Donald v. Wilson
| Decision Date | 16 May 1988 |
| Docket Number | No. 86-3064,86-3064 |
| Citation | 847 F.2d 1191 |
| Parties | 25 Fed. R. Evid. Serv. 1308 Roy Darrell DONALD, Plaintiff-Appellant, v. Sheriff WILSON; Melvin Casey, Warden; Four (4) Unknown Sheriff Deputies; Ronald C. Marshall, Superintendent, Southern Ohio Correctional Facility, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Roy Darrell Donald, pro se.
Arthur J. Rubiner, Birmingham, Mich., for plaintiff-appellant.
Michael W. Krumholtz, Dayton, Ohio, for defendants-appellees.
Before MARTIN, GUY and BOGGS, Circuit Judges.
Plaintiff, Donald, is an inmate at the Southern Ohio Correctional Facility (SOCF). In April of 1982, he was scheduled for a post-conviction relief hearing to be conducted by the Montgomery County Common Pleas Court. He was to be housed in the Montgomery County jail during the course of the hearing. Upon his arrival at the jail, Donald, whose left leg had been amputated below the knee, had his prosthesis taken from him as a security measure and in conformity with jail policy. In place of the prosthesis he was issued crutches. While using the crutches, Donald fell in the course of taking a shower and was taken to a hospital for examination and any needed medical treatment.
During Donald's stay in the Montgomery County jail, an incident occurred which required that he be forcibly removed from his cell. Donald claims that excessive force was used in removing him.
As a result of the fall in the shower and the alleged excessive force incident, Donald, who is a black person, filed a civil rights action alleging violations of 42 U.S.C. Secs. 1981, 1983, 1985, 1986, and 1988. He claimed that in confiscating his prosthesis and in using unreasonable force against him, his eighth and fourteenth amendment rights were violated. As defendants, Donald named the Montgomery County Sheriff and various deputies, the Warden of the Montgomery County jail, and the Superintendent of SOCF.
A jury trial was ultimately held and before the case was submitted to the jury, the court directed out all claims except those involving substantive due process and those growing out of the alleged excessive force incident. The jury returned a verdict for the three remaining deputy sheriff defendants.
Upon appeal, Donald claims that the directed verdicts were granted in error and that various trial errors occurred. Upon a review of the record, we find no error requiring reversal and affirm, but we will briefly discuss the claimed errors.
Although Donald had counsel prior to trial and at trial, the pleadings were prepared and filed pro se. As such, they presented a fairly typical pro se litigant's shotgun approach to stating a civil rights claim. All of the claims Donald made would have been encompassed within his section 1983 claim and this claim was allowed to go to the jury at least insofar as the excessive force allegations were concerned. The dismissal of his other theories of action amounted to the elimination of redundancy and minimized the chance of jury confusion resulting from the submission of a case on multiple overlapping theories.
Additionally, his section 1981 action would have required under these facts that he show racial discrimination. Greenwood v. Ross, 778 F.2d 448 (8th Cir.1985). None was shown.
Since all of the defendants were public officials and were admittedly acting under color of law, there was no need to assert a claim under section 1985(3), which is designed to reach concerted private action. Whatever validity Donald's section 1985(3) claim had was in fact submitted to the jury under a section 1983 theory.
The temporary confiscation of plaintiff's prosthesis would not constitute the "deliberate indifference" required for an eighth amendment claim under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). At trial, the physician for the Montgomery County jail testified that:
Q. In Mr. Donald's case from your standpoint as the jail's physician, was it medically necessary for him to have his prosthesis or wooden leg?
A. In my opinion it was not. Do you want me to explain why not?
Q. Please do.
A. A person who has a below the knee amputation such as Mr. Donald has is certainly an inconvenience for that person not to have his prosthesis, but as far as it being a medical necessity in our jail the prisoners are confined in relatively small areas, don't move around a lot, not having a prosthesis is an inconvenience for the prisoner, but not injurious to his health or her health.
Furthermore, the taking of the prosthesis was pursuant to established jail policy and was further prompted by a letter received from officials at SOCF to the effect that, in the past, Donald has used his artificial leg to carry contraband and as a weapon.
The magistrate who presided over this trial correctly removed all eighth amendment issues from jury consideration.
Alleged Trial Errors
Plaintiff argues that the jury should not have been allowed to learn that, in the past, Donald had used his prosthesis to carry contraband. Contrary to plaintiff's assertions, we find this to be very relevant evidence. The general standard for evaluation of public officials' conduct in circumstances such as this is "reasonableness." The warning letter received from SOCF concerning plaintiff's prosthesis certainly bears on the issue of the defendants' reasonableness in taking the prosthesis from him.
Donald was a witness in his own behalf and his past conviction for rape was allowed into evidence over Donald's objection that its prejudicial effect outweighed its probative value. 1 Federal Rule of Evidence 609(a) provides:
General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Plaintiff argues that crimes of violence such as rape do not bear on credibility and evidence of such past crimes should be excluded. Defendants argue that since part of Donald's claim was that defendants used excessive force without any provocation that "[e]vidence of Donald's conviction is relevant to the issue of plaintiff's propensity for violent behavior." Although the court allowed the evidence to come in, its rulings shed little light on its reasoning. In denying the motion in limine, the magistrate stated: "I find that, at least at this station in the proceedings, it does not appear to me that the prejudicial effect outweighs the probative value." At trial, the court ruled simply that it had not changed its mind and the ruling was the same.
In their discussion of this question, the parties have missed the real issue inherent in this evidentiary problem. This is a civil not a criminal case and Donald is a plaintiff not a defendant. Federal Rule of Evidence 609(a) refers to prejudice to the defendant. However, Federal Rule of Evidence 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." The courts have not been in agreement as to the applicability of Fed.R.Evid. 609 to civil cases or whether Rule 609 preempts Rule 403.
The Seventh Circuit has had occasion to discuss this issue at length in Christmas v. Sanders, 759 F.2d 1284 (7th Cir.1985), and rather than try to paraphrase or duplicate their very thorough discussion, we quote at length:
The questions of what rule governs the admissibility of prior felony convictions in civil cases and whether a district judge has discretion to exclude such evidence are sharply disputed. Several courts, including this one, have assumed without deciding that the balancing test of Rule 609(a)(1) applies in civil cases to protect any witness from unfair impeachment. See, e.g., Lenard v. Argento, 699 F.2d 874, 895 (7th Cir.1983); Howard v. Gonzales, 658 F.2d 352, 358-59 (5th Cir.1981); Calhoun v. Baylor, 646 F.2d 1158, 1163 (6th Cir.1981); Shingleton v. Armor Velvet Corp., 621 F.2d 180, 183 (5th Cir.1980) (per curiam).
At least one court has decided that Rule 609(a)(1) governs the admissibility of prior felony convictions in civil cases and that a district judge has no discretion under that rule to exclude prior felony convictions when offered to impeach a plaintiff. See Diggs v. Lyons, 741 F.2d 577 (3d Cir.1984). See also Garnett v. Kepner, 541 F.Supp. 241, 245 (M.D.Pa.1982). In reaching that result, the Third Circuit relied on the plain language of Rule 609(a)(1) (), on several comments in the legislative history, see, e.g., Hearings Before the Subcommittee on Reform of Federal Criminal Cases of the Committee on the Judiciary, House of Representatives, 93d Cong., 1st Sess. on Proposed Rules of Evidence, Series No. 2 at 29-30, 68-69, 231-32 (1973) (); 120 Cong.Rec. 2377-79, 2381 (); H.R.Rep. No. 1599, 93d Cong., 2d Sess. 9 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 7098, 7102, 7103 , and on ...
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