Atkins v. New York City

• Decision Date: 05 May 1998
• Docket Number: No. U,No. 97-7899,No. 10274,P,10274,U,97-7899
• Citation: 143 F.3d 100
• Parties: James ATKINS, Plaintiff--Appellant, v. NEW YORK CITY, the New York City Police Department, Justice, ShieldO. TUDOR, Shieldnknown, Sergeant Betterly, Shieldnknown, Detective Williams, Shieldnknown, individually, and in their official capacities as police officers of the City of New York, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 100

143 F.3d 100

James ATKINS, Plaintiff--Appellant, v. NEW YORK CITY, the New York City Police Department, Justice Shield No. 10274, P.O. TUDOR, Shield No. Unknown, Sergeant Betterly, Shield No. Unknown, Detective Williams, Shield No Unknown, individually, and in their official capacities as police officers of the City of New York, Defendants-Appellees.

No. 97-7899.

United States Court of Appeals Second Circuit.

Argued Feb. 26, 1998.

Decided May 5, 1998.

David N. Yaffe, Melville, NY (Richard Hamburger, Lane T. Maxson, Richard Charles Hamburger, P.C., Melville, NY, Frederick Brewington, Hempstead, NY, of counsel), for Plaintiff-Appellant.

Steven J. Rappaport, New York City (Paul A. Crotty, Corporation Counsel of City of New York, Larry A. Sonnenshein, New York City, of counsel), for Defendants-Appellees.

Before: WINTER, Chief Judge, PARKER, Circuit Judge, and SCHWARZER, Senior District Judge ^*.

SCHWARZER, Senior District Judge:

The question before us is whether, given undisputed evidence of serious injury resulting from force used in an arrest, an award of only nominal damages can follow a finding of excessive force and whether, if not, both liability and damages must be retried given the facts of the case.

A. Procedural Background

Appellant James Atkins ("Atkins") brought this action under 42 U.S.C. § 1983 against New York City, the New York City Police Department, and Police Officers Justice and Tudor, Police Sergeant Betterly, and Police Detective Williams, for damages caused by deprivation of his constitutional rights in connection with his arrest and subsequent detention. After a five-day trial, the jury found that Justice had falsely arrested and detained Atkins and had used excessive force to stop and arrest him, and that Tudor and Williams had failed to intervene in the arrest and use of excessive force. It found in favor of Betterly on all claims. The jury awarded Atkins $1 in nominal damages, denying him compensatory and punitive damages. Atkins moved under Fed.R.Civ.P. 59 for a new trial limited to the issue of damages on the ground that under the jury's liability findings he was entitled to compensatory damages as a matter of law. Atkins also moved for attorneys' fees and costs under 42 U.S.C. § 1988. The district court for the Eastern District of New York (Ross, J.) denied the motions and entered judgment, and Atkins appeals from the denial of his new trial motion. We have jurisdiction under 28 U.S.C. § 1291; see Haywood v. Koehler, 78 F.3d 101, 104 (2d Cir.1996) (denial of motion for new trial rejecting claim that plaintiff is entitled to compensatory award as a matter of law is reviewable). We vacate the judgment and remand for a new trial.

B. Standard of Review

"A motion for a new trial ordinarily should not be granted unless the trial court is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice." Lightfoot v. Union Carbide Corp., 110 F.3d 898, 911 (2d Cir.1997) (internal notations and quotations omitted). Here, the district court held that a new trial was not warranted because "it was neither seriously erroneous nor unjust for the jury to have concluded ... that although three of the defendants had violated plaintiff's constitutional rights, the violations themselves caused plaintiff no compensable injuries." On review of the district court's ruling, we must view the evidence in the light most favorable to the nonmoving party, Gibeau v. Nellis, 18 F.3d 107, 109 (2d Cir.1994), and will reverse only if the trial court's denial of the new trial motion constitutes an abuse of discretion. Dailey v. Societe Generale, 108 F.3d 451, 458 (2d Cir.1997).

C. Facts

The altercation that gave rise to Atkins's claims began when the officers staked out a location in East New York on a tip that a drug transaction would take place. The officers observed a man who appeared to be checking them out and who then spoke to occupants of two cars that had circled the block observing the officers. The cars stopped and the officers saw several men exit, one (later identified as Atkins) with his jacket open and his hands in his pockets. Suspecting the men to be armed, the officers exited their car with guns drawn. Officer Justice approached Atkins, yelling, "Police. Take your hands out of your pockets." According to Justice, Atkins then took his right hand out and swung at him. To ward off the blow, Justice struck him on the forehead with his police radio, and then spun him around and forced him to the ground and handcuffed him. Justice testified that he arrested Atkins for disorderly conduct for not removing his hands from his pockets and taking a swing at him, for resisting arrest because Atkins resisted when he swung him to the ground, and for loitering because Atkins allegedly was in the area to buy drugs. Atkins testified that he had been hit so hard he was unable to control his bladder, that Justice forced a gun barrel up his nose and threatened to kill him (which Justice denied), and that Justice kicked and stomped in his face. Eventually the officers took Atkins to the precinct where he was strip-searched. He was then taken in custody to the hospital where his cuts were bandaged and he was given two Tylenols. The contemporary medical reports, as well as a photograph of Atkins taken at the time of his release, show that he sustained a laceration and multiple abrasions on his forehead and head. He was released thirty hours after his arrest. At trial Atkins presented evidence that he was suffering from emotional and physical trauma from the incident including blurred vision, depression, post-traumatic headaches and stress, cervical lumbar myofascitis, and a wrist injury.

D. Discussion

1. Waiver

Appellees argue first that Atkins waived his challenge to the district court's ruling by failing to object to the jury instructions and to the verdict sheet permitting the jury to award nominal damages. They also argue waiver on the basis of Atkins's failure to request the court to resubmit to the jury what they hold to be an inconsistent verdict before moving for a new trial. We need not reach this issue as the appellees themselves have waived the waiver point. See Gibeau, 18 F.3d at 109 ("[B]ecause appellees failed to raise this procedural defense [of waiver] in the district court, they are the ones who have waived the issue. Where a party has failed to raise an argument in the district court, an appellate court may only consider the argument where necessary to serve an interest of justice."). Having failed to raise this argument in opposition to the Rule 59 motion and to "demonstrate[ ] that any interest of justice would be served by considering ... [it] on appeal," id., appellees have waived the argument.

2. Compensatory Damages

A § 1983 plaintiff is entitled to nominal damages only in the absence of proof of actual injury. Carey v. Piphus, 435 U.S. 247, 248, 98 S.Ct. 1042, 1044, 55 L.Ed.2d 252 (1978). Where the plaintiff has been subjected to excessive force, compensable injury would normally follow. See Wheatley v. Beetar, 637 F.2d 863, 867 (2d Cir.1980). A finding of excessive force does not, however, entitle the victim to compensatory damages as a matter of law. Westcott v. Crinklaw, 133 F.3d 658, 661 (8th Cir.1998). To recover compensatory damages plaintiff must prove that his injuries were proximately caused by the constitutional violation. Gibeau, 18 F.3d at 110. Where the evidence would permit the jury to find that, while both justifiable and excessive force was used, the injury was caused by the use of the former, an award of nominal damages is proper. Id. If it is clear from the undisputed evidence, however, that the plaintiff's injuries were caused by the use of excessive force, then the jury's failure to award some compensatory damages should be set aside and a new trial ordered. Haywood, 78 F.3d at 104; see also Wheatley, 637 F.2d at 867; Westcott, 133 F.3d at 661.

In denying Atkins's motion, the district judge distinguished Wheatley on the ground that there the defendant officers denied using any force. It would therefore have been inconsistent for the jury to find that excessive force was used and not award compensatory damages. The judge stated that in this case, in contrast, "Justice testified that he struck [Atkins] in the head with his police radio and forcibly subdued plaintiff at the time of his arrest." In this fashion, the court analogized the case to Gibeau where Officer Spanfelner (not a defendant) punched and slapped Gibeau in the face while returning him to his cell, Officer Lytle then entered the cell and administered a series of blows with a flashlight, and the jury found that Lytle had used excessive...