
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1823                               ERNEST P. O'CONNOR, JR.,                                Plaintiff - Appellee,                                          v.                                    DEBORAH HUARD,                                Defendant - Appellant.                                 ____________________          No. 96-1824                               ERNEST P. O'CONNOR, JR.,                                Plaintiff - Appellant,                                          v.                                    DEBORAH HUARD,                                Defendant - Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                   [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]                                             _____________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    _____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               William R.  Fisher, with whom Ivy L.  Frignoca and Monaghan,               __________________            ________________     _________          Leahy, Hochadel & Libby were on brief for Deborah Huard.          _______________________               William  C.  Knowles,  with  whom Jacqueline  W.  Rider  and               ____________________              _____________________          Verrill & Dana were on brief for Ernest P. O'Connor, Jr.          ______________                                 ____________________                                    June 27, 1997                                 ____________________                                         -2-                    TORRUELLA, Chief Judge.   On March 15, 1994, Plaintiff-                    TORRUELLA, Chief Judge.                               ___________          Appellee-Cross-Appellant  Ernest  P. O'Connor,  Jr. ("O'Connor"),          who was a  pretrial detainee  at the Kennebec  County Jail  ("the          Jail") during  all  times  relevant to  the  case,  brought  this          Section  1983  suit for  compensatory  and  punitive damages  and          declaratory   relief   against   Alfred  Cichon   ("Cichon"),   a          physician's  assistant  at  the   Jail,  and  Catherine   Mesaric          ("Mesaric") and Appellant-Cross-Appellee Deborah Huard ("Huard"),          Corrections  Sergeants at  the  Jail.   O'Connor contended  that,          while he was being  held as a pretrial detainee,  Cichon deprived          him of  medical attention,  which amounted  to cruel  and unusual          punishment,  and that  he was  punished in  violation of  his due          process rights under  the Fourteenth Amendment.   On January  20,          1996, summary judgment was  granted in Cichon's favor.   Prior to          trial, Mesaric was dismissed from the suit.                    The  case against Huard was tried before a jury in June          1996.   At  the  close of  O'Connor's  case,  Huard moved  for  a          directed  verdict.   The  district court  took  the motion  under          advisement.   At  the close  of all  evidence, Huard  renewed her          motion, which the  district court  denied.  The  jury returned  a          verdict in O'Connor's favor, finding that Huard had  violated his          Fourteenth  Amendment due  process rights,  and awarding  him one          dollar  in compensatory damages.   The court  then instructed the          jury  on punitive  damages, which  the jury,  after deliberating,          declined  to  award.     Huard  filed   a  motion  for   judgment          notwithstanding the verdict and  a motion for a new  trial, which                                         -3-          the district court  denied.  Huard  appeals the district  court's          jury  instructions,  the  denial   of  her  motion  for  judgment          notwithstanding the verdict, and the award of attorney's  fees to          O'Connor.  O'Connor cross-appeals the jury's refusal to grant him          actual compensatory and punitive damages.  We affirm.                                      BACKGROUND                                      BACKGROUND                    On review of a jury verdict, we recite the facts in the          light most favorable  to that  verdict.  See  Ferragamo v.  Chubb                                                   ___  _________     _____          Life Ins. Co., 94  F.3d 26, 27 n.1 (1st Cir. 1996).   Huard was a          _____________          Corrections  Sergeant at  the Jail during  all times  relevant to          this case.  O'Connor was initially incarcerated in the Jail for a          brief period in January 1993.  On January 18, 1993, O'Connor told          Huard that "he  needed his  medication."  She  instructed him  to          fill  out  a  Medical  Request form,  and  when  he  did  so, she          forwarded  the form to the  Medical Department.   Pursuant to his          request,  O'Connor met  with  the  Jail's physician's  assistant,          Cichon,  for a  medical evaluation.    O'Connor asked  Cichon for          Xanax or Valium to  treat anxiety.  Cichon diagnosed  O'Connor as          suffering from "anxiety disorder," for which he prescribed Xanax.          Soon thereafter, O'Connor was released from the Jail.                    On October  30, 1993,  O'Connor was placed  in pretrial          detention at the  Jail, where he  remained for approximately  six          months.  O'Connor again submitted a request for medication, which          Cichon now denied, because he could not verify O'Connor's medical          history, believed that  O'Connor did not  suffer from an  anxiety          disorder, and wasconcerned about O'Connor's history ofdrug abuse.                                         -4-                    During this detention,  an animosity developed  between          Huard   and  O'Connor,   eventually  leading   to  daily   verbal          confrontations.    O'Connor  called  Huard names  that  evidenced          O'Connor's  disdain  for  what  he believed  was  Huard's  sexual          orientation.   Huard, in turn, called O'Connor "a scumbag, a low-          life, a dirtbag, a  drug addict, creep."  Huard  taunted O'Connor          about  his failure  to  get the  medication  he desired  and  his          inability  to cope  without it.   O'Connor  would react  to these          taunts by kicking  doors and banging the bars of  his cell and by          hurling verbal  abuse at  Huard.  As  a result of  these actions,          O'Connor  would   be  removed  from   his  cell  and   placed  in          administrative lockdown.  Frequently, during these administrative          lockdowns,  the  other   inmates  on  the  cell  block  would  be          restricted to their cells.   By the time he was transferred  from          the Jail, O'Connor had spent 33 days in lockdown.                                      DISCUSSION                                      DISCUSSION          I.        Jury instructions          I.        Jury instructions                    Huard argues that the magistrate's instructions  to the          jury did not properly reflect the elements O'Connor was  required          to prove in order  to succeed on his Fourteenth  Amendment claim.          In reviewing assertions of error in the jury charge, we determine          whether the instructions adequately reflect the law applicable to          the controlling issues without tending to confuse  or mislead the          jury.  See United States v. Fulmer, 108 F.3d 1486, 1494 (1st Cir.                 ___ _____________    ______          1997).                    The instructions to the jury were as follows:                                         -5-                      Plaintiff  claims  that his  constitutional                    rights    were   violated    when   defendant                    deliberately provoked him  into rage  attacks                    and  then disciplined  him for  his resulting                    outbursts.  Specifically,  his allegation  is                    that he was punished  without due process  of                    law, in violation of his rights under the 5th                    and  14th  Amendments  to the  United  States                    Constitution.                      At the  time of  his  incarceration at  the                    Kennebec County Jail plaintiff was a pretrial                    detainee.   In other  words, he had  not been                    convicted of  a  crime, but  was  being  held                    pending  trial.    Under such  circumstances,                    plaintiff  could only  be  subjected  to  the                    restrictions and conditions of  the detention                    facilities  so long  as those  conditions and                    restrictions did not amount to punishment.                      Not all restrictions and  conditions during                    pretrial  detention  amount to  punishment in                    the constitutional sense,  however.  Once the                    government  has  exercised  its authority  to                    detain  a  person   pending  trial,  it   may                    obviously  impose conditions  or restrictions                    necessary to effectuate the  legitimate goals                    of  maintaining  institutional  security  and                    ensuring  the  detained person's  presence at                    trial.                      The question for  you to decide  is whether                    defendant imposed  conditions or restrictions                    upon plaintiff that  were reasonably  related                    to  those legitimate  goals  or whether  they                    were arbitrary or without purpose.                      Absent a showing of  an expressed intent on                    defendant's  part  to punish  plaintiff, that                    question will generally  turn on whether  the                    conditions  or  restrictions could  have been                    used for  a  legitimate purpose  and  whether                    they   are  excessive  in  relation  to  that                    legitimate purpose.                      If  you find the conditions or restrictions                    were  arbitrary or  without purpose,  you may                    infer that the purpose  of the conditions  or                    restrictions was  punishment, and, therefore,                    unconstitutional.          Trial Transcript, vol. III, at 440-41.                                         -6-                    These  instructions accurately  reflect the  law as  it          relates to a pretrial detainee's claim of punishment in violation          of the Due Process Clause.  The government may detain one accused          of  a crime  prior to trial  in order  to ensure  his presence at          trial.  See Bell v.  Wolfish, 441 U.S. 520, 536 (1979).  Prior to                  ___ ____     _______          an  adjudication of  guilt, however,  a state government  may not          punish a  pretrial detainee  without contravening the  Fourteenth          Amendment's Due Process Clause.  See  id. at 535.  The government                                           ___  ___          may, however,  impose administrative restrictions  and conditions          upon a  pretrial detainee that effectuate his  detention, see id.                                                                    ___ ___          at 537, and  that maintain  security and order  in the  detention          facility, see  id. at 536.   When confronted  with a charge  by a                    ___  ___          pretrial  detainee alleging  punishment without due  process, the          "court must  decide  whether the  disability is  imposed for  the          purpose  of punishment or whether  it is but  an incident of some          other legitimate governmental purpose."  Id. at 538.                                                   ___                    Thus,   if   a   particular    condition   or                    restriction   of    pretrial   detention   is                    reasonably related to a legitimate government                    objective, it does not, without  more, amount                    to   "punishment."      Conversely,    if   a                    restriction  or  condition is  not reasonably                    related  to a  legitimate  goal --  if it  is                    arbitrary   or   purposeless   --   a   court                    permissibly may infer that the purpose of the                    governmental  action  is punishment  that may                    not   constitutionally   be  inflicted   upon                    detainees qua detainees.          Id. at 538-39.  The  government has a valid interest  in managing          ___          the  detention   facility  and,  toward  that   end,  may  employ          administrative measures  that may be  discomforting or  are of  a          nature that the detainee would not experience if he were released                                         -7-          while  awaiting trial.   See  id. at  540.   Barring "substantial                                   ___  ___          evidence"  that  an  administrative  measure  is  an  exaggerated          response to these considerations, "courts should ordinarily defer          to their expert judgment in such matters."  Id. at 540 n.23.                                                      ___                    Huard's   claim  of  error   addresses  a  conceptually          different issue.  Huard argues that the magistrate's instructions          were erroneous because they failed to incorporate the appropriate          standard, which she contends  is the Eighth Amendment "deliberate          indifference" standard applied when a pretrial detainee alleges a          denial  of  appropriate   medical  care.     Huard's   contention          misconceives  the  claim  at  issue in  this  case.    O'Connor's          allegation  as it  related  to Huard  was that  she intentionally          provoked  or  incited him  into  "rage  attacks" by  relentlessly          taunting  him.    O'Connor  claimed that  Huard  engaged  in such          actions so that she could subsequently discipline him by imposing          "administrative  lock  down."   Given  the  nature of  O'Connor's          claim, the magistrate  was correct in denying Huard's  request to          incorporate "deliberate indifference"  instructions into the jury          charge.                    We  emphasize that  nothing in  the resolution  of this          case  or in  this opinion  is meant  to suggest that  a detention          facility may not  discipline a pretrial detainee who violates the          facility's administrative regulations employed to  maintain order          and  security.   O'Connor's challenge  was not that  the Kennebec          County Jail's system of allowing a pretrial detainee's discipline          following  a  violation  of  its  administrative  regulations was                                         -8-          suspect, but rather that Huard's intention was to punish O'Connor          and her  provocative or instigative actions  were directed toward          this  end.    Thus,  the  ability  of  a  detention  facility  to          reasonably   discipline  detainees  who   violate  rules  is  not          implicated by the issues presented in  this case, in which a jury          found  that  Huard's  acts   were  tantamount  to  arbitrary  and          unreasonable punishment.          II.       Qualified immunity          II.       Qualified immunity                    In her motions for directed  verdict, both at the close          of O'Connor's case  and at the close  of all the  evidence, Huard          argued that she was entitled to judgment as a matter of law based          on the merits of  O'Connor's claim.   In her motion for  judgment          notwithstanding  the  verdict, she  again  argued entitlement  to          judgment as  a matter of law  on the merits and  also raised, for          the first time,  the defense  of qualified immunity  as a  ground          entitling her to judgment as a matter of law.                    Federal Rule of Procedure 50(b) specifies that a party,          having submitted a motion  for a directed verdict may,  after the          verdict and entry of judgment, "move  to have the verdict and any          judgment entered thereon  set aside and to  have judgment entered          in accordance with his motion for a directed verdict[.]"  Fed. R.          Civ.  P. 50(b).   A  party may  not raise  a ground  for judgment          notwithstanding the verdict that  was not previously presented to          the trial court in a motion for directed verdict.  See Systemized                                                             ___ __________          of New England, Inc. v. SCM, Inc., 732 F.2d 1030,  1035 (1st Cir.          ____________________    _________          1984) ("A  party may not base its motion for a judgment n.o.v. on                                         -9-          a  ground  that  was not  argued  in its  motion  for  a directed          verdict.").  "The last  opportunity to raise [qualified immunity]          is by motion for directed verdict."  Lewis  v. Kendrick, 944 F.2d                                               _____     ________          949, 953  (1st Cir.  1991) (applying  Systemized of New  England,                                                ___________________________          Inc. in the qualified immunity context).          ____                    Having  failed  to   properly  preserve  her  qualified          immunity  claim, Huard can prevail  only upon a  finding of plain          error.  See Lewis, 944 F.2d at 953.   "The fact that [Huard] lost                  ___ _____          a very possible defense that  would have eliminated liability for          fees is not enough; plain error requires much more."   Id.  Huard                                                                 ___          never brought  forward any  evidence suggesting that  her actions          were  objectively  reasonable  in  light  of  O'Connor's  clearly          established  due process right.  Instead, she denied that she had          acted as O'Connor alleged.  Because there was  no evidence in the          record to support a  finding of qualified immunity, the  district          court's denial of her  motion was not plain error.   Accordingly,          we affirm  the  district court's  denial  of Huard's  motion  for          judgment notwithstanding the verdict.          III.      Attorney's fees          III.      Attorney's fees                    On  November 13,  1996, the  district court  entered an          order  granting O'Connor attorney's fees pursuant  to 42 U.S.C.            1988.   The  court essentially  reasoned that,  although O'Connor          received only nominal damages of one dollar, the jury had granted          the  relief at the heart  of O'Connor's claim  by barring Huard's          actions in violation of his due process rights.                                         -10-                    Huard argues  that we should reverse  the order because          O'Connor is not entitled  to attorney's fees.  She  contends that          under  Farrar v. Hobby, 506 U.S. 103 (1992), although O'Connor is                 ______    _____          properly characterized as the prevailing party, the award of only          nominal damages  highlights O'Connor's failure  to prove  actual,          compensable  damages.    Having  failed  to  obtain  compensatory          relief, Huard appears to contend that  O'Connor's success in this          case was technical or de minimis.  We cannot agree.                                __________                    Although  the  Farrar  Court   reversed  the  grant  of                                   ______          attorney's  fees   to  a  civil  rights   plaintiff  because  the          plaintiff's success was  de minimis when compared  to the outcome                                   __________          and relief sought, the  Court's opinion did  not impose a per  se                                                                    _______          rule  that a  prevailing plaintiff  who is  awarded  only nominal          damages  is not entitled  to fees.  To  the contrary, the Court's          opinion instructed district courts,  in which discretion rests to          grant attorney's fees to civil rights plaintiffs, see 42 U.S.C.                                                              ___          1988  ("In any  action or  proceeding to  enforce a  provision of          section[] . .  . 1983, . .  . the court,  in its discretion,  may          allow the prevailing  party . . . a reasonable  attorney's fee as          part of  the costs."), that  in exercising their  discretion they          should consider the reasonableness  of an award of fees  in light          of  the  "'relationship between  the  extent of  success  and the          amount of the  fee award.'"  Farrar, 506  U.S. at 115-16 (quoting                                       ______          Hensley  v. Eckerhart, 461 U.S. 424, 438 (1983)); see also Wilcox          _______     _________                             ________ ______          v. City  of Reno, 42 F.3d  550, 554 (9th Cir.  1994) (noting that             _____________          "Farrar  establishes that  a district  court should  give primary           ______                                         -11-          consideration to  the degree of success achieved  when it decides          whether  to award  attorney's  fees," and  affirming  a grant  of          $66,535 in fees on award of one dollar in nominal damages), cited                                                                      _____          with  approval in Krewson v. Town of  Quincy, 74 F.3d 15, 17 (1st          _________________ _______    _______________          Cir. 1996).                    Here, the  district court recognized  several important          factors  warranting  the grant  of attorney's  fees.   First, the          district court's order recognized  the importance of providing an          incentive to attorneys to  represent litigants, such as O'Connor,          who seek  to vindicate constitutional rights but  whose claim may          not result in  substantial monetary compensation.   Second -- and          worth noting in light of the Farrar Court's emphasis on the  fact                                       ______          that Farrar sought only compensatory damages in the amount of $17          million and ultimately received one dollar from each defendant --          the most basic  remedy O'Connor  sought in this  case was  relief          from Huard's infliction of punishment without due process of law.          Third,  the  court  underscored  the  deterrent  impact  of  this          litigation, which  will prevent "future  abuses of the  rights of          pretrial  detainees."    Fourth,  the  court  deducted  from  the          requested  amount  for  fees  hours related  solely  to  the  two          defendants who were  not part of the trial, hours spent in excess          of that reasonably  required of a  task, hours spent  researching          inapplicable areas  of law,  and hours inadequately  explained or          detailed.     Based  on  the  appropriateness  of  all  of  these          considerations,  we  find  that  the district  court's  grant  of          attorney's fees was within its discretion.                                         -12-          IV.       O'Connor's claim regarding damages          IV.       O'Connor's claim regarding damages                    On  cross-appeal, O'Connor  appears to  argue, for  the          first time, that  the jury's  failure to award  him punitive  and          compensatory, rather than only nominal, damages was unreasonable.          The short  answer  to O'Connor's  contention  is that  the  issue          should have been raised before the district court in a motion for          a judgment notwithstanding the verdict or a motion for new trial.          We  generally  will not  review  a  party's  contention that  the          damages award  is excessive or  insufficient where the  party has          failed to  allow the district court  to rule on the  matter.  See                                                                        ___          Carlton v.  H.C. Price Co., 640 F.2d 573, 577 (5th Cir. 1981) (no          _______     ______________          appellate review of allegedly excessive or inadequate damages was          available  where trial  court was  not given  the  opportunity to          exercise  its discretion on  the matter), cited  with approval in                                                    _______________________          Wells  Real Estate, Inc. v.  Greater Lowell Bd.  of Realtors, 850          ________________________     _______________________________          F.2d 803, 811 (1st Cir. 1988); Braunstein v. Massachusetts Bank &                                         __________    ____________________          Trust Co., 443 F.2d 1281, 1285 (1st Cir. 1971) (denying review of          _________          claim that award was excessive  because appellant failed to raise          the issue before the district court).                    More importantly,  however, we  find that the  jury was          not  unreasonable in  failing to  award O'Connor  compensatory or          punitive  damages.   O'Connor  put  forward  evidence of  damages          related to his mental and emotional suffering endured as a result          of  Huard's actions, and did not present any evidence of economic          damages.   Assuming the jury was properly instructed on the issue          of damages, and  O'Connor does not challenge the  instructions on                                         -13-          appeal, the jury could reasonably have believed that O'Connor did          not suffer a compensable  harm.  See Davet v. Maccarone, 973 F.2d                                           ___ _____    _________          22, 27-28 (1st Cir. 1992).                    Additionally,  O'Connor appears  to argue  that Huard's          actions registered such malicious intent, reckless disregard,  or          callous indifference to O'Connor's constitutional rights that the          jury was unreasonable in  failing to award him  punitive damages.          Our  review of the record  indicates "that the  evidence does not          'point  so strongly  and overwhelmingly  in favor  of the  movant          [plaintiff] that  a reasonably  jury  could not  have arrived  at          [its] conclusion.'"  Id. at 30 (quoting Chedd-Angier Prod. Co. v.                               ___                ______________________          Omni Publications  Int'l,  Ltd.,  756  F.2d 930,  934  (1st  Cir.          _______________________________          1985)).     Accordingly,   we   will  not   disturb  the   jury's          determination that  punitive damages were not  warranted in light          of the facts of this case.  See id.                                      ___ ___                                      CONCLUSION                                      CONCLUSION                    For the foregoing reasons, we affirm.                                                  affirm                                                  ______                                         -14-
