Powell v. Gardner, No. 2879

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore VAN GRAAFEILAND, MESKILL, and KEARSE; KEARSE
Citation891 F.2d 1039
PartiesDavid POWELL, Plaintiff-Appellant, v. Daniel P. GARDNER, Badge, individually and as a police officer of the Suffolk County, New York Police Department; "John Doe", individually and as a police officer of the Suffolk County, New York Police Department; "Norman Noe", individually and as a police officer of the Suffolk County, New York Police Department; "Richard Roe", individually and as a police officer of the Suffolk County, New York Police Department and County of Suffolk, Defendants-Appellees. ocket 89-7183.
Decision Date13 December 1989
Docket NumberNo. 130,No. 2879,D

Page 1039

891 F.2d 1039
David POWELL, Plaintiff-Appellant,
v.
Daniel P. GARDNER, Badge No. 2879, individually and as a
police officer of the Suffolk County, New York Police
Department; "John Doe", individually and as a police
officer of the Suffolk County, New York Police Department;
"Norman Noe", individually and as a police officer of the
Suffolk County, New York Police Department; "Richard Roe",
individually and as a police officer of the Suffolk County,
New York Police Department and County of Suffolk,
Defendants-Appellees.
No. 130, Docket 89-7183.
United States Court of Appeals,
Second Circuit.
Argued Sept. 19, 1989.
Decided Dec. 13, 1989.

Page 1041

Arthur V. Graseck, Jr., Port Washington, N.Y., for plaintiff-appellant.

Charles P. Kelly, Asst. County Atty., Hauppauge, N.Y. (E. Thomas Boyle, Suffolk County Atty., Dennis E. Milton, Chief Deputy County Atty., Frederick Eisenbud, Asst. County Atty., Hauppauge, N.Y., on the brief), for defendants-appellees.

Before VAN GRAAFEILAND, MESKILL, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff David Powell appeals from a final judgment of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, dismissing (a) his claims under 42 U.S.C. § 1983 against defendants Daniel Gardner and the County of Suffolk ("County") for use of excessive force in connection with an arrest, in violation of his rights under the Constitution, and (b) his pendent state-law claims, following directed verdicts in favor of defendants at trial. On appeal, Powell contends principally that the district court erred in ruling that Powell had not made out a prima facie case on his federal claims. Finding merit in the contention that the proof established a prima facie case against Gardner, we vacate so much of the judgment as dismissed the claims against him and remand for trial of those claims. We modify and affirm so much of the judgment as directed a verdict dismissing Powell's claims against the County.

I. BACKGROUND

The present lawsuit arises out of events that occurred in connection with the arrest of Powell by Gardner, a County police officer, on September 3, 1985. Powell alleged that after he was arrested and had been taken to the police station, Gardner and several other officers assaulted and beat him, in violation of his rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Constitution and various state laws. He sued Gardner as a participant in the assault and asserted that the County was liable for authorizing and tolerating such conduct as an institutional practice. The evidence at trial, viewed in the light most favorable to Powell, showed the following.

After cashing a check early in the day for $442.00, Powell met a friend, and the two drank beers at a local bar until 1:00 p.m. They then bought a bottle of gin and continued their drinking throughout the afternoon. By early evening, Powell was drunk.

At 7:30 p.m., Gardner arrested Powell pursuant to a court-issued warrant. He patted Powell down and took him to the police station. At the station, Powell was logged in by Officer Robert O'Kane, the desk sergeant. O'Kane noted in the log that Powell was drunk and that he had an ace bandage on his right wrist resulting from a sprain some two months earlier.

After the logging-in was complete, Gardner took Powell to a squad room for processing and handcuffed him to a desk. Gardner left the squad room to inquire about the amount of Powell's bail; on his return, he informed Powell that bail had been set at $200.00. When Powell searched his pockets for money, he found only $10.00. He accused Gardner of having

Page 1042

taken his money, claiming that he had had $350.00 when he was arrested. Powell lodged a complaint with a police lieutenant about the missing money.

Powell testified that after he made his formal complaint, Gardner and three other officers took him to another room and beat him:

A: ... And then [Gardner] put the cuffs on me. Come on, you are going in the back.

I got up, handcuffed, and we got to the strip search area. I saw guys there in uniform....

....

Q: What happened after the [sic ] saw the three men--was this in addition to Officer Gardner?

A: Yes. He took off one of the cuffs and slammed me to the ground and they all started jumping on me and twisting my arm and punching me ripping my clothes off....

....

Q: Was this physical encounter preceded by any words being spoken?

A: I had been telling them I was annoyed he took my money.

Q: What, if anything, was said about your sweater?

A: I didn't get a chance to take it off, he ripped it off.

Q: Did anyone say anything to you about your sweater?

A: No. We will get these clothes off. He is being hostile, he is resisting. I didn't try to resist, I didn't get a chance to. I wouldn't have tried to anyway, four guys.

Q: What was your physical condition when you arrived at that lock up area?

A: Except for the sprained wrist which wasn't bothering me, I was drunk.

Q: Can you describe any further this physical encounter?

A: After they ripped my clothes they dragged me into the cell and somebody was spitting on me and slammed the door on me.

I was moaning, they knew I was hurt. I was suffering. I was scared too. I didn't want to say nothing.

Q: What injuries--what pain if any did you experience?

A: I was hurting all over, wrist, elbow, ribs, back, my legs. My behind.

Afraid to complain, Powell remained in his cell until the following morning, when he lodged a complaint, gave a statement, was photographed, and finally was taken to a hospital. He was treated by emergency room physicians for a broken right wrist, necessitating placement of that wrist in a cast, numerous abrasions, and an injured left elbow necessitating placement of his left arm in a sling. Hospital records supported his claims of injury. Powell testified that his right arm remained in a cast for approximately six weeks and that he suffered from recurring nightmares about being beaten up.

After the close of Powell's case, Gardner and the County moved for a directed verdict, stating, in pertinent part, as follows:

MR. KELLY [Attorney for defendants]: As to Suffolk County, there has been no evidence whatsoever put into evidence as a policy or practice of any kind whatsoever. The ones called either had no information to offer or deny that any such policy or practice existed. There is absolutely no hint of any policy or practice of any kind by Suffolk County. As to the pending [sic ] claim against Suffolk County, we believe, defendants believe that they should not be retained once the federal claims are dismissed.

....

As to Officer Gardner, we do not believe that any reasonable injury could--that plaintiff has proved its [sic ] case by a preponderance of the evidence. We believe that the existing standard in this circuit and throughout the country. [Sic.] And accordingly, we move based on the testimony that before the Court, that the case be dismissed based on direct verdict under Rule 50 of the federal rules.

After Powell's attorney argued that the motions should be denied because the court

Page 1043

was required to view the evidence in the light most favorable to the plaintiff, the court granted the motions as to both defendants:

THE COURT: The Court has listened to the argument of both attorneys, and this is unusual to make this kind of a determination. I do find the preponderannce [sic ] of the proof in this case, the notice of claim, this court will direct a verdict in favor of the county and in favor of the officer; that's it.

Judgment was entered dismissing all of Powell's claims, stating that "there is no evidence upon which a jury could properly find a verdict for the plaintiff." This appeal followed.

II. DISCUSSION

On appeal, Powell contends principally that the court erred in directing a verdict in favor of defendants because, taken in the light most favorable to Powell, the evidence was sufficient to permit the jury to find in his favor. He also complains that the court denied him a fair opportunity to present his case by curtailing his examination of certain witnesses, quashing certain subpoenas, and forcing him to rest his case prematurely. We find merit in the contention that the court improperly directed a verdict in favor of Gardner. As to the County, we conclude that the court properly directed a verdict dismissing the § 1983 claim and that the state-law claims against the County should be dismissed for lack of jurisdiction.

A. The Evidence Against Gardner

The trial judge may grant a directed verdict only if, viewing the evidence in the light most favorable to the nonmoving party, " '(1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him.' " Mattivi v. South African Marine Corp., "Huguenot", 618 F.2d 163, 167 & n. 3 (2d...

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  • J.W. v. Birmingham Bd. of Educ., Civil Action Number 2:10–cv–03314–AKK
    • United States
    • U.S. District Court — Northern District of Alabama
    • 30 de setembro de 2015
    ...75 F.3d 230, 235 (6th Cir.1996); Austin v. Hamilton, 945 F.2d 1155 (10th Cir.1991)(overruled on other grounds); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989)). See Judge Thompson's Calhoun opinion for a thorough survey of 'continuing seizure' jurisprudence, along with a convincing ex......
  • Crocker v. Beatty, No. 18-14682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 20 de abril de 2021
    ...up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest"); Powell v. Gardner , 891 F.2d 1039, 1044 (2d Cir. 1989) ("We think the Fourth Amendment standard probably should be applied at least to the period prior to the time when the ......
  • LaShawn A. v. Barry, No. 94-7044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 30 de janeiro de 1996
    ...jurisdiction over pendent claims even where the court has invested considerable time in their resolution."); Powell v. Gardner, 891 F.2d 1039, 1047 (2d Cir.1989) (holding that even after a trial on the merits, district court properly dismissed pendent state law claims after directing a verd......
  • Dancy v. McGinley, Docket Nos. 15-140-cv(L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 de dezembro de 2016
    ...at which the arrest ends and pretrial detention begins." Graham , 490 U.S. at 395 n.10, 397, 109 S.Ct. 1865 ; accord Powell v. Gardner , 891 F.2d 1039, 1043–44 (2d Cir. 1989). Thus, once a seizure is initiated, an officer's objectively unreasonable conduct may violate the Fourth Amendment r......
  • Request a trial to view additional results
135 cases
  • J.W. v. Birmingham Bd. of Educ., Civil Action Number 2:10–cv–03314–AKK
    • United States
    • U.S. District Court — Northern District of Alabama
    • 30 de setembro de 2015
    ...75 F.3d 230, 235 (6th Cir.1996); Austin v. Hamilton, 945 F.2d 1155 (10th Cir.1991)(overruled on other grounds); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989)). See Judge Thompson's Calhoun opinion for a thorough survey of 'continuing seizure' jurisprudence, along with a convincing ex......
  • Crocker v. Beatty, No. 18-14682
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 20 de abril de 2021
    ...up until the time such arrestee is released or found to be legally in custody based upon probable cause for arrest"); Powell v. Gardner , 891 F.2d 1039, 1044 (2d Cir. 1989) ("We think the Fourth Amendment standard probably should be applied at least to the period prior to the time when the ......
  • LaShawn A. v. Barry, No. 94-7044
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 30 de janeiro de 1996
    ...jurisdiction over pendent claims even where the court has invested considerable time in their resolution."); Powell v. Gardner, 891 F.2d 1039, 1047 (2d Cir.1989) (holding that even after a trial on the merits, district court properly dismissed pendent state law claims after directing a verd......
  • Dancy v. McGinley, Docket Nos. 15-140-cv(L)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 7 de dezembro de 2016
    ...at which the arrest ends and pretrial detention begins." Graham , 490 U.S. at 395 n.10, 397, 109 S.Ct. 1865 ; accord Powell v. Gardner , 891 F.2d 1039, 1043–44 (2d Cir. 1989). Thus, once a seizure is initiated, an officer's objectively unreasonable conduct may violate the Fourth Amendment r......
  • Request a trial to view additional results

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