Smith v. Updegraff

• Decision Date: 25 October 1984
• Docket Number: 83-2237-SI,Nos. 83-2236-S,s. 83-2236-S
• Citation: 744 F.2d 1354
• Parties: 16 Fed. R. Evid. Serv. 748 Harold Arthur SMITH, Plaintiff-Appellee, v. Nathan D. UPDEGRAFF, Kenneth L. Whitehead, Robert Terlouw, Louise G. Mc Klveen, Dick Lee Dunsbergen, Alan K. Wheeler, and Jasper County, Iowa, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1354

744 F.2d 1354

16 Fed. R. Evid. Serv. 748

Harold Arthur SMITH, Plaintiff-Appellee, v. Nathan D. UPDEGRAFF, Kenneth L. Whitehead, Robert Terlouw, Louise G. Mc Klveen, Dick Lee Dunsbergen, Alan K.

Wheeler, and Jasper County, Iowa,

Defendants-Appellants.

Nos. 83-2236-SI, 83-2237-SI.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1984.

Decided Oct. 1, 1984.

Rehearing Denied Oct. 25, 1984.

Keith E. Uhl, Ann Fitzgibbons, Scalise, Scism, Sandre & Uhl, Des Moines, Iowa, for plaintiff-appellee.

Herbert S. Selby, Selby, Updegraff & Smith, Newton, Iowa, for defendant-appellant Updegraff.

Before BRIGHT and BOWMAN, Circuit Judges, and SWYGERT, Senior Circuit Judge. ^*

SWYGERT, Senior Circuit Judge.

Harold Smith brought this action under 42 U.S.C. Secs. 1983, 1985, and 1986, alleging that Jasper County, Iowa, Sheriff Darrell Hurley, Deputy Sheriffs Alan Wheeler and Dick Dunsbergen, County Attorney Kenneth Whitehead, and Civil Service Commissioners Nathan Updegraff, Louise McKlveen, and Robert Terlouw conspired together and deprived him of his constitutional rights to freedom from coercion, due process of law, and equal protection. The suit arose from the plaintiff's discharge on February 6, 1976 from his position as deputy sheriff of Jasper County, as well as from actions allegedly taken by the defendants both before and after his discharge. The case proceeded to trial in federal court on June 7, 1982. At the close of the plaintiff's case, the district court dismissed the claims under 42 U.S.C. Secs. 1985 and 1986. On the section 1983 claim, the jury returned a verdict against all the defendants except Jasper County, ¹ assessing actual damages of $20,000 and punitive damages of $30,000 against defendant Updegraff, actual damages of $20,000 and punitive damages of $30,000 against defendant Whitehead, actual damages of $12,000 and punitive damages of $3,000 against defendant Dunsbergen, actual damages of $12,000 and punitive damages of $3,000 against defendant Wheeler, actual damages of $10,000 against defendant Terlouw, and actual damages of $10,000 against defendant McKlveen. The district court then directed a verdict for defendants Terlouw and McKlveen and entered a judgment for plaintiff Smith and against the remaining defendants for the damages assessed by the jury.

In their posttrial motions the defendants contended, among other things, that the jury verdict forms were improper because they gave the jury the opportunity to apportion actual damages when the applicable standards required joint and several liability. The district court concluded that the jury verdicts as to actual damages were improper and ordered a new trial on the issue of damages alone unless the plaintiff agreed to a remittitur. The remittitur assessed actual damages of $12,000 jointly and severally against defendants Updegraff, Whitehead, Dunsbergen, and Wheeler, and assessed punitive damages as determined by the jury. The court further ordered attorney fees of $18,774 be awarded to the plaintiff if he agreed to remittitur. The plaintiff subsequently accepted remittitur.

Defendants Updegraff, Whitehead, Dunsbergen, and Wheeler appeal the judgment against them on a number of grounds. They contend that (1) Smith's civil rights claim is barred because of prior state court proceedings, (2) the action is barred by the applicable statute of limitations, (3) defendant Whitehead is immune from a section 1983 suit for damages, (4) the district court erred in admitting hearsay evidence under Federal Rules of Evidence 801(d)(2)(E), (5) the evidence was insufficient to support the jury's verdict, (6) the defendants are entitled to a new trial because of the improper jury verdict forms, and (7) the plaintiff is not entitled to attorney fees because his application for fees was not timely filed and the award was not in the interest of justice. Before addressing each of these issues, we will first outline the testimony of the trial, stated in the light most favorable to the plaintiff, and describe the procedural background of this action.

I

A. Evidence at Trial

Harold Smith was hired as a Jasper County deputy sheriff on July 1, 1974. At that time Hurley was the sheriff and Wheeler was the first deputy sheriff. Later that year Dunsbergen was also hired as a deputy sheriff after taking a civil service examination and being certified as eligible by the Jasper County Civil Service Commission. Updegraff, McKlveen, and Terlouw were then members of the Commission, with Updegraff serving as chairman.

The conspiracy between the defendants was alleged to have begun in July 1974. Smith testified that on July 22, 1974, the night Dunsbergen took the civil service examination for prospective deputy sheriffs, he met Updegraff at the courthouse and informed him that Dunsbergen was not a high school graduate and therefore did not qualify for a deputy sheriff's position. Smith knew from a previous conversation with Hurley that Dunsbergen was to be the new deputy sheriff but was not a high school graduate. Hurley told Smith that he had discussed it with Updegraff and Updegraff was "going to take care of it." Because Smith did not want to be part of a "cover-up," he questioned Updegraff about Dunsbergen's eligibility. Updegraff became upset and told Smith that if Smith would take care of his job, he would take care of his. As soon as Smith arrived at work the next day, Hurley reprimanded him for his conversation with Updegraff. Several days later Smith talked to County Attorney Whitehead about Dunsbergen's ineligibility and Whitehead said he would take care of it. Dunsbergen was nevertheless hired as deputy sheriff. Smith apparently took no further action regarding the Dunsbergen hiring until October 1975.

In January 1975 Smith began an investigation of the Jasper County Home, an investigation previously initiated by Dean Danley. Danley had been recently fired from his position as a Jasper County deputy sheriff and was then Chief of Police of Colfax, Iowa. Over the course of several months, Smith interviewed twenty-five people and began preparing a case report on his investigation. In May 1975 his written report disappeared. Smith noticed as well that coffee had been spilled on other reports, and that his desk had been rifled. At the same time Hurley issued a new directive requiring deputies to report their position every hour on the hour. In the fall of 1975 Smith met with Whitehead and suggested that he had sufficient evidence of irregularities in the administration of the Home to warrant a full investigation. Whitehead became very irritated and told Smith that if he did not stop investigating the County he would suffer the consequences. Smith then discussed his investigation with the foreman of the Jasper County grand jury, Howard Alexander. Alexander and Smith together interviewed several people about problems at the Home. Alexander later met with Whitehead and discussed the investigation. When Whitehead failed to do anything, Smith and Alexander visited the Iowa Attorney General's office in September 1975 and turned over their information to state investigators. In early 1976 state officials revoked the Jasper County Home license.

In late August 1975 Robert Hurlbutt was hired by Jasper County, after being approached by Dunsbergen. He testified that he later had conversations about his duties with Hurley, and with Dunsbergen and Wheeler together at Dunsbergen's home. As a result of these conversations, he understood that he primarily was to investigate Smith rather than drug cases, which he allegedly had been hired to investigate. He further testified that Dunsbergen told him that they wanted to get Smith fired, and that if the job was accomplished they would need someone to fill the vacancy created. Wheeler and Hurley also indicated to Hurlbutt that they wanted to get Smith out of the department. Both Wheeler and Dunsbergen told Hurlbutt that Smith was corrupt and crooked and to do anything he could to get rid of him. Hurlbutt testified that he found nothing through his investigation to support this accusation. He further testified about conversations with Wheeler and Dunsbergen regarding the upcoming election for sheriff. Wheeler and Dunsbergen were both considering running for sheriff, and Hurlbutt had the impression that it was a team effort and they were concerned about running against Smith.

On October 7, 1975, Danley and Smith attended a Jasper County Civil Service Commission hearing. Danley told the Commission that he had an inquiry about the illegal hiring of unqualified deputy sheriffs. Smith also spoke on the subject. Danley questioned the Commission about its policy with regard to legal requirements. Updegraff avoided giving an answer concerning educational requirements and threatened to remove Danley from the meeting.

The next day Deputy Sheriff Lola Angel returned the lost Jasper County Home file to Smith. She testified that Hurley told her to keep it in her desk drawer, that she was not involved in the investigation, and that it was unusual to keep that file in her desk drawer. A few days later Smith had a conversation with Hurley regarding Smith's appearance at the Commission meeting as well as Smith's visit to the Attorney General's office in September. Hurley had been made aware of the Attorney General's investigation as a result of a telephone call from Whitehead. He was very angry that Smith attended the meeting, and was very upset about the investigation telling Smith that he was "the one who caused it."

During this time period, Smith believed he was being followed. He also testified that one night in November 1975, he noticed a vehicle being driven past his house several times. He went outside, hid behind some bushes, and heard two gun shots, which he was sure came from the vehicle. He got a fairly good look at the vehicle and believed that it was Hurley's private automobile. Danley testified that he was...