UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES E. MONROE; VINCENT MONROE,
Plaintiffs-Appellants,

and

GWENDOLYN GRAY,
Plaintiff,

v.

HARRY E. SHAFFER; MELVIN R.
                                                               No. 95-1041
BISHOP; MICHAEL FARRUGGIO;
WILLIAM M. DUNCAN; J. DEKOVEN
BOWEN; CITY OF CHARLOTTESVILLE;
THE CHARLOTTESVILLE POLICE
DEPARTMENT; UNKNOWN POLICE
OFFICERS OF THE CHARLOTTESVILLE
POLICE DEPARTMENT,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-92-63-C)

Submitted: May 28, 1996

Decided: June 17, 1996

Before WIDENER, HALL, and MURNAGHAN, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Margaret M. Cain, Charlottesville, Virginia, for Appellants. Kimber-
ley A. Whittle, George H. Gilliam, GILLIAM, SCOTT & KRONER,
P.C., Charlottesville, Virginia, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Vincent Monroe and James Monroe appeal from the district court's
orders adopting the magistrate judge's recommendation to grant sum-
mary judgment to the Defendants on several claims and denying their
motion to set aside the jury verdict in favor of the Defendants on the
remaining claims. We have previously granted the Appellees' motion
to submit on briefs and now affirm.

Vincent Monroe and James Monroe filed separate actions against
police officers Harry E. Shaffer, Melvin R. Bishop, Michael Farrug-
gio, William M. Duncan, Chief of Police J. DeKoven Bowen, the
"Unknown Police Officers of the Charlottesville Police Department,"
the Charlottesville Police Department, and the City of Charlottesville
under 42 U.S.C. § 1983 (1988) alleging constitutional and state law
violations.

The actions were consolidated and relate to events that occurred in
an area of Charlottesville known to be a high crime area. A neighbor-
hood watch had been instituted in the area which involved increased
police activity. Officer Shaffer noted a group of male teenagers in a
park, adjacent to the neighborhood in question, and heard what he
believed to be gunshots. Upon Shaffer's notice, all the teenagers ran
off toward Oak Ridge Gardens, an apartment complex. Shaffer
radioed Farruggio for assistance and they met at the apartment com-

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plex where they encountered a group of teenagers they believed were
the same ones spotted at the park. The officers along with security
personnel from the apartment complex approached the teenagers and
began questioning some of them, including Carl Harris.

At some point, Harris's uncle, Vincent Monroe, arrived on the
scene. The parties dispute the facts of the events after Vincent Mon-
roe's arrival. Defendants claim that Vincent Monroe grabbed Harris
by the arm to lead him away, refused to cooperate with the officers'
investigation, and did not identify himself. The Plaintiffs claim that
Vincent Monroe joined in the questioning of his nephew and once sat-
isfied with his answers directed Harris to leave the scene. Subse-
quently, Harris and Vincent Monroe proceeded away from the
officers. Before they could reach their destination, Shaffer and Far-
ruggio intercepted them and again asked Vincent Monroe to identity
himself.

According to Vincent Monroe, a crowd began to gather, the offi-
cers' inquiry became more hostile, and he was eventually ordered to
leave the scene. He refused. By that time, James Monroe and Gwen-
dolyn Gray were on the scene.

Defendants, however, claim that when questioned about his name
and address, Vincent Monroe cursed and offered no other response.
The officers also contend that Vincent Monroe verbally threatened
them using physical gestures. The officers advised him that he was
under arrest for disorderly conduct and attempted to take him into
custody.

Both parties agree that a struggle ensued between the officers and
the two Monroes. Vincent Monroe and James Monroe were taken into
custody. Vincent Monroe and James Monroe claim that they were
beaten by the police officers as they were taken into custody. They
also claim that the officers refused their requests for medical attention
while they were detained.

Vincent Monroe and James Monroe were convicted of state law
offenses. On appeal, an order of nolle prosequi was entered as to all
charges against them. Subsequently, Vincent Monroe and James
Monroe each filed a § 1983 complaint. The complaints were consoli-

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dated and all the Defendants in each action filed a motion for sum-
mary judgment. The consolidated action was referred to a magistrate
judge pursuant to 28 U.S.C. § 636(b)(1)(B) (1988).

The district court adopted the magistrate judge's recommendation
to grant summary judgment to all Defendants on Plaintiffs' Eighth
and Fifth Amendment claims, federal and state law claims alleging
false arrests, and federal and state law claims alleging discrimination.
The court adopted the recommendation to dismiss all claims against
the "Unknown Police Officers of the Charlottesville Police Depart-
ment," to grant summary judgment to Chief Bowen on all federal and
state law claims, and to grant summary judgment to the City of Char-
lottesville and the Charlottesville Police Department on all federal
claims. Finally, the court adopted the recommendation to deny sum-
mary judgment to Defendants Shaffer, Bishop, Farruggio, and Dun-
can on all state and federal claims by Vincent Monroe and James
Monroe alleging the use of excessive force and the denial of medical
attention. The court also adopted the recommendation to deny sum-
mary judgment to the City of Charlottesville and the Charlottesville
Police Department on all claims relating to the use of excessive force
under the state law doctrine of respondeat superior.

After a jury trial, judgment was entered in favor of the Defendants
on the remaining claims. The jury determined that the officers did not
use excessive force to arrest Vincent Monroe or James Monroe, they
were not deliberately indifferent to Vincent Monroe's or James Mon-
roe's medical needs after their arrest, and the City of Charlottesville
was not liable for the excessive force claims against the police offi-
cers as the employer of these officers under principles of respondeat
superior. The district court denied the Plaintiffs' motion to set aside
the verdict and grant a new trial.

On appeal, Vincent Monroe and James Monroe claim that the dis-
trict court erred by granting summary judgment to the Defendants on
the false arrest claims, the district court erred by denying their motion
to set aside the jury verdict, the Defendants were not entitled to quali-
fied immunity, and the Defendants failed to protect them.

I.

This court reviews a grant of summary judgment de novo. Farewell
v. Un, 902 F.2d 282, 287 (4th Cir. 1990). Appellants claim that the

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district court erred by granting summary judgment to the Defendants
on the false arrest claims because the officers lacked probable cause
to arrest them. See Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974).

Under Virginia law, a conviction for the offense charged, even
though subsequently reversed, dismissed, or vacated, is conclusive
evidence of probable cause. Cramer v. Crutchfield, 648 F.2d 943, 946
(4th Cir.1981); See Kane v. Hargis, 987 F.2d 1005, 1008 (4th Cir.
1993).

Because Vincent Monroe and James Monroe were convicted of
state law offenses, it is conclusively established that the officers had
probable cause to arrest them. Id. Furthermore, it is immaterial that
on appeal an order of nolle prosequi was entered as to all charges
against them. Id.

II.

This court may reverse a jury verdict only when there is a complete
absence of probative facts to support the conclusions reached by the
jury. Sherrill White Constr., Inc. v. South Carolina Nat'l Bank, 713
F.2d 1047, 1050 (4th Cir. 1983). The verdict must stand if, taking the
evidence in the light most favorable to the defendant, there is "any
substantial evidence" to support it. See Vodrey v. Golden, 864 F.2d
28, 30 n.4 (4th Cir. 1988). "Substantial evidence" is such evidence as
a reasonable mind might accept as adequate to support the conclusion
even if different conclusions also might be supported by the evidence.
Gibraltar Sav. v. LDBrinkman Corp., 860 F.2d 1275, 1297 (5th Cir.
1988), cert. denied, 490 U.S. 1091 (1989).

Appellants challenge the jury verdict entered in favor of the Defen-
dant police officers on the claim that the officers used excessive force
when arresting them. To determine whether a particular use of force
to effect an arrest is excessive, courts apply an"objective reasonable-
ness" test. Graham v. Connor, 490 U.S. 386, 397 (1989). Among the
key factors in deciding the objective reasonableness of the officers'
actions is whether the suspect actively resisted arrest. Id. at 396.

The officers testified at trial that Vincent Monroe and James Mon-
roe were belligerent towards the officers and resisted arrest. Further-

                     5
more, the jury's verdict in favor of the Defendants involved a
credibility determination. Such a determination is not subject to
review by this court. See United States v. Saunders, 886 F.2d 56, 60
(4th Cir. 1989). Therefore, we find that substantial evidence exists to
support the jury's verdict and we will not disturb it. Vodrey, 864 F.2d
at 30.

Appellants also claim that Chief Bowen, the City of Charlottes-
ville, and the Charlottesville Police Department provided inadequate
training and supervision of the officers. They claim that the lack of
training and supervision resulted in the use of excessive force.

To establish municipal liability, Appellants must establish that their
alleged injuries were caused by a specific policy or custom of the City
of Charlottesville. Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987),
cert. denied, 484 U.S. 1027 (1988). Further, the doctrine of
respondeat superior is generally inapplicable to§ 1983 suits. Monell
v. Department of Social Servs., 436 U.S. 658, 694 (1978).

The jury found that the City of Charlottesville was not liable for
the excessive force claims against the officers as the employer of
these officers under principles of respondeat superior. This finding
was based on a credibility determination that should not be disturbed.
Saunders, 886 F.2d at 60. In any event, the City of Charlottesville
cannot be liable for unproven constitutional violations. As discussed
above, Appellants failed to prove that the officers used excessive
force during their arrest. Therefore, we will not disturb the jury's ver-
dict on this claim. Vodrey, 864 F.2d at 30.

In addition, the district court properly granted summary judgment
to the City of Charlottesville and the Charlottesville Police Depart-
ment on all federal claims because these Defendants are not persons
within the meaning of § 1983. The district court also properly granted
summary judgment to Chief Bowen because there is no evidence in
the record that he was aware of a pervasive, unreasonable risk of
harm and failed to take corrective action which resulted in the events
giving rise to this action. Slakan v. Porter, 737 F.2d 368 (4th Cir.
1984), cert. denied, 470 U.S. 1035 (1985).

Appellants next claim that the Defendants were deliberately indif-
ferent to their medical needs by refusing to provide them medical

                     6
attention for their alleged injuries after their arrest. See Whisenant v.
Yuam, 739 F.2d 160 (4th Cir. 1984). As arrestees, Appellants' delib-
erate indifference claims are subject to the standards of Estelle v.
Gamble, 429 U.S. 97 (1976). Deliberate indifference may be demon-
strated by either actual intent or reckless disregard. Miltier v. Beorn,
896 F.2d 848 (4th Cir. 1990). A defendant acts recklessly by disre-
garding a substantial risk of danger that is either known to him or
which would be apparent to a reasonable person in his position. Id.

The jury found that Vincent Monroe and James Monroe were not
denied medical care for alleged injuries received during their arrest.
The officers testified that neither Vincent Monroe nor James Monroe
showed any visible signs of serious injury on the night in question.
They further testified that the jail was notified that Vincent Monroe
and James Monroe requested medical attention. Their testimony is
more than sufficient to establish that they were not deliberately indif-
ferent to Vincent Monroe's and James Monroe's medical needs.
Vodrey, 864 F.2d at 30. Further, the jury's decision was based on a
credibility determination and should not be disturbed. Saunders, 886
F.2d at 60.

III.

Appellants contend that the Defendants were not entitled to quali-
fied immunity and the issue of qualified immunity was a question for
the jury. Appellants' allegation is meritless because the district court
denied qualified immunity, accepting the magistrate judge's recom-
mendation that summary judgment on this ground should be denied.
Also, because the jury found that the officers did not use excessive
force when arresting Vincent Monroe and James Monroe, the ques-
tion of qualified immunity did not need to be resolved. Because there
was no excessive force, the Defendants' immunity or lack thereof was
irrelevant.

Finally, Appellants claim that the Defendant officers failed to pro-
tect them from the alleged use of excessive force. However, the jury
found that the officers did not use excessive force. Furthermore, the
officers did not have a general duty to protect them. See DeShaney v.
Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989).

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Accordingly, we affirm the district court's orders granting sum-
mary judgment to the Defendants and denying Appellants' motion to
set aside the jury verdict in favor of the Defendants.

AFFIRMED

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