Christopher v. Florida, No. 04-16319.

• Decision Date: 26 May 2006
• Docket Number: No. 04-16319.
• Citation: 449 F.3d 1360
• Parties: Kenrick CHRISTOPHER, Plaintiff-Appellant, v. State of FLORIDA, et al., Defendants, Barry Tierney, individually, Jose Hernandez, individually, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

449 F.3d 1360

Kenrick CHRISTOPHER, Plaintiff-Appellant, v. State of FLORIDA, et al., Defendants, Barry Tierney, individually, Jose Hernandez, individually, Defendants-Appellees.

No. 04-16319.

United States Court of Appeals, Eleventh Circuit.

May 26, 2006.

Pamela A. DeBooth, Arthur J. England, Jr., Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Michael Seth Cohen, Miami, FL, for Plaintiff-Appellant.

David Jay Glantz, Charles Melvin Fahlbusch, Ft. Lauderdale, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT^*, District Judge.

EDMONDSON, Chief Judge:

Plaintiff Kenrick Christopher appeals the district court's granting judgment as a matter of law to Sgt. Barry Tierney ("Tierney") and a new trial to Trooper Jose Hernandez ("Hernandez"), following a five-day jury trial in which both defendants were found liable under 42 U.S.C. § 1983 for using excessive force against Plaintiff. We reverse the grant of judgment as a matter of law to Defendant Tierney but conclude that he is entitled to a new trial. We affirm the grant of a new trial to Defendant Hernandez.

I. Background

In 1998, the Florida Highway Patrol Tactical Response Team was ordered to secure the residence in which Plaintiff Kenrick Christopher lived so that the Opa-Locka Police Department could execute a search warrant for drugs. The warrant named the owner of the house, but not Plaintiff. While securing the house, three troopers — Tierney, Hernandez, and Sgt. James Durden ("Durden") — charged into Plaintiff's bedroom.

Plaintiff testified he was alone in the room, lying on his bed, when two masked men dressed entirely in black ran in. The men had guns. Plaintiff was told to get off the bed but did not immediately comply. One of the officers used his gun to push Plaintiff off the bed. Plaintiff landed face down. The officer then put his knee in Plaintiff's back and pulled his right arm behind him until Plaintiff felt his shoulder snap. When Plaintiff asked what the officer was doing, the officer's partner told Plaintiff to shut up. Plaintiff was then hit in the back of the head with a hard object. Plaintiff felt a warm tingling. After he was cuffed, two officers ordered Plaintiff to stand. When he replied that he could not stand, the officers accused him of lying and carried him outside.

In contrast, Defendant Tierney — the first officer to enter the room — testified that, as he was pushing aside the doorway curtain, a suspect other than Plaintiff grabbed the front of his gun and pulled it forward. Tierney fell on top of the man (not Plaintiff). After a short struggle, Tierney secured and handcuffed the man. Tierney claims his attention was entirely occupied by this suspect, he did not touch Plaintiff or say anything to him, and he does not know what Hernandez or Durden said or did while in the room.

Defendant Hernandez testified that he entered the room after Tierney, saw Plaintiff standing near the bed, and yelled "get down." Plaintiff did exactly as told. Hernandez testified he did not recall touching Plaintiff and that he did not remember who handcuffed Plaintiff, although it would have been normal procedure for Plaintiff to have been handcuffed. He has no recollection of what the other troopers said or did while in the room.

Durden testified that Tierney and Hernandez were briefly held up at the entrance to the room. Durden entered the room after them and immediately stepped up onto a mattress. Durden noticed two black male suspects on the ground directly in front of him, between the bed and doorway. His attention then turned to a curtained doorway leading to a bathroom. Durden claims he never touched the suspects and has no memory of how Plaintiff was handcuffed or what the other troopers said or did while in the room.

After being carried outside, Plaintiff was twice checked on by a Miami-Dade Fire Rescue crew summoned by the troopers. Although tests did not indicate Plaintiff required transport, an ambulance was eventually called. During transport, Plaintiff told the EMT he had been assaulted by police. At the hospital, doctors discovered a blood vessel had ruptured in Plaintiff's brain. He underwent brain surgery, spent three weeks in the hospital, and is now permanently disabled.

Plaintiff was born with an arteriovenous malformation ("AVM"), which makes the brain's vascular structures susceptible to rupture. At trial, Plaintiff called Dr. Lustgarten, an expert neurologist and neurosurgeon, who testified that the probability of an AVM spontaneously bleeding was 1% per year and that the rupture of Plaintiff's AVM was more likely than not caused by trauma to the back of the head. Defendants called Dr. Barredo, a neurologist who testified that the risk of spontaneous rupture was 2-3% per year, that head trauma is not a known cause of AVM rupture, that the rupture was most likely caused by heightened blood pressure attributable to surprise or apprehension, and that ruptures may cause a pain sensation similar to being hit. Dr. Hamilton, Plaintiff's treating neuropsychologist, testified that Plaintiff's memory was not intact when he arrived at the hospital, and that his memories were likely reconstructed by others. Plaintiff had no bruising on the back of his head, but doctors testified that a hit with a blunt object would not necessarily cause bruising.

Before trial the district court granted summary judgment against "Plaintiff's claims that the Officers used excessive force in rolling him off of the bed; handcuffing him; and dragging him to the livingroom." The court concluded that "other than the alleged blow to the head, the acts of which the Officers are accused" involved de minimis force and "even if the force used by the officers was not de minimis, the Officers would be entitled to qualified immunity with regard to these claims." The only potential ground for liability remaining at the time of trial was that an officer intentionally hit Plaintiff in the back of the head. The jury found both Defendants Tierney and Hernandez liable for use of excessive force and awarded Plaintiff $6.725 million in damages. The district court then granted judgment as a matter of law in favor of Tierney and granted Hernandez a new trial.

II. Discussion

A. Judgment as a Matter of Law

We review the grant of judgment as a matter of law ("JMOL") de novo, applying the same standard as the district court. Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir.2005). JMOL is appropriate when a plaintiff presents no legally sufficient evidentiary basis for a reasonable jury to find for him on a material element of his cause of action. Id. But if there is substantial conflict in the evidence, such that "reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, the motion must be denied." Walker v. Nations Bank of Florida N.A., 53 F.3d 1548, 1555 (11th Cir.1995).

The district court erred by granting judgment as a matter of law for Tierney. Tierney claimed that he did not touch Plaintiff and that Tierney's attention was entirely focused on subduing another suspect who grabbed his gun as Tierney entered the room. But the jury was not required to believe Tierney, whose testimony was directly contradicted by Plaintiff's testimony that he was alone in the room when the officers entered. Tierney also did not identify the supposed suspect or explain what happened to him after Tierney handcuffed him and guided him out of the room.¹ Because sufficient conflict existed in the evidence presented to permit rational jurors to reach differing decisions on whether Tierney hit Plaintiff, the grant of judgment as a matter of law was incorrect.

B. New Trial Order

Following the jury trial, Tierney and Hernandez jointly moved for judgment as a matter of law "or for a new trial on all issues under Fed.R.Civ.P. 59." The court granted a new trial for Hernandez and judgment as a matter of law for Tierney, but the court did not rule on Tierney's motion for new trial as required by Fed. R.Civ.P. 50(c)(1).² Tierney did not press the trial court to rule conditionally on the new trial motion after it granted JMOL, but he did specifically request that we rule on the motion. Defendants were jointly sued, tried, and found liable; the grounds on which the district court granted a new trial for Hernandez are equally applicable to Tierney. Under the circumstances, we will accept that the district court would have granted Tierney a new trial based on the same grounds as for Hernandez if the court had made the required conditional ruling.³

We review the trial court's grant of a new trial for abuse of discretion. McWhorter v. City of Birmingham, 906 F.2d 674, 677 (11th Cir.1990). In this case, the district court based its decision to grant a new trial on several factors.

First, during closing argument, Plaintiff's counsel ignored the court's earlier grant of qualified immunity to Defendants for all alleged acts other than an intentional blow to the head by — in rebuttal at the tail of the trial — injecting this argument:

"[S]omehow this whole case has turned into a singular blow to the head . . . when we all know that if they assaulted him and it was that assault that raised his blood pressure, as they would like you to believe it was a blood pressure raise, then they are responsible. This is not a case about a singular blow to the head. This is a case about explaining how someone who didn't have a finger put on him came out in the condition he came out in, which they cannot explain and refuse to explain."

. . .

"[T]hey are taking an isolated situation and trying to attack a singular portion of this case and making it seem that we have to prove a specific blow to a specific area of the body and that is not true. We simply have to prove to you that he was the victim of unreasonable force, and...