Cowart v. Erwin et al
Filing
210
MEMORANDUM OPINION AND ORDER denying 196 motion for judgment as a matter of law or, in the alternative, for a new trial. (Ordered by Senior Judge A. Joe Fish on 4/9/2015) (ctf)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MARK A. COWART,
Plaintiff,
VS.
OFFICER ROSALIND ERWIN,
Defendant.
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CIVIL ACTION NO.
3:10-CV-1800-G
MEMORANDUM OPINION AND ORDER
Before the court is the motion of the defendant, Rosalind Erwin (“Erwin”), for
judgment as a matter of law or, in the alternative, for a new trial (docket entry 196).
For the reasons discussed below, the motion is denied.
I. BACKGROUND
A. Factual Background
Mark A. Cowart (“Cowart”), the plaintiff, brought Eighth Amendment1 cruel
and unusual punishment claims through 42 U.S.C. § 1983 and Texas state law
assault claims against four detention service officers. These claims stem from an
1
“[T]he Due Process Clause of the Fourteenth Amendment incorporates
[against the states] the Eighth Amendment’s guarantee against cruel and unusual
punishment.” United States v. Georgia, 546 U.S. 151, 158 (2006) (citation omitted).
altercation between Cowart and various detention service officers that occurred on
April 14, 2009 while Cowart was incarcerated in the Dallas County Jail. Findings,
Conclusions, and Recommendation of the United States Magistrate Judge
(“Magistrate’s Findings”) at 1-2 (docket entry 95). Cowart alleges that what began as
a verbal altercation between him and a single officer, escalated into an “unprovoked
assault” in which he was “taken to the floor, kicked repeatedly in the head, ribs, and
groin, and sprayed with pepper spray by the four officers, which resulted in loss of
consciousness.” Id. at 2.
After a trial, the jury found that among the four defendants, only Erwin was
liable. See Verdict (docket entry 185). Specifically, the jury concluded that Erwin
violated Cowart’s Eighth Amendment rights both by using excessive force directly
against him and through a theory of bystander liability. Id. at 18-19. Moreover, the
jury determined Erwin committed an assault against Cowart under Texas state law.
Id. at 20-21. Based on the evidence presented at trial, the jury awarded Cowart
$10,000 in compensatory damages and $4,000 in punitive damages. Id. at 28-29,
32-33.
B. Procedural Background
Erwin made a motion for judgment as a matter of law both at the close of
Cowart’s case and after both sides had rested. Trial Transcript (“TT”) at 2:161-165,
178 (docket entries 202-05). After the court entered judgment on the jury’s verdict,
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Erwin renewed her motion for judgment as a matter of law under Federal Rule of
Civil Procedure 50(b) and, alternatively, requested a new trial under Rule 59(a)
(docket entry 196). Cowart filed a timely response (docket entry 206), to which
Erwin served a timely reply (docket entry 209). The motion is now ripe for
consideration.
II. ANALYSIS
A. Applicable Legal Standards
1. The Rule 50 Standard
A motion for judgment as a matter of law “challenges the legal sufficiency of
the evidence to support the verdict.” Hodges v. Mack Trucks, Inc., 474 F.3d 188, 195
(5th Cir. 2006). The “standard of review with respect to a jury verdict is especially
deferential.” Lubke v. City of Arlington, 455 F.3d 489, 494 (5th Cir. 2006) (citation
omitted).
[T]he court must review all of the evidence in the record,
drawing all reasonable inferences in favor of the
nonmoving party; the court may not make credibility
determinations or weigh the evidence, as those are jury
functions. In reviewing the record as a whole, the court
must disregard all evidence favorable to the moving party
that the jury is not required to believe. That is, the court
should give credence to the evidence favoring the
nonmovant as well as that evidence supporting the moving
party that is uncontradicted and unimpeached, at least to
the extent that that evidence comes from disinterested
witnesses.
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Brennan’s Inc. v. Dickie Brennan & Company Inc., 376 F.3d 356, 362 (5th Cir. 2004)
(internal quotation marks and citation omitted). A court can grant a Rule 50 motion
for the moving party only if after conducting the above evidentiary review, it
concludes “that a reasonable jury would not have a legally sufficient evidentiary basis
to find for [the non-moving] party on that issue . . ..” Hodges, 474 F.3d at 193 (citing
FED. R. CIV. P. 50(b)).
2. The Rule 59(a) Standard
Under Federal Rule of Civil Procedure 59(a), a court may grant a new trial “for
any reason for which a new trial has heretofore been granted in an action at law in
federal court.” This rule “confirms the trial court’s historic power to grant a new trial
based on its appraisal of the fairness of the trial and the reliability of the jury’s
verdict.” Smith v. Transworld Drilling Company, 773 F.2d 610, 612-13 (5th Cir. 1985).
“For example, a new trial may be granted if the court finds that the verdict is against
the weight of the evidence, that the trial was unfair, or that prejudicial error was
committed in the course of the trial.” Mid-Continent Casualty Company v. Eland Energy,
Inc., 795 F. Supp. 2d 493, 546 (N.D. Tex. 2011) (Fitzwater, Ch.J.), aff’d, 709 F.3d
515 (5th Cir. 2013).
B. Application
In her motion for judgment as a matter of law, Erwin contends the evidence is
legally insufficient to prove that she violated Cowart’s Eighth Amendment rights or
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assaulted him. Defendant Erwin’s Renewed Motion for Judgment as a Matter of Law
or Alternatively for a New Trial and Brief in Support (“Erwin’s Brief”) at 4-12
(docket entry 196). She also claims that the evidence is legally insufficient to
overcome her right to qualified immunity under federal law or official immunity
under state law. Id. at 12-13. Finally, Erwin argues that even assuming she
committed a violation for which immunity is not available, the evidence does not
support the compensatory damages award and punitive damages are improper. Id. at
13-15.
In the alternative, Erwin moves for a new trial pursuant to Federal Rule of Civil
Procedure 59. Id. at 1. Concluding that “no reasonable person could believe that
[the testifying inmates] did not in fact ‘conspire’ in their testimony or at least ‘match
up’ their testimony,” Erwin claims that allowing the verdict to stand will result in a
“miscarriage of justice.” Id. at 16-17. Similarly, she contends that “[g]iven the
testimony in this case about the conduct of ‘10 Officers,’ including Plaintiff’s
testimony that another Officer taunted him with racial slurs (‘white boy’), there is no
legally principled basis upon which a reasonable jury could find [her] at fault and no
other individual at fault.” Id. at 17. Finally, she argues that the jury’s apparent
confusion regarding damages justifies a new trial. Id. at 17-18. The discussion below
details why Erwin is not entitled to judgment as a matter of law or a new trial.
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1. Sufficient Evidence Supports the Jury’s Conclusion that Erwin Used Excessive
Force Against Cowart in Violation of the Eighth Amendment
“[T]he Eighth Amendment’s prohibition of cruel and unusual punishments
draws its meaning from the evolving standards of decency that mark the progress of a
maturing society and so admits of few absolute limitations.” Hudson v. McMillian,
503 U.S. 1, 8 (1992) (internal quotation marks, alterations, and citation omitted).
Generally, to establish an Eighth Amendment violation, a plaintiff must demonstrate
both that the defendant acted “with a sufficiently culpable state of mind and [that]
the alleged wrongdoing was objectively harmful enough to establish a constitutional
violation.” Id. (internal quotation marks, alterations, and citation omitted). In the
context of an Eighth Amendment excessive force claim, however, the objective
component is unnecessary because “[w]hen prison officials maliciously and
sadistically use force to cause harm, contemporary standards of decency always are
violated.” Id. at 9. Determining if an officer acted “maliciously and sadistically”
requires analyzing “the need for application of force, the relationship between that
need and the amount of force used, the threat reasonably perceived by the responsible
officials, . . . any efforts made to temper the severity of a forceful response,” and the
extent of the injury suffered. Id. at 7.
“[W]here a restrained or subdued person is subjected to the use of force[,] . . .
courts have frequently found constitutional violations.” Kitchen v. Dallas County,
Texas, 759 F.3d 468, 479 (5th Cir. 2014); see also Patterson v. Allen, Civil Action No.
-6-
3:12-CV-14, 2013 WL 4875092, at *3 (S.D. Tex. Sept. 11, 2013) (noting that an
officer would be liable for using excessive force if he punched a handcuffed and
shackled individual in the face). In a restrained or subdued position, an individual
generally poses a limited threat to officers.2 Thus, when force is used in such
circumstances, it is often used “maliciously and sadistically for the very purpose of
causing harm.” Kitchen, 759 F.3d at 477.
Sufficient evidence supports the jury’s conclusion that Erwin violated Cowart’s
Eighth Amendment rights. While Cowart was not handcuffed when Erwin initially
struck him, there was evidence indicating that he was on his knees with his hands
behind his back and facing a wall. TT, Cowart Testimony at 1:75, 78 (“[W]e were
told to assume a position, a submissive position, on our knees with our hands behind
our heads interlocked and our legs crossed with our elbows touching against the wall
. . .. Officer Erwin came around to me in front of me and stood above me and hit me
twice with closed fits [sic] with a right and then a left.”); TT, Benjamin Love
Testimony at 1:165-66 (“[T]he officer had him against the wall . . .. So next thing
you know, an SRT, a female officer, she hauled off and hit him.”); TT, Willie Allston
(“Allston”) Testimony at 1:210 (“Q: And in what position was Mr. Cowart when the
African-American female SRT hit him twice? A: He was on his knees. He still had
2
However, as the Fifth Circuit recently noted, “we emphasize that we do
not endorse a per se rule that no force may ever be used after an inmate has been
subjected to measures of restraint -- particularly if the effect of the restraint is only
partial.” Kitchen, 759 F.3d at 479 n.30.
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his knees behind his head. He just kind of lifted his forehead off the wall to turn
around to look and speak up on his property.”). In this subdued position, Cowart
posed little, if any, threat to Erwin. Thus, punching Cowart while in this position
establishes the “malicious and sadistic” intent necessary to violate the Eighth
Amendment.
2. Sufficient Evidence Supports the Jury’s Conclusion that Erwin Violated Cowart’s
Eighth Amendment Rights Under a Theory of Bystander Liability
“It is widely recognized that all law enforcement officials have an affirmative
duty to intervene to protect the constitutional rights of citizens from infringement by
other law enforcement officers in their presence.” Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994). Specifically, “an officer who is present at the scene and does not
take reasonable measures to protect a suspect from another officer’s use of excessive
force may be liable under section 1983.” Hale v. Townley, 45 F.3d 914, 919 (5th Cir.
1995) (citations omitted); see also Anderson, 17 F.3d at 557 (“An officer who fails to
intercede is liable for the preventable harm caused by the actions of the other officers
. . ..”). Accordingly, before holding a defendant liable under a theory of bystander
liability, the fact finder must determine if an officer “had a reasonable opportunity to
realize the excessive nature of the force and to intervene to stop it.” Hale, 45 F.3d at
919.
The jury had sufficient evidence to conclude Erwin violated the Eighth
Amendment by failing to prevent other officers from beating and pepper spraying
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Cowart after she initially struck him. Various witnesses testified that after Erwin
struck Cowart in the face, multiple officers proceeded to beat him. TT, Cowart
Testimony at 1:78-79 (“Q: Did you try to punch or attack Officer Erwin? A: I had
no opportunity to do anything. The two officers on each side of me and the ones
that were lined up behind me that I didn’t know were there all took me to the
ground. They swarmed me and took me to the ground and began to beat me and
stomp me until, eventually, I was unconscious. Right before I was unconscious, I got
sprayed on the ground with mace.”); TT, Johnny Lee Cowger (“Cowger”) Testimony
at 1:134 (“[A]nd the other officers, you know, jumped in and started, you know,
assaulting him, also.”); TT, Monticello Abrams (“Abrams”) Testimony at 1:150-51
(“Q: And after you saw the female officer hit Mr. Cowart, what did you see next?
A: The rest of them came down there, and they was holding him -- they had his arms
bent backwards, and they kept saying, stop resisting. He was like, I’m not resisting,
and that’s when they was macing him.”); TT, Woodrow Raymond Glover (“Glover”)
Testimony at 1:195 (“Well, when he got hit, he was going down, but as he was going
down, that’s when the rest of the SRTs -- they was on him. They was kicking and
punching him.”). Aspects of this testimony also indicate that Erwin possessed a
“reasonable opportunity to realize the excessive nature of the [impending] force and
to intervene to stop it.” Hale, 45 F.3d at 919; TT, Cowger Testimony at 1:134
(noting that some of the officers had to come “down the stairs” to begin assaulting
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Cowart); TT, Abrams Testimony at 1:151 (stating that after Erwin hit Cowart, “[t]he
rest of them came down there”) (emphasis added); TT, Allston Testimony at 1:210-11
(“Well, after she hit him, a bunch of other ones jumped in. I just kept hearing the
phrase, stop resisting, stop resisting. He wasn’t resisting. I saw a few other ones
come in.”). The jury reached the reasonable conclusion that as the individual who
initiated the physical conflict, Erwin could have “prevent[ed the] harm caused by the
actions of the other officers . . ..” Anderson, 17 F.3d at 557.
Erwin argues that the theory of bystander liability is inapplicable because the
jury did not find that any of the other three defendants directly violated Cowart’s
Eighth Amendment rights. Erwin’s Brief at 10-11. The jury charge states that
“bystander liability can only apply against an individual defendant if at least one
other defendant violated Cowart’s Eighth Amendment rights through the use of
physical force.” Verdict at 16. This instruction did not necessarily require the jury to
find one of Erwin’s three co-defendants liable in order to apply bystander liability
against Erwin. As Cowart notes in his response brief, “[i]t is entirely possible that the
jury concluded that the other defendants used excessive force in Officer Erwin’s
presence, and also concluded it could not determine [by a preponderance of the
evidence] which of the other defendants was involved.” Mark Cowart’s Response to
Officer Erwin’s Motion for Judgment as a Matter of Law and Motion for a New Trial
(“Cowart’s Response”) at 10 (emphasis in original) (docket entry 206). Such a
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conclusion is consistent with trial testimony. Multiple witnesses were able to
specifically identify Erwin but were incapable of identifying the other three codefendants as participating officers. TT, Abrams Testimony at 1:150-53; TT, Glover
Testimony at 1:195, 198.
3. Sufficient Evidence Supports the Jury’s Conclusion that Erwin
Committed an Assault Against Cowart Under Texas Law
Erwin correctly notes that “any activity that would otherwise subject a person
to liability in tort does not constitute tortious conduct if the actor is privileged to
engage in that conduct.” Erwin’s Brief at 11 (citation and emphasis omitted).
Section 83.001 of the Texas Civil Practice and Remedies Code states that “[a]
defendant who uses force or deadly force that is justified under Chapter 9, Penal
Code, is immune from civil liability for personal injury or death that results from the
defendant’s use of force or deadly force, as applicable.” In relevant part, Chapter 9 of
the Texas Penal Code states:
An officer or employee of a correctional facility is justified
in using force against a person in custody when and to the
degree the officer or employee reasonably believes the force
is necessary to maintain the security of the correctional
facility, the safety or security of other persons in custody or
employed by the correctional facility, or his own safety or
security.
TEX. PENAL CODE § 9.53. Relying on this statutory provision, Erwin contends her
actions were privileged. Erwin’s Brief at 11-12.
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However, the jury’s conclusion regarding Cowart’s Eighth Amendment claims
implies that Erwin acted “maliciously and sadistically” by punching Cowart when he
posed no physical threat. Supra at 6-8. In other words, the jury determined that
Erwin’s use of force was not “necessary to maintain the security of the correctional
facility, the safety or security of other persons in custody or employed by the
correctional facility, or [her] own safety.” TEX. PENAL CODE § 9.53. Thus, even
assuming the court erred in not submitting a jury instruction concerning this
privilege, the error was harmless.3 See FED. R. CIV. P. 61.
3
Instructing the jury on this issue would likely have been duplicative.
The jury charge contained an instruction for official immunity which provides officers
protection from “suits arising from the performance of (1) discretionary duties
(2) carried out in good faith (3) while acting within the scope of their authority.”
Verdict at 22. The first and third elements of official immunity are clearly satisfied
by the facts of this case. Infra at 15-16. Therefore, official immunity applied only if
Erwin acted in “good faith.” A finding of “good faith” requires a showing that “a
reasonably prudent officer, under the same or similar circumstances, could have
believed that his conduct was justified based on the information he possessed when
the conduct occurred.” Hidalgo County v. Gonzalez, 128 S.W.3d 788, 794 (Tex. App.-Corpus Christi 2004, no pet.) (citations omitted). The “reasonably prudent officer”
standard used when assessing “good faith” is likely coextensive with § 9.53’s
“reasonably believes” standard. Thus, in concluding “a reasonably prudent officer”
would not have believed Erwin’s conduct was justified, the jury indicated that Erwin
would also fail Texas Penal Code § 9.53’s “reasonably believes” standard.
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4. Qualified Immunity Does Not Cover Erwin’s Actions4
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks and citation
omitted). “The two-part inquiry into qualified immunity is first whether a
constitutional right would have been violated on the facts alleged, and second
whether the right was clearly established at the time of the violation.” Kitchen, 759
F.3d at 476 (internal quotation marks and citation omitted). Courts can address
these two prongs in any order. Pearson, 555 U.S. at 236.
The court has already concluded that sufficient evidence supports the jury’s
determination that Erwin violated the Eighth Amendment. Supra at 6-8. Therefore,
to assess Erwin’s defense of qualified immunity, the court must determine whether
Erwin violated a clearly established right. “To be clearly established for purposes of
qualified immunity, the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right. There
need not be a commanding precedent that holds that the very action in question is
4
The Supreme Court noted that qualified immunity “is effectively lost if
a case is erroneously permitted to go to trial.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks and citation omitted). A magistrate judge provided
the court with a recommendation to reject Erwin’s qualified immunity defense raised
in a motion for summary judgment. Magistrate Judge’s Findings at 11-14. The court
accepted this recommendation. Order (docket entry 97).
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unlawful; the unlawfulness need only be readily apparent from relevant precedent in
sufficiently similar situations.” Brown v. Miller, 519 F.3d 231, 236 (5th Cir. 2008)
(internal quotation marks and citations omitted). Pertinent to this case, the Fifth
Circuit has stated that officers have “reasonable warning that kicking, stomping, and
choking a subdued inmate would violate the inmate’s constitutional rights under
certain circumstances.” Kitchen, 759 F.3d at 479; see also Chacon v. York, 434 F.
App’x 330, 332 (5th Cir. 2011) (concluding that if an officer punched an inmate in
the eye without appropriate provocation, the defense of qualified immunity would
not apply). Based on these cases, “a reasonable official would understand that what
[Erwin was] doing” violated the Eighth Amendment. Brown, 519 F.3d at 236.
It is equally clear that Erwin had a duty to intervene and prevent the other
officers from violating Cowart’s constitutional rights. Garza v. Miller, Civil Action
No. H-09-1433, 2010 WL 3447658, at *9 (S.D. Tex. Aug. 30, 2010) (“A prison
guard has a duty to intervene and attempt to end an assault on an inmate.”); see also
Hale, 45 F.3d at 919 (“The district court correctly held that an officer who is present
at the scene and does not take reasonable measures to protect a suspect from another
officer’s use of excessive force may be liable under section 1983.”).5 Therefore,
5
The plaintiff in Hale alleged a state police officer used excessive force
during a search; thus, the Fifth Circuit was considering the plaintiff’s Fourth
Amendment rights as incorporated against the states through the Fourteenth
Amendment. See 45 F.3d at 916, 919. Because the Fifth Circuit has “demonstrate[d]
a tendency to ‘blur’ the lines between Fourteenth Amendment and either Fourth or
Eighth Amendment excessive force standards,” Petta v. Rivera, 143 F.3d 895, 912
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qualified immunity does not protect Erwin from liability under the doctrine of
bystander liability.
5. Sufficient Evidence Supports the Jury’s Conclusion that
Official Immunity is Inapplicable
Official immunity protects officers from liability when they are performing
(1) “a discretionary function (2) in good faith (3) within the scope of the [officer’s]
authority.” Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994) (citation omitted). With
regard to the first requirement, “an action involv[ing] personal deliberation, decision
and judgment . . . is discretionary.” City of Lancaster v. Chambers, 883 S.W.2d 650,
654 (Tex. 1994). An officer acts in good faith when “a reasonably prudent [officer],
under the same or similar circumstances, could have believed that his conduct was
justified based on the information he possessed when the conduct occurred.”
Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 426 (Tex. 2004) (citation
omitted). Finally, “public officials act within the scope of their authority if they are
discharging the duties generally assigned to them.” Id. at 424 (citation omitted).
Official immunity is a question of fact appropriate for the jury. Kassen, 887 S.W.2d
at 6 (“We conclude that official immunity is a question of fact . . ..).
Sufficient evidence supports the jury’s conclusion that Erwin is not entitled to
the affirmative defense of official immunity. Verdict at 22-23. Trial testimony
(5th Cir. 1998), the case also provides insight regarding claims concerning the Eighth
Amendment.
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indicated that during “shakedown” operations, which were generally assigned to
Erwin’s Special Response Team, officers exercised independent judgment concerning
whether force was necessary to effectively perform their duties. TT, David Garrett
Testimony at 2:7 (“Q: So it’s only when an officer reasonably believes that force is
necessary, correct? A: Yes, sir.”); TT, Davis Weeks Testimony at 2:51 (indicating
that the SRT officers regularly conduct “shakedowns”); TT, Sergeant Roberts
Testimony at 2:85 (“Q: And your group of SRTs, as well as you, are trained to
actually engage -- well, not, obviously, start an altercation, but you’re trained to
respond to physical violence from inmates; isn’t that right? A: Yes.”). However, the
evidence supporting the jury’s conclusion that Erwin acted with a “malicious and
sadistic” intent, see supra at 6-8, indicates that Erwin did not act in “good faith.”
Consequently, the jury had sufficient evidence to reject the affirmative defense of
official immunity.6
6. Sufficient Evidence Supports the Jury’s Award of Punitive Damages
“Under § 1983, punitive damages may be awarded only if the official conduct
is ‘motivated by evil intent’ or demonstrates ‘reckless or callous indifference’ to a
person’s constitutional rights.” Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994)
(quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). “[W]here the standard for
6
Given that “Texas law of official immunity is substantially the same as
federal qualified immunity law,” Haggerty v. Texas Southern University, 391 F.3d 653,
658 (5th Cir. 2004) (internal quotation marks and citation omitted), the jury’s
conclusion is consistent with the court’s determination regarding qualified immunity.
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compensatory liability is as high as or higher than the usual threshold for punitive
damages, most courts will permit awards of punitive damages without requiring any
extra showing.” Smith, 461 U.S. at 53. Specifically:
[W]hen a jury finds constitutionally excessive force in
violation of the Eighth Amendment, it makes “the
threshold finding of ‘evil intent’ or ‘callous indifference’
needed to warrant punitive damages, because the threshold
standard for excessive-force liability -- that the force was
applied ‘maliciously and sadistically for the very purpose of
causing harm’ -- is substantially indistinguishable from the
threshold standard for punitive damages.
Cooper v. Morales, 535 F. App’x 425, 432 (5th Cir. 2013) (quoting Jones v. Conner, 233
F.3d 574, at *1 (5th Cir. 2000)). Since the jury had sufficient evidence to conclude
that Erwin acted maliciously and sadistically, see supra at 6-8, it had discretion to
award Cowart punitive damages.
7. Sufficient Evidence Supports the Jury’s Award of Compensatory Damages
“[A] strong presumption exists in favor of affirming a jury award of damages,
and a verdict will be overturned only upon a clear showing of excessiveness or upon a
showing that the jury was influenced by passion or prejudice.” Sanders v. Baucum, 929
F. Supp. 1028, 1039 (N.D. Tex. 1996) (Solis, J.) (citations omitted). Unless the
jury’s award is “entirely disproportionate to the injury sustained,” it should not be
disturbed. Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983). The
jury has broad leeway with respect to pain and suffering and non-economic
considerations because those elements of damages are “to a large degree, not
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susceptible to monetary quantification.” Seidman v. American Airlines, Inc., 923 F.2d
1134, 1141 (5th Cir. 1991) (internal quotation marks and citation omitted). In the
Fifth Circuit, “[t]he propriety of awards are not determined by comparing verdicts in
similar cases, but rather by a review of the facts of each case.” Hale v. Fish, 899 F.2d
390, 403 (5th Cir. 1990) (citation omitted).
At trial, the jury heard testimony from Cowart and two health care
professionals regarding the pain he experienced during the incident and the extent of
his injuries. Cowart indicated that the incident itself was painful, pain persisted in
the immediate aftermath of the incident, and the experience permanently weakened
his right hand. TT, Cowart Testimony at 1:86-88. Nurse Granado, who examined
Cowart after the incident, testified that Cowart had minimal range of motion with his
right hand and complained of throbbing pain in his left eye. TT, Lisa Granado
Testimony at 1:184, 186. According to Doctor Muller, Cowart had both a neck
sprain and contusions on his face, scalp and neck following the incident. TT,
Matthew Muller Testimony at 2:32. The jury had photographs of Cowart taken
shortly after the incident and medical records to assist in evaluating the credibility of
the above testimony. Exhibit and Witness List at 1-3 (docket entry 186).
The jury’s award of $10,000 compensatory damages is not “entirely
disproportionate to the injur[ies Cowart] sustained.” Caldarera, 705 F.2d at 784. As
detailed in the paragraph above, the jury had sufficient evidence to conclude that
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Cowart experienced pain and suffering both during and in the days following the
incident and also suffered permanent injury to his right hand. In light of this
evidence, the court cannot conclude that the compensatory damages are “so large as
to shock the judicial conscience, so gross or inordinately large as to be contrary to
right reason, so exaggerated as to indicate bias, passion, prejudice, corruption, or
other improper motive, or as clearly exceeding that amount that any reasonable man
could feel the claimant is entitled to.” Caldarera, 705 F.2d at 784 (internal quotation
marks, alterations, and citations omitted).
8. Erwin Fails to Identify Any Justification for a New Trial
Erwin contends that “[s]omething seriously amiss occurred in the trial of this
case [because f]ive current inmates, who were present at the incident that occurred on
April 14, 2009, five and a half years before they testified at this trial, remembered in
great detail and astonishing similarity what allegedly happened on that date.”
Erwin’s Brief at 16 (emphasis omitted). In his response brief, Cowart identifies two
major weaknesses with this argument. First, “Erwin ignores that the witness
testimony could be consistent because each of the witnesses was actually, truthfully
relaying his memory about the assault that occurred.” Cowart’s Response at 18.
Second, Erwin “had the opportunity to ask [the witnesses] questions to ferret out
their potential biases and to impugn their credibility, and in fact, she did that.” Id.
Despite Erwin’s efforts, the jury’s verdict indicates that its members believed at least
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some of the inmates’ testimony. Credibility determinations are “the purest of jury
issues” and do not justify granting a new trial. Dotson v. Clark Equipment Company,
783 F.2d 586, 588 (5th Cir. 1986) (citation omitted).
Similarly, Erwin states that “there is no legally principled basis upon which a
reasonable jury could find [Erwin] at fault and no other individual at fault.” Erwin’s
Brief at 17. However, as discussed above, the jury reached the reasonable conclusion
that other officers were involved in the incident but was unable to find by a
preponderance of the evidence any of Erwin’s three codefendants liable. See supra at
10-11. As Cowart correctly notes, “The fact that other officers were also involved and
also ‘taunted’ Mr. Cowart that night does not absolve Officer Erwin of her own
violation of Mr. Cowart’s rights. The jury found she violated his rights [and] that
finding is backed up by the record . . ..” Cowart’s Response at 19.
Finally, according to Erwin, a new trial should occur because the “jury was
apparently confused about the issues [sic] of damages.” Erwin’s Brief at 17. The jury
submitted a note to the court indicating their confusion regarding Question No. 5 of
the verdict form. Jury Notes and Chambers Response at 11 (docket entry 187). The
jury stated that it did not want to “consider damages for the defendants,” the issue
covered by Question No. 5. Id. In response, the court noted that the intent of
Question No. 5 is “to determine whether or not you have to answer the next question
which is Question No. 6.” Id. at 12.
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As Cowart correctly states, the note “indicates that the jury was confused
because they thought the instructions were telling them to award damages to the
Defendants, which they did not want to do in light of their finding for Mr. Cowart on
liability.” Cowart’s Response at 20 (emphasis in original). The court’s response to
the note implied that the pages immediately following Question No. 5 on the verdict
form would remove any possible confusion. The instructions following Question No.
5 state, “If you answered ‘Yes’ to Question No. 5 for one or more individual
defendants, then you will have to consider damages against those individual defendants.”
Verdict at 25 (emphasis added). Furthermore, Question No. 6 states, “What sum of
money, if paid now in cash, would fairly and reasonably compensate Cowart for
damages resulting from the violations of Cowart’s Eighth Amendment rights or the
Texas law assault claim committed by the all [sic] liable defendants?” Verdict at 28
(emphasis added). “Constru[ing] the jury charge and interrogatories as a whole,”
Kodrin v. State Farm Fire and Casualty Company, 314 F. App’x 671, 678 n.23 (5th Cir.)
(citation omitted), cert. denied, 558 U.S. 879 (2009), the court concludes that the jury
properly understood the instructions.
III. CONCLUSION
For the reasons discussed above, the defendant’s motion for judgment as a
matter of law or, in the alternative, for a new trial is DENIED.
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SO ORDERED.
April 9, 2015.
___________________________________
A. JOE FISH
Senior United States District Judge
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