Bates v. Jean

Citation745 F.2d 1146
Decision Date12 October 1984
Docket NumberNo. 82-3089,82-3089
PartiesLeon BATES, Plaintiff-Appellant, v. J.W. JEAN, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Allen E. Shoenberger, Scott Beckman, Law Student, Chicago, Ill., for plaintiff-appellant.

John Vaudreuil, Asst. U.S. Atty., Madison, Wis., for defendants-appellees.

Before BAUER, CUDAHY and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Pro se plaintiff, Leon Bates, brought this suit under the Fifth and Eighth Amendments against four federal correctional officers alleging that he was beaten by them before boarding a bus to take him from the Federal Correctional Institution at Oxford, Wisconsin, to the United States Penitentiary in Leavenworth, Kansas. The jury, in answer to two special verdict questions, found that one of the defendants, James Jean, had intentionally violated the plaintiff's constitutional rights, but concluded that Jean had acted in good faith. The district court entered judgment for the defendants and the plaintiff appeals. The plaintiff, now represented by counsel in this court, requests that the judgment in favor of Jean be reversed because the two special verdicts are inconsistent. Finding the special verdicts irreconcilable, we vacate the judgment as to Jean and remand that portion of the jury verdict to the district court for a new trial.

The incident underlying this lawsuit took place on February 5, 1982, when 36 prisoners were being transferred from a federal correctional institution in Wisconsin to a federal correctional institution in the state of Kansas. The defendants in this action were federal correctional guards at the time of the altercation. At trial, the plaintiff testified that he had asked Jean, the guard who was to accompany the prisoners on the bus ride, for permission to use the bathroom before boarding the bus and that Jean refused him permission. The plaintiff then made the same request of another defendant, Reginald LaRue. According to a plaintiff's witness, Jean overheard the request and rushed at the plaintiff with a chain shouting, "I told him no!" and, "Let's get the son-of-a-bitch." The plaintiff testified that the defendants descended on him and that his arm was injured. The defendants agreed that the plaintiff's glasses were broken in a struggle, but denied having hit the plaintiff. The defendants also testified that a rapid and forceful response to the plaintiff's seeming defiance was required because they feared that the other inmates would attempt a jail break. At the time, approximately twenty-five other inmates were in the same holding area with the plaintiff, and only ten of them were in handcuffs.

After presentation of the evidence in the one day trial, both sides submitted proposed jury instructions, including an instruction on the issue of good faith. The trial judge gave the respective parties copies of the special interrogatories that he had drafted. The plaintiff, who was proceeding pro se, objected to neither the interrogatories nor the instructions.

After deliberating for one hour, the jury returned the special verdict forms to the clerk, with the following answers:

1. Which of the following defendants, if any, knowingly and intentionally deprived plaintiff of liberty and subjected him to cruel and unusual punishment?


X James W. Jean

R.A. LaRue

William Mauer

Richard Laabs

If you checked none in Question 1, answer no more questions. If you checked any names in question 1, answer the following question with reference only to the names checked:

2. Did any of the following defendants act in good faith? (Answer yes or no to each of the following:)

YES James W. Jean

R.A. LaRue

William Mauer

Richard Laabs

If you answered yes to all in Question 2, proceed no further.

The jury did not answer the remaining questions on the special verdict form and awarded no damages. After giving the plaintiff an opportunity to object, and receiving no objections, the judge entered judgment in favor of the defendants.

At the outset, relying on Barnes v. Brown, 430 F.2d 578 (7th Cir.1970) and Cundiff v. Washburn, 393 F.2d 505 (7th Cir.1968), the defendants argue that the plaintiff cannot attack the special verdicts on appeal because he failed to move that the inconsistent verdicts be resubmitted to the jury before it was discharged. In Barnes and Cundiff we refused to consider arguments that the jury verdicts were inconsistent because the appellants had failed to timely object before the trial court. However, those cases were decided under Fed.R.Civ.P. 49(b), 1 and both involved a special verdict that was inconsistent with the general verdict. In the instant case, brought by a pro se plaintiff, there was no general verdict and the special verdicts were submitted to the jury under Fed.R.Civ.P. 49(a). There is a split in the circuits over whether failure to raise the inconsistency of special verdicts given under Rule 49(a), in the trial court, waives consideration of that issue on appeal. Compare Mercer v. Long Manufacturing, 671 F.2d 946, 947-48 & n. 1 (5th Cir.1982) (finding no such waiver), with Skillin v. Kimball, 643 F.2d 19, 19-20 (1st Cir.1981) (finding waiver). This court has not yet considered the waiver issue when special verdicts are inconsistent with each other in the absence of a general verdict, nor have we ruled on the manner of preserving error under Rule 49(a). We need not decide these issues at this time, since the plaintiff was acting pro se in the trial court. Usually we will accord such pro se litigants somewhat greater flexibility than attorneys, and we have decided to do so in this fact situation.

Pro se litigants are commonly required to comply with standards less stringent than those applied to expertly trained members of the legal profession. Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 175-176, 66 L.Ed.2d 163 (1980); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972); Madyun v. Thompson, 657 F.2d 868, 876 (7th Cir.1981). Whether a pro se party who has gone to trial has waived an issue on appeal must often be decided on a case-by-case basis. Caruth v. Pinkney, 683 F.2d 1044, 1050 (7th Cir.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1212, 75 L.Ed.2d 451 (1983). The question of the consistency of the special verdicts in this case requires a greater degree of legal sophistication than we ordinarily demand of pro se prisoner litigants. Furthermore, the specificity of a rule of civil procedure is one factor to be considered in determining the flexibility accorded to pro se litigants. See Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982). Rule 49(b) explicitly provides that the trial court may enter judgment in accordance with the special verdicts, return the jury, or order a new trial when the special verdict answers are consistent with each other but inconsistent with the general verdict (the situation presented in both Barnes and Cundiff ). On the other hand, when the special verdict answers are inconsistent with each other and with the general verdict, Rule 49(b) states that the trial court shall return the jury to reconsider the inconsistent verdicts or order a new trial. However, Rule 49(a) does not explain the options available to a litigant when there are inconsistencies within the special verdict and no general verdict is before the jury for consideration. Finally, the district court judge in Cundiff, after pointing out the apparent inconsistency in the verdicts, specifically asked counsel whether they wished to resubmit the verdicts. 2 In contrast, in the instant case the judge asked the plaintiff, "Do you have anything at this time Mr. Bates?" The plaintiff replied, "No. I don't have anything, sir." Because the plaintiff is pro se and in all probability did not understand the judge's question we decline to announce a new appellate waiver rule. 3 We find that this pro se litigant, under the limited fact situation presented in this case, has not waived our consideration on appeal of the inconsistency of the two special verdicts. See Fugitt v. Jones, 549 F.2d 1001, 1005 (5th Cir.1977). See also Hall v. Ashley, 607 F.2d 789 (8th Cir.1979).

This case involves the doctrine of qualified immunity, which shields federal officials from liability, when they are sued directly under the Constitution, in the same manner that state officials are protected in actions brought under 42 U.S.C. Sec. 1983. Butz v. Economou, 438 U.S. 478, 499-508, 98 S.Ct. 2894, 2907-2912, 57 L.Ed.2d 895 (1978). As is the common practice, the district court referred to qualified immunity as "good faith immunity," but, as this case illustrates, that label can lead to confusion because it incorrectly implies that subjective factors are important. In Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982), the Supreme Court rejected any inquiry into an official's state of mind in favor of a wholly objective immunity standard. Under the doctrine of qualified immunity the central question is whether the conduct complained of violated clearly established constitutional or statutory rights. Id. No other circumstances are relevant. Davis v. Scherer, --- U.S. ----, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). Qualified immunity is based solely on the "state of the law" at the time of the act giving rise to the litigation, Joseph v. Brierton, 739 F.2d 1244, 1249-50 (7th Cir. July 1984); McKinley v. Trattles, 732 F.2d 1320, 1324 (7th Cir.1984), and thus may be resolved by summary judgment, Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39. In most situations, qualified immunity is a question of law for the judge not the jury. Joseph, 739 F.2d at 1249; McKinley, 732 F.2d at 1324. In this case, the district court judge should have ruled on the immunity question rather than submitting it to the jury, and thus the problem of inconsistent verdicts would have been...

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