                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0383n.06

                                          Case No. 15-6073

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                FILED
                                                                                 Jul 07, 2016
                                                                            DEBORAH S. HUNT, Clerk
TODD WHITE,                                            )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )
                                                       )
RICKY BELL, Warden, in his individual and              )       ON APPEAL FROM THE UNITED
official capacities as the warden of Riverbend         )       STATES DISTRICT COURT FOR
Maximum Security Institution,                          )       THE MIDDLE DISTRICT OF
                                                       )       TENNESSEE
       Defendant,                                      )
                                                       )
GAELAN DOSS; SEAN STEWART,                             )
                                                       )
       Defendants-Appellants.                          )

       BEFORE: BOGGS, CLAY, and GILMAN, Circuit Judges.

       BOGGS, Circuit Judge.         In this case involving claims of excessive force, the jury

returned a verdict in favor of all defendants after prison officials gave contradictory testimony

about the perpetrator’s identity. The district court ordered a new trial on the ground that the

verdict was against the weight of the evidence because it believed that the plaintiff’s injuries

required at least one defendant to be held liable. For the reasons discussed below, we reverse the

decision to order a new trial, and we reinstate the first jury’s verdict.
Case No. 15-6073, White v. Bell


                                                I

       Plaintiff Todd White was formerly an inmate at the Riverbend Maximum Security

Institution in Nashville, Tennessee.   On May 31, 2010, White threw something at prison

officers—White claims it was a tumbler full of coffee and water, but the officers claim it was

urine and feces. The officers responded by forming a cell-extraction team to enter White’s cell

and remove any items that could be thrown at prison staff. Because he was facing the wall—and

because the officers wore helmets with shields—White could not see their faces when they

entered his cell. In accordance with prison policy, the cell extraction team was accompanied by

a videographer.

       Upon entering the cell, the officers quickly secured White’s wrists and ankles and stood

him up on his feet. As White was standing, someone shoved him from behind, causing him to

hit his head against the concrete wall. The identity of the officer who pushed him cannot be

discerned from the video. According to White’s testimony in the first trial: “[S]omething

shoved me in my back, hard. And when it shoved me hard, I went straight across my bunk and

hit the window. . . . I hit the edge of the concrete. . . . And my head busted. I went across the

bunk, I couldn’t break my fall because I was handcuffed behind my back.” After the impact,

blood ran down White’s face and into his mouth. White spit blood at the officers, who led him

downstairs, where they pushed him onto the ground and dragged him to the recreation yard.

A nurse came to the yard and treated White, and White was eventually transported to Meharry

Hospital to receive staples for a forehead laceration. As a result of his injury, White now has a

scar on his forehead.

       White sued eight officers for Eighth Amendment violations under 42 U.S.C. § 1983. The

first trial took place in September 2013 and resulted in a verdict in favor of all defendants.



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White then filed a motion for a new trial. The district court granted the motion with respect to

only three defendants: Joshua McCall, Gaelan Doss, and Sean Stewart. In granting the motion,

the district court stated:

        The undisputed facts at trial showed that Plaintiff was restrained and compliant
        when he was shoved into the wall, injuring his head. The only dispute is as to
        who pushed Plaintiff into the wall. Defendant McCall testified that Defendants
        Doss and Stewart pushed Plaintiff into the wall. Defendant Doss testified that
        McCall pushed Plaintiff into the wall. Defendants Rader and Stewart testified
        that they believed McCall pushed Plaintiff into the wall. Given the undisputed
        evidence, the Court concludes that pushing a restrained and compliant inmate into
        a wall, causing injury to the inmate’s head, constitutes excessive force under the
        Eighth Amendment. Thus, the Court concludes that the jury’s verdict that
        Plaintiff was not subjected to excessive force when Plaintiff, while restrained and
        compliant, was pushed into the wall is against the clear weight of the evidence.
        As to who pushed Plaintiff into the wall is a credibility issue to be resolved by the
        jury. Defendants McCall, Doss and Stewart were the only Defendants implicated
        in pushing Plaintiff’s head into the wall.

                ....

               . . . [T]he Court concludes that the issue to be retried is whether McCall,
        Doss and/or Stewart committed excessive force by pushing Plaintiff’s head into
        the wall in violation of the Eighth Amendment.

        The second trial took place in January 2015 and resulted in a judgment of $30,000 against

McCall, $15,000 against Doss, and $15,000 against Stewart. McCall—who proceeded pro se

and was not represented by the Tennessee Attorney General’s Office—did not appeal the

judgment against him, but Doss and Stewart appealed, asking us to reinstate the original jury

verdict that found them not liable. The key facts of this case are undisputed. All parties agree

that: (1) someone pushed White into the wall, causing him to suffer a head injury; (2) White did

not see who pushed him; and (3) at trial, McCall blamed Doss and Stewart, while Doss and

Stewart (and former defendant Joel Rader) blamed McCall. The sole issue for us to decide in

this appeal is whether the district court properly ordered a new trial against Doss and Stewart.




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                                                  II

          We review a district court’s decision to grant a new trial for abuse of discretion. Duncan

v. Duncan, 377 F.2d 49, 53 (6th Cir. 1967). The phrase “abuse of discretion” is “generally

regarded as a ‘definite and firm conviction [on the part of the reviewing court] that the court

below committed a clear error of judgment.’” Holmes v. City of Massillon, 78 F.3d 1041, 1045

(6th Cir. 1996) (alteration in original) (quoting Balani v. INS, 669 F.2d 1157, 1160 (6th Cir.

1982)).

          In deciding whether to grant a new trial, a district court must view the evidence “most

strongly in favor of the verdict.” Ross v. Meyers, 883 F.2d 486, 488 (6th Cir. 1989). A jury’s

verdict is against the weight of the evidence if it is “unreasonable.” Holmes, 78 F.3d at 1047.

The court should deny a motion for a new trial “if the verdict is one which could reasonably have

been reached, and the verdict should not be considered unreasonable simply because different

inferences and conclusions could have been drawn or because other results are more reasonable.”

J.C. Wyckoff & Assocs., Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir. 1991).

          One of the basic elements of a § 1983 claim is causation. A “public official is liable

under § 1983 only if he causes the plaintiff to be subjected to a deprivation of his constitutional

rights.” McKinley v. City of Mansfield, 404 F.3d 418, 438 (6th Cir. 2005) (quoting Baker v.

McCollan, 443 U.S. 137, 142 (1979)). “Causation in the constitutional sense is no different from

causation in the common law sense.” Ibid. Section 1983 “should be read against the background

of tort liability that makes a man responsible for the natural consequence of his actions.” Ibid.

(quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)).

          The requirement of causation must be proven with respect to each defendant that the

plaintiff seeks to hold liable. If a defendant “is to be held liable, it must be based on the actions



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of that defendant in the situation that the defendant faced.” Toms v. Taft, 338 F.3d 519, 533 (6th

Cir. 2003) (Gilman, J., concurring in part and dissenting in part) (quoting Gibson v. Matthews,

926 F.2d 532, 535 (6th Cir. 1991)). In Combs v. Wilkinson, 315 F.3d 548 (6th Cir. 2002),

prisoners who alleged the use of excessive force in removing them from their cells brought

claims against unidentified officers because they “were unable to identify the officers . . . [who]

wore black uniforms, gas masks, and no name badges.” Id. at 557. This court rejected the

argument that the plaintiffs were “entitled to recover damages from some source, even if they

[could] not prove that any named defendant actually used force against them,” and affirmed the

district court’s grant of summary judgment to the defendants. Ibid.

       A plaintiff who brings an Eighth Amendment excessive-force claim under § 1983 must

also satisfy the subjective component of the Eighth Amendment test, which requires proof that

the defendant applied force “maliciously and sadistically for the very purpose of causing harm.”

Farmer v. Brennan, 511 U.S. 825, 836 (1994) (quoting Hudson v. McMillian, 503 U.S. 1, 6

(1992)). This subjective inquiry requires an examination of the defendant’s mental state, and

therefore “must be addressed for each officer individually.” Garretson v. City of Madison

Heights, 407 F.3d 789, 797 (6th Cir. 2005).

       Given the individualized requirements of causation and subjective malice, the jury in the

first trial—whose verdict form properly asked for a decision on each defendant’s liability

separately—could not have imposed liability on any individual defendant unless there was proof

by a preponderance of the evidence that he was actually responsible for maliciously shoving

White. The district court, however, ignored the requirements of causation and subjective malice

in its reasoning. The crucial error in the district court’s analysis lies with its use of the passive




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voice to characterize the jury’s verdict.    The court assumed that when the jury found no

defendant liable, it concluded that White “was not subjected to excessive force.”

       But the jury could very well have found that White was subjected to excessive force

while also finding that the elements of causation and subjective malice were not met; in other

words, the jury could have found that while the force itself was excessive, White had not proven

who had employed it. As the district court noted, the facts elicited in the first trial were as

follows:

       The undisputed facts at trial showed that Plaintiff was restrained and compliant
       when he was shoved into the wall, injuring his head. The only dispute is as to
       who pushed Plaintiff into the wall. Defendant McCall testified that Defendants
       Doss and Stewart pushed Plaintiff into the wall. Defendant Doss testified that
       McCall pushed Plaintiff into the wall. Defendants Rader and Stewart testified
       that they believed McCall pushed Plaintiff into the wall.

From these facts, the jury could have reached at least two conclusions. On the one hand, the jury

could have concluded that McCall shoved White into the wall and lied about Doss and Stewart

being responsible.   On the other hand, it could have found that Doss and Stewart were

responsible for shoving White and that McCall was telling the truth. Having listened to the

testimony, watched an inconclusive video, and judged the credibility of the witnesses, the jury

could reasonably have found that these two conclusions were equally plausible. In that event,

there would be insufficient evidence to identify any individual as more than 50% likely to be the

perpetrator, and the jury would have no choice but to return a verdict in favor of all defendants.

Cf. Combs, 315 F.3d at 557–58.

       White presents no argument that persuasively rebuts this conclusion. In some parts of his

brief, he seems to claim that the evidence at the first trial conclusively proved that all three

defendants shoved him, but as counsel wisely conceded at oral argument, that conclusion is

neither compelled nor plausible. As White’s brief acknowledges, “White could not identify who

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Case No. 15-6073, White v. Bell


pushed him from behind,” and “McCall testified [that] Doss and Stewart committed the assault

on White, [but] Stewart testified [that] he believed [that] McCall caused White’s injuries, and

Doss testified [that] McCall ‘abused Mr. White,’” The contradictory testimony of the defendants,

combined with White’s inability to identify the perpetrator, could have led a reasonable jury to

conclude that there was not enough evidence to find any defendant liable.

        In other parts of his brief, White reiterates the district court’s flawed contention that, even

though it was unclear who pushed White, it was unreasonable for the jury to find no one liable.

White cites several cases, such as Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972), for the proposition

that acts of omission are actionable to the same extent as acts of commission. In Byrd, the

plaintiff testified that he “was surrounded by about a dozen officers [in the back room] . . . [and]

was then struck repeatedly but could not identify which officers struck the blows.” Id. at 9. The

Seventh Circuit reversed the district court’s grant of directed verdicts to the defendants, stating

that “[w]e believe it is clear that one who is given the badge of authority of a police officer may

not ignore the duty imposed by his office and fail to stop other officers who summarily punish a

third person in his presence or otherwise within his knowledge.” Id. at 11. In McHenry v.

Chadwick, 896 F.2d 184 (6th Cir. 1990), this circuit adopted the reasoning of Byrd in a similar

situation involving officers’ failure to stop their comrades from unlawfully beating an individual.

Id. at 188 (affirming the district court’s denial of defendants’ motion for judgment

notwithstanding the verdict because an officer who observes an unlawful beating may be held

liable for failing to intervene).

        The facts of this case are much different from those of Byrd and McHenry. In this case,

the video of the extraction shows that White was shoved suddenly and without warning; the

entire incident was over in a matter of seconds. Merely being in the presence of an officer who



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Case No. 15-6073, White v. Bell


suddenly shoves someone is not the same as standing by idly while a group of officers surrounds

and beats someone. “[T]he Sixth Circuit has found no duty to intervene where, as here, an entire

incident unfolds in a matter of seconds.” Murray-Ruhl v. Passinault, 246 F. App’x 338, 348 (6th

Cir. 2007) (internal quotation marks omitted) (quoting Ontha v. Rutherford County, 222 F.

App’x 498, 506 (6th Cir. 2007)). In Murray-Ruhl, we held that an officer did not have a duty to

stop another officer from shooting at someone because “[e]ven if [he] was immediately able to

perceive what was happening once the first shot was fired, he would not have had enough time to

act to stop . . . [the] shooting.” Ibid. In Ontha, we held that an officer in the passenger seat of a

car did not have a duty to stop an officer in the driver’s seat who accelerated toward a fleeing

suspect because he “would have had to both glean the nature of [the driver’s] actions and decide

upon and implement preventative measures within a short time span of six to seven seconds.”

222 F. App’x at 506. Officers are liable for failing to intervene only when they at least have

some chance of stopping the use of excessive force, as was the case in Byrd and McHenry. Here,

a reasonable jury could have found that Doss and Stewart did not have enough time to prevent

the perpetrator from shoving White, making this case analogous to Murray-Ruhl and Ontha.

       Another problem with White’s argument is that Byrd and McHenry involved the question

of whether the district court could override the jury and rule for the defendant. In that scenario,

all inferences must be drawn in favor of the plaintiff. By contrast, this case involves a plaintiff’s

motion for a new trial, which requires all inferences to be drawn in favor of the jury’s verdict;

which is to say, in favor of the defendants in this case. Whereas Byrd and McHenry defended the

role of the jury in the fact-finding process, the district court’s decision in this case undermined it.

       In addition to the omission argument, White cites Smith v. Mensinger, 293 F.3d 641 (3d

Cir. 2002), which involved an individual who was punched and kicked from behind and could



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Case No. 15-6073, White v. Bell


not identify the assailants. Id. at 649–50. The Third Circuit stated that “the fact that Smith has

acknowledged that he could not see those defendants during the beating neither negates their

involvement nor their liability as a matter of law.” Id. at 650. In that case, however, the district

court denied summary judgment to the defendants because there was testimony from the plaintiff

that “all of them” attacked him. Ibid. The court went on to state that “[t]he extent of each

officer’s participation is . . . a classic factual dispute to be resolved by the fact finder.” Ibid.

Smith therefore did not negate the requirement of individualized evidence of wrongdoing; instead

it held that the evidence in the record was sufficient for a jury to find that each individual

defendant had engaged in wrongdoing. Furthermore, Smith held that the factual issue of each

officer’s involvement is a matter for the jury to decide, which is contrary to the district court’s

decision in this case to usurp the jury’s role.

        The broader problem with White’s citation to all of these cases is that they provide

support for the proposition that a jury could have found all three defendants liable in the first

trial, but do not demonstrate that the jury had to find someone liable. That proposition is novel

and without precedent. The district court’s disregard for the jury’s verdict in this case is deeply

troubling. As White’s counsel acknowledged at oral argument, if we accepted White’s position,

nothing would stop the district court from ordering a third, fourth, or fifth trial if each jury found

the defendants not liable. Furthermore, suppose that a victim of a tort or constitutional violation

knows nothing about the identity of the perpetrator except that he is a “Chinese man” or a “black

man,” which in the facts of that case, narrows down the universe of potential perpetrators to three

individuals—or twenty. Those individuals offer contradictory testimony at trial, and the jury

returns a verdict in favor of all defendants because there is not enough evidence to identify the

perpetrator. Under White’s position, the district court could repeatedly force the case to be



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Case No. 15-6073, White v. Bell


retried until someone in the identified group is found liable on the ground that the jury has to

identify somebody as the perpetrator.      That outcome cannot be reconciled with the legal

requirements of causation and subjective malice, and with the plaintiff’s burden of proof.

                                               III

        For the foregoing reasons, we hold that the district court abused its discretion when it

granted White’s motion for a new trial. We therefore REVERSE the district court’s decision and

reinstate the first jury’s verdict.




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