Bogan v. Stroud, 90-2734

• Decision Date: 12 May 1992
• Docket Number: No. 90-2734,90-2734
• Parties: Anthony BOGAN, Plaintiff-Appellee, v. Kenneth STROUD, Sheila Redd and Dwight Anderson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 180

958 F.2d 180

Anthony BOGAN, Plaintiff-Appellee, v. Kenneth STROUD, Sheila Redd and Dwight Anderson Defendants-Appellants.

No. 90-2734.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 1991.

Decided March 18, 1992.

Rehearing and Rehearing In Banc

Denied May 12, 1992.

David L. Applegate, David S. Fleming (argued), Schaefer, Rosenwein & Fleming, Sidney J. Lee, Greenberger, Krauss & Tenenbaum, Chicago, Ill., for plaintiff-appellee.

Neil F. Hartigan, Atty. Gen., William K. Kane, Bart T. Murphy, Susan Frederick Rhodes, (argued), Asst. Attys. Gen., Chicago, Ill., for defendants-appellants.

Before COFFEY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

COFFEY, Circuit Judge.

Plaintiff Anthony Bogan, formerly an inmate at the Stateville Correctional Center ("Stateville") ¹, in Joliet, Illinois, brought suit in the district court pursuant to 42 U.S.C. § 1983 against defendants Kenneth Stroud, Sheila Redd, and Dwight Anderson, all Stateville correctional officers, alleging that the three violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution by using excessive force against him. Pursuant to 28 U.S.C. § 636(c), the parties agreed that the case would be tried before a United States Magistrate Judge and a jury with appeal directly to the Court of Appeals. After a two day trial, a jury found the three correctional officers liable to Bogan and awarded him punitive--but not compensatory--damages. The defendants appeal from the magistrate judge's denial of their motions for judgment notwithstanding the verdict ("JNOV") and for a new trial. In addition, the defendants argue that there was no evidence presented to support a finding of liability, and seek remittitur of the punitive damages. We affirm.

I.

Bogan and the defendants engaged in a bloody struggle at Stateville on December 6, 1985. The incident began when Bogan, who was imprisoned for murder, attempted murder, kidnapping, home invasion and robbery, was returning to his cell through an "interlock", a room which serves as a security checkpoint between the cell house and a tunnel leading to other parts of the correctional facility. Redd, the correctional officer posted at the security checkpoint, asked Bogan for his identification card, examined it, and then placed a phone call. Defendants Stroud and Anderson appeared a few moments later and entered the interlock. Redd told Stroud that Bogan was carrying money, a violation of prison regulations. Bogan denied it, Redd repeated her charge, and Bogan called her a "lying bitch."

Bogan and the defendants disagree about what happened next. According to Bogan, Stroud hit him two times on the right side of his face with a heavy object (perhaps a radio or a pair of handcuffs, but Bogan was not sure). Bogan responded by pulling out a 14 inch long steel "homemade" knife from his waistband, pushing Stroud back towards a table, and "cut[ting] him". Stroud's wound was a laceration which extended from his forehead, down his nose and through his lip. Bogan claims that after he stabbed Stroud, Anderson hit him twice in the head with a heavy metal ashtray. Bogan says he then dropped the knife and fell to the ground unconscious. When Bogan regained consciousness, he claims that Stroud was on top of him stabbing him with the steel knife while Redd kicked him in the head and yelled for Stroud to kill Bogan and Anderson held him down and hit him with the ashtray. Eventually, the three ceased their attack. The physician who treated Bogan for his injuries testified that Bogan sustained numerous stab wounds he termed "superficial." At trial, Bogan claimed that because of the attack he was required to wear a back brace and take medication for three years, and suffered memory lapses and constant headaches.

The defendants presented a very different account of their encounter with Bogan in the interlock. They claim that Stroud did not strike Bogan when the latter called Redd a "lying bitch." Instead, they claim the struggle began when Bogan responded to the correctional officers' attempt to search him by slashing Stroud's face with his knife. Only then, say the defendants, did Stroud and Anderson begin struggling with Bogan for the knife. At trial, the defendants maintained that Stroud never gained control of the knife during the struggle, that they acted at all times in self-defense, and that Stroud never stabbed Bogan. They contended that Bogan's wounds resulted from the attempt to seize his knife. The correctional officers say the melee ended when they pinned Bogan to the floor and gained control of the knife. On December 7, 1987, Bogan pled guilty in Illinois state court to charges of attempted murder and armed violence for stabbing Stroud. Bogan was sentenced to six years to be served consecutively with his original sentence.

Bogan's amended complaint against the defendants stated a 42 U.S.C. § 1983 claim charging them with using excessive force against him in violation of his Eighth Amendment right to be free from cruel and unusual punishment. Bogan sought $50,000 in compensatory damages and $50,000 in punitive damages from each of the defendants. Defendants moved in the district court for summary judgment, arguing that Bogan's guilty plea in state court collaterally estopped him from bringing his § 1983 claim. The district court ruled that, although the guilty plea established for purposes of the § 1983 litigation that Bogan stabbed Stroud without legal justification, the plea did not preclude him from claiming that the defendants used excessive force both before and after Bogan stabbed Stroud.

The jury found the defendants liable on Bogan's § 1983 claim, awarded zero compensatory damages, and awarded punitive damages in the following amounts: Stroud, $5,000; Redd, $1,000; and Anderson, $1,000. Defendants appeal on numerous grounds.

II.

Defendants' central argument in support of their motions for judgment notwithstanding the verdict and for a new trial is that the jury's award of zero compensatory damages required a finding of no liability and did not permit the awarding of punitive damages. We need not address the merits of this argument because the defendants waived their right to present it on appeal by failing to object to a jury instruction which authorized the verdict.

Rule 51 of the Federal Rules of Civil Procedure provides that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." Fed.R.Civ.P. 51. "Not only must the party object to the jury instruction, its 'objection must be sufficiently detailed to draw the court's attention to the defect [in the jury instruction].' " Sims v. Mulcahy, 902 F.2d 524, 535 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 249, 112 L.Ed.2d 207 (1990) (quoting Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1295 (7th Cir.1987)).

The magistrate judge in this case gave the following instruction to the jury regarding damages:

Punitive damages may be awarded even if the violation of plaintiff's right resulted in only nominal compensatory damages; that is, even if Mr. Bogan can show no damages or other injury as a result of the defendant's actions. If these actions were deliberate, willful, or made with reckless or callous disregard of Mr. Bogan's rights, punitive damages are appropriate.

(emphasis added). This instruction was submitted by plaintiff Bogan (as Plaintiff's instruction No. 15) under the heading "Damages--Punitive and Exemplary". The defendants submitted their own punitive damages instruction (Defendant's Instruction No. 47) which made clear to the jury that it could only award punitive damages to Bogan in addition to compensatory damages.

These two rival instructions were the subject of a colloquy before the magistrate judge. Referring to the Plaintiff's Instruction No. 15, the magistrate judge asked "[i]s there any difficulty with that? I understood this would be agreed, is that correct?" Bogan's attorney noted that the instruction was included "[u]nder the Tab Exhibit D in the final pretrial order, which was plaintiff's instructions to which defendants did not object as of that time." The magistrate judge responded, "[w]ell, this one is in Exhibit D, so I can assume I guess it's unobjected to." The defendant's counsel answered, "I would assume that, Your Honor.... If I could just be directed to which instruction we are referring to, we can resolve it right now." Thereupon, plaintiff's counsel repeated that the instruction was included under the "agreed jury instructions" in the final pretrial order. Defendants' counsel noted that they had their own punitive damages instruction, referring to No. 47. The magistrate judge then stated, "It [Plaintiff's instruction No. 15] looks pretty straightforward.... Well, I will give the plaintiff's instruction. I think it is all right." The defendants' counsel then asked, "[f]or the record you are refusing Defendants' [Instruction No.] 47?" "Yes," responded the magistrate judge. No further discussion of the instruction occurred.

The trial transcript thus makes quite clear that the defendants failed to object, as required by Federal Rule 51, to the jury instruction given by the magistrate judge authorizing the jury to award punitive damages even if Bogan suffered no actual damages. Therefore, any challenge to this instruction is waived on appeal. In their reply brief, the defendants attempt to avoid the effects of this waiver by arguing that they are not objecting,

"to the instructions; it is the jury's failure to follow the instructions which is objectionable. It is the duty of the jury to apply the jury instructions to the facts. ... Here, the jury either failed to follow the instructions or was confused, or both. In such a case, the defendants are...