Raley v. Fraser

• Citation: 747 F.2d 287
• Decision Date: 26 November 1984
• Docket Number: No. 84-1274,84-1274
• Parties: Robert Dean RALEY, Plaintiff-Appellant, v. Thomas FRASER and Gary Trupe, Defendants-Appellees. Summary Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 287

747 F.2d 287

Robert Dean RALEY, Plaintiff-Appellant, v. Thomas FRASER and Gary Trupe, Defendants-Appellees.

No. 84-1274

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 26, 1984.

Betty Wheeler, Amarillo, Tex., for plaintiff-appellant.

C.A. Stein, Kelly D. Utsinger, Amarillo, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, POLITZ and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

This is an appeal from a judgment awarding damages on a state tort claim but denying relief on a claim under 42 U.S.C. Sec. 1983 (1982). ¹ Robert Raley contends that two police officers, Thomas Fraser and Gary Trupe, in using excessive force deprived him of his constitutional rights and are liable for his damages under section 1983 and for his attorney's fees under 42 U.S.C. Sec. 1988 (1982); ² he also maintained pendent state claims of assault and battery, false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, negligence, and gross negligence. We affirm the judgment in all respects.

I. The Facts

Officers Fraser and Trupe, while patrolling the streets of Amarillo at one o'clock in the morning, saw Raley and his friend Ken Painter knock over a small sign after leaving their car outside an all-night restaurant. The officers stopped to investigate, and the encounter between Officer Fraser and plaintiff Raley did not prove felicitous to either. Matters escalated until Raley was arrested for public intoxication and booked at the police station. Fraser applied choke holds on Raley four times during the process. Raley's arms were bruised, his face scraped, and the handcuffs raised welts on his wrists. He made two visits to a doctor during the following week, and suffered a sore throat and hoarse voice for a few weeks. There was no permanent injury.

II. Disposition Below

After a bench trial, the district court in a thorough order found for Raley only on his pendent state assault and battery claim. The court found against Raley on his section 1983 excessive force claim because he "did not suffer sufficiently severe injuries," and because the officers acted without malice. It found against him on his claim under section 1983 for unlawful arrest, on grounds that the officers had probable cause to arrest Raley for public intoxication and that they acted in good faith. The court awarded Raley $1,000 as actual damages for pain and mental suffering, against Fraser only. The court rejected Raley's claim for punitive damages, finding that Fraser's actions were not wanton or malicious. The court also refused to award attorney's fees because Raley did not prevail on his section 1983 claims.

III. The Issues

Raley argues that the trial court erred (a) in ruling against him on his claim that the force used by the officers violated his constitutional rights; (b) in finding probable cause to arrest; (c) in refusing to award punitive damages; and (d) in denying attorney's fees under section 1988.

A. Claims of Constitutional Dimension?

In analyzing whether the use of excessive force is of constitutional dimension, giving rise to redress under section 1983, this circuit has adopted the following standard:

In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, we must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer's action caused severe injuries, was grossly disproportionate to the need for action under the circumstances, and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983.

Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).

Raley incorrectly argues that the trial court failed to evaluate all the factors mentioned, and instead discussed only the severity of his injuries. The court stated that it found "that the officers' actions were the product of a 'careless or unwise excess of zeal' rather than malice." As to proportionality of force to need, the court found that Raley's "minimal resistance ... did not justify Officer Fraser's draconian measures." The court did not, however, find the disproportion to be so gross as to make section 1983 applicable. The court held that the minor bruises and scrapes suffered by Raley did not meet the Shillingford severity requirement. The officers' behavior did not "[amount] to an abuse of official power that shocks the conscience." Id. We conclude that the record supports the findings and decision of the district court.

B. Probable Cause

Appellant challenges the trial court's findings of probable cause and good faith. We need not examine the latter, however, because the district court properly found probable cause to exist.

Under Tex.Penal Code Ann. Sec. 42.08(a) (Vernon 1974), "[a]n individual commits an offense [namely, public intoxication] if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another." For probable cause to have existed, " 'the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [must have been] sufficient in themselves to warrant a man of reasonable caution in the belief' that an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 60 L.Ed. 543 (1925)).

Raley wrongly argues that the court's finding that the officers' testimony was less credible than that of Raley's witnesses conflicts with its finding that the officers had probable cause. Though the court averred that it found the bystanders' testimony to be the more credible, it also explicitly found that Raley was "not perfectly sober" and that "[t]he officers throught [sic] that Raley had a belligerent tone in his voice, looked visibly angry, and slurred his speech." The court also stated that Raley swayed slightly and had a flushed face and bloodshot eyes. Sufficient testimony supported these findings. Hence the officers had probable cause to believe the appellant to be under the influence of alcohol, and the court's findings are not contradictory.

As for the statute's requirement that the inebriety be "to the degree that [the person] may endanger himself or another," Tex.Penal Code Ann. Sec. 42.08(a) (Vernon 1974), the officers saw a man whom they thought to be Raley throw down a sign and talk belligerently. He had gotten out of a car and might reasonably have been expected to drive sometime thereafter. The record supports the finding that the officers had probable cause to believe Raley was acting in contravention of Tex.Penal Code Ann. Sec. 42.08(a) (Vernon 1974), and the trial court properly rejected Raley's claim for unlawful arrest.

C. Punitive Damages

Raley argues that Fraser's actions entitle him to punitive damages as a matter of law. We cannot agree. Under Texas law, punitive damages are generally peculiarly within the province of the trier of fact. See Armes v. Campbell, 603 S.W.2d 249, 254 (Tex.Civ.App.--El Paso 1980, writ ref'd n.r.e.). This court follows the same rule. Longoria v. Wilson, 730 F.2d 300, 305 (5th Cir.1984).

The district court's finding was not clearly erroneous. Although the severity of the force used was disproportional to the provocation, the court's findings indicate that each of the four choke holds came in response to resistance by Raley. Raley's injuries were minimal. The district court did not clearly err in finding that Fraser acted overzealously rather than maliciously.

D. Attorney's Fees

Should a plaintiff in a section 1983 action who prevails on a pendent state law claim and fails on his section 1983 claim be considered a "prevailing party" for purposes of 42 U.S.C. Sec. 1988 (1982)? The district court ruled that a plaintiff so situated should not recover attorney's fees. We agree.

The language of section 1988 unambiguously provides that in an action to enforce section 1983, the court, "in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." 42 U.S.C. Sec. 1988 (1982) (emphasis added). At issue is the construction of "prevailing party." This court has construed this statutory language in Williams v. Thomas, 692 F.2d 1032, 1036 (5th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983), under facts similar to but not identical with ours:

[It] is significant that the district court rendered judgment for [the plaintiff] based upon his successful state pendent tort action. In Maher v. Gagne, 448 U.S. 122, [132 n. 15] 100 S.Ct. 2570, 2576 n. 15, 65 L.Ed.2d 653 (1980), the Supreme Court intimated that a party prevailing on a substantial claim that is pendent to a civil rights claim is entitled to a recovery of attorney's fees when the civil rights claim and the pendent claim arise out of a common nucleus of operative facts.

The court elaborated the several circuit court cases it found following this direction: "These cases demonstrate that the federal courts are aware of the fact that often a court will affirm a judgment on a pendent, noncivil rights claim when to do so will allow it to avoid an unneccessary decision on a difficult constitutional issue." 692 F.2d at 1036. In Williams, the trial court rejected the jury finding in favor of the good faith defense, decided there was liability on the section 1983 claim, and awarded $500 as compensation for the section 1983 claim and the pendent assault and battery claim. The appeals court affirmed the award of $500 in compensatory...