Hibma v. Odegaard, s. 84-1137
| Citation | 769 F.2d 1147 |
| Decision Date | 30 July 1985 |
| Docket Number | Nos. 84-1137,84-1445,s. 84-1137 |
| Parties | George C. HIBMA, Plaintiff-Appellant, v. Richard T. ODEGAARD, James Nikodem, and Michael Paul Szula, Defendants-Appellees, and Sawyer County, Wisconsin, Intervening Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Eric J. Wahl, Eau Claire, Wis., for plaintiff-appellant.
Richard C. Niess, Madison, Wis., for defendants-appellees.
Before CUDAHY and COFFEY, Circuit Judges, and GRANT, Senior District Judge. *
Plaintiff-Appellant, Hibma, appeals the trial court's granting of intervening Defendant-Appellee's, Sawyer County's, motion for judgment notwithstanding the verdict, the trial court's denial of Hibma's motions to increase the jury's award of damages or, alternatively, for a new trial on the issue of damages, and the trial court's award of attorney's fees under 42 U.S.C. Sec. 1988. For the reasons stated below, this Court reverses the trial court's order granting judgment notwithstanding the verdict and affirms the trial court's decision in all other respects.
During the time relevant to this action, Sawyer County employed Defendants-Appellees, Nikodem, Szula and Odegaard. Odegaard served as full-time Chief Deputy Sheriff of Sawyer County, and the other two served as full-time deputy sheriffs. After having committed a series of burglaries in Sawyer County, the three deputies plotted to frame Hibma for their crimes. They chose Hibma because he had a prior burglary conviction and also because he worked as a carpenter for the son of the Sheriff of Sawyer County, Sheriff Lien, whom the deputies hoped to discredit. The deputies disliked Sheriff Lien and had previously attempted to poison him with lysergic acid diethylamide (LSD) and to murder him by redirecting the exhaust system of his squad car into the heater.
The deputies solicited the help of one Proffitt, a Sawyer County Jail inmate serving time under a work release sentence for forgery. They promised Proffitt that he would receive favorable treatment on his sentence if he could talk Hibma into stealing a hand gun which Proffitt would supposedly fence.
Proffitt did contact Hibma several times over the next couple of weeks and eventually convinced him to steal a particular gun from one of Hibma's construction sites. Hibma stole the gun and delivered it to Proffitt who transferred it to the deputies. When Hibma met with Proffitt to divide the proceeds of the sale, the deputies arrested him, at gun point, for suspicion of burglary and theft. They searched Hibma, handcuffed him and took him to the Sawyer County Jail.
The deputies placed Hibma in Chief Deputy Odegaard's office and questioned him about the handgun theft as well as unsolved Sawyer County burglaries, including those that they themselves had committed. Hibma admitted the handgun theft, but denied any involvement in the burglaries. The deputies ignored Hibma's request for an attorney and refused his entreaty for medical treatment. Hibma, a narcoleptic, was physically dependent on various legal and illegal stimulant drugs. He needed medical attention because he was beginning to go through stimulant withdrawal. The deputies booked Hibma, strip searched him, gave him a cold shower and a jail uniform, and locked him in a holding cell.
Over the next several hours, the deputies repeatedly interrogated Hibma as Hibma's drug withdrawal made him violently ill. Hibma finally consented to a search of his residence.
Upon searching Hibma's home, the Sawyer County Sheriff's Department claimed to find property stolen by Odegaard, Nikodem and Szula which the three had planted in Hibma's house earlier. The deputies confronted Hibma with the stolen property and tried to coerce him into confessing to their burglaries. They again ignored his plea for medical help and left him in the holding cell when he refused to confess.
Hibma, in order to draw attention to his medical condition, broke his eyeglasses and superficially cut his wrist. The jailor summoned a doctor who obtained a court order to transfer Hibma to a hospital for drug dependency treatment. Sawyer County Jail transferred Hibma sixteen hours after his arrest. Chief Deputy Sheriff Odegaard ordered that he be transported in full restraints and that the trip be prolonged.
On the day that Hibma was moved to the hospital, Nikodem filed investigative and administrative reports which concluded that Hibma had perpetrated many of the unsolved Sawyer County burglaries. Szula swore out a criminal complaint accusing Hibma of the burglaries.
After a month in a drug treatment program, Hibma was returned to the Sawyer County Jail. On June 29, 1977, he pled guilty to the theft of the handgun pursuant to a plea agreement under which the burglary charges were dismissed. Odegaard testified against Hibma at the plea hearing. Hibma received a two-year sentence in a maximum security prison in Green Bay, Wisconsin. After two inmates sexually assaulted Hibma in Green Bay, he was transferred to another prison. He actually served a year and a day of his sentence.
In 1980, two years after Hibma's release from prison, the Federal Bureau of Investigation instigated a probe into certain activities in Sawyer County. The FBI investigation eventually led to the convictions of Odegaard, Nikodem and Szula on various federal criminal charges as well as conspiring to frame Hibma for their crimes.
In 1982, Hibma then filed the present action under 42 U.S.C. Sec. 1983. In August 1983, Nikodem and Szula stipulated that they entrapped Hibma and that he would not have gone to prison but for the entrapment. Sawyer County intervened because it was potentially liable, by way of indemnification, for the acts of the deputies which were done within the scope of their employment. Wis.Stat.Ann. Sec. 895.46 (West Supp.1983). After a three and one-half day trial, the jury awarded Hibma $166,500.00 for damages suffered by the actions of the deputies which they did under color of state law, and attributed $86,500 of that sum to acts performed in the scope of the deputies' employment. On January 5, 1984, the district court, 576 F.Supp. 1549, granted judgment notwithstanding the verdict to Sawyer County finding that all acts of the deputies were outside the scope of their employment under Wisconsin law. The district court also denied Hibma's motion for attorney's fees from the county, but granted attorney's fees from the individual deputies.
Hibma presents three issues on appeal:
I. Whether Odegaard, Nikodem and Szula acted within the scope of their employment when they violated Hibma's constitutional rights;
II. Whether the trial court erred in denying Hibma's post-trial motions to increase damages or alternatively for a new trial on the issue of damages; and,
III. Whether 42 U.S.C. Sec. 1988 entitles Hibma to an award of all his attorney's fees and costs?
Issue I. Whether Odegaard, Nikodem and Szula acted within the scope of their employment when they violated Hibma's constitutional rights?
Wis.Stat. Sec. 895.46 provides in pertinent part:
(1)(a) If the defendant in any action or special proceeding is a public officer or employe and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employe and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employe in excess of any insurance applicable to the officer or employe shall be paid by the state or political subdivision of which the defendant is an officer or employe.
* * *
* * *
On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in s. 40.02(48)(b)3, are covered by this subsection.
Wis.Stat.Ann. Sec. 895.46 (West Supp.1983).
The Dissent incorrectly assumes that the 1977 version of section 895.46 applies in the instant case because the unlawful actions of the deputies took place in 1977. In so doing, the Dissent ignores the plain language of section 895.46 which makes a defendant's state or political subdivision financially liable only after, among other things, "the jury or the court finds that the defendant was acting within the scope of employment, ...." In the instant case, Sawyer County had only potential liability until September 1983 when the jury found that the deputies were acting within the scope of their employment. Nothing in the statute indicates that the Wisconsin legislature intended that section 895.46 apply only to officials' unlawful acts occurring after March 1, 1983. On the contrary, the clear language of the statute indicates that the legislature intended that the statute apply once an official's actions were found to be within the scope of employment by a jury or a court. Because the deputies were found to be acting within the scope of their employment in September 1983, the 1983 version of section 895.46 applies to the instant case.
While the jury in the instant case found that the deputies had acted within the scope of their employment when they deprived Hibma of his constitutional rights, the district court granted Sawyer County's motion for judgment notwithstanding the verdict because it found that the deputies were not acting within the scope of their employment as required by section 895.46. The district court reasoned that
an employee's tortious act is not within the scope of his or her employment unless two criteria are satisfied: the act must have been part of or reasonably incidental to the duties he or she was hired, directed, or expected to perform and it must have been intended to benefit the employer.
Hibma v. Odegaard, 576 F.Supp. 1549, 1553 (W.D.Wis.1984). The district court concluded that the deputies acted at all times for their own purposes and, therefore, could not have intended to benefit their...
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