Fletcher v. O'Donnell
| Citation | 867 F.2d 791 |
| Decision Date | 08 March 1989 |
| Docket Number | No. 88-1494,88-1494 |
| Parties | Walter L. FLETCHER, Jr., Appellant, v. Anthony O'DONNELL, City of Allentown. |
| Court | U.S. Court of Appeals — Third Circuit |
Richard J. Orloski (argued), Orloski & Hinga, Allentown, Pa., for appellant, Walter Fletcher, Jr.
Thomas A. Wallitsch (argued), Weaver, Mosebach, Piosa, Hixson, Wallitsch & Marles, Allentown, Pa., for appellees, Anthony O'Donnell and City of Allentown.
Before GIBBONS, Chief Judge, HUTCHINSON, Circuit Judge, and GERRY, District Judge. *
Walter L. Fletcher, Jr., the plaintiff in a Civil Rights Act suit against police officer Anthony O'Donnell and his employer, the City of Allentown, Pennsylvania, appeals from a judgment in Fletcher's favor against Officer O'Donnell but in favor of the City. The judgment against Officer O'Donnell was entered on a jury verdict finding $750.00 in compensatory and $750.00 in punitive damages. Fletcher contends that the damage verdict was the result of an improper instruction and that a new trial should be awarded. The judgment in favor of the City of Allentown was entered after the court granted the City's motion for a directed verdict. Fletcher contends that, taking into account evidence which was improperly excluded, the court erred in granting that motion. We will affirm the judgment against Officer O'Donnell. We will reverse the judgment in favor of the City and remand for further proceedings.
From the evidence admitted at trial, the jury could find that Fletcher, a black male, was sitting with black friends at a "white" bar in Allentown when the bar management asked him to leave. When he declined to do so, the management called the Allentown Police. Two officers responded. One of them, Officer O'Donnell, grabbed Fletcher from behind, shoved him out of the bar with a nightstick, and hit him with the nightstick while they were in the parking lot. O'Donnell then handcuffed Fletcher and drove him to the police station. There, O'Donnell choked him until another officer intervened to prevent further injury to Fletcher.
Officer O'Donnell's version of the events is different. The trial court concluded that the case against him should go to the jury. The jury answered interrogatories as follows:
1. Has the plaintiff, Walter L. Fletcher, Jr., proved by a preponderance of the evidence that the defendant, Anthony O'Donnell, arrested him without probable cause?
Answer: No.
2. Has the plaintiff, Walter L. Fletcher, Jr., proved by a preponderance of the evidence that the defendant, Anthony O'Donnell, used excessive force at the time of his arrest and/or at the Allentown Police Station?
Answer: Yes.
3. State in dollars the amount of compensatory damages Walter L. Fletcher, Jr. incurred as a result of the conduct of Anthony J. O'Donnell.
Answer: Nothing.
4. State in dollars the amount, if any, you award to Walter L. Fletcher, Jr. for punitive damages.
Answer: Fifteen Hundred Dollars.
Fletcher's counsel objected that the verdict was inconsistent, in that the jury found he had been subjected to excessive force but did not award compensatory damages. The trial court agreed, and asked the jury to reconsider its verdict. The court instructed the jury that if O'Donnell used excessive force, some compensatory damages should be awarded, and that the award of punitive damages must bear some relationship to the compensatory award.
Fletcher contends that the court erred in reinstructing the jury. It is his position that the reinstruction amounted to a direction to the jury that it should reduce the punitive damage award in order to award some compensatory damages and reconcile the verdict. The court certainly mentioned the possibility that the punitive damage award might be reduced. However, we may not look at that suggestion in isolation:
In examining an alleged erroneous instruction to the jury, it is necessary to view the charge as a whole. Our function is to determine whether the charge, taken as a whole and viewed in light of the evidence, fairly and adequately submits the issues in the case to the jury.
Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir.1977) (citation omitted). The trial judge also instructed the jurors that if they thought $1500 in punitive damages was correct, they could leave the punitive damage verdict at $1500 and make a compensatory award as well. He even instructed that the all-powerful jury could stand by their prior determination, although he informed them such an outcome would result in a new trial. Our review of the reinstruction as a whole convinces us that there was no error.
After the reinstruction, the jury deliberated further and awarded Fletcher $750.00 in compensatory and $750.00 in punitive damages against O'Donnell.
In an effort to establish the liability of the City of Allentown, Fletcher attempted to prove that O'Donnell's use of excessive force was pursuant to a City custom of tolerating such conduct by its police officers which was a proximate cause of his injury. A city may be held liable for an official policy or a custom which proximately causes a constitutional deprivation. A single incident violating a constitutional right done by a governmental agency's highest policymaker for the activity in question may suffice to establish an official policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (). A single incident by a lower level employee acting under color of law, however, does not suffice to establish either an official policy or a custom. However, if custom can be established by other means, a single application of the custom suffices to establish that it was done pursuant to official policy and thus to establish the agency's liability. Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985). Custom may be established by proof of knowledge and acquiescence. See Pembaur v. Cincinnati, 475 U.S. at 481-82 n. 10, 106 S.Ct. at 1299 n. 10, 89 L.Ed.2d at 473 n. 10.
Fletcher attempted to prove...
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