United States Court of Appeals,

Eleventh Circuit.

No. 94-6304.

Josephine HARDIN, individually; Josephine Hardin, as

Administratrix of the Estate of Edie L. Houseal, Deceased,

Plaintiffs-Appellees,

v.

James HAYES, Sheriff of Etowah County; Robert Hitt, Chairman of

Etowah County Commission; Marion T. Smith; Billy Ray McKee,

Commissioner of Etowah County; Jesse F. Burns, Commissioner of

Etowah County; W.A. Lutes, Commissioner of Etowah County;

Lawrence Presley; Billy Ray Williams; John Morris; John Raley,

Defendants,

Gadsden, City of, a Municipal Corporation, Defendant-Appellant,

Birmingham, City of; R.L. Webb; Julius Walker, Intervenors,

United States of America, Amicus.

May 19, 1995.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV-89-C-2164-M) U.W. Clemon, Judge.

Before KRAVITCH, ANDERSON and EDMONDSON, Circuit Judges.

PER CURIAM:

The City of Gadsden, Alabama (the "City"), appeals from a jury

verdict in favor of Josephine Hardin, as personal representative

for the estate of Edie L. Houseal, a jail inmate who died while

incarcerated by the City. In the second trial in this case, the

jury found in favor of Houseal's estate on both the 42 U.S.C. §

1983 claim (alleging deliberate indifference to Houseal's need for

mental health treatment) and the pendent wrongful death claim

(alleging negligence by City employees). Because we conclude that

the district court abused its discretion in ordering a new trial

after the first trial resulted in a verdict for the City, we
 1

The tragic facts of this case were detailed, at the summary

judgment stage, in Hardin v. Hayes, 957 F.2d 845 (11th Cir.1992); 

we thus focus primarily on the additional evidence adduced at the

first trial. 

REVERSE and REMAND with instructions that the first verdict be

reinstated.

I.

Gadsden City Police1 arrested Edie Houseal on May 29, 1989,

after she called them claiming that her life was in danger. On the

way to the City jail, Houseal kicked and dented the rear door of

the squad car, screaming, somewhat incoherently, that someone was

preparing to kill her. Houseal was similarly disruptive throughout

her confinement, and periodically repeated her perception of a

continuing threat to her life.

Because the City jail was being renovated, Houseal spent her

days at the Etowah County jail and her nights at the City jail. On

May 30, while at the County jail, she was observed by one of the

other inmates smearing vomit on her own face; the inmate testified

that he reported this incident to the County jailers. Later that

afternoon, Houseal began to beat her head against the bars of her

cell. When the jail personnel arrived, Houseal grabbed a pen from

one of the jailers, stabbed the jailer in the hand, and stabbed

herself in the neck. City officers transported Houseal to a

hospital. Several of the officers told the emergency room

physician that in view of Houseal's behavior, they thought that she

did not belong in jail, and inquired if he could arrange for a

psychiatric examination. The physician's response was

noncommittal, and Houseal was released from the hospital
immediately after treatment and returned to the County jail.

On May 31, City Police Chief John Morris was apprised of the

pen-stabbing incident and ordered an immediate evaluation of

Houseal by a mental health professional. The evaluation, however,

was not arranged until the following morning, when Houseal was

interviewed by William Owens, a social worker with the

Cherokee/Etowah/DeCalb Mental Health Center. After Houseal denied

that she had ever been to a mental hospital, refused to consent to

voluntary commitment to a mental hospital, and declined to answer

further questions, Owens left to begin the paperwork necessary for

an involuntary commitment.

Upon Owens's departure, Houseal flooded her cell by running

water into a stopped-up sink. She was observed sticking her head

in the water and repeatedly falling down. One of the inmates also

may have seen her consuming fecal matter. After County Sheriff

James Hayes and County Chief Correctional Officer John Raley

observed Houseal pacing in her flooded cell, Hayes ordered Raley to

call the City and have Houseal removed. The City officer who took

the call testified that Raley told him that the County jailers were

unwilling to reenter the cell until City officers came. Before

City officers arrived, however, Houseal collapsed in her cell and

died. An autopsy revealed the cause of death to be asphyxia due to

a small bar of soap lodged in Houseal's hypopharynx; a smaller bar

of soap was found in her stomach. The Alabama State Medical

examiner concluded that Houseal's death was accidental.

Houseal's estate sued the City and a number of City and County

officials under § 1983 and the Alabama wrongful death statute.
 2

The City could not appeal this interlocutory order. See

Pate v. Seaboard R.R., 819 F.2d 1074, 1077 n. 4 (11th Cir.1987)

(Rule 59 orders not separately appealable); 11 Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure § 2818 at 113-

14 & n. 37 (1973 & Supp.1994) (grant of new trial not

appealable). 

Summary judgment was granted in favor of most of the individual

defendants on the § 1983 claim, see Hardin, 957 F.2d at 848-51;

the case then went to trial on both claims against the City and

Chief Morris in his individual capacity, and on the state-law claim

against Sheriff Hayes and Chief Raley. Hayes and Raley settled

during the first day of trial. The district court granted judgment

as a matter of law in favor of Morris at the close of the

plaintiff's case; the jury then returned a verdict in favor of the

City on both counts. The special interrogatory form indicated the

jury's findings that (i) the City was not "deliberately indifferent

to known serious medical needs of the decedent" and that (ii) the

City was not "neglectful or careless in its treatment of the

decedent." The district court, on its own motion, thereafter

ordered a new trial.2

 The second trial resulted in verdicts for

the plaintiff on both counts.

II.

A.

 The trial court indicated, in both its oral and written

orders, that the new trial was being granted because the "jury's

verdict [was] contrary to the great weight of the evidence." See

Fed.R.Civ.P. 59(d) (if new trial granted sua sponte, "the court

shall specify in the order the grounds therefor"). Four months

after entering the written new trial order, however, the district
 3

Ms. Houseal was African-American; Ms. Hardin, the

administratrix of her estate, is African-American as well. 

 4In Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir.1981) (en banc), this court adopted as binding precedent

decisions of the Fifth Circuit, including Unit A of that circuit,

handed down prior to October 1, 1981. 

court made the following observations in a "Memorandum of Opinion

Denying Motion for Recusal":

[This judge] had sat through the trial, heard and reviewed all

of the evidence; and, equally importantly, he had observed

the demeanor of each of the jurors throughout the trial. He

also had observed the facial expressions and reactions of

several of the jurors, including the one later selected as

foreman, as the black witnesses testified and as one of

plaintiff's counsel, Mr. Shipman, spoke sans a Southern drawl.

As the law does not require a futile act, there was no need

for further proceedings by this judge to determine whether the

verdict was supported by the evidence.

See Hardin v. City of Gadsden, 821 F.Supp. 1446, 1450

(N.D.Ala.1993).

 Appellee contends that the foregoing passage constituted a

determination by the district court that the grant of a new trial

also was warranted by jury bias. 3

 We disagree. It is true that

"[s]ince an order granting a new trial is an interlocutory order,

the district court has plenary power over it" and may therefore

"reconsider, revise, alter or amend" that order at any time prior

to final judgment. Gallimore v. Missouri Pacific R.R. Co., 635

F.2d 1165, 1171 (5th Cir. Unit A Feb. 1981)4 (quoting 6A James W.

Moore, Moore's Federal Practice ¶ 59.13[2] at 59-258-59 (2d ed.

1979)); see also McIsaac v. Didriksen Fishing Corp., 809 F.2d 129,

135 (1st Cir.1987) (district court may reassess prior reasons for

grant of new trial). Additionally, if the district court intends

to grant a new trial on certain grounds, but fails to include those
 5

Because we construe the district court's order in this

manner, we express no opinion on whether a finding of jury bias

may be predicated solely on the district court's visual

observation of the demeanor of certain jurors during trial. 

grounds in the order by oversight or omission, the court may

correct the error on its own initiative under Fed.R.Civ.P. 60(a).

See 6A James W. Moore & Jo D. Lewis, Moore's Federal Practice ¶

59.11 at 59-257 (2d ed. Supp.1994). The district court, however,

neither issued an order explicitly reconsidering the grounds for

its prior order, nor acted to correct a clerical error. Rather,

its remarks are at best ambiguous, as the last sentence of the

quoted passage appears to reaffirm the trial court's prior

conclusion that a new trial was warranted due to insufficiency of

the evidence. Accordingly, we decline appellee's invitation to

view the new trial order as resting on an alternative finding of

jury bias.5

B.

 We review the district court's grant of a new trial for abuse

of discretion. Williams v. City of Valdosta, 689 F.2d 964, 973

(11th Cir.1982). The range of discretion afforded to the district

court is smaller, however, when, as here, the district court orders

a new trial because the jury verdict was "contrary to the great

weight of the evidence." Id. at 974-75 & n. 8. When "the trial

involves simple issues, highly disputed facts, and there is an

absence of "pernicious occurrences'," id. at 974, application of

this more rigorous standard of review "protect[s] a party's right

to a jury trial," and ensures that the district court does not

simply substitute its own credibility choices and inferences for
 6

A more deferential standard of review is appropriate, on

the other hand, if the district court's new trial order is

precipitated by jury misconduct or other prejudicial trial events

that "contaminate" the jury's deliberative process. See

Williams, 689 F.2d at 974-75 n. 8; Redd, 934 F.2d at 1215. 

 7

At trial, Hardin at times appeared to contend that the

relevant constitutional violation was the City's failure to

prevent Houseal's suicide. On appeal, however, Hardin explicitly

has abandoned this contention, and no longer asserts that

Houseal's death was a suicide. Rather, appellee now argues that

the relevant injury for the purpose of the federal claim was not

Houseal's death but rather her mental anguish during confinement. 

Because it does not change the outcome of our analysis in this

case, we evaluate the sufficiency of the evidence in support of

the first jury verdict in light of the latter theory of the case. 

the reasonable choices and inferences made by the jury. Redd v.

City of Phenix City, 934 F.2d 1211, 1215 (11th Cir.1991).6

III.

 In order to determine whether the jury verdict in the first

trial was against the great weight of the evidence, we must first

consider what the plaintiff was required to prove. To establish

municipal liability under § 1983, Hardin needed to show that (1)

Houseal's injury resulted from a constitutional violation, and (2)

the City was responsible for that constitutional violation. See

Collins v. City of Harker Heights, 503 U.S. 115, 120-21, 112 S.Ct.

1061, 1066, 117 L.Ed.2d 261 (1992). Plaintiff's theory was that

the City was deliberately indifferent to Houseal's need for mental

health treatment, and that the delay in obtaining that treatment

caused Houseal great emotional pain amounting to "cruel and unusual

punishment" under the Eighth Amendment.7

 See Estelle v. Gamble,

429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976)

(deliberate indifference to prisoner's serious medical needs can

violate Eighth Amendment); Mandel v. Doe, 888 F.2d 783, 787-88
 8

Under the second Collins factor, Hardin also needed to show

that the City was responsible for any purported constitutional

violation. Such municipal liability under § 1983 may not be

predicated upon a respondeat superior theory; rather, "recovery

from a municipality is limited to acts that are, properly

speaking, acts "of the municipality'—acts that the municipality

has officially sanctioned or ordered." Pembaur v. City of

Cincinnati, 475 U.S. 469, 478-80, 106 S.Ct. 1292, 1298, 89

L.Ed.2d 452 (1986). Because we conclude that a determination by

the jury that City personnel were not deliberately indifferent to

Houseal's mental health needs would not have been against the

great weight of the evidence, we need not consider whether any

deficient City policy existed. See City of Los Angeles v.

Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806

(1986) (per curiam) ("If a person has suffered no constitutional

injury at the hands of the individual police officer, the fact

that the departmental regulations may have authorized [a

constitutional violation] is quite beside the point.") (emphasis

in original); Williams v. Borough of West Chester, 891 F.2d 458,

466-67 (3rd Cir.1989) (where jailers were not deliberately

indifferent to risk of suicide by prisoner, unnecessary to

consider existence of deficient municipal policy). 

(11th Cir.1989) (same). To prove deliberate indifference, Hardin

needed to demonstrate that the relevant City personnel acted with

subjective recklessness, i.e. that their conduct was very

unreasonable in light of a known risk that delay in mental health

treatment would cause Houseal mental anguish. See Farmer v.

Brennan, --- U.S. ----, ---- - ----, 114 S.Ct. 1970, 1978-79, 128

L.Ed.2d 811 (1994).8

By contrast, on the Alabama wrongful death claim, Hardin

needed only to demonstrate that City personnel were negligent in

their treatment of Houseal. See Ala.Code § 6-5-410(a) (1993).

Furthermore, for the purpose of the state-law claim, the relevant

injury was not the decedent's emotional pain resulting from the

delay in obtaining mental health treatment; rather, the pertinent

focus was on the fact of death itself. The question for the jury,

therefore, was whether the City officers' conduct in delaying
 9

The parties agree that, under Alabama law, the City's

liability for the negligence of employees acting in the line of

duty may be predicated on respondeat superior. See Ala.Code §

11-47-190 (1992); City of Birmingham v. Benson, 631 So.2d 902,

905 (Ala.1993) (§ 11-47-190 imposes respondeat superior liability

on municipalities for employee negligence); see also City of

Birmingham v. Moore, 631 So.2d 972, 973-74 (Ala.1994) (city held

vicariously liable for negligence of jailer in treating

seizure-prone prisoner). 

treatment was unreasonable in light of the risk that Houseal would

asphyxiate by ingesting soap.9

 The first jury's verdict on the wrongful death claim was not

against the great weight of the evidence. Even if many lower-level

City police officers and jailers knew, by the afternoon of May 30,

that Ms. Houseal was mentally ill and required mental health

treatment, the reasonableness of the one-and-a-half day delay in

obtaining that treatment must still be evaluated in light of the

foreseeability of the risk of death by asphyxiation. See Mobile &

O.R. Co. v. Williams, 221 Ala. 402, 129 So. 60, 64 (1931)

("Reasonable care requires conduct commensurate with the danger to

be reasonably apprehended."); W. Page Keeton et al., Prosser and

Keeton on the Law of Torts § 31 at 169-71 & n. 15 (5th student ed.

1984) (" "Foreseeability is an element of fault; the community

deems a person to be at fault only when the injury caused by him is

one which could have been anticipated because there was a

reasonable likelihood that it could happen.' ") (quoting Stewart v.

Jefferson Plywood Co., 255 Or. 603, 469 P.2d 783, 786 (1970)).

At the first trial, plaintiff's own expert, Dr. Lindquist,

testified that his research revealed only two prior instances

nationwide (in a 400 person sample) of self-inflicted jail inmate

death due to ingestion of foreign objects. Dr. Lindquist further
 10Furthermore, Mr. Owens, the social worker who examined Ms.

Houseal, testified that an involuntary commitment procedure,

involving the retention of a guardian ad litem and the filing of

a probate petition in state court, could itself have taken three

to four days. The jury could have concluded that City officers

were aware of how long such involuntary commitment proceedings

could take, and that their one-and-one-half day delay therefore

was not unreasonable where, even if preliminary treatment had

been obtained on May 30, Houseal could still have been in jail,

and subject to the risk of asphyxiation, on the morning of June

1. 

 11We need not, and do not, address the question of whether

any County officers may have acted unreasonably with respect to

the risk of Ms. Houseal's death. Sheriff Hayes and Chief Raley

settled with the plaintiff on the first day of trial, and neither

their conduct nor that of any of their subordinates is directly

at issue in this appeal. 

conceded that, when he was deposed prior to trial, he had known of

no such instances; the two instances were uncovered by his

post-deposition research. Furthermore, Dr. Cruit, the ER

physician, testified that the human "gag reflex" would normally

prevent asphyxiation from an object lodged in the hypopharynx, as

the reflex should cause involuntary expulsion of that object.

Although Dr. Embry, the state pathologist, testified that he did

not think the "gag reflex" would prevent such asphyxiation, and

that Houseal's prior consumption of fecal matter made ingestion of

foreign objects foreseeable, the jury was certainly entitled to

conclude, in the face of the experts' disagreement, that the risk

of death by asphyxiation was quite attenuated (and that the delay

in treatment therefore was not unreasonable). See Redd, 934 F.2d

at 1215 ("When there is some support for a jury's verdict, it is

irrelevant what the [Court of Appeals] or the district judge would

have concluded," and grant of new trial is improper.).10

 If the jury's conclusion that City personnel11 were not
 12We recognize that there was some trial testimony, albeit

controverted, that Ms. Houseal was, perhaps on more than one

occasion, physically assaulted by City police officers in her

cell. If these events in fact took place, we strongly condemn

such conduct. The plaintiff did not attempt, however, to

predicate either of her claims directly on these incidents. 

Rather, to the extent that they were relevant at all, these

events simply added to the totality of information available to

the jury about the conditions of Ms. Houseal's confinement and

the consequent reasonableness of the delay in obtaining mental

health treatment. In our view, even in light of these

occurrences, the first jury's verdict still was not against the

great weight of the evidence. 

negligent was not against the great weight of the evidence, then,

on the facts of this case, the jury's conclusion that City

personnel were not deliberately indifferent was a fortiori not

against the great weight of the evidence. See Farmer, --- U.S. at

----, 114 S.Ct. at 1978 ("deliberate indifference describes a state

of mind more blameworthy than negligence"). Although the claimed

harm at issue in the state and federal counts was somewhat

different, the conduct of City personnel to be evaluated by the

jury was the same. The ultimate question the jury needed to

answer, therefore, was also similar—was the period of delay in

obtaining mental health treatment (very) unreasonable in light of

the (known) risk of harm? In our view, the jury was entitled to

conclude that the likelihood and magnitude of Ms. Houseal's mental

anguish was not so great as to transmute that delay into

"deliberate indifference."12

IV.

For the foregoing reasons, we hold that the district court

abused its discretion in ordering a new trial after the first jury

verdict. Accordingly, we REVERSE the judgment entered upon the

verdict from the second trial, and REMAND with instructions that
the jury verdict from the first trial be reinstated.