Clappier v. Flynn, 78-1109

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, Chief Judge, and McWILLIAMS and BARRETT; BARRETT
Citation605 F.2d 519
PartiesCraig Charles CLAPPIER, Plaintiff-Appellee, v. Dennis FLYNN, Sheriff of Laramie County, Wyoming, Individually and in his representative capacity, Defendant-Appellant.
Docket NumberNo. 78-1109,78-1109
Decision Date04 September 1979

Page 519

605 F.2d 519
Craig Charles CLAPPIER, Plaintiff-Appellee,
v.
Dennis FLYNN, Sheriff of Laramie County, Wyoming,
Individually and in his representative capacity,
Defendant-Appellant.
No. 78-1109.
United States Court of Appeals,
Tenth Circuit.
Submitted May 15, 1979.
Decided Sept. 4, 1979.

Page 522

Douglas G. Madison, of Dray & Madison, P.C., Cheyenne, Wyo., for plaintiff-appellee.

Glenn Parker, of Hirst & Applegate, Cheyenne, Wyo. (Wesley H. Doan and Marlin W. Burke, Lakewood, Colo., on brief), for defendant-appellant.

Before SETH, Chief Judge, and McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Dennis Flynn (Flynn), individually and as Sheriff of Laramie County, Wyoming, appeals from a damage award judgment granted to plaintiff-appellee, Craig Charles Clappier (Clappier), in total amount of $24,500.00. The judgment followed a verdict awarded by a jury of six.

Factual Background

We will briefly recite the facts and circumstances of this case, keeping in mind that in civil jury determinations, findings and awards are presumed to be correct and that, on appeal, it is not the function of the reviewing court to try the facts. Sabol v. Snyder, 524 F.2d 1009 (10th Cir. 1975); Boehm v. Fox, 473 F.2d 445 (10th Cir. 1973). On appeal, we must view the evidence, and all reasonable inferences to be drawn therefrom, in favor of the jury verdict; and all factual conflicts must be resolved in favor of the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Jaeco Pump Company v. Inject-O-Meter Manufacturing Company, 467 F.2d 317 (10th Cir. 1972); Westinghouse Credit Corporation v. Green, 384 F.2d 298 (10th Cir. 1967).

Clappier, a citizen of Minnesota, then serving as an airman stationed at Warren Air Force Base, Cheyenne, Wyoming, was arrested by city police late on the evening of May 13, 1975, and booked into the Cheyenne City Police Station. He was charged with assault and battery with intent to commit rape. Clappier was thereafter transferred to the Laramie County, Wyoming, jail in Cheyenne shortly prior to noon on May 14, 1975. At all times, Flynn served as Sheriff of Laramie County, Wyoming, charged with the maintenance and conduct of the county jail and the care of prisoners confined therein.

Before Clappier was placed in the county jail cell block, he requested to see an attorney and to place a phone call. He was permitted to phone his mother. He was not advised of any rules, regulations or policies of the jail. Clappier was given a mattress and advised to find an empty cell. After doing so, he ate lunch. Shortly thereafter, an inmate named McIntosh inquired of Clappier what he was charged with. Clappier responded that he was charged with attempted rape and assault. McIntosh remarked, "You are going to be in a lot of trouble." (R., Vol. V, p. 49.) McIntosh asked Clappier to come to his cell and Clappier complied. They visited. During this time, McIntosh rubbed his hand on Clappier's leg and ran his hand through his hair, remarking that they could be very good friends. Clappier pushed McIntosh away, stating that "I don't want anything to do with what you have in mind." (R., Vol. V, p. 51.) When Clappier tried to leave McIntosh's cell, McIntosh shoved him onto the bunk and hit him with his fists. He struck Clappier hard in the face, the groin and the head. He then picked him up and threw him into a corner. Clappier estimated that McIntosh struck him 40 or 50 times. Clappier tried to fend off the blows and he yelled out. McIntosh told him to shut up and "Don't yell again or else." (R., Vol. V, p. 53.) Clappier testified that no one came to his aid and because he had already been "beaten up" and placed in danger he was afraid and believed that he would be more severely or continuously beaten if he yelled. (R., Vol. V, p. 53.) Another inmate named Mesteth, a cellmate of McIntosh, then came to and blocked the doorway of the cell as McIntosh continued to hit Clappier with his fists. McIntosh asked Clappier, "Are you going to do what I want?" Clappier again refused. McIntosh then released him to his

Page 523

cell to "think about it over the evening and we will see what happens tomorrow." (R., Vol. V, p. 54.)

That night, McIntosh came to Clappier's cell and reminded him to think about the matter. That same evening a trusty delivered Clappier's dinner by passing the tray through a portal. Clappier had not seen "any jailer or deputy sheriff" in the cell block area since lunch with the exception of the brief appearance of Deputy Sheriff Joyce who came to release a prisoner. Joyce told all prisoners to stand outside of their cells near the cell doors while the prisoner was being released. Deputy Joyce did not approach Clappier (R., Vol. V, pp. 56-57.) Again that evening, about 9:00 or 10:00 p. m., two deputy sheriffs walked through the "exercise room" area of the cell block (consisting of eight cell doors) after all lights were out, making "head checks" with aid of a flashlight. (R., Vol. V, p. 58.) The two deputy sheriffs stopped at Clappier's cell and after flashing the light on him inquired who he was. Clappier identified himself and stated that he had been placed in the cell block that day. The deputies moved on. When asked why he did not then request help from the deputy sheriffs, Clappier testified:

Q. Did you tell them what had happened to you?

A. No.

Q. Why not?

A. One reason was because McIntosh told me not to say anything to anybody.

Q. Why would you do what he said?

A. Well, he was in the same cell block. If I would have said anything to these gentlemen, I'm sure he would have heard me. The other prisoners could hear me. It was quiet and I'm sure they could hear me.

Q. And if he heard you, what do you think would happen?

A. That I would receive more beating the next day.

Q. Did you want to avoid that?

A. Most certainly, yes.

Q. Did you think that the deputy sheriffs would help you?

A. They didn't seem to have much of an attitude when they walked through, it was like their job.

Q. . . . from the time you were placed in lower east cell block on May the 14th how many other inspections were conducted other than the lock-up inspection that you referred to?

A. There were no inspections conducted.

Q. Security or otherwise?

A. Not that I know of.

(R., Vol. V, pp. 59-61.)

Clappier testified that at no time did he see any deputy sheriff or other sheriff's employee in the guards' walkway or corridor; that no roll calls were taken; that the only time the deputies came into the exercise area (walkway-corridor) was to take the "head count" at night lock-up; and that meals were served by trusties only.

On the morning of May 15, 1975, following breakfast, McIntosh came to Clappier's cell and inquired if Clappier had thought about what he had been told. Clappier did not respond. Thereupon, McIntosh grabbed Clappier by the arm, dragged him to McIntosh's cell, and threw Clappier on the bed. McIntosh then compelled Clappier to perform two unnatural oral sexual acts to McIntosh's satisfaction. (R., Vol. V, pp. 63-67.) When asked why he did not call out for help, Clappier stated that after McIntosh had compelled him to commit the second unnatural sexual act, McIntosh told him "Don't say a word about this or I'll kill you." (R., Vol. V, p. 67.) With the exception of a trusty who served lunch through the cell "counter" no jailer or sheriff's deputies entered the cell block area that entire morning and well into early afternoon until a deputy brought another prisoner in. That afternoon, McIntosh went to Clappier's cell, and, for the third time, forced Clappier to perform an unnatural oral sex act on him. (R., Vol. V, pp. 70-72.) That evening Clappier was badly beaten by inmates Hengst, Mesteth, McIntosh and Brown. (R., Vol. V,

Page 524

pp. 74-87, 174, 176, 177.) Further, Clappier was threatened by inmate Clifford Brown who had obtained a mop handle and threatened to use it on Clappier. (R., Vol. V, pp. 82-84.)

During the morning of May 16, 1975, Clappier was taken from his cell block and for the first time photographed and fingerprinted. It was then that his injuries were discovered by Deputy Joyce, who inquired of Clappier what had happened. Clappier responded that he had fallen in the shower, which is what McIntosh and Brown had told him to relate. (R., Vol. V, p. 94.) Deputy Joyce responded, "That is a bunch of malarky" or "Don't lie to me." (R., Vol. V, p. 94.) Clappier requested of Joyce that he be permitted to make a call. He was permitted to do so. While speaking on the phone, Clappier observed his father and uncle arriving at the Laramie County Jail. Shortly thereafter, Clappier was taken by a deputy to Francis E. Warren Air Force Base Hospital where his various bruises were treated and X-rays disclosed that he had suffered a fractured jaw. (R., Vol. V, p. 100.) Clappier's father posted bond for his release from custody at the Laramie County Jail on May 16th. That same day the charges were reduced to breach of the peace, to which Clappier pled guilty. The fine of $25.00 was suspended. (R., Vol. V, p. 101.) Clappier was then taken to Fitzsimmons Army Medical Center in Denver by his father and uncle where he remained for over four weeks. His broken jaw was wired and set. He suffered considerable pain. (R., Vol. V, pp. 102-105.)

On one occasion during his incarceration, a trusty did observe Clappier following beatings administered to him. The trusty did not report the matter to anyone. With the exception of the evening "lights out" lockup head count, no roll call or unannounced inspections of the prisoners' cells were made by the Sheriff or his deputies while Clappier was jailed. Sheriff Flynn was never in physical or other communication with Clappier during his incarceration.

Flynn testified that if Clappier had complained to his deputies, action would have been taken to protect him. C. W. Ogburn, Sheriff of Carbon County, Wyoming,...

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