# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 13-3213

___________________________ Tyrone J. Patterson

lllllllllllllllllllll Plaintiff - Appellant

v. City of Omaha, a political subdivision of the State of Nebraska; Molly Hiatt, both

individually and officially as an offi cer of the Omaha Police Department; Paul Hasiak, both individually and officially as an officer of the Om aha Police Department

lllllllllllllllllllll Defendants - Appellees

____________ Appeal from United States District Court for the District of Nebraska - Omaha

____________ Submitted: October 8, 2014 Filed: March 9, 2015

____________ Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

____________ SMITH, Circuit Judge.Tyrone Patterson appeals the district court's 1 denial of his motion for a new trial after a jury returned a verdict finding thatPatterson was a victim of a police officer's use of excessive force, yet only awarded $1 in nominal damages. After issuing its verdict, the jury, on its own accord, issued ju ry statements to each of the parties. The statements gave the jury's reasoning for its verdict. Patterson move d to alter or amend the judgment or, in the alternative, for a new trial. The district court denied the motion and upheld the verdict. Patterson also app eals the district court's grant of summary judgment in a separate phase of the litigation. We affirm.

I. Background "We set forth the facts in the light mo st favorable to the jury's verdict." Hous. 21, L.L.C. v. Atl. Home Builders Co. , 289 F.3d 1050, 1051 (8th Cir. 2002). On April 13, 2009, Patterson's mother requested assi stance from City of Omaha police after Patterson refused to leave following an argument. Officers Molly Hiatt and Paul Hasiak were dispatched to the house. U pon reaching the house, the officers briefly talked with Patterson's mother on the fr ont lawn. She expressed that she wanted Patterson to leave but that he refused. Hiatt testified that Patterson's mother stood near "the edge of the patio on the grass" for the entire incident. The officers approached Patterson, who sat on a chair on the porch. Th e officers told him several times that he had to leave because the owner of the prope rty wanted him to leave and that he had no legal right to remain. Patterson was calm at first, but became noticeably agitated when the officers suggested that Patterson could go to a homeless shelter.

Patterson refused several additional pleas to leave the property and became increasingly agitated. The officers then advi sed Patterson that he was under arrest and would have to be physica lly removed from the property. Hasiak moved behind Patterson into a position to handcuff him. Bo th Hiatt and Hasiak attempted to move

1 The Honorable Lyle E. Strom, United Stat es District Judge for the District of Nebraska.

-2-Patterson out of the chair by grabbing his arm and lifting him from under his armpits. Patterson began to resist.

Patterson and Hasiak began scuffling. While scuffling, the men lost their balance and fell to the ground; on the way dow n, both men fell against a barbeque grill "with considerable force." Th e scuffle continued on the gr ound. Hasiak then employed several immobilization techniques that he l earned during police training. First, Hasiak punched Patterson in the stomach area with a closed fist to make his breathing more difficult. When this did not work, Hiatt attempted to use her ta ser to subdue Patterson. However, the taser probes di d not connect properly. Hasi ak then attempted another immobilization technique by thrusting his knee into Patterson's thigh. Patterson continued to resist. Hiatt again fired he r taser, and again th e taser probes did not connect properly. Hasiak then used a th ird technique, and attempted to deliver an angled kick to Patterson's leg between hi s knee and his buttocks. Hasiak missed his mark and contacted Patterson's torso.

Patterson stopped resisting almost immediately after Hasiak's kick. The officers rolled Patterson onto his stomach on the ground and handcuffed him. The officers proceeded to put Patterson in their police cruiser. Patterson began to complain of pain and the officers took him to the hospital.

At the hospital, medical staff conducte d x-rays and a CAT scan. The medical staff diagnosed Hiatt as having five fractured ribs but believed that they would heal without further treatment. The hospital re leased Patterson into police custody. The next morning, Patterson pleaded guilty to a charge of failing to leave his mother's property and was eventually released for time served. Upon his release, he collapsed outside of the county jail building and was re turned to the hospital. This time, doctors discovered that Patterson had su ffered a torn intestine in addition to the five broken ribs. He underwent surgery for the intestinal tear and was released a week later.

-3-In April 2011, Patterson sued Hiatt and Ha siak in their individual and official capacities under 42 U.S.C. § 1983 alleging that the officers' use of excessive force caused Patterson's injuries. Patte rson also named the City of Omaha (the "City") as a defendant in the lawsuit alle ging that its policies and practices facilitated the officers' improper actions. The matter proceeded to trial. On the first day of trial, the district court granted the officers' and the City's motion to bifurcate the issues into two separate trials. The court accepted the defe ndants' contention that trying the officers in their individual capacities with the City risked confusion and prejudice to the officers. As a result, the tria l proceeded solely on issues re lated to the officers' liability in their individual capacities. The remaining issues—the officers' liability in their official capacities and the City's liab ility—would be decided in a subsequent proceeding.

During the trial, two doctors that treated Patterson's injuries testified. Dr. Daniel Steier, M.D., the doctor who evaluated Patters on when he was first transported to the hospital, testified that a blow to the abdomen most likely caused Patterson's injury. That being said, he could not opine with any degree of medical certainty whether one blow, or several blows, fractured Patte rson's ribs. Dr. Michael Hovey, M.D., the surgeon who later repaired Patterson's intestine tear, testified that Patterson's injuries most likely occurred from a kick to the torso. Dr. Hovey also opined that Patterson's injuries were not caused by the fall on the barbeque grill because such an impact could not cause such trauma "[u]nless you're falling on something, you know, pointed and with—you know, with a high energy transfer right in one location."

At the trial's end, the jury returneda verdict finding that Hasiak had used excessive force but that Hiatt had not. Notw ithstanding this finding, the jury awarded Patterson only $1.00 in nominal damages for his injuri es and no punitive damages. Atypically, the jury issued st atements to each of the parties involved. To Hasiak, the jury stated "it appears that some force was necessary, how ever we felt that it escalated too quickly and to a level th at crossed a line of excess for the level of resistance. We

-4-believe that more time could have been spent diffusing the situation to potentially avoid a physical altercation." The jury st atement to Patterson said that "it was unfortunate that you sustained these inju ries, however you were responsible for your own actions when you failed to comply with Officers' [sic] instructions." 2The court entered judgment in accordance with the verdict on December 14, 2012.

Patterson moved to alter or amend the judgment or, in th e alternative, for a new trial pursuant to Rule 59 of the Federal Ru les of Civil Procedure. Patterson argued that the jury's finding that Hasiak used excessiveforce was inconsistent with its award of only nominal damages. The district court found no such inconsistency, stating

[I]t is not inconsistent for the jury to have found that one or more acts constituted excessive force but thatothers constituted only reasonably necessary force. Nor is it inconsis tent, given the conflicting testimony, for the jury to have found that the plaintiff failed to prove his injuries were a proximate cause of an act of excessive force.

The district court supported this reasoni ng by citing to this court's dicta in Westcott v. Crinklaw , 133 F.3d 658, 661 (8th Cir. 1998) (stating that "a jury may reasonably conclude that compensatory damages are inappropriate despite a finding that excessive force was used" if the jury finds that "both justifiable and unjustifiable force might have been used and the injury may have resulted from the use of justifiable force"). Consequently, the district court denied Patterson's moti on and upheld the jury verdict. The court did not reference the ju ry statements in its decision. Patterson revived his arguments on April 8, 2013, in a motion to reconsider the denial of a new trial pursuant to Rule 60(b); the court denied the motion on April 10, 2013.

2 Juries rarely issue explanatory or clarifying statements to parties. These particular statements probably resulted fro m an exchange with the court during the jury's deliberations. The jury submitte d a question asking whether it could make "additional statements to the plaintiff and defendants." The district court responded "[y]es, you may."

-5-Subsequently, the district court granted the officers' and the City's motion for summary judgment. As part of its review, th e district court considered "official written policies pertaining to training on excessive force and internal review of incidents involving excessive force," as well as "affidav its from officials that are responsible for implementing the City's training and internal review procedures." The court found that the City's policies trained officers "in the acceptable use of force and that the internal review process had been successful in appropriately punishing officers who used excessive force or removing them from duty." In contrast, the court found that Patterson failed to adduce evidence that createda genuine material fact dispute for a jury to resolve at trial. As a result, th e district court granted summary judgment in favor of the officers in their official capacities and in favor of the City.

II. Discussion Patterson appeals, challenging both the distri ct court's denial of his request for a new trial based on the allege d inconsistency of the jury 's verdict and the district court's grant of summary judgment.

A. Dismissal of Appeal As a threshold matter, we consider the o fficers' and the City's motion to dismiss Patterson's appeal of the jury verdict. They argue that Patterson's notice of appeal was not timely pursuant to Rule 4(a) of th e Federal Rules of Appellate Procedure. Generally, Rule 4(a) requires that a notice of appeal be filed within 30 days after entry of an appealable order or judgment. Subsecti on (4) of Rule 4, applicable to this case, states that the 30-day clock does not begin to run until the district court rules on certain post-trial motions. Those motions include a motion to alter or amend a judgment, a motion for a new trial, and a motion "for relief under Rule 60 [of the Federal Rules of Civil Procedure] if the moti on is filed no later th an 28 days after the judgment is entered." Fed. R. App. P. 4(a)(4)(A)(vi). Th e officers and the City argue that Patterson's 30-day clock began to run no later than April 10, 2013, after the district court dismissed Patterson's last cha llenge to the jury's ve rdict and the court's

-6-denial of a new trial. Thus, Patterson's appeal of the jury's verdic t and denial of a new trial would be untimely because the notice of appeal was filed on October 1, 2013, far outside the 30-day window.

Our jurisdiction is "generally limited to appeals taken from 'final decisions of the district courts.'" Gannon Int'l, Ltd. v. Blocker , 684 F.3d 785, 791 (8th Cir. 2012) (quoting 28 U.S.C. § 1291). "A 'final decision' is ordinarily one which disposes of all the rights of all the parties to an action." In re Licht & Semenoff , 796 F.2d 564, 569 (1st Cir. 1986).

We decline to dismiss the appeal. The district court's bifurcation of issues into separate trial proceedings did not create two separate actions , but merely separated the action into two separate phases. The issu e decided in the first phase—the officers' liability in their individual capacities—reso lved a threshold matter for the second phase that examined the officers' liab ility in their official capacities and the Monell claims against the City. We a ddressed a similar circumstance in Mille Lacs Band of Chippewa Indians v. State of Minnesota , 48 F.3d 373 (8th Cir. 1995), in which we found that an appeal from Phase I orders wa s properly before the court at the end of Phase II because the Phase I orders were not final—that is, they resolved only threshold issues and remained reviewable following the conclusion of Phase II of the litigation. Id . at 375.

Accordingly, the judgment of the district court issued on December 14, 2012,

was not a "final decision" and neither was th e court's order on April 10, 2013. As a result, we find that the Oct ober 1, 2013 notice of appeal was timely filed after the court's final disposition of the motion for summary judgment. Pattertson's notice of appeal preserved all issues relating to the alleged inconsistency of the jury's verdict for this appeal.

-7-B. Consistency Between the Finding that Excessive Force Was Used and an Award of Nominal Damages Turning to the merits of the appeal, "[w] e review a district court's denial of a motion for a new trial for abuse of discretion." Rottlund Co. v. Pinnacle Corp. , 452 F.3d 726, 731 (8th Cir. 2006). "We will not reve rse the district court's decision unless there is a clear showing that the outcome is against the great we ight of the evidence so as to constitute a miscarriage of justice." Blair v. Callahan , 664 F.3d 1225, 1230 (8th Cir. 2012) (citations and quotations omitted). When a ssessing the findings of the jury, "[w]e view the evidence in the light most favorable to the jury verdict, assuming as true all facts which [the prevaili ng party]'s evidence tended to prove." Mary Ellen Enters. v. Camex, Inc. , 68 F.3d 1065, 1068 (8th Cir. 1995) (citation omitted).

We considered a finding of excessive fo rce paired with an award of nominal damages in Westcott , in which a victim's wife brought a § 1983 action when police shot and killed her hus band, Arden Westcott. Westcott , 133 F.3d at 659. In Westcott , the jury instructions required that the evidence establish a cau sal link between the force used and the injury suffered. Instru ction No. 17 stated that if "[the police officer's] use of force in shooting Arde n Westcott was, under the circumstances, excessive because the partic ular force was not reasonably necessary for the purpose of protecting [the officer] from serious physical injury," and if "Arden Westcott suffered damages as a direct result of [the officer's] action," then the jury should return a verdict for Westcott. Id. at 663. When the jury returned a verdict for Westcott, it necessarily found that the officer's acti on of shooting Westcott was excessive force and that Westcott's injury (his death) was di rectly linked to this use of excessive force. Thus, the court found that th e jury's award of $1.00 in nominal damages for such a loss of life was "inadequate as a matter of law." Id.

Patterson's case, however, is distinguishable from Westcott . Here, Patterson did not establish the direct causal link showing th at Hasiak's use of excessive force caused Patterson's injury. First, the jury did not make a finding on which of the three uses of

-8-force—the punch, the knee, and the kick—w ere necessary and wh ich were excessive. Second, Patterson did not, and could not show which appli cation of force caused his injury. While the medical doctors opined th at it was most likely that the angle kick caused Patterson's injuries, they could not say this with a medical certainty when compared with other alternative sources of trauma. When Dr. Steierwas asked at trial whether a kick to the abdomen could disrupt internal organs, he answered "[y]es, it could." When asked if falling on a "level board" could cause the same type of injury, Dr. Steier responded "[t]hat's a hard question to answer" b ecause "it all depends on the position of the board and how your body addr esses the board as it's falling." Dr. Hovey was a bit more certain. When asked at trial whether he thought the blunt force of a punch or a knee strike to the abdomen c ould cause an intestine tear, he replied "I don't believe so." When asked about whether Patterson's falling on the barbeque pit could have caused the tear, he replied "Unless you're falling on something, you know, pointed and with—you know, with a high energy transfer right in one location, I don't think so." Finally, when as ked if a kick could have caused the tear, he answered "[t]hat—of all the energy—or of all the m echanism of injury th at would be the—seem to be the most likely."

When the evidence is viewed in the light most favorable to the jury's verdict, we agree with the district c ourt that there is no inconsiste ncy with the jury's award of nominal damages. In Westcott , we acknowledged situations where "a jury may reasonably conclude that compensatory damages are inappropriate despite a finding that excessive force was used," one of whic h occurs "when there is evidence that both justifiable and unjustifiable force might ha ve been used and the injury may have resulted from the use of justifiable force." Id. at 661 (citing Gibeau v. Nellis , 18 F.3d 107, 110 (2d Cir. 1994) (upholding a jury's decision not to award compensatory damages because the plaintiff did not meet his burden of proving that his injuries were proximately caused by the use of excessive force)); see also Haywood v. Koehler , 78 F.3d 101, 104–05 (2d Cir. 1996) (upholding an award of nominal damages because the conflicting accounts of the use of force a llowed a jury to find that the plaintiff's

-9-injury arose from the use of ju stifiable force). Here, the jury could have concluded that both necessary and excessive force were used , but Patterson's severeinjuries resulted from the application of necessary force.

Additionally, the post-trial jury statements to the parties can be interpreted as an effort to harmonize their finding of excessive force withthe nominal-damage award. First, the jury's statement to Hasi ak that "it appears that some force was necessary, however we felt that it escalated too quickly and to a level that crossed a line of excess" confirms that the jury f ound that both necessary and excessive force were used to subdue Patterson. Second, the jury's statement to Patterson that "it was unfortunate that you sustained these inju ries, however you were responsible for your own actions when you failed to comply w ith Officers' [sic] instructions" can be interpreted to mean the jury believe d Patterson's injuries resulted from some indistinguishable combination of necessary and excessive force because he failed to comply with the officers' orders. 3

In light of the court's reliance on Westcott and our review of the jury statements, 4we find no abuse of discretion because the clear weightof the evidence

3 We reach this interpretation in our attempt to harmonize the jury statements with the verdict as is done when a jury submits written answers to questions accompanying a general verdict form pursuant to Rule 49(b) of the Federal Rules of Civil Procedure. See Gallick v. Balt. & O. R. Co. , 372 U.S. 108, 119 (1963) ("'Where there is a view of the case that makes th e jury's answers to special interrogatories consistent, they must be re solved that way.'" (quoting Atl. & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd. , 369 U.S. 355, 364 (1962))).

4 Patterson does not raise whethe r or not the jury statements are appropriate for our review on appeal. As expressed at oral argument, our consideration of the jury statements strikes us somewhere in betw een the unreviewable statements of a jury when interviewed by an attorney after trial and the reviewable written answers given in tandem with a genera l verdict form as requested by the court. Compare United States v. Krall , 835 F.2d 711, 716 (8th Cir. 1987) and Fed. R. Evid. 606(b), with Fed.

-10-does not compel us to overturn the jury verdict. Patterson relies principally upon inconclusive medical expert testimony that might contradict the jury's verdict. Even the medical experts, however, could not es tablish the causal link between any specific use of force and Patterson's injuries. Thus, we affirm the district court's denial of Patterson's motion for a new trial.

C. Granting of Summary Judgment Patterson argues that the district court erred in granting the officers' and the City's motion for summary judgment. Speci fically, Patterson argues that the grant of summary judgment denied Patterson his right to a jury trial under the Seventh Amendment of the United States Constitution. Patterson also contends that his lack of financial resources prevented his use of discovery tools necessary to defend against the motion.

Patterson appears to bring a facial constitutional challenge to summary judgment as a procedural mechanism for reso lving cases. In doing so, he fails to cite any controlling or convincing legal authority to support this argument. Additionally, Patterson similarly fails to support his argum ent that his indigency should be taken into consideration at the summary judgmen t stage. Patterson's general statements of dissatisfaction with the legal system and th e process in the instant case do not suffice to warrant reversal of the grant of summary judgment below. See Milligan v. City of Red Oak, Iowa , 230 F.3d 355, 360 (8th Cir. 2000) (per curiam) (finding that an argument made in passing that is not supported "with any argument or legal authority" is waived and need not be addressed). We affirm the district court's disposition.

R. Civ. P. 49(b). The jury statements in this case are more analogous to the latter.

-11-III. Conclusion For the foregoing reasons, we affirm the district court's denial of Patterson's motion for a new trial as well as its grant of summary judgment in favor of the officers and the City.

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