Von Stein v. Brescher

• Decision Date: 05 October 1988
• Docket Number: No. 83-6868-CIV.,83-6868-CIV.
• Citation: 696 F. Supp. 606
• Parties: Charles H. VON STEIN, Plaintiff, v. George A. BRESCHER, Kenneth Dale Grimm, Carl Carruthers and Michael Berk, Defendants.
• Court: U.S. District Court — Southern District of Florida

696 F. Supp. 606

Charles H. VON STEIN, Plaintiff, v. George A. BRESCHER, Kenneth Dale Grimm, Carl Carruthers and Michael Berk, Defendants.

No. 83-6868-CIV.

United States District Court, S.D. Florida.

October 5, 1988.

Rex Conrad, Ft. Lauderdale, Fla., for plaintiff.

Robert H. Schwartz, Gunther & Whitaker, P.A., Ft. Lauderdale, Fla., for defendant Brescher.

Bruce W. Jolly, Shailer, Purdy & Jolly, Ft. Lauderdale, Fla., for defendants Grimm, Carruthers and Berk.

ORDER

MARCUS, District Judge.

THIS CAUSE has come before the Court upon the Defendants' post-trial Motion for Judgment in Accordance with Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, and Motion for New Trial. For the reasons stated at length below, these motions must be and are hereby DENIED.

I. QUALIFIED IMMUNITY

To begin, Defendants' contend that this Court erred in submitting the question of qualified immunity to the jury, Defendants' Joint Memorandum of Law at 4 hereinafter "Joint Memo", and that the failure of the Court to resolve the question at the time the Defendants moved for a directed verdict "must now be deemed to negate and nullify the remainder of the verdict, regardless of whether the remainder of the questions were properly submitted." Id. at 5. The basis for our denial of Defendants' motions for judgment notwithstanding the verdict and for a new trial is two-fold: first, we are convinced that it was not error to give to the jury the question of qualified immunity; second, we conclude that the Defendants are not entitled to qualified immunity as a matter of law.

It is important to view the developments of this litigation against the changing background of the law of qualified immunity as explicated by the Supreme Court. Three cases are of particular importance in delineating both the legal standard to be applied as well as the law/fact dichotomy involved in the analysis. See Anderson v. Creighton, ___ U.S. ___, 107 S.Ct. 3034, 97 L.Ed. 2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

In Harlow, the Court rejected the subjective prong of the "good faith" qualified immunity inquiry, see, e.g., Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975), and embraced a wholly objective standard that shields government officials performing discretionary functions from liability for their actions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. 457 U.S. at 818, 102 S.Ct. at 2738 (citations omitted). One consideration upon which the Court's decision was based was to "permit the resolution of many insubstantial claims on summary judgment," id., because the question of subjective good faith was "considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury." Id. at 816, 102 S.Ct. at 2737 (footnote omitted).

Plaintiff filed this action on December 13, 1983, well after the Harlow ruling. At that time, the Eleventh Circuit had stated, in a post-Harlow decision reversing an order granting summary judgment, that in order for qualified immunity to lie "defendants must prove that their acts fall within the scope of discretionary authority. This involves a question of fact." Espanola Way Corp. v. Meyerson, 690 F.2d 827, 830 (11th Cir.1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 791 (1983). See also Wilson v. Attaway, 757 F.2d 1227, 1246-47 (11th Cir.1985) (not error to submit qualified immunity defense to the jury). On September 11, 1984 Defendants moved for summary judgment based on the defense of qualified immunity. Two months later, the Honorable Sidney M. Aronovitz, denied Defendants' motion stating "there is a genuine dispute of material fact on the issue of qualified immunity and liability of the Defendants under 42 U.S.C. § 1983. Defendants, of course, may raise the defense of qualified immunity again at the time of trial." Omnibus Order, December 19, 1984 (emphasis added). Defendants appealed the denial of their motion to the Eleventh Circuit Court of Appeals Notice of Appeal, January 4, 1985.

Between the date the appeal was filed and the return of the mandate by the Eleventh Circuit, the Supreme Court decided Mitchell, supra. In that case, the Court found that under the collateral order doctrine, see, e.g., Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), "the denial of qualified immunity should be ... appealable." Mitchell, 472 U.S. at 527, 105 S.Ct. at 2816. Underlying this decision was the recognition that the qualified immunity doctrine was meant to create an "immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Id. at 526, 105 S.Ct. at 2815 (emphasis in original). The Court held that "the denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Id. at 530, 105 S.Ct. at 2817 (emphasis added).

The Eleventh Circuit dismissed the appeal in the instant case in a brief per curiam decision. The court stated:

On appeal from the district court's denial of defendants' motion for summary judgment on the grounds of qualified immunity, defendants have failed to establish their entitlement to summary judgment as a matter of law. We agree with the district court's view that there are relevant disputed facts. Under the rule of Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 53 U.S.L.W. 4798 (1985), the district court's denial of summary judgment was not an appealable final judgment.

Von Stein v. Brescher, No. 85-5042, slip. op. at 2 (11th Cir. December 31, 1985) 781 F.2d 903 (table). From this decision we can glean two important principles. We learn first that Judge Aronovitz' order of September 19, 1984 did not resolve the ultimate legal question of the Defendants' entitlement to qualified immunity, because the denial of summary judgment on the issue of the existence of "clearly established law" would have been directly appealable to the Eleventh Circuit under Mitchell. In effect, the Circuit affirmed Judge Aronovitz' determination that, as a matter of law, there existed a genuine issue of material fact as to whether the Defendants actually engaged in the conduct of which the Plaintiff complained. See Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir.1988). Second, the Circuit's decision to dismiss the appeal was consistent with its rulings in Wilson, supra, and Espanola Way Corp., supra, finding that there exists a fact component of the qualified immunity inquiry proper for consideration by a jury. Therefore, the guidance provided to this Court by the Circuit's decision was that at that point in the litigation, questions of fact and law remained to be resolved.

The Eleventh Circuit's view of the fact and law inquiries relevant to the resolution of the qualified immunity issue has been recently explained. On a Defendant's motion for summary judgment the government official must first put forth evidence that the actions were discretionary in nature. Rich, 841 F.2d at 1563-64 (citing Ziegler v. Jackson, 716 F.2d 847 (11th Cir. 1983)). After this threshold burden has been met, two legal issues must be decided. The court must "ascertain ... the law that was clearly established at the time of the defendant's action, and ... determine ... the existence of a genuine issue of fact as to whether the defendant engaged in conduct violative of the rights established by that ... law." Id. at 1564; see also Herren v. Bowyer, 850 F.2d 1543, 1546 (11th Cir.1988); Webb v. Ethridge, 849 F.2d 546, 550 (11th Cir.1988).

In the instant case the Court had ruled as to the existence of a question of fact regarding the Defendants' conduct. Omnibus Order, December 19, 1984. However, no decision has ever issued as to whether the alleged conduct, if it actually occurred, would have been violative of clearly established law. On July 2, 1986, the Plaintiff moved for partial summary judgment claiming that Defendants were not entitled to qualified immunity as a matter of law. Plaintiff eventually withdrew that motion from the Court's consideration. See Von Stein's Response to Defendants' Post-Trial Motions at 12. On January 16, 1987 Defendants filed a memorandum styled "Defendants' Memorandum in Support of Their Motion for Partial Summary Judgment." In a reply memorandum, Plaintiff asserted that "Defendants do not have a motion for partial summary judgment pending." Plaintiff's Reply memorandum, January 22, 1987, at 2. That contention was correct. Defendants' memorandum was responsive to a Court Order of December 31, 1986 requiring further briefing on the qualified immunity issue, and this Court was never called upon to rule on any "renewed" summary judgment motion. After the close of Plaintiff's case at trial, Defendants moved for a directed verdict on the grounds of, inter alia, qualified immunity. We reserved our ruling. Defendants have again raised the question of qualified immunity in their post-trial motions.

At the outset, we observe that the submission of the question of qualified immunity to the jury was not erroneous and the decision to instruct the jury was in fact favorable to the Defendants by giving them in essence two avenues for success on that basis. Moreover, under Federal Rule of Civil Procedure 51, Defendants requested such an instruction and accordingly did not object to its use. See Excerpt Transcript of Jury Trial Before the Honorable Stanley Marcus August 10, 1987, at 20, 24-25 (hereinafter "Transcript"); Transcript I, August 11, 1987 at 15-17; Transcript II, August 11, 1987, at 3. Therefo...