                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          JAN 14 2003
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 CARROLL W. LEWIS, JR.,

               Plaintiff - Appellant/
               Cross - Appellee,                  Nos. 01-3158 & 01-3172
          v.                                            (D. Kansas)
 THE BOARD OF COUNTY                           (D.C. No. 97-CV-1483-WEB)
 COMMISSIONERS OF SEDGWICK
 COUNTY, KANSAS,

               Defendant - Appellee/
               Cross - Appellant.


                            ORDER AND JUDGMENT           *




Before SEYMOUR , ANDERSON , and O’BRIEN , Circuit Judges.



      Carroll Lewis, Jr. appeals the district court’s grant of judgment as a matter

of law for defendant Sedgwick County in this 42 U.S.C. § 1983 action which

resulted in a $500,000 jury award for Lewis. Sedgwick County cross-appeals the

district court’s alternative ruling that, should its grant of judgment for Sedgwick



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
County be vacated, the court would grant Sedgwick County’s motion for a new

trial as to damages alone, not as to liability. It also cross-appeals the district

court’s determination that each party was to bear its own costs rather than

awarding costs to Sedgwick County as the prevailing party. We affirm the district

court’s grant of judgment as a matter of law for Sedgwick County, dismiss as

moot Sedgwick County’s cross-appeal relating to its motion for a new trial, and

remand to the district court for reconsideration of its award of costs.

       The parties do not dispute the basic material facts of this case, which the

district court thoroughly described.   Lewis v. Bd. of Sedgwick County Comm’rs       ,

140 F. Supp. 2d 1125, 1128-31 (D. Kan. 2001). Briefly, Lewis, while stationed as

a tanker refueller at McConnell Air Force Base near Wichita, Kansas, was

arrested late on the night of November 3, 1996, on suspicion of criminal damage

to property and domestic violence, following an incident in which he kicked in

the door of his girlfriend’s house. He was booked into the Sedgwick County

Adult Detention Facility and placed in a holding cell. He testified he was told

that he should tap on the window of the holding cell and wave if he needed

anything.

       Early the next morning, on November 4, 1996, he tapped on the glass,

inquired as to when he would be released, and was then taken to an isolation cell

where he was directed to remove his shoes and jacket. He testified that he was


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then essentially attacked by up to eight detention facility personnel who “pulled

on Mr. Lewis’ arms, repeatedly struck him, pulled on his neck, stood on his back

and ankles, and finally lifted him by his handcuffs and restrained him in a

restraint chair.” Appellant’s Br. at 4-5. The officers’ testimony was, predictably,

different, essentially describing Lewis as combative and uncooperative,

necessitating a struggle to subdue him. Lewis testified that this encounter caused

him pain in his back, neck, wrists and hands, and that his back, in particular,

worsened over the years. As the district court noted, although Lewis produced

some of his Air Force medical records, he introduced no medical testimony

concerning his injuries. Lewis was eventually discharged from the Air Force with

disability pay.

      Lewis brought this action under 42 U.S.C. § 1983, alleging that the

Sedgwick County detention facility officers violated his constitutional rights by

using excessive force against him while he was in custody. After dropping his

claims against the individual officers, he pursued his claim only against Sedgwick

County, arguing it was liable for the alleged violation because it had a custom and

policy of failing adequately to train, supervise or discipline its detention officers

regarding the use of excessive force.

      The claim was tried before a jury. Sedgwick County moved for judgment

as a matter of law at the close of Lewis’ case and again after all evidence had


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been submitted. The court took the latter motion under advisement and submitted

the case to the jury. The jury returned a verdict for Lewis for $500,000, twice

what he sought. Sedgwick County renewed its motion for judgment as a matter of

law and additionally filed a motion for a new trial.

       The district court issued a lengthy and carefully reasoned opinion granting

Sedgwick County’s motion for judgment as a matter of law.            Lewis , 140 F. Supp.

2d at 1131-39. It then also held that, in the event its decision granting judgment

for Sedgwick County was vacated, it would find the $500,000 award for Lewis

excessive, and would grant a new trial on damages. The court also directed “each

party to bear its own costs.”    Id. at 1141.

       “We review de novo a district court’s grant of a motion for judgment as a

matter of law, applying the same standard utilized by the district court.”        Bangert

Bros. Constr. Co., Inc. v. Kiewit W. Co.     , 310 F.3d 1278, 1285-86 (10th Cir.

2002). “Judgment as a matter of law is appropriate only ‘[i]f during a trial by

jury a party has been fully heard on an issue and there is no legally sufficient

evidentiary basis for a reasonable jury to find for that party on that issue.’”     Id. at

1286 (quoting Fed. R. Civ. P. 50(a)(1)). When we review the record, we “will not

weigh evidence, judge witness credibility, or challenge the factual conclusions of

the jury.” Brown v. Gray , 227 F.3d 1278, 1285 (10th Cir. 2000) (quotation




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omitted). Further, “[w]e consider the evidence, and any inferences drawn

therefrom, in favor of the non-moving party.”       Id.

       As the district court also correctly noted, in order to find the County liable

for failing to adequately train its police officers in the use of force, Lewis would

have to establish the following:

       (1) the officers exceeded constitutional limitations on the use of
       force; (2) the use of force arose under circumstances that constitute a
       usual and recurring situation with which police officers must deal;
       (3) the inadequate training demonstrates a deliberate indifference on
       the part of the city toward persons with whom the police officers
       come into contact; and (4) there is a direct causal link between the
       constitutional deprivation and the inadequate training.

Id. at 1286; see also Allen v. Muskogee , 119 F.3d 837, 841-42 (10th Cir. 1997).

The district court held that, while the evidence presented at trial was sufficient to

support the jury’s verdict on the first two elements, it was insufficient to support

the jury’s verdict on the third and fourth elements. We agree, for substantially the

reasons set forth in the district court’s thorough opinion on the matter.   Lewis ,

140 F. Supp. 2d at 1131-39.    1




       1
        We further conclude that the district court did not commit plain error in
excluding the investigation files regarding prior complaints of excessive force,
which were investigated by then Lieutenant Bardezbain. We first note that Lewis
fails to direct us to where the record reflects his proffer of these files and the
district court’s rejection of them. We therefore do not know why the court
disallowed them. The fact that there had been “22 complaints of excessive force
. . . made by detainees between 1995 and 1997, out of approximately 90,000
detainees who went through the facility” was part of the evidence before the jury.
                                                                          (continued...)

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       Because we have upheld the district court’s grant of judgment to Sedgwick

County, the County’s motion for a new trial is moot. We do address, however,

Sedgwick County’s argument that the district court erred in awarding costs to

each party, instead of awarding costs to the County as the prevailing party.

       Fed. R. Civ. P. 54(d)(1) provides that costs “shall be allowed as of course

to the prevailing party unless the court otherwise directs.” We have

acknowledged that “[t]he allowance or disallowance of costs to a prevailing party

is within the sound discretion of the district court.”   Zeran v. Diamond Broad.,

Inc. , 203 F.3d 714, 722 (10th Cir. 2000). That discretion is, however, limited in

two respects: “First, it is well established that Rule 54 creates a presumption that

the district court will award costs to the prevailing party. Second, the district

court must provide a valid reason for not awarding costs.”     Id. (citations and

quotations omitted). In this case, the district court provided no explanation for its

denial of costs to the County, the prevailing party once the court granted

judgment for it as a matter of law. We accordingly remand this matter for the

limited purpose of permitting the district court to reexamine its award of costs

and, if it denies costs to the County as the prevailing party, to explain its denial.




       (...continued)
       1

Lewis, 140 F. Supp. 2d at 1138 n.6. Any error in the exclusion of the files did
not affect “substantial rights” and “the fairness, integrity or public reputation” of
the proceeding. United States v. Lott, 310 F.3d 1231, 1241 (10th Cir. 2002).

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Of course, by this remand, we do not intend to intimate that any particular

resolution of the matter is preferred over another.

      For the foregoing reasons, the district court’s entry of judgment as a matter

of law for Sedgwick County is AFFIRMED, and the matter is REMANDED for

reconsideration of its award of costs.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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