Berry v. City of Muskogee, Okl.

• Decision Date: 10 April 1990
• Docket Number: Nos. 86-1934,86-2003,s. 86-1934
• Citation: 900 F.2d 1489
• Parties: Linnie Kay BERRY, individually and as natural mother and next friend of her three minor children whose natural father was Mark A. Berry, deceased; and as Personal Representative of the Estate of Mark A. Berry, deceased, Plaintiff-Appellee, v. CITY OF MUSKOGEE, OKLAHOMA, a Municipal Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1489

900 F.2d 1489

Linnie Kay BERRY, individually and as natural mother and next friend of her three minor children whose natural father was Mark A. Berry, deceased; and as Personal Representative of the Estate of Mark A. Berry, deceased, Plaintiff-Appellee, v. CITY OF MUSKOGEE, OKLAHOMA, a Municipal Corporation,

Defendant-Appellant.

Nos. 86-1934, 86-2003.

United States Court of Appeals, Tenth Circuit.

April 10, 1990.

Jim T. Priest of McKinney, Stringer & Webster, Oklahoma City, Okl., for defendant-appellant.

Wayne Wells, Edmond, Okl., for plaintiff-appellee.

Before McKAY, LOGAN and TACHA, Circuit Judges.

LOGAN, Circuit Judge.

Defendant City of Muskogee (the City) appeals from a jury verdict in favor of plaintiff Linnie Kay Berry (Berry) in this 42 U.S.C. Sec. 1983 suit. The City alleges that the district court erred by (1) not submitting the case to the jury under an Eighth Amendment standard, (2) denying the City's motions for a directed verdict and judgment notwithstanding the verdict for insufficiency of the evidence, (3) improperly instructing the jury on the measure of damages, and (4) granting plaintiff's attorney $31,000 in fees under 42 U.S.C. Sec. 1988.

Berry brought this suit on behalf of herself and her children and as the personal representative of the estate of Mark Berry, her deceased husband and father of the children. Mark Berry was murdered by fellow prisoners at the Muskogee City-Federal Jail, while in the custody and control of the City. In statements given to federal authorities, Mark Berry had previously identified two of the murderers as his cohorts in crime. Berry asserted that the City had deprived her husband of his right to be free from cruel and unusual punishment under the Eighth Amendment and deprived him of life without due process of law in violation of the Fourteenth Amendment. ¹ Her complaint alleged that these violations were caused by the City's deliberate indifference to her husband's safety. She sought damages for her husband's pain and suffering and expected loss of earnings, her grief and loss of consortium, and her children's grief and loss of companionship. The case was submitted to the jury under the Due Process Clause of the Fourteenth Amendment. The jury returned a verdict in favor of Berry and awarded $100,000 in damages. We vacate the judgment and remand for a new trial.

I

A

The district court submitted the case to the jury under a due process instruction as follows:

"A governing body may be sued for monetary relief under the law previously given to you.

However, before a governing body may be held liable under that law, you must find from the evidence:

One: That the governing body implemented or executed or acquiested [sic] in a policy statement, ordinance, regulation, or decision officially adopted or made by those whose acts may fairly be said to represent official policy, including governmental customs, even though such customs have not received formal governmental approval.

And two: That the governing body implemented or executed or acquiested [sic] in such policy, ordinance, regulation, decision or 'custom' with the intention to deprive another of their constitutional rights, or they knew, or should have known that such action would violate or deprive another of their constitutional rights.

The defendant City of Muskogee has a constitutional obligation or duty to have policies and procedures which will not deprive a person of their life while an inmate of defendant's jail.

If you find that the policies and procedures of the defendant caused the plaintiff's decedent's death, then you shall find that the defendant City of Muskogee deprived plaintiff's decedent of a constitutional right under the Fifth and Fourteenth Amendments to the Constitution of the United States." ²

II R. 7-8.

Berry argues that, because her husband was awaiting sentencing at the time of his death, he should be treated as a pretrial detainee whose rights are governed by the Due Process Clause and, thus, this instruction was proper. The City contends that the district court should have submitted the case to the jury under a higher Eighth Amendment standard. ³

The rights of pretrial detainees, "those persons who have been charged with a crime but who have not yet been tried on the charge," are not controlled by the cruel and unusual punishment clause of the Eighth Amendment because the Fifth and Fourteenth Amendments prohibit punishment "prior to an adjudication of guilt in accordance with due process of law." Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871, 60 L.Ed.2d 447 (1979) (footnote omitted); see also Ingraham v. Wright, 430 U.S. 651, 672 n. 40, 97 S.Ct. 1401, 1413 n. 40, 51 L.Ed.2d 711 (1977) ("Where the State seeks to impose punishment without such an adjudication, the pertinent constitutional guarantee is the Due Process Clause of the Fourteenth Amendment."). Punishment constrained by the Eighth Amendment can be imposed only when it "follow[s] a determination of guilt after trial or plea...." ⁴ Bell v. Wolfish, 441 U.S. at 536 n. 17, 99 S.Ct. at 1872 n. 17; see also Garcia v. Salt Lake County, 768 F.2d 303, 307 (10th Cir.1985).

We see no reason to treat incarcerated persons whose guilt has been adjudicated formally but who await sentencing like pretrial detainees, who are detained primarily to ensure their presence at trial and who cannot be punished, Bell v. Wolfish, 441 U.S. at 534-35, 99 S.Ct. at 1871; and we perceive every reason to treat those awaiting sentencing the same as inmates already sentenced. The critical juncture is conviction, either after trial or, as here, by plea, at which point the state acquires the power to punish and the Eighth Amendment is implicated. See Ingraham, 430 U.S. at 664, 97 S.Ct. at 1408 (Eighth Amendment "was designed to protect those convicted of crimes"); id. at 671 n. 40, 97 S.Ct. at 1412 n. 40. For an inmate who has been convicted but not sentenced, the detention is primarily punitive, not solely prophylactic; therefore, prison brutality, in this case murder by fellow prisoners, is " 'part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny.' " Id. at 669, 97 S.Ct. at 1411 (quoting Ingraham v. Wright, 525 F.2d 909, 915 (5th Cir.1976)).

In Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), the Supreme Court recognized that the same facts could give rise to both an Eighth Amendment cruel and unusual punishment claim and a substantive due process claim under the Fourteenth Amendment. ⁵ Id. 475 U.S. at 326-27, 106 S.Ct. at 1087-88. According to the Court, however, "the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified." Id. at 327, 106 S.Ct. at 1088.

The Court recently explicitly endorsed the principle, implicit in Whitley, that actions which are protected under specific constitutional provisions should be analyzed under those provisions and not under the more generalized provisions of "substantive due process." See Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (section 1983 claim arising out of use of excessive force in arrest). In Graham, the Court analyzed the plaintiff's Sec. 1983 claim of excessive force under the Fourth Amendment reasonableness standard, holding that when government conduct is constrained by "an explicit textual source of constitutional protection ... that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Id. at ----, 109 S.Ct. at 1870 (footnote omitted). Thus, claims of excessive force against convicted prisoners should be analyzed under the Eighth and not the Fourteenth Amendment. See id.; Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir.1989). The Graham Court then went on to note that "[a]ny protection that 'substantive due process' affords convicted prisoners against excessive force is ... at best redundant of that provided by the Eighth Amendment." U.S. at ---- n. 10, 109 S.Ct. at 1871 n. 10.

Berry's claim is grounded in the defendant's conduct in that city officials were responsible for the conditions which permitted the murder to occur. Thus, we conclude that the Eighth Amendment standards are applicable in this case since that Amendment is the "primary source of substantive protection to convicted prisoners," Whitley, 475 U.S. at 327, 106 S.Ct. at 1088, in claims alleging failure to protect as well as those alleging excessive force by governmental actors. ⁶

B

We now must determine the proper Eighth Amendment test for claims such as Berry's. Whitley involved a Sec. 1983 suit brought by a prison inmate alleging a violation of his Eighth and Fourteenth Amendment rights when he was injured during the quelling of a prison riot. The Court held that, in the context of a prison riot, where "decisions necessarily [are] made in haste, under pressure, and frequently without the luxury of a second chance," the Eighth Amendment standard is " 'whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.' " Id. 475 U.S. at 320-21, 106 S.Ct. at 1084-85 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). This standard, however, does not apply to every Eighth Amendment claim. Even while defining its new "malicious[ ] and sadistic[ ]" standard, the Court carefully preserved the applicability of its "deliberate indifference" standard, articulated in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Whitley, 475 U.S. at...