Shannon Kohler v. Pat Englade


UNPUBLISHED OPINION FILED. [09-30726 Affirmed in Part, Reversed in Part, and Remanded] Judge: EGJ , Judge: HRD , Judge: JLD Mandate pull date is 10/20/2010 [09-30726]

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Shannon Kohler v. Pat Englade Doc. 0 Case: 09-30726 Document: 00511247916 Page: 1 Date Filed: 09/29/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED September 29, 2010 N o . 09-30726 Lyle W. Cayce Clerk S H A N N O N KOHLER, P la in t iff - Appellant v. C H R I S T O P H E R JOHNSON, D e fe n d a n t - Appellee A p p e a l from the United States District Court for the Middle District of Louisiana U S D C No. 3:03-CV-857 B e fo r e JOLLY, DeMOSS, and DENNIS, Circuit Judges. E . GRADY JOLLY, Circuit Judge:* I n 2001, one Derrick Todd Lee began a terrifying spree around Baton R o u g e , Louisiana, raping and killing three women. While investigating these c r im e s , law enforcement, acting pursuant to anonymous tips and a criminal p r o file , identified Shannon Kohler, the plaintiff and appellant here, as a person o f interest. Detectives Christopher Johnson and David Hamilton asked Kohler fo r a swab of his DNA. Kohler refused, so Johnson obtained a seizure warrant fr o m a judicial officer, and got Kohler's sample. After he was cleared of the Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 09-30726 Document: 00511247916 Page: 2 Date Filed: 09/29/2010 No. 09-30726 c r i m e s , Kohler brought this Section 1983 suit against Johnson and others, a lle g in g they had violated his Fourth Amendment rights. Following a winding p r o c e d u r a l journey, Kohler was awarded $20,000 in compensatory damages a g a in s t Detective Johnson only. Kohler, however, appeals, arguing the trial c o u r t erred in two ways: by quashing his subpoena to the City of Baton Rouge a n d issuing an accompanying protective order; and by denying, as a matter of la w , his claim for punitive damages. We hold that the trial court erred in dismissing Kohler's punitive damage c la im , but that the trial court did not err in quashing the subpoena and granting t h e protective order. We therefore affirm in part, reverse in part, and remand fo r further proceedings on punitive damages. I. K o h le r brought suit, under 42 U.S.C. 1983, against Detective Johnson a n d several others, asserting that collecting the swab against his wishes violated h is right to be free from unreasonable seizures, as provided by the Fourth and F ou rteen th Amendments to the United States Constitution and Article I, Section 5 of the Louisiana Constitution. The district court granted summary judgment t o all defendants. Kohler appealed to this court. On this first appeal, we affirmed the dismissal of all defendants except D e t e c t iv e Johnson.1 We vacated the grant of summary judgment on the claim t h a t Johnson had submitted a facially insufficient affidavit when he applied for t h e seizure warrant. Kohler v. Englade, 470 F.3d at 1115. We remanded this s in g le claim, pretermitting the issue of qualified immunity because Johnson had We have previously stated the facts in some detail, and by reference, incorporate that discussion. See Kohler v. Englade, 470 F.3d 1104, 1106-08 (5th Cir. 2006). 1 2 Case: 09-30726 Document: 00511247916 Page: 3 Date Filed: 09/29/2010 No. 09-30726 n o t argued the defense when he moved for summary judgment. Id. at 1113 n.8. We made clear that we affirmed the district court's dismissal of Kohler's claim b a s e d on Johnson's omission of exculpatory information from the seizure a ffid a v it . Id. at 1115. On remand, Kohler and Johnson submitted cross motions for summary ju d g m e n t . The district court found that, due to the abject deficiency of the a ffid a v it , Johnson was not entitled to qualified immunity. The court also found t h a t Johnson violated Kohler's constitutional rights by submitting the affidavit t h a t ultimately caused the seizure of Kohler's DNA. The only remaining jury is s u e was the amount of Kohler's damages. Six days before trial, Kohler issued a subpoena to the City of Baton Rouge s e e k in g numerous documents. The City successfully moved to quash the s u b p o e n a , a protective order was issued, and the trial commenced. At the close of Kohler's case, Johnson moved for judgment as a matter of la w ("JMOL"). The claim for compensatory damages was permitted to proceed. Over Kohler's protest, the district court dismissed the claim for punitive d a m a g e s . In granting the JMOL,the district court held that Kohler had failed t o present evidence that demonstrated Johnson's requisite mental state. After J o h n s o n presented his defense, the jury awarded Kohler $20,000 in c o m p e n s a to r y damages. Kohler's motion for a new trial was denied. He appeals. II. O n appeal, Kohler argues that the trial court erred on two grounds: by q u a s h in g the subpoena issued to the City of Baton Rouge and granting the a c c o m p a n y in g protective order; and further by taking the question of punitive d a m a g e s away from the jury. 3 Case: 09-30726 Document: 00511247916 Page: 4 Date Filed: 09/29/2010 No. 09-30726 A. W e review a district court's decision to quash a subpoena for an abuse of discretion and will affirm the court's decision unless it was "arbitrary or clearly unreasonable." Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 817 (5th Cir. 2 0 0 4 ) (footnotes and citation omitted). K o h le r argues that the documents would prove intent by showing that J o h n s o n knew or should have known he had no reasonable basis to suspect K o h le r was the serial killer. For present purposes, we will make this a s s u m p t i o n . Kohler fails, however, to address the trial court's rationale for q u a s h in g the subpoena. The district court found, under Federal Rule of E v id e n c e 403, "the tenuous relevance of such documents to be substantially o u tw e ig h e d by the danger of unfair prejudice as well as jury confusion." In the b r ie f before us, Kohler devotes only one sentence of argument in response, and fa ils to cite any authority in support of reversing this finding of the district cou rt. The argument is thereby waived. See L & A Contracting Co. v. S. C o n c r e te Servs., Inc., 17 F.3d 106, 113 (5th Cir. 1994); see also FED. R. APP. P. 2 8 (a )(9 )(A ). W e thus hold the trial court did not err in quashing the subpoena and is s u in g an accompanying protective order. B. W e turn now to decide whether the jury should have been allowed to d e c id e the claim for punitive damages. On appeal, Kohler argues that he presented sufficient evidence to the jury t o support punitive, as opposed to compensatory, damages: Officer Hamilton r e p o r t e d to Johnson that he was unable to continue with the investigation, yet 4 Case: 09-30726 Document: 00511247916 Page: 5 Date Filed: 09/29/2010 No. 09-30726 J o h n s o n continued to investigate Kohler; Kohler had an alibi that was never c h e c k e d out; Johnson sought a seizure warrant knowing that the bloody fo o t p r i n t left at the scene could not be Kohler's, as Kohler had a size thirteen fo o t , and the print at the scene was size ten or eleven;2 Johnson's affidavit m e n tio n e d that Kohler had a burglary conviction, but Johnson failed to report a corresponding pardon; and Detective Hamilton told Kohler that, should he fail t o cooperate, his name could wind up in the public records, and Johnson did, in fa c t , subsequently file, with the clerk of court, unsealed copies of the affidavit, w a r r a n t, and warrant return. Johnson addresses each argument in turn: Officer Hamilton was not r e p o r t in g on the merits of the investigation against Kohler, but merely reporting K o h le r 's refusal to provide his DNA; Kohler's alibi was unspecified, and thus u n w o r t h y of investigation; Kohler's claim that Johnson omitted exculpatory in fo r m a t io n was barred, see Kohler v. Englade, 407 F.3d at 1114, and thus e v id e n c e thereof should not be considered to establish his mental state; the shoe s iz e disparity was not reason to cease investigating Kohler, as the footprint could have been left by someone other than the criminal; under Louisiana Law, a pardon is a mere "matter of grace from the state;" and the documents were p u b lic ly filed in order to accommodate Kohler's request that his DNA sample be expunged. U n d e r Federal Rule of Civil Procedure 50(a), "after a party has been fully h e a r d on an issue during a jury trial and the court finds that a reasonable jury w o u ld not have a legally sufficient evidentiary basis to find for the party on the It was later determined that the footprint was left not by the murderer, but by the victim's roommate. 2 5 Case: 09-30726 Document: 00511247916 Page: 6 Date Filed: 09/29/2010 No. 09-30726 i s s u e " a district court may resolve the issue against the party by granting a m o t io n for judgment as a matter of law. In resolving such motions, we view all o f the evidence "in the light and with all reasonable inferences most favorable t o the party opposed to the motion." Hagan v. Echostar Satellite, L.L.C., 529 F .3 d 617 (5th Cir. 2008). On the other hand, "[t]here must be a conflict in s u b s t a n t ia l evidence to create a jury question." Foreman v. Babcock & Wilcox C o ., 117 F.3d 800, 804 (5th Cir. 1997) (quotation marks and citation omitted). In a Section 1983 action, a plaintiff may be awarded punitive damages if " t h e defendant's conduct is shown to be motivated by evil motive or intent, or w h e n it involves reckless or callous indifference to the federally protected rights o f others." Smith v. Wade, 461 U.S. 30, 56 (1983); see also Hale v. Fish, 899 F.2d 3 9 0 , 404 (5th Cir. 1990). The latter standard has been further defined as " s u b je c t iv e consciousness of a risk of injury or illegality and a criminal i n d i f f e r e n c e to civil obligations." Williams v. Kaufman County, 352 F.3d 994, 1 0 1 5 (5th Cir. 2003) (citations and footnotes omitted). In a post-Smith decision, t h e Supreme Court provided a less complex definition, stating that the standard " a t a minimum, require[s] recklessness in its subjective form." Kolstad v. Am. D e n ta l Ass'n, 527 U.S. 526, 536 (1999). In Kaufman County, we found that the d e fe n d a n t was recklessly indifferent because his actions conflicted with "welle s t a b lis h e d " precedent requiring "individualized probable cause to search" in d iv id u a ls in a public place. 352 F.3d at 1015. Accordingly, for us to reverse, we must determine that a reasonable jury c o u ld find that Johnson had an evil intent or motive, or that he was recklessly 6 Case: 09-30726 Document: 00511247916 Page: 7 Date Filed: 09/29/2010 No. 09-30726 in d iffe r e n t to the federally protected rights of others. We believe that a r e a s o n a b le jury could find that Johnson was recklessly indifferent.3 A lt h o u g h this is a very close case, and Johnson makes plausible, even s t r o n g , arguments that the evidence does not support a punitive damage award, K o h le r obviously argues to the contrary, and we must view all of the evidence "in t h e light most favorable to the party opposed to the motion." Hagan, 529 F.3d a t 622. It appears to us that the evidence presents a jury question as to whether p u n i t iv e damages can be supported based on Johnson's conduct: he continued th e investigation, even though Hamilton was unable to proceed; omitted from his a ffid a v i t the exculpatory information 4 regarding the footprint disparity and K o h le r 's pardon;5 and subsequently publicly filed the affidavit. This evidence c o u ld support a finding by a reasonable jury that Johnson acted with reckless or c a llo u s indifference to Kohler's Fourth Amendment right to be free from u n r e a s o n a b le seizures. The district court therefore erred in granting the JMOL 6 We thus need not determine whether there is sufficient evidence to meet the heightened "evil motive or intent" standard. It is appropriate to consider the information that Johnson did not include in his affidavit, despite his argument to the contrary. We did rule that Kohler could not pursue his constitutional claim that was based upon these omissions, but we did not foreclose Kohler's use of the evidence underlying that constitutional claim for other purposes. See Kohler v. Englade, 407 F.3d at 1114. Here, the evidence is clearly relevant to Kohler's attempt to prove Johnson's intent. In reaching our conclusion, we do not rely upon Johnson's failure to investigate Kohler's alibi, or to apprise the judge of the alibi. Johnson testified that the alibi was never specified, and thus could not be investigated, and Kohler, during his case in chief, offered no evidence to support his claim. Although Kohler identifies the alibi on appeal, that evidence was not offered at trial and could not have been considered by the jury. We should note that the district court's error is in no small part due to the inadequacy of the plaintiff's response to the defendant's argument in support of the Rule 50 motion. We also note the inadequacy of the argument made in this respect in the Rule 59 post-verdict 6 5 4 3 7 Case: 09-30726 Document: 00511247916 Page: 8 Date Filed: 09/29/2010 No. 09-30726 p u r s u a n t to Federal Rule of Civil Procedure 50(a), and we reverse. The case is r e m a n d e d for a trial on punitive damages alone.7 III. Because Kohler failed to support his claim with an argument, we hold the t r ia l court did not err in quashing Kohler's subpoena and granting an a c c o m p a n y in g protective order. W e , however, hold that the trial court erred in granting Johnson's motion fo r judgment as a matter of law on Kohler's punitive damage claim. In c o n s id e r in g a JMOL, we must draw all reasonable inferences in favor of the n o n m o v in g party. Hagan, 529 F.3d at 622. Applying this standard to the facts o f this case, and to the threshold for punitive damages under Section 1983, we h o ld Kohler met his burden to avoid a JMOL. Specifically, we hold, drawing all fa c t u a l inferences in Kohler's favor, he has presented sufficient evidence for a r e a s o n a b l e jury to find that, under Williams v. Kaufman County, 352 F.3d at 1 0 1 5 , Johnson, in seeking a warrant against Kohler, not only lacked probable c a u s e but also acted with "subjective consciousness of a risk of injury or illegality a n d a criminal indifference to civil obligations." Accordingly, the case will be r e m a n d e d for a trial on punitive damages or for such other proceedings and r e lie f as are appropriate and not inconsistent with this opinion. The judgment motion. Although the result in this case might be different if the defendant had made proper objections below or on appeal regarding the plaintiff's preservation of these errors, the defendant has been silent on such defaults at each step of the case. In remanding for a trial solely on punitive damages, we should note that only the plaintiff appealed. The defendant did not appeal the $20,000 judgment against him and consequently we have no jurisdiction to address it any manner. 7 8 Case: 09-30726 Document: 00511247916 Page: 9 Date Filed: 09/29/2010 No. 09-30726 is therefore AFFIRMED in part and REVERSED in part, and the case is REM ANDED. A F F I R M E D in part, REVERSED in part, and REMANDED. 9

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