Nicoletti v. City of Waco, 90-8328
| Decision Date | 18 November 1991 |
| Docket Number | No. 90-8328,90-8328 |
| Parties | Michael W. NICOLETTI, Plaintiff-Appellee, v. CITY OF WACO, et al., Defendants, Larry Scott, in his official capacity as Chief of Police for the City of Waco, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bettye S. Springer, Mark H. Hoppe, Haynes & Boone, Fort Worth, Tex., James Ludlum, Jr., Ludlum & Ludlum, Austin, Tex., Annette Jones, Asst. City Atty., Waco, Tex., for defendant-appellant.
R. John Cullar, Patrick D. Millar, Mills, Millar & Matkin, Waco, Tex., for plaintiff-appellee.
Appeal From the United States District Court for the Western District of Texas.
Before POLITZ and HIGGINBOTHAM, Circuit Judges, and WINGATE, 1 District Judge.
A jury in Waco, Texas returned a substantial verdict against the City of Waco and its police chief, Larry Scott. Defendants attempt to appeal the district court denial of motions for judgment NOV, and grant of a new trial only on damages. We find that we do not have jurisdiction to consider this interlocutory order. We are persuaded that, because Scott by-passed appeal of the district court's pre-trial denial of qualified immunity and requested the second trial he now faces, institutional interests in finality have overtaken Scott's immunity interests. His appeal from the denial of immunity must now await final judgment.
Nicoletti sued the City of Waco and Chief Scott in state court, alleging that, by transferring him within the department, they violated Texas's statutory and constitutional guarantees of free speech and due process, because defendants were retaliating for his writing in a grievance proceeding and for participating in a lawsuit. After Nicoletti added a claim for monetary damages under 42 U.S.C. § 1983, the City and Scott removed the suit to federal district court pursuant to 28 U.S.C. §§ 1331 and 1343.
Defendants moved to dismiss for failure to state a claim and supported the motion with extrinsic material. Scott's motion urged the qualified immunity of a government worker. The City rested its defense on other grounds. The district court denied defendants' motions, and defendants did not appeal. A week-long jury trial followed.
The jury returned a verdict awarding $1.4 million dollars in compensatory and punitive damages. The jury found the City of Waco liable under the Texas "whistle-blower statute" for the sum of $1,233,000.00 in compensatory and punitive damages; Scott was held liable under the First Amendment of the U.S. Constitution for $172,000.00 in compensatory and punitive damages.
Defendants had moved for directed verdict at trial, and, after the verdict, they moved for judgment notwithstanding the verdict, alternatively, for a new trial. Scott's motions did not explicitly raise the defense of qualified immunity, but did make two assertions that implicitly did so. First, the motion urged there was insufficient evidence to establish that Scott had knowingly and intentionally violated Nicoletti's constitutional rights in transferring him. Second, both defendants argue that the speech raised no matter of public concern but rather raised matters of purely personal interest. The motion also urged insufficient evidence of a custom or policy on part of the City of Waco, error in the jury instructions, and a failure to submit special interrogatories to the jury on various issues, including the issue of whether Scott knowingly violated Nicoletti's rights. Finally, the motion urged other points of error related to the state law claims and damages.
The district court denied the motion for judgment NOV, raising the immunity defense. Defendants filed a timely Notice of Appeal to this court. 2 Nicoletti moved to dismiss the appeal for lack of jurisdiction.
Under the law of this circuit, municipal governments have no right to a Forsyth interlocutory appeal of immunity defenses enjoyed by its officials. McKee v. City of Rockwell, Texas, 877 F.2d 409, 412 Under the law of this circuit, municipal governments have no right to a Forsyth interlocutory appeal of immunity defenses enjoyed by its officials. McKee v. City of Rockwell, Texas, 877 F.2d 409, 412 (5th Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 727, 107 L.Ed.2d 746 (1990). We are, therefore without jurisdiction to hear the interlocutory appeal of the City of Waco. A government official may, however, immediately appeal a trial court's rejection of an immunity defense contained in a motion for summary judgment. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).
Nicoletti argues that Scott waived his right to a Forsyth interlocutory appeal by not appealing the initial denial of his motion to dismiss; that any immunity from trial was by definition lost when the case proceeded to trial. Scott responds that his immunity extends to a new trial of damages, a right that cannot be protected after the ordered trial. Citing Stevens v. Corbell, 832 F.2d 884, 887-88 (5th Cir.1987), cert. denied, 486 U.S. 1033, 108 S.Ct. 2018, 100 L.Ed.2d 604 (1988). Scott maintains that the Fifth Circuit has recognized that new trial orders are appealable under Forsyth.
The First Circuit addressed a similar case in Zayas-Green v. Casaine, 906 F.2d 18 (1st Cir.1990). The plaintiff in Zayas-Green filed a § 1983 action against two Puerto Rican government officials for dismissing him from his government job, allegedly for political reasons. Defendants delayed filing motions for two years, all the time requesting more time from the court for moving for summary judgment on grounds of qualified immunity. The court finally ruled that no further dispositive pre-trial motions would be entertained by the court. Neither defendant appealed from this order.
After the plaintiff won a jury verdict for substantial damages, the defendants moved the district court for a judgment NOV on the grounds that the officials' qualified immunity barred the verdict against them. The court denied the motion, but ordered a new trial on the issue of compensatory damages. The defendants sought interlocutory appeal from the denial of the judgment NOV. The First Circuit dismissed the appeal for lack of jurisdiction.
Writing for a unanimous panel, Judge Campbell held that, by failing to appeal the order barring dispositive pre-trial motions, defendan...
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