United States Court of Appeals

For the Eighth Circuit

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No. 16-1410

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Jimmy Lee Letterman; Annette Fay Letterman

lllllllllllllllllllll Plaintiffs - Appellees

v.

Jon Does, individually, and in their official capacities

lllllllllllllllllllll Defendant

Steven Lammers; Noreen Gastineau; Jerry Farnsworth; Bryan Earls

lllllllllllllllllllll Defendants - Appellants

Marcia Jennings

lllllllllllllllllllll Defendant

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No. 16-1771

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Jimmy Lee Letterman; Annette Fay Letterman

lllllllllllllllllllll Plaintiffs - Appellees

v.

Jon Does, individually, and in their official capacities

lllllllllllllllllllll Defendant
Steven Lammers; Noreen Gastineau; Jerry Farnsworth; Bryan Earls

lllllllllllllllllllll Defendants - Appellants

Marcia Jennings

lllllllllllllllllllll Defendant

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Appeals from United States District Court 

for the Western District of Missouri - St. Joseph

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 Submitted: April 5, 2017

 Filed: June 22, 2017

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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.

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GRUENDER, Circuit Judge.

Jimmy Lee and Annette Fay Letterman brought suit under 42 U.S.C. § 1983

and Missouri tort law against officers of the Missouri Department of Corrections

(“Defendants”) for the death of their son while in custody. Three of the Defendants

previously appealed the district court’s order denying them qualified immunity, and

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we affirmed as to two of them. Letterman v. Does, 789 F.3d 856, 863-64 (8th Cir.

2015). Defendants now appeal a jury verdict in favor of the Lettermans. For the

following reasons, we affirm.

The Honorable Nanette K. Laughrey, United States District Judge for the

1

Western District of Missouri.

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I. Background

In late 2011, Danial Letterman (“Danial”) began to serve a sentence for a drugrelated probation violation at the Western Reception, Diagnostic, and Correctional

Center (“WRDCC”) ofthe Missouri Department ofCorrections. During his sentence,

mental health staff placed Danial on suicide watch and moved him to a secured,

padded room in the Transitional Care Unit (“TCU”). The facility’s close observation

policy required officers to check on Danial every fifteen minutes and record their

observations in a close observation log. If they could not observe movement, obtain

a verbal response, or see him breathing, the officers were required to report it as a

medical emergency.

Just before midnight on November 17, 2011, Danial fell twice in his padded

cell. After the first fall, Danial got back up. In the second fall, Danial hit his head

on the doorjamb, causing a noise loud enough to prompt Officer Steven Lammers, the

officer on duty, to come to the cell to check on him. Lammers saw Danial on the

ground and asked if he needed medical assistance. Danial did not respond verbally

but waved his hand. Lammers did not obtain medical assistance and noted in the

close observation log that Danial was “good.” Danial remained conscious between

ten and twenty minutes after the fall but did not move from his position on the floor

beside the door.

When Officer Noreen Gastineau relieved Lammers at 7:30 a.m., Danial was

still lying on the floor by the door, and Lammers informed Gastineau that Danial had

not moved all night after falling. During the morning, one of the TCU doctors came

to speak with Danial and knocked on the door of his cell. In response, Danial grunted

and moved his foot and head. Around 9 a.m., medical personnel indicated that Danial

needed to be awoken, and Gastineau kicked the door, yelled at Danial, and splashed

water on his face. In response, Danial moved his head slightly and fluttered his

eyelids. Gastineau contacted Sergeant JerryFarnsworth and informed himthat Danial

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had not moved from his position since the beginning of her shift and that the cell door

needed to be opened so medical personnel could check Danial’s vital signs. 

Farnsworth indicated that he could not spare an officer to access the cell. Shortly

thereafter, Lieutenant Bryan Earls, the supervising officer, passed through the TCU

on his rounds, and a nurse requested that Earls open the door so she could check

Danial’s vitals. Gastineau informed Earls that Danial had not moved all day. Earls

refused to open the cell, instead suggesting that they “let sleeping dogs lie.” Around

2:00 p.m., Marcia Jennings, the TCU’s Functional Unit Manager, observed Danial

lying in a strange position, and Gastineau informed her that Danial had not moved

since last night and had not eaten. Jennings did not report it as a medical emergency;

rather, she went to her office and began making phone calls in an attempt to get

Danial’s cell door open. Around 4:00 p.m., a team finally opened the cell door, and

the nurse determined that Danial required immediate medical attention. Danial was

transported to the hospital, where he died of subdural bleeding caused by a head

injury.

Danial’s parents sued the Defendants for denial of medical care, personal

injuries, and wrongful death under both 42 U.S.C. § 1983 and Missouri tort law. 

Three of the Defendants moved for summary judgment on the basis of qualified

immunity, and the district court denied the motion. This court affirmed except as to

Jennings. Letterman, 789 F.3d at 865. The case proceeded to trial and the jury

rendered a verdict in favor of the Lettermans. For the denial of medical care claim,

the jury awarded $6,793.29 for funeral and burial expenses, $100,000 for pain and

suffering, and $150,000 for the constitutional violation. The jury also awarded

punitive damages against each defendant related to the denial of medical care claim. 

For the wrongful death claim, the jury awarded $1,000,000. Defendants renewed

their request for judgment as a matter of law and alternatively moved for a new trial,

challenging the jury instructions and several evidentiary rulings. The district court

denied the motions and awarded attorney’s fees and costs to the Lettermans pursuant

to 42 U.S.C. § 1988. Defendants now appeal.

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II. Discussion

Defendants raise a number of issues on appeal. First, they contend they are

entitled to judgment as a matter of law as to the pain and suffering claim. Second,

Defendants argue that they are entitled to a new trial because the jury was not

instructed on official immunity under Missouri law. Defendants also argue a new

trial is warranted because the district court erred in several evidentiary rulings.

A. Judgment as a Matter of Law

We “review the district court’s denial of a motion for judgment as a matter of

law de novo, using the same standards as the district court.” Luckert v. Dodge Cty.,

684 F.3d 808, 816 (8th Cir. 2012) (quotation omitted). Thus, “[w]e review the

evidence in the light most favorable to the non-moving party, drawing all reasonable

inferences in its favor and resolving all factual disputes in its favor.” Liberty Mut.

Fire Ins. Co. v. Scott, 486 F.3d 418, 422 (8th Cir. 2007). The court is not at liberty

to reweigh the evidence “or consider questions of credibility,” and it must “give great

deference to the jury’s verdict.” Howard v. Mo. Bone & Joint Ctr., Inc., 615 F.3d

991, 995 (8th Cir. 2010) (citations omitted). “Judgment as a matter of law is

appropriate only when all of the evidence points one way and is susceptible of no

reasonable inference sustaining the position of the nonmoving party.” Id. (quotation

omitted).

Defendants contend that the evidence is not sufficient to support the award of

damagesfor pain and suffering because Danial could only have experienced pain and

suffering during the twenty minutes he retained consciousness after his second fall

and that “there was no evidence any Defendant knowingly failed to provide

Letterman needed care” during that period. However, even assuming Defendants are

correct that no evidence demonstrates they knowingly failed to provide needed care

within twenty minutes after the second fall, Defendants ignore evidence that Danial

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did not remain completely unconscious throughout the following hours. Gastineau

testified that about mid-morning she attempted to elicit a response from Danial by

kicking on the door, yelling at him, and sprinkling water on his face. Although he did

not respond verbally, he did move his head and flutter his eyelids. Earlier in the

morning, one of the TCU doctors attempted to elicit a response from Danial by

knocking on the door, and he grunted and moved his foot and head slightly. 

Defendants argue that these movements are consistent with light unconsciousness.

However, Danial’s movements are also consistent with consciousness, and the jury

is entitled to make that determination. Defendants also suggest that Dr. Mary Case,

the Lettermans’ expert witness, concluded that Danial never regained consciousness. 

However, they mischaracterize her testimony. Dr. Case testified that, in her opinion,

Danial was not conscious longer than twenty minutes after his second fall. She was

not asked whether he regained consciousness at a later time. Thus, the evidence is

sufficient to support a reasonable inference sustaining the award of damagesfor pain

and suffering. As a result, we affirm the district court’s denial of judgment as a

matter of law. 

B. Motion for New Trial

Defendants next appeal the district court’s denial of their motion for a new

trial. “Under [Federal Rule of Civil Procedure] 59, the decision to grant a new trial

lies within the sound discretion of the trial court, and its discretion will not be

reversed on appeal absent a clear abuse of that discretion.” Id. at 995. Defendants

argue that the district court erred by failing to instruct the jury on official immunity

under Missouri law. Defendants also challenge the district court’s refusal to admit

evidence regarding (1) the medical staff’s lack of concern for Danial’s

nonresponsiveness, (2) Danial’s bad character, and (3) Danial’s posthumous social

security disability benefits award. 

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1. Official Immunity

Although Defendants raised official immunity along with qualified immunity

in their motions for summary judgment, the district court determined that it required

more evidence and declined to decide official immunity until trial. Thus, official

immunity was not at issue in the previous, interlocutory appeal. See Letterman, 789

F.3d at 856. At trial, the district court decided as a matter of law that Defendants

were not entitled to official immunity. Accordingly, it instructed the jury to find the

Defendants liable if they were negligent. Defendants contend that they are entitled

to official immunity and, as a result, the jury should have been instructed to hold them

liable only if they acted with malice. Although Defendants characterize their

argument as challenging the jury instructions, it is more properly construed as

challenging the district court’s determination that they were not entitled to official

immunity. Thus, whether Defendants are entitled to official immunity is a question 2

of law we review de novo. Murray, 915 F.2d at 1199; see also Boude v. City of

Raymore, 855 F.3d 930, 935 (8th Cir. 2017) (reviewing the district court’s grant of

summary judgment based on official immunity de novo).

Missouri applies the doctrine of official immunity to “protect[] public

employees from liability for alleged acts of negligence committed during the course

of their official duties for the performance of discretionary acts.” Southers v. City of

Farmington, 263 S.W.3d 603, 610 (Mo. 2008) (en banc). “The official immunity

We note that a finding of official immunity usually prevents a case fromgoing

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to trial rather than informing jury instructions. See Murray v. Leyshock, 915 F.2d

1196, 1199 (8th Cir. 1990) (affirming grant of judgment notwithstanding the verdict

on the basis of official immunity and noting that “[u]nder the well-established

Missouri official immunity doctrine, it is highly improbable that the Missouri

Supreme Court would have allowed Murray’s state law negligence claim to go to a

jury as a matter of law” (citations omitted)); see also Hawkins v. City of Farmington,

189 F.3d 695, 703 (8th Cir. 1999) (affirming judgment as a matter of law as to a

negligence claim on the basis of official immunity).

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doctrine, however, does not provide public employees immunity for torts committed

when acting in a ministerial capacity.” Id. (citation omitted). “A discretionary act

requires the exercise of reason in the adaptation of means to an end and discretion in

determining how or whether an act should be done or course pursued,” id. (citation

omitted), while a ministerial function “is one of a clerical nature which a public

officer is required to perform upon a given state of facts, in a prescribed manner, in

obedience to the mandate of legal authority, without regard to his own judgment or

opinion concerning the propriety of the act to be performed,” id. (quotation omitted).

Which category an act falls into is determined “on a case-by-case basis” considering

three factors: “(1) the nature of the public employee’s duties; (2) the extent to which

the act involves policymaking or exercise of professional judgment; and (3) the

consequences of not applying official immunity.” Id. (citation omitted). However,

official immunity does not apply where the discretionary act “is willfully wrong or

done with malice or corruption.” Id. (citation omitted).

Defendants primarily challenge the first prong of the official immunity test,

arguing that the nature of the officers’ duties under the close-observation policy

demonstrates that the policy is discretionary. Defendants contend that the officers

must use discretion in determining whether an inmate has shown movement or

response because inmates are allowed to sleep while on close observation. Thus, they

argue, officers must differentiate between lack of response due to sleep and lack of

response due to medical emergency to determine if and when to report

nonresponsiveness under the policy. However, this assertion is inaccurate. The

close-observation policy requires officers to check on the inmate every fifteen

minutes and report as a medical emergency any instance when they cannot observe

movement or obtain a verbal response or when it appears that the inmate is not

breathing. Whether the inmate is asleep is irrelevant, because the movement

requirement may be satisfied by the rise and fall of the inmate’s chest as he breathes. 

The duty to report a medical emergency when one of these criteria is met is

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mandatory and does not depend on the officer’s assessment of whether a medical

emergency actually exists.

Moreover, even if we accept Defendants’ contention that executing the closeobservation policy requires discretion in determining what constitutes movement or

response, it does not follow that the close-observation policy is discretionary for

purposes of official immunity. For example, driving inherently involves some

discretion, but police officers receive official immunity only when responding to an

emergency situation. Southers, 263 S.W.3d at 618. They do not receive official

immunity when driving to nonemergency situations, even when the driving is

performed on duty. Id. In the same way, even if discretion isinvolved in determining

whether the inmate has manifested the necessary response, it does not follow that the

act ofreporting a medical emergency when a response is not received is discretionary.

The second and third factors also weigh in favor of finding the policy

mandatory rather than discretionary. The officers only are called upon to observe the

inmate and obtain a response at a prescribed interval. The task confers no

policymaking authority and requires no professional judgment. Finally, imposing

liability in these circumstances would not have the effect of making officers

inappropriately cautious—the consequence official immunity is designed to prevent. 

See, e.g., Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 763 (Mo. 2006)

(en banc) (“Imposing liability upon the officer in these cases might delay responses

to emergency calls, thereby adversely affecting officers or citizens in need of

emergency assistance.”). Thus, the close-observation policy fits neatly into the

category of actions “which a public officer is required to perform upon a given state

of facts, in a prescribed manner, in obedience to the mandate of legal authority,

without regard to his own judgment or opinion concerning the propriety of the act to

be performed.” Southers, 263 S.W.3d at 610 (citation omitted). As a result, the

close-observation policy is ministerial and Defendants were not entitled to official

immunity.

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2. Evidence of Medical Staff Response

Defendants next contend that they are entitled to a new trial because the district 

court refused to admit evidence that medicalstaff at WRDCC were unconcerned with

Danial’s nonresponsiveness because they believed he was sleeping. This evidence,

they argue, would demonstrate that Defendants did not have actual knowledge of

Danial’s medical needs. See Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)

(explaining that to prove a claim of deliberate indifference to an inmate’s serious

medical needs, the plaintiff must show that the officers “actually knew of, but

deliberately disregarded, [the inmate’s] medical needs”)). “Rulings on admissibility

of evidence will not be reversed absent a clear and prejudicial abuse of discretion.”

Pittman v. Frazer, 129 F.3d 983, 989 (8th Cir. 1997). 

The district court did not abuse its discretion. In the first appeal, we explained

that, “[w]hen evaluating whether an actor deliberately disregarded a risk, we consider

his actions in light of the information he possessed at the time . . . .” Letterman, 789

F.3d at 862 (quotation omitted). “We focus on the mind of the prison official and the

information at his disposal, not the thoughts of third-party actors who do not disclose

their thoughts.” Id. at 863 (citation omitted). The district court permitted Defendants

to introduce evidence as to what medical staff told Defendants, but it did not admit

evidence of what the medical staff thought but did not communicate to them. As a

result, the district court did not clearly and prejudicially abuse its discretion by

determining that evidence of what medical staff thought but did not disclose is

irrelevant and, therefore, inadmissable. See Fed. R. Evid. 401, 402.

3. Damages Evidence

Defendants further assert that they are entitled to a new trial because the district

court refused to admit evidence that Danial used drugs, had unsavory tattoos, gave

up a child for adoption, and posthumously received disability benefits. Defendants

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contend that this evidence is “broadly relevant” to the amount of damages for loss of

consortium and wrongful death. However, Defendants make no attempt to counter

the district court’s reasons for excluding the evidence—that it is cumulative, unfairly

prejudicial, and has the potential to mislead the jury. Federal Rule of Evidence 403

allows the district court to exclude relevant evidence for these reasons. Thus, even

if we agree with Defendants that the evidence is relevant, Defendants must provide

a reason why the district court abused its discretion by excluding the evidence under

Rule 403. They do not provide any such reason, and, accordingly, we have no basis

to disturb the district court’s evidentiary rulings. See Fed. R. App. P. 28(a)(8)(A)

(stating that an appellant’s brief must contain “appellant’s contentions and the reasons

for them, with citations to the authorities and parts of the record on which the

appellant relies”); United States v. Mshihiri, 816 F.3d 997, 1009 n.5 (8th Cir. 2016)

(citing Fed. R. App. P. 28(a)(8)(A) and finding that a party waived an argument by

failing to meaningfully argue it).

III. Conclusion

For the foregoing reasons, we affirm.

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