F.2d 66 (8th Cir. 1981). Appellant was segregated from the general prison population at the several federal institutions which housed him en route.

Appellant was unemployed and suffered no lost wages. He incurred no medical expenses for his alleged emotional and physical distress, and in fact did not actively complain of such distress. Compare Herrera v. Valentine, 653 F.2d 1220, 1231 (8th Cir. 1981) (upholding $300,000.00 award for violation of civil rights where pregnant plaintiff was subjected to severe beating and immediately sought but was...

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