Joseph v. Brierton

• Decision Date: 07 November 1984
• Docket Number: No. 83-2033,83-2033
• Citation: 739 F.2d 1244
• Parties: Hugh JOSEPH, Administrator of the Estate of Mark Joseph, a/k/a Larry Jones, Plaintiff-Appellant, v. David BRIERTON, Warden, Stateville Correctional Center, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1244

739 F.2d 1244

39 Fed.R.Serv.2d 620

Hugh JOSEPH, Administrator of the Estate of Mark Joseph a/k/a Larry Jones, Plaintiff-Appellant, v. David BRIERTON, Warden, Stateville Correctional Center, et al., Defendants- Appellees.

No. 83-2033.

United States Court of Appeals Seventh Circuit.

Argued April 19, 1984.

Decided July 23, 1984.

As Corrected Aug. 3, 1984.

Rehearing and Rehearing En Banc Denied Nov. 7, 1984.

Patrick T. Murphy, Ltd., Chicago, Ill., for plaintiff-appellant.

Steven F. Molo, Timothy J. Touhy, Leslie Rosen, Asst. Attys. Gen., Chicago, Ill., for defendants-appellees.

Before PELL and POSNER, Circuit Judges, and WEIGEL, Senior District Judge. ^*

POSNER, Circuit Judge.

This is a suit for damages under 42 U.S.C. Sec. 1983. It was brought by the administrator of the estate of a prisoner who died while in the hospital unit of Illinois' Stateville prison, against the warden and other officials of Stateville, charging that the prisoner (the plaintiff's son) suffered and died as a result of the inhumane conditions and inadequate medical care in the unit. The defendants won a jury verdict, and the plaintiff has appealed.

Mark Joseph, age 18, was in another prison in the state system when on December 2, 1975, he suffered a mental breakdown and was transferred to the hospital unit at Stateville. There he behaved in an increasingly bizarre fashion. He seems to have wedged himself against the radiator in his cell, and sustained second- and third-degree burns. He kept tearing off his clothes and racing about uncontrollably. He spread his own feces all over his cell and on his body, hair, and mouth, shouting all the while that he was Moses and Christ, and the son of Abraham Lincoln. After a week of such carryings on he suddenly collapsed, and was dead within minutes of cardiac arrest apparently induced by acute psychosis. The prison phoned his father and told him that Mark had committed suicide, and a confirmatory telegram was sent the next day; but the defendants admit that Mark did not commit suicide.

Although it is admitted that one of the guards punched Mark in the face in the course of his wild careenings, and although the plaintiff suggests that someone, perhaps even a guard, may have held Mark against the radiator, it is really not the plaintiff's theory of the case that Mark was the victim of intentional misconduct. The theory is that the defendants exhibited a willful indifference to his welfare by allowing him to live in bestial conditions for the week before his death and by neglecting an obviously serious mental illness, thus causing or hastening his death.

Although medical (including psychiatric) malpractice is not actionable under section 1983 as a form of cruel and unusual punishment, willful neglect is, see Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), and it was a jury question whether the defendants' conduct, which was certainly neglectful, was so far neglectful as to be willful. See Wood v. Worachek, 618 F.2d 1225, 1233 (7th Cir.1980). But the plaintiff argues that he did not have a fair chance with the jury, because of errors in the trial.

The most serious error alleged grows out of remarks made by the defendants' lawyer, an assistant state attorney general, in his closing argument to the jury. By way of background it should be noted that the defendants were very concerned to keep from the jury the fact that the State of Illinois indemnifies its employees for any judgments entered against them in suits growing out of their employment. The defendants' counsel therefore asked the judge before the trial began to order the plaintiff's counsel not to mention that the defendants would be indemnified if they lost. The judge granted the motion, even forbidding the plaintiff's counsel to identify the defendants' counsel (or co-counsel) as a member of the attorney general's staff. Yet in the closing argument, the defendants' counsel, with a passion that fairly breathes through the transcript, made much of the financial impact that a judgment against the defendants would have on them. He told the jury that a verdict for the plaintiff would send the following message to correctional officers all over the United States: "We are going to hire you. We are going to give you staff; not enough. We are going to give you medical help; not enough. We can't afford it. We are going to give you a limited budget. Do what you can with it. We know it's not the best. We don't have enough money. But when something goes wrong, you are responsible, don't look to us. That is the message that they will get. And when you give them that message, you won't have psychiatrists, you won't have nurses .... We can go back to the eighteenth century and lock that door and leave those people ...." He adjured them not to render a compromise verdict. "If you do that, that will be a terrible, terrible injustice. You will have destroyed these men, because when you go into the jury room you are taking in there, their good names, their reputations, their careers." He described his adversary's position as, "Let's saddle these five men [the defendants] with $1.8 million [the amount that the plaintiff had asked for in the complaint]." He said: "the average working man makes about $24,000 a year. Let's keep this in perspective. Now that might be a little high. But the average working man who makes $24,000 a year would have to work for the next 75 years to earn the amount of money that Mr. Murphy [the plaintiff's counsel] is asking you to saddle these people with.... [T]his individual, this mythical working man, would have to work for 750 years to earn the amount of money that he is asking to make these people responsible for." He added: "Now although I don't think that these individuals should be required to pay anything, because they didn't do anything wrong, it is my duty as their attorney to speak to the issue of damages. I would like you to remember that when you go into the jury room, as to what is fair. $1.8 million. Mark Joseph was a convicted felon by the time he was eighteen years old. He had no income. He didn't support anyone. Mr. Murphy wants you to saddle these individuals with $1.8 million. That's not fair."

The plaintiff's counsel did not object to these remarks when made; if he had done so, he would (as the district judge later noted) have been violating the order forbidding him to mention that the defendants would be indemnified if they lost the case. In addition, an objection would have highlighted this part of the defendants' closing argument in the jurors' minds. Werner v. Upjohn Co., 628 F.2d 848, 854 (4th Cir.1980). Counsel was therefore entitled to postpone his objection to the end of the closing arguments, see Lange v. Schultz, 627 F.2d 122, 127 (8th Cir.1980), as he did; and in response the judge proposed to add the following instruction, and did: "If you decide on liability in this case and therefore turn to the question of damages, do not concern yourself with the defendants' ability to pay. If there is a judgment that problem will be addressed later. A judgment, if any, should reflect your decision as to the appropriate amount of damages to be awarded to the plaintiff, Mr. Hugh Joseph as administrator of his son's estate and that's all."

But the curative instruction was, as the plaintiff's counsel complained to the judge, inadequate even if not understood literally. (Read literally it requires the jurors to disregard the defendants' ability to pay when they calculate damages but not necessarily when they decide whether the defendants are liable.) Telling a jury not to think about something may simply rivet the jurors' attention to it. Nevertheless this type of instruction is given all the time, and sometimes, we imagine, it works--not because it literally makes the jury forget something it has heard, but because a conscientious jury, like a conscientious judge, will try not to be influenced by something that it knows is extraneous to its responsibilities, and will sometimes succeed. But the efficacy of such an instruction is always uncertain, and where the misconduct giving rise to it is as serious as it was in this case stronger medicine may be needed.

In his closing argument the defendants' counsel insinuated to the jury that a large judgment would ruin his clients, though he knew it would not cost them a cent. He thus was taking improper advantage of the order he himself had procured forbidding the plaintiff's counsel to put before the jury the true financial consequences of a judgment--an order that the plaintiff's counsel scrupulously obeyed. The defendants' counsel was an officer of the state, acting in his official capacity to represent public employees for whose torts the state was financially responsible. His conduct would not have been proper if he had been a private attorney representing private clients; but it was even worse for a state officer to act in this way. The ethics of the public's lawyers should be above reproach. Cf. ABA Model Code of Professional Responsibility, Ethical Consideration No. 7-14 (1981). Most important--since the issue before us is not whether to punish counsel for his misconduct but whether to reverse the judgment in favor of his clients--counsel's remarks were not only false but also highly prejudicial in both content and wording. In these circumstances the district judge was required to do more than he did: either to grant a mistrial or to let the jury know that the defendants were indemnified. See Harbin v. Interlake Steamship Co., 570 F.2d 99, 106 (6th Cir.1978).

Naturally, in reviewing questions concerning remarks alleged to have misled the jury, we give great weight to the district judge's judgment. See Draper v. Airco, Inc., 580 F.2d 91, 94 (3d Cir.1978). He...