Hibma v. Odegaard, 82-C-548-S.

• Decision Date: 09 January 1984
• Docket Number: No. 82-C-548-S.,82-C-548-S.
• Citation: 576 F. Supp. 1549
• Parties: George C. HIBMA, Plaintiff, v. Richard T. ODEGAARD, James Nikodem, and Michael Paul Szula, Defendants, and Sawyer County, Wisconsin, Intervening Defendant.
• Court: U.S. District Court — Western District of Wisconsin

576 F. Supp. 1549

George C. HIBMA, Plaintiff, v. Richard T. ODEGAARD, James Nikodem, and Michael Paul Szula, Defendants and Sawyer County, Wisconsin, Intervening Defendant.

No. 82-C-548-S.

United States District Court, W.D. Wisconsin.

January 9, 1984.

Wahl & Wahl, Garvey, Anderson, Kelly & Ryberg, Eau Claire, Wis., for plaintiff.

Smoler, Albert & Rostad, Fritschler, Pellino, Schrank & Rosen, Coyne & Niess, Madison, Wis., for defendants.

ORDER

SHABAZ, District Judge.

This action is before the Court on several motions after verdict, the most significant of which is the motion of intervening defendant Sawyer County for judgment notwithstanding the verdict. That motion is granted, while the remaining motions are denied.

BACKGROUND

Defendants Richard T. Odegaard, James Nikodem, and Michael Paul Szula are former Sawyer County deputy sheriffs who plead guilty, in 1981 and 1982, to separate federal indictments stemming from their involvement as deputies in the 1977 arrest and conviction of plaintiff George C. Hibma.

Subsequently, Hibma began this action under 42 U.S.C. § 1983, alleging in his second amended complaint that the three defendants had, while acting as agents for Sawyer County under color of state law, deprived him of rights secured by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution and committed the common law torts of trespass, false arrest and imprisonment, abuse of process, and intentional infliction of emotional distress against him. Hibma also asserted that in the event he obtained judgment against the individual defendants, he would be entitled to proceed in indemnification against Sawyer County pursuant to Wis.Stat. § 895.46 (1977-78). Section 895.46 provides that,

(1) Where 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 such 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 such officer or employe shall be paid by the state or political subdivision of which the defendant is an officer or employe.... Regardless of the results of the litigation the governmental unit, when it does not provide legal counsel to the defendant officer or employe, shall pay reasonable attorney's fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employe did not act within the scope of employment.... Deputy sheriffs in those counties where they serve not at the will of the sheriff but on civil service basis shall be covered by this subsection, except that the provision relating to payment of the judgment shall be discretionary and not mandatory. In such counties the judgment as to damages and costs may be paid by the county if approved by the county board.

Based upon its potential liability in indemnification and defendants Nikodem and Szula's initial tendering of their defense to the County pursuant to the statute, Sawyer County moved to intervene in the lawsuit. No party objected and the Court granted the county's motion. Soon afterwards, Sawyer County moved for judgment on the pleadings, arguing that as a matter of law defendants were not acting within the scope of their employment as deputy sheriffs in committing the acts alleged, precluding the county's liability under § 895.46. Finding that, "The nature of several of the acts alleged, when considered with plaintiff's conclusive allegation that the individuals were acting as agents of Sawyer County, could support an inference that at least part of the deputies' conduct was within the scope of their employment with Sawyer County," the Court denied the county's motion.

Prior to trial, defendants Nikodem and Szula withdrew their answers and in effect defaulted, stipulating that judgment could be taken against them in whatever amount the Court or jury would determine after hearing.

The case proceeded to trial before a jury against defendant Odegaard, appearing pro se, and Sawyer County. In the liability phase of the bifurcated trial, the jury heard testimony and viewed exhibits from plaintiff Hibma, defendant Odegaard, ex-Sheriff Lien, and Federal Bureau of Investigation Agent Charles Southworth. After the plaintiff's case was presented, intervening defendant Sawyer County moved for directed verdict and the Court reserved ruling. Then, after the parties stipulated to the submission of the action to the jury on the constitutional claims alone (the pendent state claims were largely duplicative), the parties made their closing argument and the Court instructed the jury on the law. The instructions included a tailored version of Wisconsin Civil Jury Instruction 4035 on the scope of employment issue.

After less than two hours of deliberation, the jury returned a verdict in favor of the plaintiff by answering the special verdict questions as follows:

Question 1: Did defendant Richard T. Odegaard deprive plaintiff George C. Hibma of any of his constitutional rights?

Answer: Yes

Question 2: Were any of the defendants acting within the scope of their employment with Sawyer County while depriving plaintiff George C. Hibma of his constitutional rights?

Answer: Yes

Question 3: If you answered yes, check which defendant(s) were so acting.

Answer: X Richard T. Odegaard X James Nikodem X Michael Paul Szula

MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

On motion for judgment notwithstanding the verdict, the trial court must decide whether, when viewed in the light most favorable to the non-movant, the evidence and all reasonable inferences that can be drawn from it are insufficient to support the verdict. Appleman v. United States, 338 F.2d 729, 731 (7th Cir.1964). Viewed in the light most favorable to plaintiff Hibma, the evidence adduced in the liability phase of the trial established the following facts:

Facts

In March and April of 1977, defendants Odegaard, Nikodem, and Szula hatched a plot to frame plaintiff Hibma for a series of Sawyer County burglaries that they themselves had committed, both to direct suspicion for those crimes away from themselves and to discredit the then-Sheriff of Sawyer County, Ernest Lien. Hibma, who had two prior criminal convictions, was employed as a carpenter by Sheriff Lien's son during the relevant time period.

The defendants set their scheme in motion by soliciting William Proffitt, an acquaintance of Hibma who was also a thief serving a sentence with work-release privileges at the Sawyer County Jail, to approach Hibma and attempt to talk him into stealing guns that he, Proffitt, would supposedly fence. Proffitt agreed to cooperate with the deputies, and accordingly approached Hibma several times over a period of weeks, eventually convincing him to steal a handgun from a construction site on April 19, 1977. Hibma then delivered the gun to Proffitt, who in turn transferred it to the deputies. The defendants arrested Hibma for suspicion of burglary and theft on April 21, 1977 as he attempted to rendezvous with Proffitt to divide the proceeds from the purported sale of the handgun.

The three defendants then took Hibma to the Sawyer County Sheriff's Department, where they proceeded to interrogate him regarding the handgun theft and other unsolved Sawyer County burglaries, including those that they themselves had committed. Ignoring Hibma's request for an attorney and his repeated requests for medical treatment to ease drug withdrawal symptoms that he was beginning to experience, the defendants continued questioning Hibma for several hours. Hibma eventually confessed to the handgun burglary and theft, and also gave defendants written consent for a search of his home.

One or all of the defendant deputies then proceeded to Hibma's home with property that had been stolen in the deputies' own burglaries and planted that property on the premises, where it was discovered a short time later in their search of the home with the sheriff and other deputies not involved in the conspiracy. One or all of the defendants also removed personal property belonging to Hibma from his home. Afterwards, the defendants brought the recovered stolen property to the sheriff's department, where they confronted Hibma with it and tried to coerce him into confessing to their own burglaries. Again, they ignored his requests for medical attention and, when he refused to confess to the other burglaries, left him confined in the jail. Hibma then broke his eyeglasses and slashed his wrists with the shattered glass in order to draw attention to his plight. After the doctor who had examined Hibma's wrist wounds obtained a court order for his transfer to a hospital, Hibma was transferred on April 22, 1977 to the Dunn County Health Care Center, where he underwent several weeks' treatment for drug dependency.

That same day, defendant Nikodem filed investigative and administrative reports describing the stolen property recovered from Hibma's home and concluding that Hibma had perpetrated many of the recent unsolved burglaries that had taken place in Sawyer County. In fact, Nikodem knew that the property had been planted at Hibma's residence and that many of those unsolved burglaries had been committed by himself and his co-conspirators. Defendant Szula corroborated the false information in a criminal complaint sworn out for the District Attorney, and defendant Odegaard repeated it in open court at Hibma's plea hearing.

More than two months later Hibma, not knowing of the defendants' conspiracy to entrap him, plead guilty on his attorney's advice to the charges stemming from his handgun burglary and theft pursuant to a plea agreement providing for the dismissal of the remaining burglary charges. He was sentenced to two years...