                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT



                                      No. 00-31387



      SONYA BENNETT,

                                                       Plaintiff-Appellant,

                                          versus

      ERNEST RHODES; ET AL.,

                                                       Defendants,

      ERNEST RHODES; GREG PHARES;
      CITY OF BATON ROUGE; S. MURPHY;
      A. MUNOZ,

                                                       Defendants-Appellees.


                  Appeal from the United States District Court for
                         the Middle District of Louisiana
                            (USDC No. 97-CV-492-B)
          _______________________________________________________
                                 March 29, 2002


Before REAVLEY, SMITH and DENNIS, Circuit Judges.

PER CURIAM:*



      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
       Sonya Bennett appeals the take nothing judgment entered in her civil rights suit.1

She claims that the jury erred in failing to award her actual and punitive damages after it

found that appellees Ernest Rhodes, Arthur Munoz, and Stephen Murphy violated her

civil rights under 42 U.S.C. § 1983.

       After the jury returned its verdict, finding liability but awarding no damages,

Bennett moved for a mistrial. On appeal she argues that after the jury rendered an

inconsistent verdict, the district court should have ordered the jury to deliberate further or

should have ordered a new trial. Bennett further argues that she was entitled to an award

of attorney’s fees, and also suggests that this court should make its own award of

damages.

       At the outset we reject Bennett’s argument that the jury erred in failing to award

punitive damages. Bennett does not complain of the court’s instruction that punitive

damages were only warranted if, in addition to finding a constitutional violation and

actual damages, the jury additionally found that the defendants “acted with malice,

willfully, intentionally or with callous reckless indifference to plaintiff’s rights and that

punitive damages are warranted as punishment and as a deterrent to others.” The failure

to render an award of punitive damages does not render the jury verdict inconsistent, and




       1
         Appellees filed a notice of cross-appeal, but this notice was untimely and we
accordingly lack jurisdiction over it. Even if we had jurisdiction over the cross-appeal,
appellees failed to file a brief and have accordingly waived whatever arguments they
might have made.

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Bennett does not otherwise persuade us that an award of punitive damages was compelled

by the evidence.

       The issue of compensatory damages presents a closer question. On the liability

interrogatories, the jury found that Rhodes used excessive force, and that such conduct

was a cause in fact of damages sustained by Bennett. The jury also found that Munoz

and Murphy failed to take reasonable measures to protect Bennett from the use of

excessive force, and that this failure was a cause in fact of damages sustained by Bennett.

However, when asked what amount would fairly and adequately compensate Bennett for

her injuries, the jury answered with an award of zero dollars.

       If a jury’s answers to special interrogatories are inconsistent, the case must be

remanded for a new trial, but the answers are considered inconsistent only if there is no

way to reconcile them. Gaia Techs., Inc. v. Recycled Prods. Corp., 175 F.3d 365, 372

(5th Cir. 1999). In the pending case, the answers are not irreconcilable. There was much

conflicting evidence from the witnesses regarding Bennett’s injuries. While there was

overwhelming evidence that Bennett had received injuries on the day in question, the jury

might well have concluded that some of the injuries were due to Bennett’s fight with her

boyfriend, Lionel Singleton, which had precipitated the police response, or from a

reasonable effort by Rhodes to fight off an attack from Bennett. Hence, while the jury

might have concluded that Bennett did indeed suffer some injury resulting from Rhodes’

use of excessive force, the jury might have been unable to find, by a preponderance of the

evidence, which injuries were caused by the excessive force and which injuries were

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caused by the non-excessive force used by Rhodes or were caused by the fight with

Singleton. Accordingly, the jury’s answers to the special interrogatories are not

irreconcilable.

       Nevertheless, since the jury found that Bennett’s civil rights were violated, she

was at least entitled to an award of nominal damages. See Clarke v. Stalder, 121 F.3d

222, 225 n.4 (5th Cir. 1997), on rehearing en banc, 154 F.3d 186 (5th Cir. 1998); Taylor

v. Green, 868 F.2d 162, 165 (5th Cir. 1989). Further, an award of nominal damages

might support an award of attorney’s fees under 42 U.S.C. § 1988. See Hopwood v.

Texas, 236 F.3d 256, 278 (5th Cir. 2000); Hidden Oaks Ltd. v. City of Austin, 138 F.3d

1036, 1052 (5th Cir. 1998). We note that Bennett prayed for attorney’s fees below, and

conclude that a determination of the amount of attorney’s fees, if any, Bennett should

receive should be decided by the district court in the first instance.

       Accordingly, we remand this case to the district court for entry of an award of

nominal damages, and for a determination of Bennett’s attorney fee request under 42

U.S.C. § 1988.

       Judgment Vacated; Cause Remanded.




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