Jennings v. Jones

• Decision Date: 19 November 2009
• Docket Number: No. 08-2117.,08-2117.
• Citation: 587 F.3d 430
• Parties: Adam JENNINGS, Plaintiff, Appellant, v. Kenneth JONES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

587 F.3d 430

Adam JENNINGS, Plaintiff, Appellant, v. Kenneth JONES, Defendant, Appellee.

No. 08-2117.

United States Court of Appeals, First Circuit.

Heard September 9, 2009.

Decided November 19, 2009.

Charles M. Bradley for appellant.

Rebecca Tedford Partington, Deputy Chief, Civil Division, with whom John Moreira, Special Assistant Attorney General, was on brief for appellee.

Before LYNCH, Chief Judge, GAJARSA^* and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

In the second appearance of this case here, the question is whether the trial court abused its discretion in granting a motion for a new trial, after a remand from this court instructing the trial court to address the motion. Jennings v. Jones (Jennings II), 499 F.3d 2 (1st Cir.2007). There was no abuse of discretion and we affirm.

I.

Plaintiff Adam Jennings, an employee of a Narragansett Indian Tribe "smoke shop" in Charlestown, Rhode Island, and others brought a civil rights action in December 2003 against the state of Rhode Island and a State Police representative, as well as unnamed State Police officers who had executed a search warrant at the shop. The tribal shop was suspected of illegally selling tax-free tobacco products. During the course of the operation, these officers had attempted to arrest Jennings for disorderly conduct; Jennings resisted, and in the ensuing confrontation, his ankle was broken. The original complaint included a Fourth Amendment excessive force claim against a number of John Doe defendants. After the close of discovery and shortly before the deadline for filing pretrial motions, seven state troopers, including Officer Kenneth Jones, were added as defendants in their individual capacities.

On March 21, 2005, just before the trial began, plaintiffs filed a second amended complaint that raised twenty-one different claims, including discrimination, various state law claims of assault, battery, false imprisonment, and negligent and intentional infliction of emotional distress, and again the excessive force claim.¹

In 2005, a jury found for Jennings on only one of his claims and against only one of the defendants. On his excessive force and battery claims, the jury found only against Officer Jones, awarding Jennings $301,100 in compensatory damages. Jones filed motions for judgment as a matter of law (JMOL), for a new trial, and for a remittitur. The district court granted Jones's motion for JMOL on the basis of qualified immunity. Jennings v. Pare (Jennings I), No. 03-572, 2005 WL 2043945 (D.R.I. Aug. 24, 2005). It erroneously failed to rule, however, on the defendant's Fed.R.Civ.P. 50(c)(1) motion for new trial, which it had found to be moot.

Jennings appealed from the JMOL. In 2007, a divided panel of this court, in a modified decision reached after en banc review was sought, vacated the district court's ruling on the motion for JMOL and remanded to the district court to rule on the outstanding motions. Jennings II, 499 F.3d 2. In the order denying en banc review, two judges expressed the view that the motion for new trial was well taken and two expressed the view that the new trial motion was best left to the discretion of the trial judge. Id. at 1-2 (Boudin, C.J. and Lynch, J. concurring in the denial of rehearing en banc); id. at 2 (Torruella, J. and Lipez, J. concurring in the denial of rehearing en banc).

In 2008, after hearing arguments, the district court granted Jones's motion for a new trial on two grounds. Jennings v. Pare (Jennings III), No. 03-572, 2008 WL 2202429 (D.R.I. May 27, 2008). The district judge first held that a new trial was warranted because it was impossible to determine whether the jury's verdict had been based on a theory of excessive force that would not have been barred by qualified immunity. Id. at *2-3.

As a second, independent basis for granting the new trial, the trial judge also held that a verdict based on a theory of increased force, even if that were a possible ground for the verdict, would have been against the clear weight of the credible evidence. Id. at *3-4. The district court weighed the testimony of the two witnesses who claimed to have seen Jones increase force on Jennings's ankle against objective evidence and found, for several reasons, that neither of them could have observed what they testified to seeing. The judge also determined that Jennings's testimony was not credible on the claim of increased force, because it was plainly contradicted by other evidence. There was no other evidence available by which a jury might have determined that Jones had increased the force he applied to Jennings's ankle; and the district judge deemed Jones's testimony that there had been no increase in pressure credible. Thus, he granted the motion for new trial.

At the second trial, held in 2008, the jury ruled in favor of Jones. Jennings appealed from the grant of the new trial motion. We now affirm.

II.

The facts of the case are recited at length in this court's previous opinion, Jennings II, 499 F.3d at 4-7, and in the district court's JMOL order, Jennings I, 2005 WL 2043945, at *1-2. We describe the history of the case.

In his pleadings and at his first trial, Jennings presented several different arguments and theories to support his Fourth Amendment excessive force claim against various defendants. His second amended complaint described the claim as follows:

Kenneth Bell, Kenneth Jones, Wilfred Hill, James Demers, and Kenneth Buonaiuto, still failing to identify themselves as ... Rhode Island State Police Officer[s] or producing any documentation supporting [their] alleged right to be on the property, assaulted Adam Jennings and subdued him in violation of his right under the Fourth Amendment ... to be free from excessive force....

. . . .

The actions of defendants in wrestling Adam Jennings to the floor and applying the weight of several officers to his person and breaking his ankle were a violation of Mr. Jennings['s] right under the Fourth Amendment ... to be free from the use of excessive force.

The amended complaint did not focus on Jones as opposed to the other officers and claimed that the excessive force consisted of wrestling plaintiff to the floor, applying the weight of several officers to him, and breaking his ankle. Consistent with these generalized allegations, Jennings argued at various points during the trial and during his opening and closing arguments that the force used against him was excessive for a number of different reasons.²

In addition to the arguments outlined in footnote two, Jennings pressed another theory at various points: that the force was excessive because Jones had increased the force he applied to the ankle without justification after Jennings had stopped resisting and after he had informed Jones of his prior injury to that ankle.

The district court gave the jury generalized instructions on Jennings's excessive force claim.³ It instructed the jury on the elements of a § 1983 claim; it stated that use of excessive force was an unreasonable seizure under the Fourth Amendment and that to establish excessive force, "the plaintiff must show that the force used was objectively unreasonable." The court further instructed the jury on several factors it could consider in determining whether the force used was objectively reasonable. These factors were: whether the plaintiff posed a threat to the safety of the officer or others and how immediate or serious the threat was, whether the plaintiff was interfering with or disrupting the search, whether the plaintiff was resisting, and whether the force used was proportional under the circumstances. The jury instructions did not distinguish among the multiple theories that Jennings provided at trial for his excessive force claim, nor did they mention the increased force theory. Jennings also did not request that the jury instructions be more specific in this regard.

On March 28, 2005, the first jury returned a verdict in favor of Jennings on both his excessive force and state law battery claims against Jones but did not find liability on the part of the other defendants. It awarded Jennings $301,100 in compensatory damages. The jury verdict stated only: "As to the claims by Adam Jennings against Kenneth Jones, Fourth Amendment claim for excessive force, the jury finds for the plaintiff, Adam Jennings." There were no special interrogatories to allow the jury to make specific findings of fact. Neither party had requested them and neither objected to the verdict form.

On April 8, 2005, after the verdict was issued, Jones filed three motions, seeking a remittitur under Fed.R.Civ.P. 59(e), JMOL under Fed.R.Civ.P. 50(b), and a new trial under Fed.R.Civ.P. 59. On August 24, 2005, the district court granted Jones's motion for JMOL, stating that it had erred by not granting JMOL previously and by submitting the claims to the jury. Jennings I, 2005 WL 2043945, at *5. The trial judge concluded that Jones was entitled to qualified immunity, reasoning that there was no evidence that Jones's actions constituted excessive force and, even if such evidence had been presented, there was no clearly established law on point and a reasonable officer could have believed his actions lawful.⁴ Id. at *5-11. The district court incorrectly did not rule on the new trial or remittitur motions on the ground that these motions were moot in light of its decision on JMOL. Id. at *1.

On August 17, 2007, a panel of this court, over a dissent, vacated the district court's ruling granting JMOL on immunity grounds on Jennings's excessive force claim.⁵ Viewing the evidence in the light most favorable to Jennings, and so taking all credibility issues in Jennings's favor, the court found the evidence sufficient to support a claim based on "Jones' increased use of physical force after Jennings had ceased resisting for several seconds and stated that the force Jones was using was hurting his previously injured ankle." Jennings II, 499...