Hamilton v. Chaffin, 506 F.2d 904 (5th Cir. 1975)

CLARK, Circuit Judge:

Plaintiff-appellant, the administratrix of the Estate of Carey Clayton Yates, brought this action to recover damages against the City of Booneville; W. W. Stacy, Chief of Police for the City; City Police Officers Jess Chaffin and Travis McGaughy; Richard Moffitt, radio dispatcher for the City Police Department; and J. D. Burns and Clyde Edge, Jr.,1 for injuries to and the wrongful death of Carey Clayton Yates,2 allegedly caused by defendants’ negligence and violations of various rights guaranteed an arrestee under federal3 and state law.4 The District Court granted the motions of defendants W. W. Stacy and Clyde Edge, Jr. for directed verdicts. A judgment of dismissal with prejudice was entered upon a jury verdict for the remaining defendants. We affirm the trial court’s action.

I. FACTS

Although considerable uncertainty surrounding the factual details of this shocking case remains even after trial, sufficient uncontroverted evidence was adduced during the course of the proceedings to permit a reconstruction of the general chain of events culminating in young Yates’ self-inflicted death, on December 24, 1971, while incarcerated in the Booneville city jail. On this tragic Christmas Eve, defendants Chaffin and McGaughy, members of the Booneville police force, received a dispatch directing them to a trailer to investigate a disturbance. As they neared the trailer, the officers noticed a youth, later identified as Carey Yates, age 15, walking along the sidewalk. As the officers watched him, Yates lit and threw what they later determined to be a cherry bomb.5 They immediately drove toward Yates, but did not use the patrol car’s siren or blue

light to identify themselves. One of the officers called to Yates to halt. Despite this command, Yates dashed behind the front hedge of a nearby residence. The officers leaped from their car and pursued Yates on foot. As Officer Chaffin neared his hiding place, Yates darted from the bush and ran directly into Officer McGaughy, causing both to tumble to the ground. When the officers lifted Yates from the ground, they noticed he was bleeding from the area around his nose and mouth. Yates was immediately taken to the Booneville city jail. After being searched for any remaining firecrackers, Yates was booked and taken to the “drunk” cell, admittedly without being advised of his constitutional rights, afforded an opportunity to call his mother, or given any medical treatment.6 Minutes later, young Carey Yates was found dead in his cell, having used his belt to hang himself.

The alleged deprivation of decedent’s rights during his apprehension and detention is the basis for administratrix’s claim for damages. Plaintiff asserts that the defendants, acting independently and in concert, applied excessive force during the apprehension and search of Yates, failed to provide the necessary medical treatment and supervision that was required because of the youth’s obviously irrational state of mind, and deprived him of other federal constitutional and state statutory rights; and that these wrongful and negligent acts preyed upon Yates’ immature mind, destroying his ability to reason, and thus precipitating his suicide.7 Defendants reply by stating that they used only that amount of force necessary to apprehend and incarcerate Yates because of his inebriated condition and violent reactions8 and that either his intoxication or some other emotional instability, or a combination of the two, completely unrelated in origin to the defendants’ actions, solely caused him to take his own life.

II. JURISDICTION

The original plaintiff was decedent’s mother. After the plaintiff had rested her case in the trial court, the complaint was amended to substitute the administratrix, Charline Hamilton, decedent’s aunt and a resident of Tennessee, as party-plaintiff. Although this substitution was not requested until the district judge raised a question concerning the court’s Section 1983 jurisdiction over the City of Booneville, the court concluded that because of other extenuating circumstances9 the substitution of this administratrix who had been appointed only one week earlier for the admitted purpose of shoring up the jurisdictional problems which developed, did not con

stitute a “collusive” appointment, and, therefore, that diversity jurisdiction was established by the substitution. Since we have concluded that the City of Booneville is immune from suit, part V infra, it is unnecessary to review the issue of whether the appointment was improper.10

Plaintiff asserted a claim cognizable under 42 U.S.C. § 1983 by alleging that the defendants, while acting under color of state law, used excessive force in apprehending and detaining young Yates. The use of excessive force constitutes a violation of the Fourteenth Amendment right to due process, and, as such, is actionable under Section 1983. E. g., Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974); Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1974); cf. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Compare Jackson v. Wenzel, 282 F.Supp. 357 (E.D.Wis. 1968); Daly v. Pedersen, 278 F.Supp. 88 (D.Minn.1967). As stated by the Second Circuit in Johnson, supra: “[i]n determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. 481 F.2d at 1033. See Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971). Clearly, all of these issues were present in the alleged cause of action here.

In view of our conclusion that the plaintiff stated a claim actionable under Section 1983 based upon the claim of excessive force, we pretermit a review of plaintiff’s additional contention that defendants’ failure to provide medical treatment was also sufficient to state a cause of action under the statute. The trial court’s submission of the issue of medical treatment to the jury on the basis of a Section 1983 claim, if error, was harmless. If not presented as a Section 1983 cause of action, the issue would have been properly before the court upon- the common law theories of tort and negligence pursuant to its power to exercise pendent jurisdiction over state claims which arise from the same nucleus of operative facts as are involved in the federal claim. E. g., United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974) [No. 72-2311, 1974]; Anderson v. Nosser, 438 F.2d 183, 188-189 (5th Cir.), modified on rehearing on other grounds, 456 F.2d 835 (5th Cir. 1972) (en banc).

Appellant further asserts that defendants’ violation of Section 7185-06 of the Mississippi Code, as amended in 1966 [presently Miss.Code Ann. § 43-21-13 (1972)], which requires that the police obtain prior authorization from the County Youth Court before incarcerating a juvenile,11 also constituted a denial of

decedent’s civil rights as guaranteed under Section 1983. Although it is uncontradicted that the officers failed to comply with the Section 7185-06 procedure, we conclude that this violation of a state-created right does not reach constitutional proportions. It is therefore insufficient to constitute a violation of a right cognizable under Section 1983. Anderson v. Nosser, supra; Campbell v. Anderson, 355 F.Supp. 483 (D.Del., 1971). See Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943); Taylor v. City of Jackson, 487 F.2d 213 (5th Cir. 1973); Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970); Dorsey v. N.A.A.C.P., 408 F.2d 1022 (5th Cir.), cert. denied, 396 U.S. 847, 90 S.Ct. 58, 24 L.Ed.2d 97 (1969). Nevertheless, the district court’s adjudication upon this issue similarly could be sustained under its discretionary right to take pendent jurisdiction of this closely related state claim.

III. EVIDENTIARY ERROR

Plaintiff asserts that the district court erred in admitting, over her objection, the testimony of Ernest E. Bailey, chemist from the Mississippi State Chemical Laboratory. Bailey’s testimony revealed that tests performed on a sample of blood taken during an autopsy performed on the body of Carey Yates indicated an alcohol concentration of 0.15 percent. Under Mississippi law this concentration of alcohol in a person’s blood raises the presumption that the person is intoxicated. See note 8 supra. The plaintiff objected to the introduction of this testimony. Since no permission had been given to perform the autopsy by Yates’ survivors, plaintiff took the position that the blood sample had to have been obtained pursuant to Section 7158-04 of the Mississippi Code, as amended in 1960,12 and that this statute demanded the evidence be excluded. The latter portion of Section 7158-04 provides: “[N]o evidence obtained through any autopsy performed under the provisions of this section shall be admitted over the objection of any party in the trial of any civil cause before a court or commission of this state.”13 (Emphasis added). Without specifying any lawful source of authority for the autopsy, appellees retort that this statute was never invoked and is inapplicable. They point out that the county attorney did not petition the appropriate court for proper authorization or otherwise attempt to act under this statutory scheme.

The admission of Bailey’s testimony raises a crucial issue. It is the only concrete evidence showing that the decedent had consumed a substantial quantity of alcohol prior to his Christmas Eve arrest and death. See note 8 supra. Unquestionably it could have been accorded substantial weight by the jury in reaching the conclusion that none of the acts or omissions of any of the defendants proximately caused Carey Yates to commit suicide.14

Because no attempt was made to invoke its protective authority, we agree that Section 7158 04 is inapplicable. Additionally, since it is not alternatively contended that the county attorney complied with either of the other two autopsy authorization statutes,15 we conclude

that both the attorney and the physician performing the autopsy acted entirely outside of and beyond any legal authority-

This determination does not, however, under the facts before us, render inadmissible the chemist’s testimony based upon the autopsy results for several reasons. First, neither the county attorney nor the performing physician is a party to this litigation. Second, no evidence was adduced which tended to show malice or intentional wrongful actions by either. Third, no evidence was presented which even .intimated that the defendants now before this court were in any way involved in procuring or performing the autopsy. Fourth, the analysis of the blood sample taken is the best evidence of the state of Yates’ intoxication. In this situation, there would be no deterrent value in refusing to admit such crucial, probative, trustworthy proof. Thus, the corrective principle which undergirds the exclusion of illegally obtained evidence in criminal cases is inapplicable here. Mr. Bailey’s scientifically authenticated testimony clearly meets the tests of probativeness, relevancy, and trustworthiness and was therefore admissible both under state and federal law. See Rule 43(a), Fed.R.Civ.P.16 See also Butler v. Southern Pacific Co., 431 F.2d 77 (5th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971); Dallas Cty. v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961); Monarch Insurance Co. v. Spach, 281 F.2d 401 (5th Cir. 1960).

Today’s holding will not undermine the effectiveness of Section 7158-04 or its exclusionary provision or otherwise encourage the bypassing of legal procedures in general since, upon proper suit, the county attorney and the performing physician may be mulcted in damages for their illegal actions. See Annot., 83 A.L.R.2d 955 (1962).17

IV. WEIGHT OF LAW AND EVIDENCE

Plaintiff contends that the verdict of the jury was based upon an erroneous view of the law and was contrary to the overwhelming weight of the evidence.

The trial judge’s refusal to grant plaintiff’s requested Instruction No. 1618

is asserted as the crux of the trial court’s legal error. The refusal of this instruction is said to have erroneously caused the jury to believe that they initially had to find that the defendants knew or should have known that Yates was likely to commit suicide before they could cast the defendants in damages. The instruction which the court did give, adequately and more clearly placed this concept before the jury.19 Any error in refusing requested Instruction No. 16 did not affect appellant’s substantial rights and thus was harmless. E. g., Almendarez v. Atchison, Topeka & Sante Fe Ry. Co., 426 F.2d 1095 (5th Cir. 1960); Martinez v. Rodriques, 394 F.2d 156 (5th Cir. 1968); Atlantic Coast Line R. Co. v. Burkett, 192 F.2d 941 (5th Cir. 1951); see Fed.R.Civ.P. 61.

The administratrix contends that the verdict was contrary to the weight of the evidence. She asserts that the proof required a finding of the use of excessive force and failure to take decedent before a magistrate in violation of federal and state laws. In order for appellant to recover, however, she had to prove not only a violation of decedent’s rights but also that such violation proximately caused Yates to commit suicide.

Under the circumstances established by the testimony in this case, the issue of whether the defendant officers used excessive force or only that amount of force necessary to subdue and search an uncooperative arrestee was properly submitted for jury determination under instructions which met the applicable legal standard. As stated in 6 C.J.S. Arrest § 13a, at p. 613: “The reasonableness of the force used in making an arrest under all the circumstances is a question for the jury, and the standard is the conduct of ordinary, prudent men under the existing circumstances.” See Morgan v. Labiak, 368 F.2d 338, 340 (10th Cir. 1966); Conklin v. Barfield, 334 F.Supp. 475 (W.D.Mo.1971). The jury was also correctly instructed that the defendants’ duty to provide medical attention must be predicated upon the exercise of reasonable care in deciding whether a person under their control needs medical attention. Mississippi ex

rel. Derrow v. Durham, 444 F.2d 152 (5th Cir. 1971). Similarly, concerning defendants’ incarceration of decedent without first taking him before a magistrate, the jury was correctly instructed that the test of liability for his subsequent demise involved a determination of whether the ultimate injury was probably foreseeable at the time of wrongful detention. Johnson v. Greer, 477 F.2d 101 (5th Cir. 1973).

The plaintiff further raises the issue of defendants’ failure to comply with the Mississippi Youth Court Act20 which requires a Youth Court directive before a person of Yates’ age may be placed in jail. Defendants’ failure to act in accordance with the strictures of the Youth Court Act was not submitted to the jury, and the issue is raised for the first time on appeal. Nevertheless, the effect of a violation of the Act was at least implicitly contained in the jury’s determination of the consequence of defendants’ failure to take Yates before a magistrate. The contradictory evidence adduced at trial conclusively shows that the causal relationship between the omissions of the defendants and Yates’ death was clearly a jury issue.21

Whether Carey Yates committed suicide because of an uncontrollable impulse created by defendants’ negligent or intentional acts in depriving him of one or all of the rights secured to an arrestee by federal and state law, or whether the youth’s death was proximately caused by an unknown phobia or his inebriated condition which superseded any effect that the defendants’ wrongful acts may have had upon the decedent was resolved by the jury’s verdict on accurate instructions and will not be disturbed on appeal.

V. MUNICIPAL IMMUNITY

The trial court correctly concluded that the City of Booneville was immune from suit brought under Section 1983, e. g., City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974) [1974] , The court’s further finding that there was diversity between appellant and the city and, therefore, that the city was subject to suit under the common law theory of respondeat superior was erroneous. In the absence of express statutory authority the city may not be sued for the torts of its police officers committed while engaged solely in matters pertaining to the police powers of the city, e. g., Twiner v. Jenkins, 257 So.2d 488 (Miss.1972); Simpson v. Poindexter, 241 Miss. 854, 133 So.2d 286 (1961); Anderson v. Vanderslice, 240 Miss. 55, 126 So.2d 522 (1961). The fact that the City of Booneville secured comprehensive general liability insurance does not, in the absence of express statutory authorization, constitute a waiver of the municipality’s immunity from ty for torts committed by its employees in performance of those functions, such as police duties, which are governmental"^ in character. See Tucker v. City of Okolona, 227 So.2d 475 (Miss.1969); Bishop v. City of Meridian, 223 Miss. 703, 79 So.2d 221, suggestion of error overruled, 223 Miss. 703, 79 So.2d 815 (1955).22

VI. SECTION 1985 AND SECTION 1986 CLAIMS

Plaintiff failed to introduce any evidence to support her claim that defendants conspired to deprive Yates of equal protection of the laws or of equal privileges and immunities under the laws as required to recover under Section

1985(3).23 Because of this failure to state a claim cognizable under Section 1985(3), appellant may not recover under the interrelated, dependent cause of action under Section 1986, action for neglecting to prevent a known conspiracy under Section 1985. Dowsey v. Wilkins, 467 F.2d 1022 (5th Cir. 1972).

Affirmed.