King v. Rivas

• Citation: 555 F.3d 14
• Decision Date: 02 February 2009
• Docket Number: No. 08-1557.,08-1557.
• Parties: Antonio KING, Plaintiff, Appellee, v. Cesar RIVAS, Individually, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

555 F.3d 14

Antonio KING, Plaintiff, Appellee, v. Cesar RIVAS, Individually, Defendant, Appellant.

No. 08-1557.

United States Court of Appeals, First Circuit.

Heard December 3, 2008.

Decided February 2, 2009.

John J. Davis with whom Pierce, Davis & Perritano, LLP was on brief, for appellant.

Michael J. Sheehan, for appellee.

Before BOUDIN, STAHL and LIPEZ, Circuit Judges.

BOUDIN, Circuit Judge.

Rule 68 of the Federal Rules of Civil Procedure provides for cost shifting where a defendant offers to settle, the offer is rejected and the plaintiff thereafter prevails but recovers less than the offer. The difficult question in this case is how the rule should be read and applied in cases where multiple defendants make a joint offer to settle the whole case—a situation that the rule's drafters may not have thought through and certainly did not explicitly resolve.

In the underlying case, Antonio King sued seven New Hampshire corrections officers and employees in federal district court in New Hampshire, alleging constitutional violations while King was a pretrial detainee in the Hillsborough House of Corrections. The gist of the claims was that he had been falsely accused of threatening a guard and was thereafter mistreated during his confinement. The five-count complaint charged procedural due process and eighth amendment violations, varying with the defendant.

According to King's later testimony, on July 14, 2002, while the inmates were out of their cells for recreation, Cesar Rivas, an on-duty corrections officer in a medium security wing of the jail (Unit 2D), radioed for assistance, falsely reporting that he was in jeopardy of being taken hostage. Rivas identified King, along with eight other inmates, as having threatened him. Three other corrections officers then took King to the jail's segregation unit (Unit 2B), known as "the hole".

Soon after he was taken to the hole, a disciplinary officer charged King with disciplinary violations based on Rivas' report. After a hearing, which took place on July 19, King was sentenced to thirty days in segregation beginning August 9. After King's thirty day sentence was complete, a classification officer placed him in administrative segregation, which resulted in his spending his remaining time at Hillsborough in the hole. He was released on December 23, 2002.

While in the hole, King was allowed only a mattress, sheet, pillow, and prison uniform; everything else was forbidden (including personal hygiene products and toilet paper). King had to ask guards to turn on the water to flush the toilet, drink, or wash his hands—requests not always satisfied promptly. He was allowed out of his cell only once every three days, shackled, in order to shower and was subject to frequent strip searches. These conditions remained throughout his time in segregation.

This description does not fully capture the grim and unsanitary circumstances of the confinement. A more complete description is provided in decisions stemming from the litigation that followed. See, e.g., Surprenant v. Rivas, 424 F.3d 5, 10-11 (1st Cir.2005). Although not involving direct brutality, the conditions were of a kind that might—or might not—lead a jury to take a harsh view of the defendants, particularly Rivas if the jury concluded that he had falsely reported the events.

After King filed his law suit, the defendants, jointly represented, invoked Rule 68 and made an offer on January 24, 2005, to settle with King for a single payment of $10,000, together with attorney's fees and costs as determined by the court. The rule, in pertinent part, provides:

At any time more than 10 days before trial begins, a party defending a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in the offer, with costs then accrued. ... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer.

Fed.R.Civ.P. 68.¹

By its terms, the defendants' offer was one to settle the entire law suit for a fixed sum and did not apportion the sum among the seven defendants. The offer expired under the rule when King did not respond within ten days. On January 6, 2006, King voluntarily dismissed his claims against four of the seven defendants. After a five day trial involving the remaining three, a jury found only Rivas liable and awarded King $1 in nominal damages and $500 in punitive damages.

On King's motion, the trial judge ordered a new trial on compensatory damages; the judge agreed that because the jury had necessarily found that Rivas had falsely accused King and led to his wrongful punishment, the $1 nominal damage award was contrary to the substantial weight of the evidence. In the new trial on damages, the newly selected jury awarded King $5,000 in compensatory damages, giving him a total award of $5,500.

Other inmates have brought their own law suits based on the same incident. In Surprenant v. Rivas, No. 02-391JD, 2004 WL 1858316 (D.N.H. Aug.17, 2004), aff'd, 424 F.3d 5, decided prior to King's trial, a jury found that Rivas and two other defendants also named by King had violated Jason Surprenant's constitutional rights, awarding nominal and punitive damages against both Rivas and another defendant, but only nominal damages against a third, totaling $20,503; Surprenant also recovered $29,754.50 in attorney's fees and $3,897.72 in costs. Id. at *5.

In Paladin v. Rivas, No. 05-cv-079-SM, 2007 WL 2907263 (D.N.H. Sept.28, 2007), which followed King's trial, a jury found that two other defendants—but not Rivas—had violated inmates Paladin and West's constitutional rights. The jury awarded the plaintiffs nominal damages against both liable defendants and $50,000 each in punitive damages against one of the defendants; it also awarded Paladin alone $50,000 in compensatory damages against the other defendant. Id. at *1. Plaintiffs received $33,952.50 in attorney's fees and $1,247.32 in costs. Id. at *13. In other cases, the inmate-plaintiffs settled before trial.

After King's second trial on compensatory damages, he moved as the prevailing party for attorney's fees and costs under 42 U.S.C. § 1988 (2006). Rivas objected, arguing that the plaintiff's $5,500 judgment was less than the $10,000 offer, and that Rule 68 therefore shifted costs to King; accordingly, Rivas sought to recover his attorney's fees and costs. The district court held that Rule 68 did not apply because the $10,000 offer had not been apportioned among the defendants, and it awarded King attorney's fees and costs for his claims against Rivas under section 1988. King v. Rivas, No. 04-cv-356-SM, 2008 WL 822236, at *3-9 (D.N.H. Mar.26, 2008).

Rivas has now appealed, arguing that the district court misconstrued Rule 68, and our review of such a question is de novo. See NEPSK, Inc. v. Houlton, 283 F.3d 1, 5 (1st Cir.2002). Rivas' position is straightforward: the defendants' $10,000 offer to King for a joint settlement is deemed to have been rejected; King's ultimate recovery from all the defendants named in his suit was only $5,500; thus, costs shift to King.

King responds that the offer was not apportioned and therefore did not allow him to determine how much Rivas was offering to settle the claims against Rivas alone, so the rule is not triggered. But the offer was hardly "ambiguous": by its terms it was an offer to settle the whole case, and only the whole case, for $10,000—plus costs and attorney's fees to date. So King is saying either that a package offer alone does not trigger the rule or, in the alternative, must be accompanied by nominal allocations.

Rule 68 was written in the singular— referring to "liability of one party to another"—and nowhere explains how a joint offer by several defendants should be treated. But federal law provides, in line with common sense, that "unless the context indicates otherwise—words importing the singular include and apply to several persons, parties or things." 1 U.S.C. § 1 (2006); see Johnston v. Penrod Drilling Co., 803 F.2d 867, 869-70 (5th Cir.1986). Compare Duke v. Cochise County, 189 Ariz. 35, 938 P.2d 84, 90 (Ariz.Ct.App.1997) (finding use of singular "unambiguous" in cost rule, rendering it inapplicable to joint offer).

In addition, Rule 68's purpose of encouraging settlements² strongly supports its adaptation to multi-defendant cases, and courts have so assumed. Marek v. Chesny, 473 U.S. 1, 3-4, 105 S.Ct. 3012, 87 L.Ed.2d 1 (1985) (joint offer by three co-defendants); Delta Air Lines, Inc. v. August, 450 U.S. 346, 350 n. 5, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981) (assuming rule's applicability to multi-defendant litigation). But how to apply the rule to joint offers is not addressed by the rule and is ultimately a matter of judicial adaptation of the rule in light of policy.

Of course, tactically a plaintiff would prefer an apportioned set of offers that would allow him to pick and choose; indeed, an offer judged ample as to one defendant could provide resources to continue the litigation against others. And plaintiffs will often gain valuable bargaining information by learning which defendants are most eager to settle.

But in multi-defendant cases where a single employer is likely to pay the bill (such as one against a company and several of its officers), a full settlement will often be the only one that makes sense for the company—the likely payor—and the only one that will be forthcoming. As the Supreme Court noted in Marek, "[i]f defendants are not allowed to make lump-sum offers that would, if accepted, represent their total liability, they would understandably be reluctant to make settlement offers." 473 U.S. at 6-7, 105 S.Ct. 3012.

Often, where there is one harm or a related set of harms, a plaintiff too will be primarily concerned with what the case as a whole "is worth." In any event, each defendant is entitled to...