Jailer found liable for excessive force used on inmate


Cowart v. Erwin, No. 15-10404 ( 5th Cir. September 13, 2016)

This is a §1983 and Prison Litigation Reform Act (“PLRA”) case where the U.S. 5th Circuit affirmed a jury award for excessive force.

Former prisoner Mark A. Cowart filed suit against four Dallas County Jail detention officers, including Special Response Team Officer Erwin, pursuant to 42 U.S.C. § 1983 and state law, claiming that the officers beat him without justification. The jury found Erwin liable as to all claims, awarding both compensatory and punitive damages. At trial, the jury heard sharply divergent testimony regarding the altercation between Cowart and the detention officers. All parties agree several detention officers conducted a “shakedown” of the tank in which Cowart was housed. The officers ordered the inmates to line up against the wall on their knees, hands behind their heads, and elbows touching the wall. Cowart attempted to stand to adjust position and when he was forced down by two other officers he “mouthed off.”  Immediately after, a “swarm” of officers took Cowart to the ground and began beating him; officers kicked, punched, and stomped upon Cowart, and sprayed him with mace.  While the officers deny the punching and kicking, at this phase, every fact which is in support of the judgment and supported by evidence is taken as true. Cowart was later assaulted by an unidentified guard en route to the infirmary. It is undisputed Cowart was transported to Parkland Hospital. An emergency room physician diagnosed Cowart with contusions of the face, scalp, and neck, a neck sprain, and a ruptured eardrum, and severe trauma. Erwin appealed arguing Cowart failed to exhaust PLRA requirements and the trial court failed to grant her post judgment motions.

The PLRA requires prisoners to exhaust “such administrative remedies as are available” prior to filing a § 1983 action.  Because “exhaustion is an affirmative defense, the burden is on [Erwin] to demonstrate that [Cowart] failed to exhaust available administrative remedies.” It is undisputed that the Dallas County jail provides a two-step grievance procedure: First, a prisoner must submit a written grievance to any staff member at the jail (Step 1); second, a prisoner must appeal an adverse decision to the Detention Service Manager (Step 2). Cowart filed a grievance but was transferred before any findings were issued.  Erwin contends Cowart was required to appeal, or take some other action, when he failed to receive a timely interim response. However, the jail’s Grievance Plan provides that “[i]f an inmate is not satisfied with a Board’s findings, the inmate may appeal to the Detention Service Manager, Quality Assurance Unit.” An interim response does not contain “findings” that a prisoner may appeal. Essentially, Erwin reads an additional requirement into the policies so the PLRA does not preclude suit in this case.

Next Erwin contends that insufficient evidence supports the jury’s verdict on his § 1983 claims for excessive force.  Erwin’s position is that the “objective evidence” offered at trial, which included photographs, medical records, and testimony from medical professionals, cannot be contradicted by Cowart’s or other witnesses’ testimony.  However, even if that were law, in the present case, the objective evidence is not necessarily inconsistent with eye witness accounts. There were material factual disputes to be resolved by a factfinder, and the courts “apply the long-standing principle of deference afforded to verdicts rendered by a jury.” The evidence in this case supports the jury’s verdict finding Erwin liable for excessive force. She punched him in the face at least twice and he had bruising and injuries to his face.  The court noted the questions put to the jury did not differentiate between Erwin’s punches and the subsequent melee en route to the infirmary. The jury was simply asked whether the officers used excessive force. The jury’s $14,000 award against Erwin is also supported by the evidence. Finally, the trial court corrected any confusion by the jury prior to responses to jury questions. Judgment was affirmed.

If you would like to read this opinion click here. The Panel includes Chief judge Stewart, Circuit Judge Owen and Circuit Judge Costa. Circuit Judge Owen delivered the opinion of the court. Attorney listed for the Appellant: Dolena Tutt Westergard.  Attorney listed for the Appellee: Daron L. Janis.

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