Rock v. McCoy, 84-2316

• Citation: 763 F.2d 394
• Decision Date: 07 June 1985
• Docket Number: No. 84-2316,84-2316
• Parties: Charlie ROCK, Jr., Plaintiff-Appellee, v. Roy McCOY and the City of Checotah, Oklahoma, a municipal corporation; Wesley Jackson Emerson a/k/a Doc Emerson, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 394

763 F.2d 394

Charlie ROCK, Jr., Plaintiff-Appellee, v. Roy McCOY and the City of Checotah, Oklahoma, a municipal

corporation; Wesley Jackson Emerson a/k/a Doc

Emerson, Defendants-Appellants.

No. 84-2316.

United States Court of Appeals, Tenth Circuit.

June 7, 1985.

Rehearing Denied July 30, 1985.

Weldon Stout of Kennedy, Kennedy, Wright & Stout, Muskogee, Okl., for defendants-appellants.

Michael E. Kelly of Muskogee, Okl., for plaintiff-appellee.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

Charlie Rock, a full-blooded Cherokee Indian, brought this civil rights action against the City of Checotah, Oklahoma, and two police officers working for the City, Roy McCoy and Wesley Jackson "Doc" Emerson. Rock claimed damages pursuant to 42 U.S.C. Sec. 1983 because the defendant police officers had used excessive force in arresting him as a result of the City's negligent failure to train them properly, and because he had not received adequate medical attention in the City's jail after the officers' use of excessive force against him. Rock claimed violation of his Fourth, Sixth, Eighth, and Fourteenth Amendment rights. After trial to a jury, Rock was awarded actual damages of $2,100 and punitive damages of $1,000 against Roy McCoy; actual damages of $2,100 and punitive damages of $1,000 against "Doc" Emerson; and actual damages of $100,000 against the City of Checotah. The defendants' motion for judgment notwithstanding the verdict was denied, and the defendants appeal that denial. Before considering the defendants' specific contentions on appeal, the pertinent facts will be summarized. Since this appellate court will not retry facts, the jury's evaluation of conflicting evidence is conclusively binding on appeal. Rodgers v. Hyatt, 697 F.2d 899, 905 (10th Cir.1983). We therefore view the facts in the light most favorable to the jury verdict. Hewitt v. City of Truth or Consequences, 758 F.2d 1375 (10th Cir.1985).

Rock's first confrontation with the defendant McCoy came in the early morning hours of Sunday, August 29, 1982. Rock was at a truck stop in Checotah, eating breakfast. McCoy and another police officer were seated at another table, drinking coffee. Rock felt that the officers were looking at him and talking about him, so he approached McCoy and asked if the officer needed to talk to him. A scuffle ensued between Rock and McCoy; the parties' versions differ as to who was the aggressor. Tr. 56, 333-34. In any event, Rock was arrested, taken to jail, and released later in the morning.

Later that same Sunday, around 7:00 p.m., the police received a call from Mrs. Luke, Rock's mother-in-law. Mrs. Luke had apparently called the police because Rock was drunk and would not leave. Tr. 280. McCoy responded to the call, taking with him Robert Frost, the police dispatcher. As the police car containing McCoy and Frost approached the Luke residence, Rock's car passed, traveling in the opposite direction. The police car turned around and followed Rock's car to Rock's house. The police car pulled into the driveway behind Rock's car. McCoy got out, approached Rock's car, and demanded that Rock get out of the car. Apparently the door of Rock's car was jammed, making it necessary for Rock to swing around and kick the door open with his right foot. Tr. 61. McCoy then grabbed Rock by the feet, pulled him out of the car, and kicked him several times in the ribs, legs, and face. Tr. 62, 169, 189, 217. At this time Rock apparently blacked out. The kicking stopped when "Doc" Emerson, the other defendant police officer, arrived at the scene. The two officers then picked Rock up and placed him in the back seat of Emerson's police car. Then, with Rock's legs hanging out of the car, the car door was repeatedly slammed against Rock's shins. Tr. 173, 194, 221. Rock was again taken to jail. While in jail, the only treatment he received for his injuries consisted of having the blood on his nose cleaned away with a wet towel by a city employee. The next morning, Rock was released and taken home by Walter "Jack" Frost, the local Chief of Police.

The above recitation of the facts is based primarily on the testimony of Rock and of three eyewitnesses: Bonnie Bivens, Kim Bivens and Sheila Chandler. The testimony of the two defendant police officers was in substantial conflict on a number of points. For example, Emerson testified that as he tried to shut the car door, the door came in contact with the bottom of Rock's feet, not his shins. Tr. 306-07. McCoy admitted kicking Rock in the face, but testified that he did so because Rock was going for McCoy's gun. Tr. 351-52. For our purposes, these factual conflicts were resolved by the jury's verdict.

The Appellants' first contention is that the City cannot be liable under Sec. 1983 because the City neither participated in nor sanctioned the officers' actions. The Appellants cite Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1977), for the proposition that cities are liable under Sec. 1983 only when the plaintiff's deprivation of rights was the result of a city policy or custom. In the instant case, the City obviously had no policy or custom of having its police officers slam car doors on suspects' legs. Similarly, there was no personal participation of city officials in Rock's beating. The Monell case does indeed stand for the proposition for which the Appellants cite it, but Rock does not allege that the City had such a custom. Neither does Rock allege the kind of respondeat superior theory that Monell proscribes.

Rock's theory is that the City is liable because it was grossly negligent in failing to train the officers, with the foreseeable result that beatings like those inflicted on him would occur. The Appellants contend that the City's failure to train its officers constituted, at most, mere negligence, which is insufficient for Sec. 1983 recovery. The simple answer to this contention is that the jury disagreed. After being properly instructed on the standard to which the City must be held, ¹ without any objection thereto or to other instructions, the jury returned a verdict against the City. We hold that there was ample evidence to support that verdict--neither Emerson nor McCoy had received basic training at the Council of Law Enforcement Educational Training (CLEET), the State of Oklahoma's school where all Oklahoma police officers are trained. ²

The Appellants make similar contentions with regard to the City's liability for cruel and unusual punishment through its failure to provide adequate medical care. That is, they contend that the City, although perhaps negligent, did not exhibit the "deliberate indifference to serious medical need" necessary for Sec. 1983 liability. Here again, the trial court gave the proper instruction. ³ We hold that there was sufficient evidence presented of the City's failure to treat Rock's injuries to meet the deliberate indifference standard. The jury obviously disagreed with the Appellants' position.

The Appellants contend that there was no "affirmative link" between the City's failure to train and the injuries suffered by Rock, such ...