                      United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                             Nos. 07-3451/3482/3630
                                  ___________

Charles F. Gill,                         *
                                         *
             Plaintiff - Appellee,       *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the District of
Geoff Maciejewski, acting in his         * Minnesota.
individual capacity as an officer of the *
University of Minnesota Police           *
Department,                              *
                                         *
             Defendant - Appellant.      *
                                    ___________

                             Submitted: June 13, 2008
                                Filed: November 4, 2008
                                 ___________

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
                           ___________

BYE, Circuit Judge.

      Charles F. Gill incurred a "knee drop" to his head while pinned to the ground
by University of Minnesota police officers outside a Minneapolis bar, causing
several facial fractures and other injuries. Gill brought a 42 U.S.C. § 1983 action
against Officer Geoff Maciejewski alleging the use of excessive force. A jury
returned a verdict in favor of Gill and awarded damages. The district court1 denied

      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
Maciejewski's motion for judgment as a matter of law (JAML), holding Gill
presented sufficient evidence to support his excessive force claim. The district
court also denied Maciejewski's motion to reduce the damage award by the amount
Gill's health insurer paid to cover the cost of medical treatment, and awarded Gill
attorney's fees and costs. On appeal, Maciejewski argues Gill failed to meet his
burden of proving excessive force. Maciejewski also challenges the district court's
1) evidentiary rulings and jury instructions, 2) exclusion of testimony regarding
Gill's criminal history and statements made by Gill's lawyer, 3) denial of his
motion to offset the damage award, and 4) the award of lawyer's fees and costs.
We affirm.

                                          I

      The facts, viewed in the light most favorable to the nonmoving party,
Siebrasse v. U.S. Dep't of Agric., 418 F.3d 847, 850 (8th Cir. 2005), are as follows.
On January 1, 2005, Gill attended a New Year's Eve party at Sally's Saloon near
the University of Minnesota campus. Gill entered the bathroom of the bar during
the evening and was struck in the face by a bar patron. Gill pinned the patron
against the bathroom wall, and bar security intervened to break up the struggle.

       Security escorted Gill out of the bar and ejected him when he attempted to
reenter. Gill testified bar security initiated a physical struggle in the parking lot
and pinned him against a car. Shortly thereafter, University of Minnesota police
officers arrived and intervened. Gill offered no resistance as the officers forced
him to the pavement. While restrained and on the ground, Gill observed a police
officer, later identified as Maciejewski, carrying a pepperball gun. Gill testified
the officer took three steps toward him and dropped a knee to his head.

       Maciejewski denied attacking Gill. He conceded, however, he was the only
officer carrying a pepperball gun, and Maciejewski was identified by other police


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officers as the only officer carrying a pepperball gun. Additionally, three of Gill's
friends testified the police officer carrying the pepperball gun performed the knee
drop.

       Gill was arrested and taken to jail. His father posted bail and took him to the
hospital where Gill was examined and diagnosed with five facial-bone fractures, a
concussion, and bleeding into the brain. The examining physician testified Gill's
head injuries were consistent with a knee drop. The injuries required corrective
surgery, several days of bed rest, pain medication, sleeping aids, and left Gill with
recurring headaches.

                                          II

                                          A

      Maciejewski first argues the district court erred in denying his motion for
JAML. We review the district court's denial of JAML de novo. Gardner v.
Buerger, 82 F.3d 248, 251 (8th Cir. 1996). "Judgment as a matter of law is
appropriate only when the nonmoving party fails to present enough evidence to
permit a reasonable jury to decide in his favor." Id. at 251 (citing Johnson v.
Cowell Steel Structures, Inc., 991 F.2d 474, 478 (8th Cir. 1993)). The nonmoving
party must present more than a "mere scintilla" of evidence, id. at 254 (citing City
of Omaha Employees Betterment Ass'n v. Omaha, 883 F.2d 650, 651 (8th Cir.
1989)), and we are required to view the evidence in the light most favorable to the
prevailing party, Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1092 (8th
Cir. 2007). The moving party bears a heavy burden on a motion for JAML.
Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir. 1996) (citation
omitted).




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       We analyze Fourth Amendment excessive force claims under a
reasonableness standard to determine whether, in light of the facts and
circumstances, the officer's actions were objectively reasonable. Graham v.
Connor, 490 U.S. 386, 396 (1989). "The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-second
judgments – in circumstances that are tense, uncertain, and rapidly evolving –
about the amount of force that is necessary in a particular situation." Id. at 396-97.
The objectively reasonable standard is viewed from the vantage point of the police
officer at the time of arrest or seizure. Wertish v. Krueger, 433 F.3d 1062, 1066
(8th Cir. 2006).

       The evidence shows Gill did not resist and complied with the officers'
demands. While Gill was pinned to the ground by multiple officers, Maciejewski
approached and smashed his knee into the hapless suspect's head. Maciejewski
denies the attack but was identified by fellow police officers as the only one
carrying a pepperball gun. Other witnesses testified the officer carrying the
pepperball gun performed the knee-drop maneuver. Maciejewski's denial
notwithstanding, he concedes, under these circumstances, a knee drop to the head
would constitute excessive force. Finally, the medical evidence indicates Gill
sustained numerous injuries consistent with a knee drop to the head.

       This evidence fully supports the jury's finding of excessive force and is
sufficient to withstand Maciejewski's JAML motion.

                                          B

       Maciejewski next argues the district court improperly excluded evidence of
Gill's criminal history, and statements made by Gill's counsel during his criminal
trial.



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       A district court is possessed with broad discretion in its evidentiary rulings
made at trial, and we will reverse only if they amount to "a clear and prejudicial
abuse of discretion." Lovett ex rel. Lovett v. Union Pac. R.R. Co., 201 F.3d 1074,
1081 (8th Cir. 2000). To warrant reversal, an error "must affect a substantial right
of the objecting party, and the burden of showing prejudice rests on that party."
ACTONet, Ltd. v. Allou Health & Beauty Care, 219 F.3d 836, 848 (8th Cir. 2000)
(quoting Crest Tankers, Inc., 47 F.3d 292, 296 (8th Cir. 1995)). "Only when the
evidence excluded is of such a critical nature that there is 'no reasonable assurance
that the jury would have reached the same conclusion had the evidence been
admitted' has a district court so abused its discretion." Stephens v. Rheem Mfg.
Co., 220 F.3d 882, 885 (8th Cir. 2000) (quoting Adams v. Fuqua Indus., Inc., 820
F.2d 271, 273 (8th Cir. 1987)).

                                         1

       Following his arrest, Gill was charged criminally with obstructing legal
process and disorderly conduct. A jury acquitted him of both charges. At his
criminal trial, Gill testified he had never been convicted of a crime. At his
deposition in the § 1983 action, however, he admitted having a criminal history.
Gill moved to exclude evidence of his criminal history as well as any reference to
his testimony denying the convictions in the criminal trial. He argued the
convictions were improper impeachment evidence under Fed. R. Evid. 609, and
reference to his earlier inaccurate testimony would be unfairly prejudicial under
Fed. R. Evid. 403. Maciejewski argued Gill committed perjury in the criminal
proceeding and his denial was admissible under Fed. R. Evid. 608(b) as probative
of his character for truthfulness. Based on Gill's deposition testimony, the district
court found Gill's incorrect testimony resulted from a mistaken belief and did not
evince an intent to mislead. Accordingly, the court rejected Maciejewski's perjury
claims and excluded the evidence.



                                         -5-
      The district court credited Gill's explanation for the false testimony and we
find no cause to discount those findings. United States v. McCarthy, 97 F.3d 1562,
1579 (8th Cir. 1996) (internal citation omitted) ("Credibility determinations are
within the exclusive domain of the district court, and are virtually unreviewable on
appeal."). Thus, the evidence was not probative of Gill's character for truthfulness
and district court did not abuse its discretion by holding it inadmissible.

                                          2

       Maciejewski next contends the district court erred by excluding a statement
made during the criminal trial by Gill's lawyer. During the criminal trial, Gill's
lawyer stated: "So almost four months after this incident we still don't know if it
was Officer Maciejewski or Sergeant Reineke or Officer Hermes who did the knee
drop. No one has accepted responsibility." Maciejewski argues the statement
adheres to the evidentiary rule that "statement[s] by a person authorized by the
party to make a statement concerning the subject" are admissions against interest.
Fed. R. Evid. 801(d)(2)(C)-(D). Maciejewski, however, takes unwarranted
liberties with the context of the statement. It is clear from the transcript counsel's
statement was prompted by Maciejewski's failure to attend and testify at Gill's
criminal trial. Gill's lawyer was calling attention to Maciejewski's inexplicable
absence – not suggesting Gill did not know who caused his injuries. Accordingly,
the district court properly excluded the statement.

                                          C

       Maciejewski next contends the district court's Jury Instruction Number 16
was confusing and constitutes reversible error. We review a district court's jury
instructions for abuse of discretion. Warren v. Prejean, 301 F.3d 893, 900 (8th Cir.
2002) (citing B & B Hardware, Inc. v. Hargis Indus., Inc., 252 F.3d 1010, 1012-13
(8th Cir. 2001)). "[A] district court has broad discretion in instructing the jury, and


                                         -6-
jury instructions do not need to be technically perfect or even a model of clarity."
B & B Hardware, Inc. v. Hargis Indus., Inc., 252 F.3d 1010, 1012 (8th Cir. 2001)
(citations and internal quotation omitted). Our review is limited to "whether the
instructions, taken as a whole and viewed in the light of the evidence and
applicable law, fairly and adequately submitted the issues in the case to the jury."
Wheeling Pittsburgh Steel Corp. v. Beelman River Terminals, Inc., 254 F.3d 706,
711 (8th Cir. 2001) (quoting White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th
Cir. 1998)) (internal quotations omitted). We will only reverse if an instructional
error affected the substantial rights of the parties. Id.

      At trial, Maciejewski offered evidence suggesting Gill failed to call him as a
witness in the criminal proceedings because Maciejewski had no relevant
knowledge of the incident. The district court, concerned the jury might be
confused, gave the following instruction clarifying a criminal defendant's
evidentiary burden.

       You have heard testimony in this trial that the plaintiff, Charles Gill,
       was found not guilty at a prior criminal trial. Keep in mind, however,
       that you must decide this case solely on the evidence presented to you
       in this trial. The fact of a previous criminal trial should have no
       bearing on your decision in this case.

....

       You are instructed that a defendant in a criminal trial is presumed
       innocent of the crime charged. The burden is always upon the
       prosecution to prove guilt beyond a reasonable doubt. This burden
       never shifts to a defendant for the law never imposes upon a defendant
       in a criminal case the burden or duty of calling any witnesses or
       producing any evidence. The defendant is not even obligated to
       produce any evidence by cross-examining the witnesses for the
       government.



                                         -7-
      Maciejewski argues the instruction failed to state Gill could have called
Maciejewski to testify in the criminal proceeding. He also argues the instruction
should have stated Gill's acquittal did not equate to a finding of innocence.
Finally, he argues the instruction misled the jury by suggesting Gill had no burden
to produce evidence in either the criminal or civil trial.

       We reject Maciejewski's arguments. The burden of proof in the criminal
trial had no direct bearing on this action, but became an issue when Maciejewski
intimated Gill unreasonably failed to call him to testify. Thus, it was not an abuse
of discretion for the district court to instruct the jury a criminal defendant has no
obligation to call witnesses. Further, there was nothing improper or inaccurate
about the instruction's recitation of the "not guilty" verdict. The district court
properly concluded it would be unfairly prejudicial to present evidence of a
criminal proceeding without telling the jury Gill was acquitted. Finally, the
instruction clearly states a criminal defendant has no burden to present evidence or
call witnesses, but in no way abrogated Gill's burden of proof in the civil
proceedings.

                                         D

       The jury awarded Gill $10,000 in compensatory damages. He also received
$9,906.98 from his insurer to cover the cost of medical treatment. Maciejewski
contends the district court erred in refusing to reduce the $10,000 jury award by the
amount of medical benefits Gill received from his insurer. Maciejewski argues the
district court erroneously applied the common law collateral source rule instead of
Minnesota's rule found at Minn. Stat. Ann. § 548.36(3).

       "The common law collateral source rule holds that the defendant's liability
shall not be reduced merely because the plaintiff's net damages are reduced by
payments received from others." Arneson v. Callahan, 128 F.3d 1243, 1248 (8th


                                         -8-
Cir. 1997) (citing NLRB v. Gullett Gin Co., 340 U.S. 361, 364 (1951)). We first
note "[t]he collateral source rule applies to § 1983 actions." Perry v. Larson, 794
F.2d 279, 286 (7th Cir. 1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
231-232 (1970)). Further, "when § 1983 plaintiffs seek damages for violations of
constitutional rights, the level of damages is ordinarily determined according to
principles derived from the common law of torts." Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 306 (1986) (citations omitted); see also Timm v.
Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998) (noting the
federal common law of damages applies to actions brought under 42 U.S.C.
§ 1983). Thus, the district court correctly applied the common law collateral
source rule.

       Maciejewski's argument against this result relies on 42 U.S.C. § 1988(a)'s
language directing federal courts to apply state law when federal law proves
deficient or unable to provide a suitable remedy. Section 1988, however, only
applies when federal law is inadequate. For example, federal law provides no
remedy under § 1983 for wrongful death. Thus, courts applying § 1983 look to the
states' wrongful death statutes for a suitable remedy not inconsistent with the
Constitution and laws of the United States. See, e.g., Pollard v. United States, 384
F. Supp. 304, 306 (M.D. Ala. 1974). In this instance, federal law is neither
deficient nor unable to provide a suitable remedy. Indeed, other than his desire for
a contrary result, Maciejewski offers no explanation for why the federal common
law applied by the district court fails to provide a suitable remedy.

                                         E

      Finally, Maciejewski appeals the district court's award of attorney's fees. He
argues Gill only achieved limited success, which does not justify the fee award.




                                        -9-
       In deciding whether a district court's award of attorney's fees is excessive,
we apply an abuse of discretion standard. Warnock v. Archer, 380 F.3d 1076,
1083 (8th Cir. 2004). In a § 1983 action, "the court, in its discretion, may allow
the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ." 42
U.S.C. § 1988(b). "To be a prevailing party, a plaintiff must 'succeed on any
significant issue in litigation which achieves some of the benefit the parties sought
in bringing suit.'" Forest Park II v. Hadley, 408 F.3d 1052, 1059 (8th Cir. 2005)
(quoting Farrar v. Hobby, 506 U.S. 103, 109 (1992)). The amount of the damage
award does not change the prevailing party inquiry, but does bear on the quantum
of fees awarded. See Loggins v. Delo, 999 F.2d 364, 369 (8th Cir. 1993) (noting
limited success will limit the attorney's fee award).

      Despite Maciejewski's protestations, it is beyond peradventure Gill
succeeded in vindicating the asserted constitutional violation. Thus, we reject
Maciejewski's contrary arguments as without merit. Further, we find the fee award
was not excessive. First, Maciejewski did not challenge the hourly rates requested.
Additionally, the court reduced the costs request by excluding expert witness fees,
and denying Gill's request for attorney's fees related to the criminal proceedings.
Finally, the court specifically found its fee award supported by the significant
success Gill achieved. Therefore, the district court's award of costs and fees was
not an abuse of discretion.

                                          III

      The judgment of the district court is affirmed.
                     ______________________________




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