Freeman v. Franzen

• Citation: 695 F.2d 485
• Decision Date: 15 December 1982
• Docket Number: 81-1747 and 81-2035,Nos. 81-1746,s. 81-1746
• Parties: Rollins FREEMAN, Plaintiff-Appellant, v. Gayle FRANZEN, et al., Defendants-Appellees. Rollins FREEMAN, Plaintiff-Appellee, v. Alfred BRANCHE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 485

695 F.2d 485

Rollins FREEMAN, Plaintiff-Appellant, v. Gayle FRANZEN, et al., Defendants-Appellees.

Rollins FREEMAN, Plaintiff-Appellee, v. Alfred BRANCHE, Defendant-Appellant.

Nos. 81-1746, 81-1747 and 81-2035.

United States Court of Appeals Seventh Circuit.

Argued Jan. 7, 1982.

Decided Dec. 15, 1982.

Gerald A. Block, Bannister, Block & Spevack, Chicago, Ill., for freeman.

Thomas A. Ioppolo, Atty. Gen. of Ill., Chicago, Ill., for Branche and Franzen, et al.

Before WOOD, Circuit Judge, FAIRCHILD, Senior Circuit Judge, and MORGAN, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

The plaintiff, Rollins Freeman, a former inmate at the Stateville Correctional Center in Joliet, Illinois, in a jury trial recovered $2,500 compensatory and $1,000 punitive damages against defendant Alfred Branche, and $250 compensatory damages each against defendants Jacobazzi and Bass, all defendants being correctional officers. Thereafter, the trial court granted in part defendants' motions for judgment notwithstanding the verdicts and set aside all awards except the compensatory damage award against Branche. In addition, the court awarded plaintiff $12,000 in attorneys' fees and costs. Branche appeals from the verdict of compensatory damages and the award of attorneys' fees. The plaintiff appeals from the judgment notwithstanding the verdicts as to each defendant. ¹

I.

The district court, in our judgment, erred in entering judgment NOV for Bass and Jacobazzi. A judgment NOV should only be granted when "without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict ...." Brady v. Southern Railway Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). The motion "should be denied where the evidence, along with the inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions." Konczak v. Tyrrell, 603 F.2d 13, 15 (7th Cir.1979), cert. denied, 444 U.S. 1016, 100 S.Ct. 668, 62 L.Ed.2d 646 (1980) (quoting Clemons v. Mitsui O.S.K. Lines, Ltd., 596 F.2d 746, 748 (7th Cir.1979)). The parties introduced evidence which painted widely disparate accounts of the underlying incident; for the most part, the evidence raised questions of credibility best left to the jury to resolve.

Freeman testified that the defendant Lt. Harris woke him from a sound sleep and, along with two other officers unknown to the plaintiff, pulled him, partially dressed, from his cell. He asserted that the two unidentified officers twisted his arms behind his back, lifted him to his toes, and forced him down the hall. He further testified that, without provocation, a guard, defendant Lowell Rooffener, ² hit him twice in the forehead.

In contrast to Freeman's account, Lt. Harris, the prison officer supervising transfers in the plaintiff's cellblock, testified that Freeman was dressed, awake, and complaining that he was ill, yet refusing to leave his cell. According to Harris, the plaintiff agreed to cooperate only after Harris promised to call a nurse. Harris testified that when he turned his back, however, the plaintiff began struggling with two guards who were attempting to escort him to the new cell.

The parties disputed the roles Branche, Jacobazzi, and Bass played in the incident. The plaintiff testified that after Rooffener punched him, six or eight guards (including the defendants Jacobazzi and Fleming) converged on him and simultaneously hit and kicked him. Freeman estimated he was hit at least twenty-five times. Curtis Cottrell, a prison guard present at the scene, confirmed that the guards struck Freeman at least ten times. After the group of assaulters moved the plaintiff towards a stairway, the plaintiff claimed that Jacobazzi choked him while the other guards wrestled with him and that Bass and Jacobazzi repeatedly kicked him in the back. Cottrell, corroborating portions of that testimony, stated that between five and eight guards wrestled with the plaintiff and treated him "pretty roughly." Though Cottrell could not identify most of the guards, he testified that Jacobazzi hit and kicked Freeman. Freeman also testified that, while carrying him up three flights of steps to the new cell, Bass and Jacobazzi dragged his hips and back across the metal steps in deliberate disregard of his physical safety. Bass and Jacobazzi denied that contention. Prison personnel filmed this portion of the incident and the jury viewed the videotape twice during trial and once during deliberations.

The defendants assert that they used neither excessive nor unjustified force transferring the plaintiff between cells. All of the defendants testified at trial; each of them either denied personally striking the plaintiff and seeing other guards hit him, or maintained that all their blows followed the plaintiff's assaults on correctional officers. Several defendants testified that plaintiff was kicking and swinging wildly during the incident. Plaintiff acknowledged grabbing defendant Branche's jacket.

The defendants' cumulative testimony indicates that the plaintiff was hit four times. Rooffener admitted hitting Freeman's arms twice to break his grasp on Branche's jacket. Branche testified that he punched Freeman twice in the face with middle or average force; first in retaliation after Freeman hit him and again to protect himself after Freeman tried to grab him. All of the other defendants denied striking the plaintiff.

In light of the divergent accounts of the incident, there existed a material issue of fact. The defendants urge, however, that, considering the plaintiff's lack of credibility, no reasonable person could have believed his testimony. Aside from the fact that Cottrell corroborated many portions of plaintiff's testimony, the evidence on a motion to set aside a verdict must be considered in the light most favorable to the non-moving party, Continental Ore Co. v. Union Carbide & Carbon Co., 370 U.S. 690, 696, 82 S.Ct. 1404, 1409, 8 L.Ed.2d 777 (1962); Konczak, 603 F.2d at 17, and without regard to matters of credibility, Brady, 320 U.S. at 479, 64 S.Ct. at 234; see generally 5A J. Moore & J. Lucas, Moore's Federal Practice 50.02 at 50-25 (2d ed. 1982). The plaintiff's version of the events was not patently absurd. Plaintiff's credibility was a question for the jury to decide.

In defending the district court's decision to set aside the verdict, the defendants focus on a note the jury attached to the verdict. The jury originally attempted to return a verdict without assessing compensatory damages against Bass, Jacobazzi, and Branche. The jury recommended that other modes of discipline such as reprimand and suspension be substituted for the damage awards. The district court refused to accept the verdict and returned the jurors for further deliberations, instructing them, "I want to tell you two things: First of all, if you are to assess any compensatory and punitive damages, that may be done only in terms of dollars. Any other suggestions or thoughts you have would be welcome, but the verdict must be in the manner that I suggest." The jury then returned a verdict assessing monetary damages against the defendants. The jury, however, attached another note to the verdict. The note stated:

We, the jury, because of reasonably [sic] doubt and a lack of sufficient evidence, recommend Mr. Jacobazzi and Mr. Bass, or any other correction officers involved in moving residents or prisoners in large scale security checks, should be cautioned and instructed in the following manner: Specifically speaking of the manner in which a person is carried upstairs within Stateville Correction [sic] Center, caution and care should be taken to insure safe and humane methods of [sic] residents or prisoners so no bodily harm or fear is experienced by them.

Ordinarily a recommendation from the jury is disregarded, Shelton v. United States, 235 F.2d 951, 954 (4th Cir.1956), and does not impeach the validity of the verdict, Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975). The defendants argue, that because the jury prefaced its message "because of reasonably [sic] doubt and lack of sufficient evidence," that the note indicates the jury awarded damages without finding liability. The defendants assert that the district court's direction to the jury induced that result.

Despite the defendants' argument, there was no error in the district court's instruction. See generally United States v. Ronder, 639 F.2d 931 (2d Cir.1981). The district court merely informed the jury that monetary damages were the only remedy it could award if it found liability. Apparently satisfied with this explanation, the defendants did not object to the instruction at the time or request further explanatory instructions.

The jury's finding of liability is not necessarily inconsistent with the message attached to the verdict. The message addressed only Bass's and Jacobazzi's conduct in transporting the plaintiff up the stairs. The jury had adequate evidence to find Bass and Jacobazzi liable for beating the plaintiff, without regard to that part of the affair. Consequently, the jury's finding of liability was not necessarily premised on the defendants' conduct in carrying Freeman up the stairs.

In any event, speculation over the note's meaning cannot provide a basis for entering judgment NOV. The district court may enter judgment NOV only when a full evaluation of the evidence presented at trial demonstrates that reasonable men could not reach different conclusions about the verdict. Konczak, 603 F.2d at 17. Here the evidence adequately supported the verdict.

The district court also set aside the punitive damage award against Branche. Punitive damages may be awarded in a civil rights action under Section 1983 either upon a showing of ...