Linn v. Garcia, 75--1305

• Decision Date: 06 February 1976
• Docket Number: No. 75--1305,75--1305
• Parties: Hubert Y. LINN, Appellee, v. Roy M. GARCIA and Milo Mally, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 855

531 F.2d 855

Hubert Y. LINN, Appellee, v. Roy M. GARCIA and Milo Mally, Appellants.

No. 75--1305.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 11, 1975.

Decided Feb. 6, 1976.

James E. Fellows, Deputy City Atty., Omaha, Neb., for appellant.

Philip M. Kneifl, Kneifl, Kneifl & Forrest, Omaha, Neb., for appellee.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

This civil rights case is now before us on the appeal of defendants Roy M. Garcia and Milo Mally from a money judgment in favor of the plaintiff Hubert Y. Linn entered by the United States District Court for the District of Nebraska.

The case arises from the fact that during the early morning hours of June 27, 1973 the plaintiff was arrested by the defendants who at the time were members of the Police Department of the City of Omaha, Nebraska, and was charged with public drunkenness, disorderly conduct, resisting arrest, and abusing police officers, all of which are misdemeanors.

Plaintiff's arrest was characterized by substantial physical force employed upon him by one or both of the arresting officers, and the plaintiff sustained personal injuries which while doubtless painful were not permanent. After his arrest was perfected, plaintiff was taken from the scene of the arrest to the South Side Police Station in Omaha whence he was conveyed to the Douglas County Hospital. At the hospital he was X-rayed, given some medication and released to the Police Department. He was returned to police custody and shortly thereafter was released when his father furnished bail in the amount of $135.00.

Following plaintiff's arrest Officer Mally prepared routine police reports which both he and Officer Garcia signed. One of those reports entitled 'Resisting Arrest Report' gave the officers' version of what had taken place in connection with the arrest of the plaintiff and indicated that he had been guilty of resisting arrest, public drunkenness, disorderly conduct, and abusing a police officer.

In due course four formal charges were filed against plaintiff in the Municipal Court of Omaha by an Assistant City Prosecutor. Prior to trial the Prosecutor dismissed the charge of abusing a police officer, but the remaining charges were called for trial. Plaintiff appeared in person and by counsel. On advice of counsel the plaintiff did not testify and called no witnesses. The charges were submitted to the Municipal Judge, sitting without a jury, on the testimony of the arresting officers. Plaintiff was found guilty of public drunkenness, resisting arrest, and disorderly conduct. A fine was imposed with respect to each of the charges.

Plaintiff appealed successfully. He secured a reversal of his convictions and a remand of the cases to the Municipal Court for a jury trial. The cases were tried to a jury, and the jury acquitted plaintiff on all charges. The instant case was then commenced in the district court.

Plaintiff's complaint, as amended, set out five causes of action. In the first and third causes of action plaintiff claimed that he had been subjected to police brutality and to false arrest and imprisonment by the defendants acting under color of state law and in violation of rights protected by the Constitution of the United States. As to those causes of action federal jurisdiction was predicated upon 28 U.S.C. § 1343 read in connection with 42 U.S.C. § 1983. The second, fourth and fifth causes of action were based upon Nebraska common law, and with respect to those causes of action the pendent jurisdiction of the federal court was invoked.

The second cause of action charged the defendants with common law assault and battery; the fourth cause of action charged the defendants with false arrest and imprisonment; and the fifth cause of action charged malicious prosecution of the plaintiff in the Municipal Court.

The defendants denied liability with respect to all of the causes of action, and the case was tried to a jury in the district court.

The record indicates that with respect to the first four causes of action the district court and counsel were of the opinion that it made no significant difference whether the substantive rights of the parties were governed by federal law in the field of civil rights or whether they were governed by the law of Nebraska relating to assault and battery and false arrest and imprisonment. It was clear that as to the fifth cause of action the governing law was that of Nebraska, no federal claim being involved.

In view of the close relationship between the first and second causes of action and to avoid the possibility of a double recovery those two causes of action were 'merged,' and the same course was taken with respect to the third and fourth causes of action.

The case was submitted to the jury on oral testimony and documentary exhibits including photographs of plaintiff taken very shortly after he was released from custody on June 27, 1973, and a stipulation as to the proceedings that had taken place in the state courts. At the conclusion of plaintiff's case and again at the close of all of the evidence defendants moved for directed verdicts; those motions were denied, and the case was argued and submitted to the jury.

On the first and second causes of action, which involved the claim of police brutality, the jury found against the defendant Garcia only and assessed actual damages in the sum of $1250.00 and punitive damages in the sum of $2500.00. On the third and fourth causes of action the jury found against both defendants and assessed $800.00 as actual damages and $2,000.00 as punitive damages. On the fifth cause of action the jury found against both defendants and assessed actual damages in the sum of $5,000.00.

The district court entered judgment on the verdicts, and thereafter assessed an attorney's fee of $2,000.00 in favor of the plaintiff. Of that amount $1500.00 was assessed against Garcia and $500.00 was assessed against Mally.

Both defendants have appealed from the judgment against them. Although the jury did not find against Mally on plaintiff's first and second causes of action, plaintiff has not cross appealed with respect to those causes.

For reversal the defendants contend primarily that the plaintiff did not make a submissible case with respect to any of his causes of action, and that the defense motions for directed verdicts should have been granted. Defendants also contend that the district court erred in giving certain instructions, in refusing to give certain instructions requested by the defendants and in awarding an attorney's fee on the first and third causes of action which were the 'federal claims.' ¹

In determining whether the district court erred in submitting plaintiff's case to the jury we are required to view the evidence in the light most favorable to the plaintiff and to give him the benefit of all inferences favorable to him that are reasonably deducible from the evidence. However, plaintiff is not entitled to the benefit of unreasonable inferences or inferences in conflict with undisputed facts; and if we are satisfied that as a matter of law the plaintiff failed to make a submissible case on any cause or causes of action, then it is our duty to reverse with respect to that cause or causes. Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851 (8th Cir. 1975); Schneider v. Chrysler Motors Corp., 401 F.2d 549 (8th Cir. 1968); Hanson v. Ford Motor Co., 278 F.2d 586 (8th Cir. 1960); Maxwell v. Lewis, 186 Neb. 722, 186 N.W.2d 119 (1971); Southern v. Willis Shaw Frozen Express, Inc.,185 Neb. 117, 174 N.W.2d 90 (1970); Presho v. J. M. McDonald Co., 181 Neb. 840, 151 N.W.2d 451 (1967).

At the time of the incident in question plaintiff was about thirty years of age; he was employed as a long distance truck driver, and he operated his employer's equipment being compensated on a mileage basis. Around noon on June 26, 1973, plaintiff returned to Omaha from Cheyenne, Wyoming. After parking his vehicle at his employer's place of business he went to his parents' home in Omaha where he bathed and changed clothes. He then left the house in a 1970 model orange Ford Mustang automobile. While that vehicle unquestionably belonged to the plaintiff, the license plate on it had not been issued for that particular vehicle but rather for a 1953 model Chevrolet that was green in color.

According to his testimony, plaintiff spent the early and middle portions of the afternoon on business errands. About five o'clock, however, he began making the rounds of a number of bars and lounges in Omaha and its vicinity, and he went to a birthday party. Plaintiff admits that while on his tour he consumed what may be considered substantial quantities of beer, but he denies that he drank anything but beer, and denies that he became intoxicated.

At one establishment that he visited plaintiff picked up a woman companion, and they were together dancing until about 3:00 a.m. when he took her home. After leaving his companion at her apartment, plaintiff repaired to a restaurant in search of a person whom he thought might be interested in buying his car. Plaintiff did not find that person, but he did eat a meal of chicken and perhaps some fried potatoes. Prior to that meal plaintiff had not eaten anything substantial since around noon.

Before entering the restaurant plaintiff parked his car on the street. When he emerged from the restaurant around 3:00 a.m. on June 27, he discovered that his car had been sideswiped by another vehicle and had been heavily damaged on the left hand side. However, plaintiff determined, or thought he determined, that the car was still operable, and he undertook to drive it home.

Before plaintiff had gone very far, the left front fire of his car blew out, and his engine died. Plaintiff made unsuccessful efforts to start the engine so that he could get the car off the street, and his efforts entailed his getting partially down under the...