710 F.2d 4 (1st Cir. 1983), 82-1746, Clark v. Taylor

Docket Nº:82-1746.
Citation:710 F.2d 4
Party Name:Sidney A. CLARK, et al., Plaintiffs, Appellees, v. Donald TAYLOR, et al., Defendants, Appellants.
Case Date:June 17, 1983
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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710 F.2d 4 (1st Cir. 1983)

Sidney A. CLARK, et al., Plaintiffs, Appellees,


Donald TAYLOR, et al., Defendants, Appellants.

No. 82-1746.

United States Court of Appeals, First Circuit

June 17, 1983

Argued May 3, 1983.

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[Copyrighted Material Omitted]

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Eileen G. Cooney, Sp. Asst. Atty. Gen., with whom Dennis J. Roberts, III, Atty. Gen., Providence, R.I., was on brief, for defendants, appellants.

Edward L. Gerstein, with whom Gerstein & Stolle, Providence, R.I., was on brief, for plaintiff, appellee Douglas S. Gomes.

Before COFFIN and BOWNES, Circuit Judges, and BONSAL, [*] Senior District Judge.

COFFIN, Circuit Judge.

Defendants appeal from two jury verdicts holding them liable to plaintiff, Douglas S. Gomes, for violation of his constitutional and state law rights and awarding him $75,000 in compensatory and punitive damages. On appeal, as in the proceeding below, defendants challenge both the sufficiency of the evidence to support the liability of each defendant on the theories advanced by plaintiff and the excessiveness of the damage award. The state also objects to the court's exercise of pendent jurisdiction over it. Having reviewed the record, we find sufficient evidence to support the liability of each of the defendants and the awards of both compensatory and punitive damages. We agree, however, that having no independent federal basis for jurisdiction over the State of Rhode Island, the court should not have exercised pendent jurisdiction over it.

At the time of the incident that is the subject of the suit, November 2-3, 1974, plaintiff was an inmate at the Adult Correction Institute (ACI) in Rhode Island. In the course of a state police investigation of

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a murder in the prison, plaintiff and several other inmates 1 were subjected to a "benzidine test" to determine whether they had otherwise undetectable blood on their skin. The test involved the direct application of a chemical solution of benzidine, glacial acetic acid, and sodium perborate to the arms and upper portion of the inmates' bodies. If the solution had turned blue, it would have indicated the presence of blood on plaintiff's skin.

Plaintiff subsequently discovered that contact with benzidine may cause cancer of the bladder. He brought suit under 42 U.S.C. Sec. 1983 in the United States District Court for the District of Rhode Island against the Warden of the ACI, the Director of the State Crime Laboratory (Crime Lab), four state police officers and the State of Rhode Island, alleging deprivation of rights guaranteed to him by the Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution and seeking recovery for his physical and emotional damages. He also invoked the court's pendent jurisdiction over state law claims of negligence and battery.

The case was tried to a jury in March 1980. At the close of plaintiff's evidence, defendants moved for a directed verdict. The court denied the motion. It also declined to hold that the State of Rhode Island was immune from suit under the Eleventh Amendment. At the close of all of the evidence, the court denied renewed motions for a directed verdict and for dismissal of the pendent claim against the state, but instructed the jury that the state could not be liable on the constitutional claims. The court submitted the case to the jury with special interrogatories for each defendant and on each of plaintiff's theories of recovery: due process, Fourth Amendment, privacy, battery and negligence. Each interrogatory requested a verdict for plaintiff or defendant and, if the verdict was for plaintiff, an assessment of compensatory, nominal and punitive damages.

The jury returned verdicts against all named defendants on the due process claim, against all defendants except Dr. DiFanti, Director of the Crime Lab, on the Fourth Amendment and privacy claims and against all defendants on the battery and negligence claims. The total award was $74,299.

Defendants moved for judgment n.o.v., alleging that the evidence was insufficient to support liability against any of the defendants and that the court should not have exercised jurisdiction over the state. In the alternative, defendants moved for a new trial, alleging that the verdicts were excessive, inconsistent, duplicative and against the weight of the evidence. The court denied the motion for judgment n.o.v.. Because the jury had awarded both nominal and compensatory damages against each defendant, however, the court concluded that the jury had misunderstood the court's instructions. The court therefore ordered a retrial on the issue of damages. Noting defendants' argument that the award of compensatory damages on each of a number of legal theories represented multiple recovery for the same injury, the court determined that on retrial the jury should be given one interrogatory as to damages arising out of all of the constitutional claims. The court reserved determination of the preferable manner in which to submit the state law claims to the jury.

On retrial, by agreement of the parties, the jury was given one interrogatory requesting awards for compensatory and punitive or nominal and punitive damages for all of the constitutional and state law theories of recovery against all of the defendants. The parties also agreed that the plaintiff would be entitled to judgment against each defendant in the amount of the verdict returned by the jury, but that in no event should the plaintiff be entitled to recover from any or all of the defendants a sum exceeding the total amount of the jury's award. The jury awarded plaintiff $60,000 compensatory and $15,000 punitive

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damages. Defendants' motions for judgment n.o.v. and for a new trial were denied.

I. Sufficiency of the Evidence

As a preliminary matter, we note that although plaintiff advanced a plethora of alternative theories to support his claim for damages, each of those theories is addressed to the same set of facts and the same injuries caused by the same actors. As defendants pointed out in their challenge to the first damage awards, whether defendants are liable to plaintiff under one or all of those theories should not affect the total damage award, since the amount of compensatory damages properly awardable does not depend on the number of theories under which plaintiff may recover, but on the extent of his injury. See Clappier v. Flynn, 605 F.2d 519 (10th Cir.1979); Stringer v. Dilger, 313 F.2d 536, 541 (10th Cir.1963). Neither should the number of theories under which an individual defendant is liable affect his proportionate share of the award. The defendants agreed to have damages assessed against them as a group, not according to their individual contributions to plaintiff's injury. Thus, assuming that there is sufficient evidence to support liability against each of the defendants on at least one of the theories on which the jury found them liable, 2 any error of the court in refusing to dismiss the judgments of liability on other theories would be harmless. With that in mind, we turn to defendants' challenges to the sufficiency of the evidence supporting the verdicts against them on liability.

A. Warden Mullen

The jury found Warden Mullen liable for denying plaintiff's constitutional rights of privacy, due process and freedom from unreasonable searches. However it is captioned, the essence of plaintiff's constitutional claim is that he was denied his right not to have unwanted and dangerous things done to his body. We are satisfied that compensation is available under section 1983 for such a claim. See Ingraham v. Wright, 430 U.S. 651, 679 n. 47, 97 S.Ct. 1401, 1416 n. 47, 51 L.Ed.2d 711 (1977) (recognizing a liberty interest in freedom from bodily restraint and punishment and leaving open a determination of the circumstances under which corporal punishment of a public school child may implicate substantive rights under the due process clause); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.2d 183 (1952) (due process violated by forcible extraction of evidence from defendant's stomach); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (Fourth Amendment requires examination of whether extraction of blood sample was a search reasonable in manner); Rogers v. Okin, 634 F.2d 650, 653 (1st Cir.1980) (right to refuse unwanted drugs derives from the due process clause, "most likely as part of the penumbral right to privacy, bodily integrity, or personal security"); Runnels v. Rosendale, 499 F.2d 733 (9th Cir.1974) (operation performed on prisoner without his consent formed basis for section 1983 suit to vindicate prisoner's constitutional right to personal security and privacy); James v. United States, 358 F.Supp. 1381, 1386 (D.R.I.1973) (recognizing bases in the Fourth, Eighth and Fifth Amendments for recovery for the application by an untrained police officer of unreasonable force against one in custody).

Even if section 1983 provides a remedy for plaintiff's injury, defendants urge that there is no evidence that Warden Mullen was involved in conducting the benzidine

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test on plaintiff--either directly or by exercising supervisory responsibility over the state police officers who conducted the test. The evidence showed only that the Warden was present in the hall through which plaintiff was brought on his way to the committing room where the test was administered and that as plaintiff was brought through the hall he was shouting obscenities and requesting a lawyer. 3 The Warden also acknowledged that he had a statutory obligation to protect the health, care, safety and well being of prisoners in his custody.

Liability under section 1983 may be imposed both for action that deprives a plaintiff of a constitutional right and for failure to act, when there is a duty to act, to prevent such a deprivation. See DiMarzo v. Cahill, 575 F.2d 15, 17-18 n. 3 (1st...

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