Rogers v. Board of Trustees of Town of Fraser, s. 91CA0793

Docket NºNos. 91CA0793
Citation859 P.2d 284
Case DateApril 08, 1993
CourtCourt of Appeals of Colorado

Barry D. Roseman, Denver, for plaintiff-appellant and cross-appellee.

Hall & Evans, Cathy S. Harris, Thomas J. Lyons, Denver, for defendants-appellees and cross-appellants.

Opinion by Judge TAUBMAN.

Plaintiff, Monte L. Rogers, brought this action against defendants, Board of Trustees of the Town of Fraser and the Town of Fraser (Fraser), alleging that he had been improperly dismissed as a town employee in violation of his contractual rights and his federal constitutional rights pursuant to 42 U.S.C. § 1983. After protracted litigation, the district court ruled that improper procedures followed by defendants rendered plaintiff's dismissal null and void, but it declined to order his reinstatement with back pay. And, upon trial, a jury found in favor of plaintiff on his contract and due process claims, but awarded only nominal damages. The district court also awarded Rogers attorney fees. From these results, both parties appeal, and we affirm.

Rogers filed this case in September 1986, seeking relief based upon three claims--a claim for judicial review pursuant to C.R.C.P. 106(a)(4); his § 1983 due process claim; and a claim based upon an alleged breach of Fraser's personnel policies handbook.

In May 1987, the district court granted summary judgment on all three claims to Fraser; however, that judgment was reversed by this court. See Rogers v. Board of Trustees, (Colo.App. 87CA1048, April 6, 1989) (not selected for official publication). On remand, the district court ruled that the defendants had violated Rogers' rights under the Colorado Public Meetings Law, § 29-9-101, C.R.S. (1986 Repl.Vol. 12A), by voting to deny Rogers' grievance in a meeting closed to the public and from which Rogers was excluded. It also found that the actions of certain trustees of the defendant board were a "grave constitutional violation" and that the defendant board violated Rogers' appeal rights "by acting twice on the very issue being appealed."

Although the district court found that the Fraser board's termination of Rogers was null and void as a violation of the Colorado Public Meetings Law, it declined to order that Rogers be reinstated or that he be provided with back pay. Instead, it ordered the defendants to establish appropriate administrative review procedures to assure Rogers an opportunity for a fair administrative hearing comporting with the requirements of due process.

Pursuant to this order, the defendants established a new appeal procedure, with an appeals panel consisting of the town managers of three nearby towns. Rogers received a hearing under these new procedures, and the new administrative appeals panel found that he had been terminated with good cause.

Meanwhile, in January 1991, the district court held a jury trial on Rogers' contract and due process claims. The jury found that Fraser had not given Rogers a hearing before a neutral and impartial hearing body after he had been discharged, but that it had established good cause to terminate his employment. The jury also found that there existed an employment contract between Rogers and Fraser, under the terms of which Rogers could only be terminated for cause. Based upon these findings, the jurors awarded nominal damages of $1.00 to Rogers on his contract claim and $1.00 on his due process claim.

The issues before us in this proceeding are: (1) whether, as to the § 1983 claim, the district court erred in failing to instruct the jury that it was required to find that the defendant board members acted with deliberate indifference; (2) whether the district court properly awarded $29,518.50 in attorney fees to Rogers as the prevailing party on his § 1983 claim; (3) whether the district court erred in not ordering Rogers' reinstatement with back pay; (4) whether the district court erred in admitting into evidence the resolution adopted by the Fraser board denying Rogers' grievance; (5) whether the district court erred in not setting aside the jury's verdict of nominal damages for the contract claim; and (6) whether the district court was correct in ordering the defendants to reconstitute their administrative review process.

I. § 1983 CLAIM

Rogers alleged that his civil rights were violated by Fraser's terminating him without an opportunity for a hearing before a neutral, impartial hearing officer or board. Indeed, he alleged, and the district court found, that the defendant board members participated in the initial termination decision and later sat as an appeals board during his administrative appeal. Fraser, however, maintains that the district court erred in not instructing the jury that it was required to find "deliberate indifference" by the defendants before it could find a violation of § 1983. We disagree with Fraser.

In § 1983 cases, a municipality cannot be held liable under the theory of respondeat superior. Rather, a municipality can be held liable only for violation of a policy, custom, ordinance, regulation, or decision officially adopted and promulgated by the municipality's officers. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

In the absence of respondeat superior liability, the Supreme Court applied a standard of "deliberate indifference" in City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), holding that a municipality may be liable under § 1983 if it had a policy or custom of failing to train its employees, if that failure to train caused the constitutional violation, and if the failure to train amounted to "deliberate indifference" to the rights of persons with whom that employee came into contact. The Supreme Court has also ruled, in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), that negligence cannot form the basis of a money damages liability claim under § 1983. However, taken together, these cases do not stand for the proposition advanced by the defendants that "deliberate indifference" must be shown in all cases to establish liability under § 1983. Rather, in Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court made clear that a municipality could be held liable under § 1983 for a single decision by its final decision-making authority on the ground that such decision "unquestionably constitutes an act of official government policy." Pembaur v. City of Cincinnati, 475 U.S. at 480, 106 S.Ct. at 1298, 89 L.Ed.2d at 463. The Pembaur Court held that a municipality could be liable under § 1983 if "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. at 483, 106 S.Ct. at 1300, 89 L.Ed.2d at 465.

Accordingly, the "deliberate indifference" standard for establishing a violation of § 1983 is to be applied only to claims against the governmental entity for the actions or inactions of non-policymakers, in which the entity's liability is grounded upon the policy-makers' prior failure to train, to instruct, or otherwise to correct those actions or inactions. See Schwartz & Kirklin, Section 1983 Litigation: Claims, Defenses and Fees § 7.10 (2d Ed.1991). Here, the "deliberate indifference" standard does not apply to the deliberative actions of those with final decision-making authority because the conduct of subordinates is not involved.

Hence, the trial court here did not err in refusing to instruct the jury upon this standard as requested by Fraser. Accordingly, we affirm with respect to the finding of liability under § 1983.


Fraser contends that Rogers is not entitled to an award of attorney fees because he received only nominal damages on his constitutional claim and because the district court erred in not applying the "deliberate indifference" standard. We disagree.

Pursuant to 42 U.S.C. § 1988, a prevailing party is entitled to an award of attorney fees if he or she succeeds "on any significant issue in litigation which achieves some of the benefit" the party sought in bringing the lawsuit. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983); Oten v. Colorado Board of Social Services, 738 P.2d 37 (Colo.App.1987). "The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Texas State Teachers Ass'n v. Garland Independent School District, 489 U.S. 782, 792-93, 109 S.Ct. 1486, 1494, 103 L.Ed.2d 866, 878 (1989). Moreover, a plaintiff who wins nominal damages is a prevailing party under § 1988. Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1993).

In Farrar, supra, the Supreme Court held that a plaintiff who receives only nominal damages often may not be entitled to any award of attorney fees. However, as Justice O'Connor's concurring opinion makes clear, the decision whether to award fees should be based upon three factors: (1) the difference between the amount recovered and the damages sought, (2) the significance of the legal issue on which plaintiff prevailed, and (3) accomplishing some public goal. Farrar, supra, 506 U.S. at ---- - ----, 113 S.Ct. at 578-79, 121 L.Ed.2d at 509-10. Here, although Rogers obtained only nominal damages, he met the second and third criteria for an award of attorney fees.

As the district court found,...

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