16

‐ 4225

‐ cv

Ali v. Kipp



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2017

No. 16

‐ 4225

‐ cv

I MRAN A LI

, Plaintiff

‐ Appellant

,

v.

NYC P OLICE O FFICER D ONALD K IPP

, Defendant

‐ Appellee

. *

On Appeal from the United States District Court

for the Eastern District of New York

A RGUED : D ECEMBER 5, 2017

D ECIDED : M AY 22, 2018

Before: C ABRANES

, L IVINGSTON

, and C ARNEY

, Circuit Judges

.

* The Clerk of Court is directed to amend the caption as indicated above.2 Plaintiff

‐ appellant Imran Ali (“Ali”) brought this action in the

United States District Court for the Eastern District of New York

(Nicholas G. Garaufis, Judge ) under 42 U.S.C. § 1983, alleging that

defendant

‐ appellee New York Police Sergeant Donald Kipp

(“Sergeant Kipp” or “Kipp”) used excessive force against him. At

trial, Ali claimed that, while he was in custody following his arrest,

Sergeant Kipp slammed his head into the bars and wall of a holding

cell, causing two lacerations: one on the top of his head requiring

staples, and another on his forehead requiring stitches. Sergeant Kipp

denied the allegations of excessive force, and maintained that Ali’s

injuries were self

‐ inflicted.

The jury found that Sergeant Kipp used excessive force against

Ali, and that Kipp’s use of excessive force proximately caused injury

to Ali. It nevertheless awarded no compensatory damages.

Ali moved for a new trial, arguing that the jury’s findings of

excessive force and proximate causation were inconsistent with the

decision not to award compensatory damages. He contended that if

the jury found that Sergeant Kipp used excessive force, as he alleged,

it must have also accepted his theory of how he injured his head.

The District Court disagreed and determined that the verdict

could be harmonized. It thus denied the motion.3 This case raises two questions:

(1) Whether the District Court “abused its discretion” when it

denied Ali’s Federal Rule of Civil Procedure 59(a) motion

for a new trial because it determined that the jury’s verdict

could be harmonized and therefore that Ali was not entitled

to compensatory damages as a matter of law; and

(2) Whether a court, when attempting to harmonize a

seemingly inconsistent verdict, is limited to the specific

theories of the case presented by the parties.

We answer both questions in the negative and therefore

AFFIRM the judgment of the District Court.

S TEVEN J. H ARFENIST

, Harfenist Kraut &

Perlstein, LLP, Lake Success, NY, for

Plaintiff

‐ Appellant

.

A MANDA S UE N ICHOLS (Richard Dearing,

Claude S. Platton, on the brief)

, for Zachary

W. Carter, Corporation Counsel of the City

of New York, New York, NY, for Defendant

‐

Appellee

.4 J OSÉ A. C ABRANES

, Circuit Judge :

Plaintiff

‐ appellant Imran Ali (“Ali”) brought this action in the

United States District Court for the Eastern District of New York

(Nicholas G. Garaufis, Judge ) under 42 U.S.C. § 1983, alleging that

defendant

‐ appellee New York Police Sergeant Donald Kipp

(“Sergeant Kipp” or “Kipp”) used excessive force against him. At

trial, Ali claimed that, while he was in custody following his arrest,

Sergeant Kipp slammed his head into the bars and wall of a holding

cell, causing two lacerations: one on the top of his head requiring

staples, and another on his forehead requiring stitches. Sergeant Kipp

denied the allegations of excessive force, and maintained that Ali’s

injuries were self

‐ inflicted.

The jury found that Sergeant Kipp used excessive force against

Ali, and that Kipp’s use of excessive force proximately caused injury

to Ali. It nevertheless awarded no compensatory damages.

Ali moved for a new trial, arguing that the findings of excessive

force and proximate causation were inconsistent with the jury’s

decision not to award compensatory damages. He contended that if

the jury found that Sergeant Kipp used excessive force, as he alleged,

it must have also accepted his theory of how he injured his head.

The District Court disagreed and determined that the verdict

could be harmonized. It thus denied the motion.5 This case raises two questions:

(1) Whether the District Court “abused its discretion” when it

denied Ali’s Federal Rule of Civil Procedure 59(a) motion

for a new trial because it determined that the jury’s verdict

could be harmonized and therefore that Ali was not entitled

to compensatory damages as a matter of law; and

(2) Whether a court, when attempting to harmonize a

seemingly inconsistent verdict, is limited to the specific

theories of the case presented by the parties.

We answer both questions in the negative and therefore

AFFIRM the judgment of the District Court.

I. BACKGROUND

This case arises out of Ali’s arrest on the morning of July 17,

2009. The parties agree that Ali’s interaction with the police began

when officers found Ali in a crashed vehicle, alone and under the

influence of alcohol. 1 The parties also agree that Ali’s interaction with

Sergeant Kipp ended at the jail with Ali sustaining two lacerations:

one on the top of his head requiring six staples, and another on his

forehead requiring stitches. 2 But at trial, Ali and defendant Sergeant

1 See, e.g.

, App’x at 164–65, 222, 572–75; Appellant’s Br. at 6; Appellee’s Br.

at 4–5.

2 Appellant’s Br. at 9; Appellee’s Br. at 10–11.6 Kipp offered vastly different accounts of what transpired between

those bookends.

A. Parties’ Testimony about the Morning Ali Was Injured

According to Ali’s testimony at trial, the morning in question

had an unpropitious beginning. After consuming “some shots

. . .

[and] some beers,” he and his friend, Alex Rodriguez, decided to go

for a car ride. 3 Rodriguez was the driver, and Ali the passenger.

Rodriguez eventually rammed the car into a parked vehicle, and fled

the scene on foot. When officers arrived, Ali testified, they refused to

accept that he had not been driving. This caused him to become

“visibly angry” and start yelling. 4 He was thereafter arrested and

transported to the 103rd Police Precinct (“Precinct”) in Jamaica,

Queens, New York for processing and detention.

Sergeant Kipp was working the front desk of the Precinct when

Ali arrived. Ali testified that he renewed his protestations of

innocence, but Kipp refused to listen. 5 An argument ensued and, in

Ali’s account, Kipp declared that he would show Ali what “happen[s]

to wiseguys like you.” 6

3 App’x at 222–23. At the time of the accident and at trial, Ali was unable

to provide any contact or location information for Alex Rodriguez. Id. at 229–31.

4 Id. at 166.

5 Id. at 168–69.

6 Id. at 170.7 Ali claimed that Sergeant Kipp then grabbed him by “[his]

neck, [his] back, [his] pants, and basically [his] boxers were ripped

from the way [Kipp] was lifting [him] up.” 7 Sergeant Kipp forced Ali

into a holding cell, where he allegedly “start[ed] slamming [Ali’s]

head into the brick wall a few times,” before “proceed[ing] to slam

[his] head

. . . into the metal bars.” 8 This purportedly left Ali bloody

and unconscious, and the next thing he could recall he was in an

ambulance headed to Jamaica Hospital. 9

Sergeant Kipp also testified at trial. He denied slamming Ali’s

head into the cell wall and bars, and maintained that Ali’s wounds

were instead self

‐ inflicted.

According to Kipp, Ali arrived at the Precinct intoxicated and

“yelling and screaming.” 10 After unsuccessfully attempting to calm

him down, Kipp and another officer searched him for weapons and

led him to a holding cell. 11 Sergeant Kipp admitted that, in escorting

Ali, he “physically move[d]” him because Ali refused to “walk[ ] on

his own.” 12 But Sergeant Kipp stated that this physical contact

7 Id. at 171.

8 Id. at 171–72.

9 Id. at 174–75.

10 Id. at 346, 355.

11 Id. at 358–61.

12 Id. at 362.8 involved little more than “guid[ing]” him toward the cell—not

grabbing him by the neck and lifting him by the pants, as Ali had

claimed. 13 As for the use of physical force on Ali inside the cell, Kipp

said only that he pulled Ali into the cell and “used [Ali’s] arm to sit

him down.” 14

In Sergeant Kipp’s account, Ali sustained his injuries after Kipp

had exited the cell. Kipp explained that he locked the cell door,

returned to the Precinct’s front desk, and observed Ali on a monitor.

Ali, still screaming, started climbing on the cell bench. Sergeant Kipp

revisited the cell once to sit Ali down, and when he returned to the

front desk he heard two “hollow banging sound[s].” 15 He again went

back to the holding cell, where, Kipp claimed, he found Ali with his

back against the wall and “blood coming from his head.” 16

Kipp testified that he did not see precisely how Ali had injured

himself. He also testified that this entire interaction with Ali—from

when Ali first entered the Precinct to when he injured his head—

lasted approximately two minutes. 17

13 Id. at 362–63.

14 Id. at 371.

15 Id. at 389.

16 Id. at 391–92.

17 Id. at 438.9 B. The Jury Instructions

At the charging conference, Ali objected to the inclusion of a

nominal damages charge because his physical injuries were

uncontested. 18 If the jury found that Sergeant Kipp had used excessive

force, Ali contended, it would also have to find, as a matter of law,

that Kipp caused compensable damages. 19 The District Court agreed,

stating that it would be “inconsistent” for the jury to find that Kipp

violated Ali’s rights, but that he was entitled only to an award of

nominal damages, because “we know that there were definitely costs,

damages, of more than a dollar.” 20 Accordingly, no nominal damages

charge was given.

The District Court nevertheless made clear in its jury

instructions that the jury could find that (1) Sergeant Kipp used

excessive force, and also find that (2) he did not proximately cause

Ali’s head injuries. Two instructions are particularly relevant here: the

excessive force charge and the compensatory damages charge.

On excessive force, the District Court instructed the jury to

determine whether “Sergeant Kipp used excessive force on [Ali]

when placing him in the precinct holding cell.” 21 Recognizing that

18 Id. at 634.

19 Id.

20 Id. at 635.

21 Id. at 741.10 both parties testified that Sergeant Kipp used some force on Ali, 22 the

District Court gave the jury a lengthy exposition of the distinction

between reasonable and excessive force. 23 Sergeant Kipp, the District

Court explained, was permitted to “use reasonable force necessary to

maintain order and ensure compliance with regulations of the jail.” 24

And “[r]easonable force that happens to cause an injury is not

excessive force.” 25

On compensatory damages, the District Court expressly

instructed the jury that, to award such damages, it had to find that

any excessive force used by Sergeant Kipp was the proximate cause

of Ali’s injuries. The District Court underscored that, even if the jury

found that Kipp had used excessive force, some of Ali’s injuries could

still be attributable to other causes: “you may award compensatory

damages only for those injuries that you find the plaintiff has proven

. . . to have been the result of conduct by the defendant in violation of

the law. That is, you may not simply award compensatory damages

for any injury suffered by the plaintiff from any cause.” 26

22 Id. (“Mr. Ali claims that

. . . Sergeant Kipp used excessive force on him.”);

id. (“Sergeant Kipp contends that any use of force by him was not excessive but

reasonable.”).

23 Id. at 741–42.

24 Id.

25 Id. at 742.

26 Id. at 745 (emphases added).11 C. The Verdict and Ali’s Post

‐ Trial Motion

After approximately four hours of deliberation, the jury

returned its verdict. The jury found that Ali had proven that (1)

Sergeant Kipp used excessive force on him, and (2) “he suffered an

injury or injuries

. . . proximately caused by the use of excessive

force.” 27 The jury, however, awarded Ali “$0” in compensatory

damages. 28 The jury also concluded that Ali was not entitled to

punitive damages. 29 Neither party objected to the verdict prior to the

jury’s discharge.

Ali subsequently moved for a new trial under Federal Rule of

Civil Procedure 59(a) on the limited issue of damages or,

alternatively, a new trial on both damages and liability. The District

Court denied the motion, concluding that the jury’s findings could be

reasonably harmonized. The District Court determined that a

reasonable jury could have credited Ali’s testimony that Kipp

“grabbed him by the neck and pants and dragged him to the holding

cell, ripping his boxers in the process, and concluded that the amount

of force used was excessive,” while rejecting Ali’s testimony about

Kipp slamming his head into the cell wall and bars. 30 Under that view

of the case, the jury could reasonably have found that Kipp used

27 Id. at 78.

28 Id.

29 Id. at 79.

30 Special App’x at 16.12 excessive force, but that the excessive force caused Ali de minimis

injuries. 31

The District Court, however, determined that Ali was entitled

to nominal damages as a matter of law, and awarded him $1. 32 This

appeal followed.

II. DISCUSSION

The gravamen of Ali’s appeal is that the jury’s material findings

of fact cannot be rationally reconciled with the evidence and theories

presented at trial. He argues that if the jury determined that

(1) Sergeant Kipp used excessive force and (2) the excessive force was

the proximate cause of some injury or injuries sustained by Ali, it

must also have believed that (3) Sergeant Kipp slammed his head into

the cell wall and bars, causing the injuries to his head. And because it

is undisputed that those head injuries were serious, Ali contends that

he was entitled to more than nominal damages. In Ali’s view, the only

explanation for the jury’s decision not to award substantial damages

is that it disapproved of his character. 33

We disagree. Here, the District Court correctly identified a view

of the case that harmonized the jury’s findings. Specifically, the jury

could have found that Sergeant Kipp used excessive force when

31 Id. at 16–17.

32 Id. at 18.

33 See, e.g.

, Appellant’s Br. at 18, 42, 45.13 transporting Ali to the holding cell, that this use of force caused de

minimis injuries, and that Ali himself later caused his undisputedly

serious head injuries.

We further clarify that, in harmonizing a seemingly

inconsistent verdict, a court is not limited to the specific theories of

the case presented by the parties; it may adopt any reasonable view

of the case that is consistent with the facts and testimony adduced at

trial.

A.

A trial court should not grant a motion for a new trial unless it

is “convinced that the jury

. . . reached a seriously erroneous result or

that the verdict is a miscarriage of justice.” 34 We review a district

court’s denial of a Rule 59 motion for a new trial for abuse of

discretion. 35 It is a deferential standard, which reflects district courts’

significant—although not limitless—latitude to exercise their

inherent discretionary authority. We view the evidence “in the light

most favorable to the nonmoving party,” 36 and we will reverse a

judgment only if the district court (1) based its decision on an error of

34 Amato v. City of Saratoga Springs, N.Y.

, 170 F.3d 311, 314 (2d Cir. 1999)

(quoting Atkins v. New York City

, 143 F.3d 100, 102 (2d Cir. 1998)).

35 Crawford v. Tribeca Lending Corp.

, 815 F.3d 121, 128 (2d Cir. 2016); see

generally In re Sims

, 534 F.3d 117, 131–32 (2d Cir. 2008) (explaining the term of art

“abuse of discretion”).

36 Atkins

, 143 F.3d at 102.14 law, (2) made a clearly erroneous factual finding, or (3) otherwise

“ rendered a decision that cannot be located within the range of

permissible decisions.” 37

A party appealing a district court’s denial of a Rule 59 motion

because of a seemingly insufficient damages award in light of a

liability verdict bears a heavy burden. 38 As Justice Brandeis notably

admonished, “[a]ppellate courts should be slow to impute to juries a

disregard of their duties, and to trial courts a want of diligence or

perspicacity in appraising the jury’s conduct.” 39 Accordingly, when

faced with an apparent inconsistency, we “must adopt a view of the

case, if there is one, that resolves any seeming inconsistency,” making

“every attempt to reconcile the jury’s findings, by exegesis if

necessary.” 40 We will order a new trial only if the district court abused

37 Chin v. Port Auth. of N.Y. & N.J.

, 685 F.3d 135, 146 (2d Cir. 2012) (internal

quotation marks omitted).

38 See Amato

, 170 F.3d at 314 (“[A]ppellate courts must afford the jury’s

findings and the district court’s decision [not to grant a new trial] great

deference.”).

39 Fairmount Glass Works v. Cub Fork Coal Co.

, 287 U.S. 474, 485 (1933); see

also Stevenson v. Hearst Consol. Publications

, 214 F.2d 902, 911 (2d Cir. 1954); cf. Jayne

v. Mason & Dixon Lines

, 124 F.2d 317, 319 (2d Cir. 1941) (L. Hand, J. ) (“We do not

mean to imply

. . . that we should have thought it fatal to the wife’s recovery if no

rational reconciliation of the verdicts was possible.”).

40 Turley v. Police Dep’t of the City of New York

, 167 F.3d 757, 760 (2d Cir. 1999)

(internal quotation marks omitted).15 its discretion in deciding that the verdict was not “seriously erroneous

or a miscarriage of justice.” 41

B.

Because “a jury finding of excessive force does not

automatically entitle a claimant to compensatory damages as a matter

of law,” 42 we must examine the record to determine whether it is

possible to harmonize the jury’s verdict. The jury instructions frame

our analysis, just as they did the jury’s deliberations.

Contrary to Ali’s suggestion, 43 the jury instructions did not

limit the jury to considering only Sergeant Kipp’s conduct inside the

holding cell. Rather, they directed the jury to determine whether

“Sergeant Kipp used excessive force on [Ali] when placing him in the

precinct holding cell .” 44 As a matter of plain language, this

encompassed any force Kipp may have used to bring Ali to the

holding cell, and any force he may have used once Ali was inside the

cell. The jury therefore was not only entitled, but required, to consider

41 Amato

, 170 F.3d at 314.

42 Id. ; see also Carey v. Piphus

, 435 U.S. 247, 248 (1978) (holding that Section

1983 plaintiffs were “entitled to recover only nominal damages” “in the absence

of proof of actual injury.”).

43 Appellant’s Br. at 3.

44 App’x at 741 (emphasis added).16 whether Sergeant Kipp used excessive force when bringing Ali from

the front desk of the Precinct to the threshold of the cell.

Even if the jury found that Sergeant Kipp used excessive force

while placing Ali in the cell, that was not necessarily the end of its

fact

‐ finding. Rather, the District Court instructed the jury that, before

it could award damages, it also had to find that any excessive force

used by Sergeant Kipp was the proximate cause of Ali’s “injury or

injuries.” 45 And in the event that the jury found that only some of Ali’s

injuries were caused by Kipp’s use of excessive force, the jury was

directed to “award compensatory damages only for those injuries that

[it] find[s] the plaintiff has proven

. . . to have been the result of

conduct by the defendant in violation of the law.” 46

In light of these proper and thorough jury instructions, we have

no difficulty identifying “a view of the case

. . . that resolves any

seeming inconsistency.” 47 The jury heard two different accounts of

what transpired when Sergeant Kipp placed Ali in the cell. According

to Ali, the entire incident was marked by violence—from Sergeant

Kipp grabbing Ali’s neck and ripping Ali’s boxers on the way to the

cell, to his slamming Ali’s head into the cell wall and bars once inside

the cell. 48 Sergeant Kipp, on the other hand, testified that all he did

45 Id. at 78 (final jury verdict sheet).

46 Id. at 745 (emphasis added).

47 Turley

, 167 F.3d at 760 (internal quotation marks omitted).

48 App’x at 171–72.17 was “guide[ ]” an inebriated Ali to the cell, pull him inside, and

repeatedly sit him down on a bench—after which, Kipp said, Ali

injured himself. 49

The jury was free to conclude that the truth lay somewhere

between these two versions of the relevant events. It could have

credited Ali’s testimony that Sergeant Kipp used excessive force

when he brought Ali to the holding cell, but concluded that Ali

suffered only de minimis injuries from the treatment. That finding

would not have foreclosed the jury from also crediting Kipp’s

testimony that Ali caused his own head injuries, either by slamming

his own head into the wall or by falling off the cell’s bench head

‐ first.

Under this view of the case, the award of no compensatory damages

was proper, for the jury was not to “simply award compensatory

damages for any injury suffered by the plaintiff from any cause.” 50

Because the jury’s causation finding was ambiguous and might

have referred only to the de minimis injuries that Ali suffered while

being forced into the cell, 51 the District Court cannot be said to have

abused its discretion when it denied Ali’s Rule 59 motion for a new

trial.

49 Id. at 362–63, 371.

50 Id. at 745 (jury instructions).

51 See, e.g.

, Gibeau v. Nellis

, 18 F.3d 107, 110 (2d Cir. 1994) (holding that

compensatory damages are not required as a matter of law where the evidence

was ambiguous as to the cause of injuries).18 C.

Ali’s arguments to the contrary give us little pause. Ali

contends that the District Court, in denying his motion, relied on a

“new theory” of liability not presented to the jury. According to Ali,

he argued to the jury that Sergeant Kipp used excessive force only

when he was already in the holding cell. Ali thus claims that the

evidence he presented precluded any finding of liability with respect

to Sergeant Kipp’s conduct in the course of transporting him to the

holding cell.

We do not agree. The law is clear that “the jurors were not

required to accept the entirety of either side’s account, but were free

to accept bits of testimony from several witnesses and to make

reasonable inferences from whatever testimony they credited.” 52 Not

“accept[ing] the entirety of either side’s account” necessarily entails

not accepting either side’s theory of the case whole cloth. We therefore

hold that, when harmonizing a seemingly inconsistent verdict, a court

similarly is not limited to the specific theories of the case presented

by the parties, but may adopt any reasonable view that is consistent

with the facts and testimony adduced at trial.

Ali also argues that the District Court erred when it analyzed

his motion for a new trial as a challenge to an inconsistent verdict,

rather than considering whether he was entitled to damages as a

matter of law. This argument is without merit. As discussed, Ali was

52 Haywood v. Koehler

, 78 F.3d 101, 105 (2d Cir. 1996).19 not, as a matter of law, entitled to compensatory damages simply

because the jury found liability. 53

Finally, Ali suggests that the District Court impermissibly

added a new claim to the litigation by permitting the jury to conclude

that Sergeant Kipp used excessive force when bringing him to the

holding cell. This argument is simply a re

‐ packaging of the assertion

that the District Court could not adopt a new “theory” of the case, and

fails for the same reason.

We thus affirm the judgment of the District Court.

III. CONCLUSION

To summarize, we hold as follows:

(1) The District Court did not abuse its discretion when it

determined that Ali was not entitled as a matter of law to

more than nominal damages and therefore denied Ali’s

Federal Rule of Civil Procedure 59(a) motion for a new trial;

and

(2) When attempting to harmonize a seemingly inconsistent

verdict, a court is not limited to the specific theories of the

case presented by the parties, but may adopt any reasonable

53 Amato

, 170 F.3d at 314.20 view of the case that is consistent with the facts and the

testimony adduced at trial.

For the foregoing reasons, we AFFIRM the judgment of the

District Court.