Houston v. Reich

• Citation: 932 F.2d 883
• Decision Date: 07 May 1991
• Docket Number: No. 90-7007,90-7007
• Parties: Ricky HOUSTON, Plaintiff-Appellee, v. Allen REICH, Harold Dean McHam, the Excise Board of Choctaw County, Oklahoma, Defendants, and The City of Hugo, Oklahoma, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 883

932 F.2d 883

Ricky HOUSTON, Plaintiff-Appellee, v. Allen REICH, Harold Dean McHam, the Excise Board of Choctaw

County, Oklahoma, Defendants,

and

The City of Hugo, Oklahoma, Defendant-Appellant.

No. 90-7007.

United States Court of Appeals, Tenth Circuit.

May 7, 1991.

Joe Stamper of Stamper, Otis & Burrage, Antlers, Okl., for plaintiff-appellee.

Kennedy, Kennedy, Wright & Stout, Muskogee, Okl., for defendant-appellant.

Submitted on the Briefs. ^*

Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.

BARRETT, Senior Circuit Judge.

The City of Hugo, Oklahoma (City) appeals from a mandamus order issued by the District Court directing the City and the Excise Board of Choctaw County, Oklahoma, to make tax levies in accordance with Okla.Stat. tit. 51, Sec. 151, et seq. (the Governmental Tort Claims Act) and Okla.Stat. tit. 62, Sec. 365.1, et seq. (public finance in satisfaction of money judgments) to retire a judgment entered in favor of Ricky Houston (Houston) in his civil rights suit against Allen Reich (Reich) and Harold Dean McHam (McHam), former police officers of the City.

Background

Plaintiff Houston filed a 42 U.S.C. Sec. 1983 civil rights complaint following an altercation he had on the evening of October 31, 1984, at Hugo, Oklahoma, with City police officers Reich and McHam. Houston complained that Reich and McHam severely beat him without provocation or excuse while acting as officers of the Police Department of the City and that they did so in violation of his constitutional rights. Houston also complained that the City had: tolerated and permitted a pattern of illegal beatings by its police officers; encouraged its police officers to believe that they could violate the rights of persons with impunity; and failed to properly train and instruct its officers so as to prevent such occurrences as suffered by Houston. Houston sought damages, both compensatory and punitive.

The defendants City, Reich and McHam filed a joint answer to Houston's complaint. They admitted, inter alia, that at all times mentioned in the complaint Reich and McHam were duly appointed and acting police officers of the City and that Reich and McHam were acting under color of law, to wit, under color of the statutes, ordinances, regulations, policies, customs and usages of the State of Oklahoma and/or the City. As an affirmative defense, the defendants jointly alleged that: Reich and McHam were involved in an investigation of a shooting death when Houston sought to interfere, resulting in his arrest; Houston resisted arrest and sought to escape and/or to retrieve a weapon with which to attack Reich; and the force used by Reich and McHam was necessary in order to accomplish Houston's arrest. Defendant Reich filed a counterclaim against Houston, alleging that he was subjected to an unwarranted and vicious attack by Houston resulting in severe cuts, bruises and contusions. Reich sought both compensatory and punitive damages.

The trial court granted the City's motion for a directed verdict at the close of Houston's case. The jury returned a verdict in the amount of $4,800 in compensatory damages and $5,200 in punitive damages against Reich and $1,200 in compensatory damages and $1,300 in punitive damages against McHam. Thereafter, the court entered an order granting Houston attorney's fees in the amount of $25,690.84 against Reich and McHam.

Houston's efforts to collect his judgment from Reich and McHam were unsuccessful. Thereafter, Houston filed a motion with the court for a Fed.R.Civ.P., Rule 69 order in aid of the judgment and in aid of execution, praying that the court make the Excise Board of Choctaw County an additional party defendant and direct the Excise Board and the City to make levies pursuant to 62 Okla.Stat. 365.5 sufficient to pay the aforesaid judgments, with interest. The City resisted the motion on the grounds that (a) the City had been eliminated as a defendant in the action by its motion for directed verdict, and (b) the judgment was secured against Reich and McHam individually.

The district court granted Houston's motion for orders enforcing the judgments, finding that (a) the judgments against Reich and McHam were in their official capacity as police officers of the City while they were acting within the scope of their employment, (b) the court was authorized to add additional parties in aid of its judgment and execution thereon pursuant to Fed.R.Civ.P., Rule 69(a), (c) the Oklahoma Governmental Tort Claims Act, Okla.Stat. tit. 51, Sec. 162(D), authorizes payment of judgments against employees by a municipality in civil rights actions, (d) a governmental entity is liable for a Sec. 1983 judgment against its employees or officials when the judgment results from the officials' acts within the scope of employment and the public entity had notice and an opportunity to respond, which was the case here, and (e) the pretrial order admits that Reich and McHam were acting at all relevant times as officers of the City (R., Vol. I, Tab 18).

Appellate Contentions-Disposition

On appeal, the City contends that: (1) under federal law, the judgment entered against the individual defendants Reich and McHam cannot be collected from the City because they were sued only in their individual, rather than official, capacities; (2) in any case, it is not liable under federal law for the judgment entered against Reich and McHam because that judgment was entered against them individually, and not in their official capacities as police officers for the City; (3) the trial court erred in ruling that the Oklahoma Governmental Tort Claims Act applies; and (4) the trial court erred in ordering the City to pay the punitive damage award even if the Governmental Tort Claims Act applied and in not reducing the attorney fee award attributable to the punitive damage award.

I.

The City contends that, under federal law, the judgment entered against the individual defendants Reich and McHam cannot be collected from the City because they were sued only in their individual, rather than official, capacities.

In Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Court instructed that if the complaint does not clearly indicate that defendants are being sued individually and/or in their official capacities, the determination must be made by reviewing " 'the course of the proceedings.' " Id. at 167 n. 14, 105 S.Ct. at 3106 n. 14, quoting Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 876, 83 L.Ed.2d 878 (1985). Thus instructed, we have reviewed the "course of proceedings" in this case in order to determine the basis upon which this action was initiated and litigated. We conclude that even though the caption of the pleadings did not indicate on what basis the defendants Reich and McHam were being sued, the pleadings, pre-trial order, and instructions make it clear that the suit was brought against Reich and McHam in their official and individual capacities.

The complaint filed by Houston alleged, inter alia, that the action was for damages, both compensatory and punitive, against Reich and McHam as Police Officers of the City and individually, and against the City, for violation of Houston's constitutional rights on the evening of October 31, 1984, when the defendants Reich and McHam, acting under color of state law, severely beat, assaulted and used unreasonable, excessive and deadly force in arresting Houston without provocation, justification or cause; and that the individual defendants, Reich and McHam, subjected Houston to these constitutional deprivations maliciously or by reckless disregard of his rights (R., Vol. I, Tab 1). The Complaint further alleged that the City was liable because it tolerated and permitted a pattern of illegal beatings and assaults by its police officers and failed to train, investigate and discipline its police officers.

The defendants admitted the following paragraphs 6, 7, and 8 of Houston's Complaint in their joint Answer:

6. Defendants Reich and McHam at all times mentioned herein, were duly appointed and acting officers of the Police Department of the City of Hugo.

7. At all times mentioned herein the defendants Reich and McHam were acting under color of law, to wit, under color of the statutes, ordinances, regulations, policies, customs and usages of the State of Oklahoma and/or the City of Hugo.

8. The defendant City of Hugo is a municipality duly incorporated under the laws of the State of Oklahoma.

Id. at Tab 2.

The Pre-Trial Order recognized Houston's allegations that on the evening of October 31, 1984, the "individual defendants," Reich and McHam, as distinguished from the municipal defendant, the City, while acting under color of law as police officers for the City, subjected Houston to constitutional deprivations. The Pre-Trial Order contained the following stipulation of facts:

b> That defendants Reich and McHam were at all times relevant, duly appointed and acting officers of the Police Department of the City of Hugo.

c> That at the time of the occurrences, the defendants Reich and McHam were acting under color of law, to wit, under color of the statutes, ordinances, regulations, policies, customs and usages of the State of Oklahoma and/or the City of Hugo.

Id. at Tab 4, p. 5.

After granting the City's motion for a directed verdict, the court initially instructed the jury that it was not to consider the claims against the City in its deliberations. (R., Vol. II, p. 148). The court then instructed that: this was a civil rights cause of action whereby plaintiff Houston sought money damages against "the defendants" for deprivation of his constitutional rights under the Fifth and Fourteenth Amendments to the Constitution "while the defendants were acting under color of state law;" Houston alleged that on the evening of October 31, 1984, the defendants Reich and McHam, while acting as police officers for the City, assaulted and beat him without...