Holmes v. City of Massillon, Ohio
| Decision Date | 13 March 1996 |
| Docket Number | Nos. 94-3208,94-3768,s. 94-3208 |
| Citation | 78 F.3d 1041 |
| Parties | Linda HOLMES, et al., Plaintiffs-Appellants, v. CITY OF MASSILLON, OHIO, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
On Appeal from the United States District Court for the Northern District of Ohio.
Edward L. Gilbert (argued and briefed), Edward L. Gilbert Co. LPA, Akron, OH, for plaintiffs-appellants.
Dale F. Kainski (argued and briefed), Burke, Kainski & Van Buren, Akron, OH, for defendants-appellees.
Before: KEITH, JONES, and BOGGS, Circuit Judges.
Plaintiff-Appellant, Linda Holmes, appeals the district court's order granting a new trial to Defendant-Appellee, police officer George Fabianich, on Holmes' claim of excessive force. In addition, Holmes' attorney, Edward Gilbert, appeals the district court's order sanctioning him for unreasonably and vexatiously multiplying the litigation in violation of 28 U.S.C. § 1927. For the reasons discussed below we REVERSE the district court order granting a new trial to the defendant and REMAND the case back with instructions that the verdict and judgment in plaintiff's favor on the excessive force claim be reinstated. In addition, we also VACATE the district court order sanctioning Gilbert pursuant to 28 U.S.C. § 1927.
This case has a long and arduous history that has generated animosity not only between the opposing litigants but also, unfortunately, between their attorneys. The events which form the basis of this action occurred on September 20, 1987, when Linda Holmes went to the Massillon Police Department to discuss a matter unrelated to this lawsuit. While Holmes was at the police station, she was advised that an active bench warrant had been issued for her arrest. The warrant had been issued because Holmes had failed to appear before the court on a minor misdemeanor charge for failing to vaccinate her dog for rabies. Upon hearing that she would be arrested, Holmes became agitated and repeatedly claimed that the arrest warrant was invalid. 1
After Holmes was placed under arrest, she was turned over to Sergeant George Fabianich for booking. Officer Fabianich informed Holmes that she would have to post a cash bond or plead guilty and pay a fine in order to be released. Holmes did not have the cash available to post the required bond or pay the waiver fee. As a result, she was told that she would be held overnight pending her arraignment in the morning.
The parties are in dispute as to what happened next. Holmes claims that she was ordered to remove all of her personal property and that she complied with this order except for removing her wedding ring. She asserts that she could not remove her wedding ring because her fingers were swollen on account of her retaining water. Holmes contends that when she could not remove her wedding ring, Fabianich became verbally abusive towards her. She recalls that when this happened, another officer (Officer Layne) suggested that Holmes use soap and water to help remove the ring. However, Holmes contends that before she could reach the sink area to use soap and water to remove the ring, Fabianich grabbed her wrist and began pulling on her finger. Holmes asserts that this continued for five minutes until Fabianich was finally able to remove the wedding ring.
Fabianich, disputing Holmes' testimony, asserts that Holmes was verbally abusive to him as she was being booked. He claims that he warned Holmes that he would charge her with obstructing police business if she failed to cooperate with his instructions. He also contends that Holmes did not tell him that her fingers were swollen until after she had refused to cooperate with his orders for quite some time. Fabianich admits that he pulled Holmes' wedding ring off of her finger near the sink area but asserts that he did this only after Holmes had washed her hands and that the ring came off without any difficulty.
After the wedding ring was removed, Holmes was then escorted to the female cell area where she spent the night in jail. Holmes claims that on account of Fabianich removing her ring, her ring finger was bruised and swollen and she sustained injuries to her wrist. Holmes also alleges that she was not given privacy during her incarceration and that the following morning she was forced to remain in her jail cell while a Terminix employee sprayed the cell with an insecticide.
Fabianich and Layne do not recall seeing any injuries to Holmes' finger or wrist and assert that she did not seek medical attention. In addition, Fabianich claims that he was not on duty when the jail cell was treated with insecticide and denies depriving Holmes of privacy during her incarceration.
As it turns out, Fabianich did charge Holmes with obstructing police business for her alleged refusal to cooperate with his instructions. This charge was subsequently amended, upon the state's motion, to a disorderly conduct charge. Holmes was initially found guilty of this charge but the conviction was reversed and the charge ordered dismissed on appeal.
On August 29, 1988, Linda Holmes along with her husband John, commenced a civil rights action based on her arrest by the Massillon Police Department on September 20, 1987. The complaint as amended set forth eleven causes of action against: (1) the City of Massillon; (2) Francis H. Cicchirelli, Mayor of Massillon; (3) Bill Hamit, Director of Public Safety & Service for City of Massillon; (4) Dennis Harwig, Chief of Police for the City of Massillon; and (5) George Fabianich, Police Officer for the City of Massillon. The causes of action included: (1) a federal claim of false arrest (Count 1); (2) a federal claim of malicious prosecution (Count 2); (3) a federal claim of false imprisonment (Count 3); (4) a federal claim of cruel and unusual punishment (Count 4); (5) a federal claim of harassment (Count 5); (6) a pendent state claim of malicious prosecution (Count 6); (7) a pendent state claim of intentional infliction of emotional distress (Count 7); (8) a pendent state claim of loss of consortium (Count 8); (9) a pendent state claim of false imprisonment (Count 9); (10) a federal claim of unreasonable force (Count 10); and (11) a federal claim of failure to train police (Count 11).
On December 26, 1989, the first scheduled trial of the case ended in a mistrial upon the consent of all the parties. At that time, the district court dismissed with prejudice Count Five of the complaint and accepted the plaintiffs' voluntary dismissal of defendants Bill Hamit and Francis Cicchirelli from the lawsuit.
On May 9, 1991, the case again proceeded to trial. This time, at the close of all the evidence, the court allowed only two causes of action--the federal claim of excessive force and the pendant state claim of malicious prosecution--to proceed to the jury. Both of these claims were only allowed to proceed against Officer Fabianich in his individual capacity. All of the other claims against all of the other defendants were dismissed before the jury was allowed to deliberate on the case.
On May 17, 1991, the jury returned a verdict in favor of Holmes on both the excessive force claim and the malicious prosecution charge. The jury awarded Holmes compensatory damages of $50,000.00 against Officer Fabianich on the excessive force claim, and compensatory damages of $100,000.00 and punitive damages of $100,000.00 against Officer Fabianich on the malicious prosecution claim.
On September 17, 1991, the district court ordered a new trial on the two counts upon which verdicts were rendered. The district court found that the jury's verdict had been (1) subject to possible prejudice by the jury's consideration of evidence relating to counts which had been dismissed by directed verdicts and (2) not supported by the weight of the evidence. The plaintiffs appealed this ruling, but the appeal was dismissed by this Court because there was no final appealable order.
Before the third trial, Fabianich again moved for summary judgment. This time the district court dismissed the state malicious prosecution claim against Fabianich after discovering that Ohio state law provided a complete defense for him. As a result, the sole focus of the third trial was the excessive force claim against Officer Fabianich in his individual capacity.
The third trial commenced on September 21, 1993. On September 24, 1993, however, the district court judge ordered a mistrial after the plaintiff's attorney (Edward Gilbert) asked Officer Fabianich questions about previous civil suits filed against him.
Fabianich filed a motion with the district court seeking the imposition of sanctions and a finding of contempt against Gilbert, pursuant to 18 U.S.C. § 401 and 28 U.S.C. § 1927, for Gilbert's alleged improper line of questioning. The district court sent the motion to a magistrate judge, who considered the motion and recommended that Gilbert be found in contempt of court and be sanctioned in the amount of the attorney's fees and court costs incurred by Officer Fabianich because of the mistrial.
On January 21, 1994, before the start of the fourth trial in this case, the district court granted Fabianich's renewed motion for summary judgment on the excessive force claim, finding this time that Holmes had failed to set forth a constitutional claim under the 14th Amendment.
Thereafter, on February 25, 1994, the district court adopted the magistrate's recommendation that Gilbert be held in civil contempt and sanctioned, pursuant to § 1927, for "unreasonably and vexatiously" multiplying the proceedings. The district court subsequently awarded Fabianich $15,811.27 in attorneys fees and litigation expenses. Holmes subsequently filed a timely notice of appeal to this court.
On appeal, Holmes argues first that the district court abused its discretion by ordering a new trial after the jury returned a verdict in her...
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