Oviatt By and Through Waugh v. Pearce

Decision Date15 January 1992
Docket Number90-35314,Nos. 90-35146,s. 90-35146
Citation954 F.2d 1470
PartiesKim Clay OVIATT, By and Through his conservator, Sr. Maria Francis WAUGH, Plaintiff-Appellee, v. Fred PEARCE, Sheriff; Multnomah County, Defendants-Appellants. Kim Clay OVIATT, By and Through his conservator, Sr. Maria Francis WAUGH, Plaintiff-Appellant, v. Fred PEARCE, Sheriff; Multnomah County, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

J. Michael Doyle, Asst. County Counsel, and Mark B. Williams, County Counsel, Portland, Or., for defendants-appellants-cross-appellees.

Paul S. Bovarnick, Portland, Or., for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the District of Oregon.

Before ALARCON, FERGUSON and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Plaintiff remained incarcerated in the Multnomah County Detention Center for 114 days before being arraigned after a court clerk dropped plaintiff's name from the arraignment docket sheet. He brought suit against Multnomah County Sheriff Fred Pearce, and Multnomah County, alleging violations of 42 U.S.C. § 1983 and Oregon's common law of false imprisonment. The jury awarded plaintiff a verdict of $65,000, and the district court awarded plaintiff $45,385.65 for attorney's fees under 42 U.S.C. § 1988. Defendants appeal the district court's denial of their motions for judgment notwithstanding the verdict, and its refusal to give several of their requested jury instructions. Plaintiff cross appeals, arguing that the district judge improperly failed to enhance his fee award, and that the judge should have granted a larger award for time spent preparing the fee application.

Both defendants' appeal and plaintiff's cross appeal are timely. See Fed.R.App.P 4(a)(4), 4(a)(5). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

Plaintiff, who has been diagnosed as a schizophrenic, was arrested on August 2, 1985, and cited for unlawful use of a motor vehicle. After various court appearances, including an arraignment, a pretrial conference was set for January 8, 1986. When plaintiff failed to appear, a bench warrant was issued for his arrest. Plaintiff was arrested pursuant to this warrant on March 8, 1986. At that time, the Multnomah County Detention Center staff put plaintiff's charge information on the booking register for March 8. The booking register listed the time and date, March 10, 1986, of plaintiff's regularly scheduled arraignment to enable the jail staff to present plaintiff for the arraignment.

Multnomah County's computer system automatically prints the booking register for the Oregon state court system to use in docketing new inmates for arraignment. The warrant on which plaintiff was arrested was returned to the court on March 9, 1986. Unfortunately, the court clerk who prepared the docket sheet for March 10 failed to place plaintiff's name on the docket. As a result, he was not called for arraignment.

In June, a nurse who was treating plaintiff's schizophrenia discovered that he had been in jail since March without moving forward through the system. Plaintiff was arraigned on June 27, 1986, and released on July 1, 1986. Thus, plaintiff spent 114 days in jail without an arraignment, a bail hearing, or a trial.

At the time relevant to this lawsuit, Multnomah County's Corrections Division was administered by Sheriff Pearce, who was concededly the policymaker for Multnomah County. Pearce was aware that "from time to time" individuals were not arraigned because of mistakes made by the court or the jail. Nevertheless, the jail system had no internal procedures for keeping track of whether inmates had received an arraignment or attended other scheduled court appearances. Instead, the jail system relied on inmates, attorneys, family members, court personnel, and members of the jail staff (who had never been instructed to ask inmates whether they had been arraigned) to bring to the system's attention missed arraignments or court appearances.

Pearce had discussed the problem with colleagues occasionally, but took no steps to alleviate it. As defense counsel argued, "Pearce was convinced that it would be more trouble tha[n] it was worth given the nature of the problem because it involved small numbers of people."

II

We now turn to defendants' contention that the district court erred by not granting their motion for JNOV on plaintiff's section 1983 claim. Defendants claim that plaintiff failed to establish a policy of deliberate indifference and the deprivation of a constitutional right.

The standard for reviewing a district court's refusal to grant a JNOV is the same as for a directed verdict. The Jeanery, Inc. v. James Jeans, Inc., 849 F.2d 1148, 1151 (9th Cir.1988). The reviewing court's role is the same as the district court's. Id. "JNOV is proper if 'without accounting for the credibility of the witnesses, we find that the evidence and its inferences, considered as a whole and viewed in the light most favorable to the nonmoving party' " cannot reasonably support a judgment in favor of the nonmoving party. Id. (citation omitted). This court may not "weigh the evidence or substitute its judgment for that of the jury," but rather must determine whether the verdict is supported by substantial evidence. The Jeanery, 849 F.2d at 1151; see Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1014 (9th Cir.1985) (JNOV "is proper when the jury verdict is not supported by substantial evidence."), cert. denied, 474 U.S. 1059, 106 S.Ct. 802, 88 L.Ed.2d 778 (1986).

A local governmental entity is liable under § 1983 1 when "action pursuant to official municipal policy of some nature cause[s] a constitutional tort." Monell v. Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); see also City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989). Moreover, a local governmental body may be liable if it has a policy of inaction and such inaction amounts to a failure to protect constitutional rights. City of Canton, 489 U.S. at 388, 109 S.Ct. at 1204.

To impose liability on a local governmental entity for failing to act to preserve constitutional rights, a section 1983 plaintiff must establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy "amounts to deliberate indifference" to the plaintiff's constitutional right; and (4) that the policy is the "moving force behind the constitutional violation." City of Canton, 489 U.S. at 389-91, 109 S.Ct. at 1205-06.

A

Plaintiff argues that he was deprived of "liberty" in contravention of the due process clause of the Fourteenth Amendment when the County of Multnomah incarcerated him for 114 days without a prompt court appearance.

We must first determine whether plaintiff possessed a liberty interest in being free from extended incarceration without any arraignment or pretrial procedure. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983); Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1104, 113 L.Ed.2d 214 (1991). If he did, we must then determine what process is due under the Constitution. Hewitt, 459 U.S. at 472, 103 S.Ct. at 871; Toussaint v. McCarthy, 801 F.2d 1080, 1098 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2462, 95 L.Ed.2d 871 (1987).

"Liberty interests protected by the Fourteenth Amendment may arise from two sources--the Due Process Clause itself and the laws of the States." Hewitt, 459 U.S. at 466, 103 S.Ct. at 868-69 (citing Meachum v. Fano, 427 U.S. 215, 223-27, 96 S.Ct. 2532, 2537-39, 49 L.Ed.2d 451 (1976)). The Supreme Court has recognized that an individual has a liberty interest in being free from incarceration absent a criminal conviction. Baker v. McCollan, 443 U.S. 137, 144, 99 S.Ct. 2689, 2694, 61 L.Ed.2d 433 (1979) (although plaintiff "was indeed deprived of his liberty for a period of days," the deprivation was accomplished by due process); see Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976) (once defendant is convicted, he is constitutionally deprived of the liberty interest in being free from confinement). Indeed, the paradigmatic liberty interest under the due process clause is freedom from incarceration.

Plaintiff also claims that the state of Oregon, through the enactment of two statutes, has created a constitutionally protected liberty interest in being free from incarceration without a prompt pretrial court appearance. State laws "create[ ] a protected liberty interest by placing substantive limitations on official discretion." Olim, 461 U.S. at 249, 103 S.Ct. at 1747 (plaintiff must show state law contains particularized and objective standards or criteria). The state statutes in question must do more than merely channel administrative discretion; they must be "explicitly mandatory." Hewitt, 459 U.S. at 472, 103 S.Ct. at 871. In other words, "the ... law must direct that a given action will be taken or avoided only on the existence or nonexistence of specified substantive predicates." Toussaint, 801 F.2d at 1094. "[T]he word 'shall' alone is not sufficient. Rather, the liberty interest is created when the word 'shall' is used to mandate certain procedures...." Id. at 1098 (citing Hewitt, 459 U.S. at 472, 103 S.Ct. at 871).

In the instant case at least two applicable state statutes created a protected liberty interest. First, under Oregon Revised Statutes ("ORS") § 136.290, "a defendant shall not remain in custody pending commencement of the trial ... more than 60 days after the time of arrest unless the trial is continued with the express consent of the defendant." Id. (emphasis added). If no trial is commenced within the 60-day time period, "the...

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