Big Elk v. Board of County Commissioners ( 2001 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JAN 31 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MARY BIG ELK and RAYMOND
    POLLARD, a/k/a SAM McCLANE,
    No. 99-5115
    Plaintiffs-Appellants,
    v.                                              N.D. Okla.
    BOARD OF COUNTY                                    (D.C. No. 96-CV-87-B)
    COMMISSIONERS OF OSAGE
    COUNTY, DONNA KASTNING,
    RUSSELL COTTLE in his official
    capacity, and LARRY STUART in his
    individual capacity,
    Defendants-Appellants.
    ORDER AND JUDGMENT
    Before HENRY and BRISCOE , Circuit Judges, and         JENKINS , Senior District
    Judge. *
    Mary Big Elk and Raymond Pollard, also known as Sam McClane, filed suit
    against various defendants pursuant to 
    42 U.S.C. § 1983
    , alleging that their horses
    had been illegally seized in violation of the Fourth and Fourteenth Amendments.
    Following a trial, the jury found two of the defendants liable, namely, the Board
    *
    The Honorable Bruce S. Jenkins, Senior District Judge for the
    United States District Court for the District of Utah, sitting by designation.
    of County Commissioners of Osage County (“Board”) and Donna Kastning, a
    deputy sheriff for Osage County, and awarded the plaintiffs actual and punitive
    damages. The district court later amended the judgment pursuant to a motion by
    the defendants, reducing the actual damages award by three thousand dollars. In
    addition, the district court refused to grant the plaintiffs injunctive relief, holding
    that the policy of the Osage County sheriff’s department, under which a deputy is
    permitted to attend a civil repossession in a stand-by capacity only, did not violate
    the Constitution. The plaintiffs now appeal on various grounds. For the reasons
    set forth below, we affirm in part and vacate and remand in part.
    I. BACKGROUND
    The facts of the case are well known to the parties and have been recounted
    in part in a prior appeal.   See Big Elk v. Kastning , No. 97-5012, 
    1998 WL 161053
    (10th Cir. Apr. 1, 1998). To summarize, this case arose out of a dispute between
    Mr. McClane and Tina Kastning. Fearing that Mr. McClane would not pay a debt
    owed her, Tina Kastning seized several horses that were housed in stalls rented by
    Mr. McClane. She was assisted in her efforts by several private citizens as well
    as several deputy sheriffs, including her sister-in-law Donna Kastning.     Under an
    unwritten policy in the sheriff’s department, a deputy is permitted to attend a civil
    repossession but in a stand-by capacity only. That is, a private citizen can call a
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    deputy and have the deputy accompany her to the site where the property is being
    held. The deputy is not to take an active part in the repossession; rather, her sole
    purpose in attending is to ensure that no breach of peace takes place.
    II. PROCEDURE
    In their complaint, the plaintiffs alleged that the defendants had illegally
    seized their horses in violation of the Fourth and Fourteenth Amendments. The
    named defendants were: (1) Donna Kastning, Dan Hively, and Wes Penland, all
    deputy sheriffs for Osage County; (2) Michael Kastning, Tina Kastning, Calvin
    Kastning, and Jana Welch, all private citizens; and (3) Larry Stuart, district
    attorney for Osage County. Approximately six months later, the plaintiffs reached
    a settlement agreement with Michael Kastning, Tina Kastning, and Calvin
    Kastning. These defendants were subsequently dismissed from the lawsuit. A
    default judgment was later obtained against Ms. Welch, the remaining private
    citizen defendant.
    On July 26, 1996, the district court issued a scheduling order, which
    provided in part that joinder of additional parties and/or amendment of pleadings
    take place by July 29, 1996. Despite this order, the district court permitted the
    plaintiffs to amend their complaint several months later for the limited purpose of
    “add[ing] the Board of Commissioners of Osage County and Henry Bloomfield,
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    [s]heriff of Osage County, as parties to the case.”   1
    Aplts’ App. vol. V, at 001157
    (district court order, filed Nov. 5, 1996). The plaintiffs did so. However, in their
    amended complaint, they did not simply name the Board and Sheriff Bloomfield
    as additional defendants; they also asked for the first time for injunctive relief,
    more specifically, for a permanent injunction to enjoin the sheriff’s department
    from continuing its policy under which a deputy is permitted to attend a civil
    repossession in a stand-by capacity. Furthermore, the plaintiffs stated their
    intention to proceed with the suit as a class action, at least with respect to the
    claim for injunctive relief.
    Almost a month later, the plaintiffs formally moved for class certification
    pursuant to Federal Rule of Civil Procedure 23(b)(2). The district court denied
    the motion as untimely. Thereafter, the district court ruled on various summary
    judgment motions pending before it. Initially, it denied the motions but then
    amended its order after reconsideration and granted summary judgment to Mr.
    Stuart, the district attorney for Osage County.
    The deputy sheriff defendants – Donna Kastning, Mr. Hively, and Mr.
    Penland – subsequently filed an interlocutory appeal, arguing that the district
    1
    Because Mr. Bloomfield died before trial and was being sued in his
    official capacity only, Russell Cottle, the new sheriff, was later substituted for
    him. See Aplts’ App. vol. V, at 0001405 (district court order, filed Aug. 27,
    1998).
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    court should have granted them summary judgment on the basis of qualified
    immunity. This court dismissed the appeal. The trial began several months later,
    and, on October 6, 1998, the jury returned a verdict in favor of the plaintiffs
    against the Board and Donna Kastning, awarding $25,325 in actual damages and
    $10,000 in punitive damages. The remaining defendants were found not liable.
    The next day, the district court entered judgment. Subsequently, both the
    plaintiffs and the defendants moved that it be altered or amended. The plaintiffs
    moved (1) to include prejudgment interest in the award of actual damages; (2) to
    reconsider their request for class certification; and (3) to grant their request for
    injunctive relief (i.e., to enjoin the sheriff’s department’s policy). The district
    court denied the motion. It granted, however, the defendants’ motion, reducing
    the award of actual damages by three thousand dollars to reflect the amount the
    plaintiffs had received as part of the settlement agreement with Michael Kastning,
    Tina Kastning, and Calvin Kastning.
    III. DISCUSSION
    On appeal, the plaintiffs raise five arguments, namely, that the district court
    erred in (1) refusing to grant them injunctive relief; (2) rejecting their motion for
    class certification; (3) granting summary judgment to Mr. Stuart, the district
    attorney for Osage County; (4) denying them prejudgment interest; and (5)
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    reducing their actual damages award by three thousand dollars. We address each
    of these arguments in turn.
    A. Injunctive Relief
    In their amended complaint, the plaintiffs included in their prayer for relief
    a request for a permanent injunction to enjoin the sheriff’s department from
    continuing its policy under which a deputy is permitted to attend a civil
    repossession in a stand-by capacity. The district court refused to grant this relief,
    holding that, because the policy only allowed the deputy to be present at the
    repossession and nothing more, it did not violate either the Fourth or Fourteenth
    Amendments. We hold that the district court properly denied the plaintiffs
    injunctive relief but on the basis that the plaintiffs lacked standing.        See Wilson v.
    Glenwood Intermountain Properties, Inc.        , 
    98 F.3d 590
    , 592-93 (10th Cir. 1996)
    (“Standing is a jurisdictional issue that may be raised by the court at any time.”).
    Under City of Los Angeles v. Lyons , 
    461 U.S. 95
     (1983), a plaintiff lacks
    standing to seek prospective injunctive relief if he or she cannot show a real or
    immediate threat of future harm.      See 
    id. at 105-06
    ; see also O’Shea v. Littleton ,
    
    414 U.S. 488
    , 495-96 (1974) (“Past exposure to illegal conduct does not in itself
    show a present case or controversy regarding injunctive relief . . . if
    unaccompanied by any continuing, present adverse effects.”);              Buchwald v.
    University of N.M. Sch. of Med.      , 
    159 F.3d 487
    , 493 (10th Cir. 1998)
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    (“[P]laintiff’s standing to seek an injunction ordering her admission to the school
    based solely on her allegations of past misconduct does not entail standing to seek
    an injunction prohibiting future use of the disputed preference.”). According to
    the plaintiffs, they can demonstrate such a threat because they continued to be
    debtors 2 after the seizure of the horses, thus making re-imposition of the policy a
    likely recurrence.   See Aplts’ Reply Br. at 18. This argument, however, is not
    persuasive, especially in light of   Smith v. Colorado Department of Corrections   , 
    23 F.3d 339
     (10th Cir. 1994).
    In Smith , the plaintiff challenged a prison regulation under which an
    inmate’s property would no longer be held in storage if the inmate was placed in a
    higher security facility such as maximum security or administrative segregation.
    According to the plaintiff, he had standing to challenge this regulation because
    “he ha[d] twice been regressed to higher security facilities” and so “it [was]
    foreseeable that it could recur,” especially since “he ha[d] twenty-seven years
    [remaining] to serve” and “being regressed is a common occurrence among
    inmates.” 
    Id. at 341
    . This court rejected the argument, concluding that “[t]his
    2
    According to the plaintiffs, they were “debtors before, during, and after
    the horsetaking [sic] incidents,” Aplts’ Reply Br. at 18. However, the plaintiffs
    make only one citation to the record to support this claim, and that citation merely
    indicates that the two were in financial difficulty. See Aplts’ App., vol. I, at
    000139-40 (testimony of Ms. Big Elk). Still, for purposes of this opinion, we
    assume that the plaintiffs were in fact debtors.
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    does not suffice for the concrete, actual[,] or imminent injury suffered by the
    plaintiff required for standing.”   
    Id.
     In short, neither the plaintiff’s past
    regressions nor his current status as inmate were, by themselves, sufficient to
    establish a real or immediate threat of being subject to the prison regulation in the
    future.
    Given Smith , we fail to see how the plaintiffs in the instant case had
    standing: The fact that they were debtors does not demonstrate, without more,
    that they stood a “good chance” of being subject once again to the policy.       Facio
    v. Jones , 
    929 F.2d 541
    , 544 (10th Cir. 1991) (noting that the Supreme Court has
    held that, “while a plaintiff who has been constitutionally injured can bring a §
    1983 action to recover damages, that same plaintiff cannot maintain a declaratory
    or injunctive action unless he or she can demonstrate a good chance of being
    likewise injured in the future”).   Arguably, the threat of future harm would have
    been more concrete if the plaintiffs had debts which were, with certainty, secured
    by personal property and past due; if one of their creditors expressed a desire to
    repossess the property pledged as security; and if the creditor actually contacted
    the sheriff’s department, seeking to have a deputy stand by during the
    repossession. But again, nothing in the record suggests that this was the case;
    therefore, the threat remained nothing more than speculation, ungrounded in
    reality.
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    B. Class Certification
    Soon after filing their amended complaint with the district court, the
    plaintiffs formally moved for class certification pursuant to Federal Rule of Civil
    Procedure 23(b)(2). The relief sought was, once again, a permanent injunction to
    enjoin the sheriff’s department from continuing its policy. The district court
    denied the motion on the basis that it was not timely filed in compliance with the
    scheduling order the district court had issued several months earlier.
    We note first that, under Federal Rule of Civil Procedure 16(f), “[i]f a party
    or party’s attorney fails to obey a scheduling or pretrial order, . . . the judge, upon
    motion or the judge’s own initiative, may make such orders with regard thereto as
    are just . . . .” Fed. R. Civ. P. 16(f). However, we need not resolve the issue of
    whether the district court acted properly pursuant to Rule 16(f) because there is a
    simpler way to resolve the issue. Because the plaintiffs did not themselves have
    standing to enjoin the sheriff’s department’s policy, they cannot bring a class
    action on behalf of others seeking that same relief.        See Fallick v. Nationwide
    Mut. Ins. Co. , 
    162 F.3d 410
    , 423 (6th Cir. 1998) (“Threshold individual standing
    is a prerequisite for all actions, including class actions.”);    see also Simon v.
    Eastern Ky. Welfare Rights Org.       , 
    426 U.S. 26
    , 40 n.20 (1976) (noting that the
    threshold question when considering whether an action should be certified as
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    class action must necessarily be whether the plaintiff has standing to sue on his
    own behalf).
    C. Summary Judgment to Mr. Stuart
    Mr. Stuart, the district attorney for Osage County, was named as a
    defendant in the proceedings because of a conversation that had taken place
    between him and Tina Kastning’s attorney, Steve Lamirand, prior to the seizure of
    the horses. Before Tina Kastning seized the horses, she contacted Mr. Lamirand,
    who then called Mr. Stuart, asking him if a criminal matter was at stake given
    certain facts. Mr. Stuart told Mr. Lamirand that the repossession of partnership
    assets was a civil matter and that if Tina Kastning took possession of the horses
    he would not prosecute her.
    During the proceedings below, the district court granted summary judgment
    to Mr. Stuart on the basis that he “did not participate in or condone the horse
    seizure.” Aplts’ App., Ex. D, at 2 (district court order, filed Jan. 30, 1997). The
    district court also noted that summary judgment was proper because     Mr. Stuart
    was “not an employee of Osage County or a policy maker for the purposes of a §
    1983 violation.”   Id. (district court order, filed Jan. 30, 1997). On appeal, the
    plaintiffs seek to reverse this order but only for purposes of injunctive relief –
    i.e., to enjoin the sheriff’s department’s policy. Once again, because the plaintiffs
    did not have standing to seek this relief, they can sustain no such claim.
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    D. Prejudgment Interest
    It is well established that “[t]he decision [of] whether or not to allow
    prejudgment interest rests within the sound discretion of the trial court.
    Accordingly, the standard of review on appeal is whether the trial court abused its
    discretion in awarding – or in declining to award – prejudgment interest.”        Kleier
    Adver., Inc. v. Premier Pontiac, Inc.    , 
    921 F.2d 1036
    , 1040 (10th Cir. 1990)
    (internal quotation marks omitted). “Under the abuse of discretion standard[,] a
    trial court’s decision will not be disturbed unless the appellate court has a definite
    and firm conviction that the lower court made a clear error of judgment or
    exceeded the bounds of permissible choice in the circumstances.”         Towerridge,
    Inc. v. T.A.O., Inc. , 
    111 F.3d 758
    , 763 (10th Cir. 1997) (internal quotation marks
    omitted).
    In its order, the district court began its analysis by explaining that “[t]he
    rationale underlying an award of prejudgment interest is ‘to compensate the
    wronged party for being deprived of the monetary value of his loss from the time
    of the loss to the payment of judgment.’” Aplts’ Br., Ex. A, at 2-3 (district court
    order, filed Apr. 16, 1999) (quoting     U.S. Indus., Inc. v. Touche Ross & Co.   , 
    854 F.2d 1223
    , 1256 (10th Cir. 1988),       implied overruling on other grounds recognized
    by Anixter v. Home-Stake Prod. Co.       , 
    77 F.3d 1215
    , 1231 (10th Cir. 1996)). It
    then denied the plaintiffs prejudgment interest, concluding that such an award
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    would be enrichment and not compensation because the plaintiffs had unduly
    delayed in filing suit after the horses were seized and then returned.     See id. at 4
    (district court order, filed Apr. 16, 1999) (“The suit was commenced some 17
    months after the return of the horses to Plaintiffs. Under these facts, awarding
    compensation in the form of prejudgment interest would serve to enrich Plaintiffs
    for a substantial period of time after the return of their horses and the Court
    concludes it is not warranted.”).
    A delay in filing may be taken into account in making a determination on
    prejudgment interest.     See Martin A. Schwartz & John E. Kirklin, 1C     Section
    1983 Litigation § 16.17 (1997) (noting that, in deciding whether and how much
    prejudgment interest should be granted, federal courts have considered various
    factors, including delay in filing);   cf. Williamson v. Handy Button Mach. Co.      , 
    817 F.2d 1290
    , 1298 (7th Cir. 1987) (discussing delay in filing in § 1981 context)       .
    However, as the plaintiffs note, they requested prejudgment interest only from the
    date they filed the complaint, not from the date the horses were seized or
    returned. We therefore must vacate and remand so that the district court may
    reconsider the denial in light of the fact that the plaintiffs seek prejudgment
    interest only from the date the complaint was filed.     3
    3
    We note that the district court did award prejudgment interest to the
    plaintiffs with respect to their claim against Ms. Welch. Notably, prejudgment
    (continued...)
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    E. Reduction in Actual Damages Award
    Following the jury verdict, the district court reduced the award of actual
    damages by three thousand dollars to reflect the sum paid by Michael Kastning,
    Tina Kastning, and Calvin Kastning as part of the settlement agreement with the
    plaintiffs. We review the method of calculation of damages de novo and the
    actual calculation of damages for clear error.       See Southern Colo. MRI, Ltd. v.
    Med-Alliance, Inc. , 
    166 F.3d 1094
    , 1100 (10th Cir. 1999).
    As a preliminary matter, we note that § 1983 does not contain any provision
    as to the propriety of offsetting an actual damages award because of a settlement.
    Because § 1983 does not provide any substantive law on the matter, we are
    obligated to “fill [the] interstices” of this federal statutory scheme.   Miller v.
    Apartment & Homes of N.J., Inc.       , 
    646 F.2d 101
    , 107 (3d Cir. 1981). Happily,
    “Congress [has] provided [us with] some modest guidance for resolving” this
    problem through 
    42 U.S.C. § 1988
    .         
    Id. at 105
    . Section 1988 dictates that, where
    there are gaps in a civil rights statute, we must first look to federal law to supply
    the substantive law, but if federal law is somehow deficient then we apply state
    3
    (...continued)
    interest began to accrue on the day the plaintiffs filed their complaint. See Aplts’
    App. vol. V, at 001411 (district court order, filed Nov. 25, 1996) (awarding
    prejudgment interest “from the date of filing until the date of this Judgment”).
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    law, that is, assuming it is consistent with the Constitution and other federal law.
    See 
    42 U.S.C. § 1988
    .
    For purposes of this case, whether we are guided by federal law or state
    law is not important because, under either, there would be a reduction in the
    plaintiffs’ actual damages award because of the money received as part of the
    settlement agreement.   4
    See generally Miller , 
    646 F.2d at 101
     (applying federal
    common law and reducing the damages award by the amount of settlement); 12
    Okla. Stat. Ann. § 832(H)(1)     (“When a release, covenant not to sue, or a similar
    agreement is given in good faith to one of two or more persons liable in tort for
    the same injury . . . [i]t does not discharge any other tort-feasor from liability for
    the injury . . . unless the other tort-feasor is specifically named; but it reduces the
    claim against others to the extent of any amount stipulated by the release or the
    covenant, or in the amount of the consideration paid for it, whichever is greater .
    . . .”). In any event, the plaintiffs do not seriously contend that there should be
    no offset whatsoever. The real issue for the plaintiffs is the amount of the offset.
    4
    The plaintiffs do not argue whether reduction should proceed on a dollar-
    for-dollar basis or a proportionate share basis. See Dobson v. Camden, 
    705 F.2d 759
    , 768 (5th Cir. 1983) (discussing the various possible methods of reducing),
    reh’g en banc, 
    725 F.3d 1003
     (1984). Consequently, we do not address this
    matter on appeal. See In re Walker, 
    959 F.2d 894
    , 896 (10th Cir. 1992) (noting
    the general rule that “a federal appellate court does not consider an issue not
    passed upon below”) (internal quotation marks omitted).
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    The district court reduced the actual damages award by three thousand dollars –
    i.e., the entire settlement award. According to the plaintiffs, this was error
    because the settlement award was not simply compensation for the seizure of the
    horses; rather, the settlement award also covered other injuries sustained by the
    plaintiffs for which only the settling defendants were responsible, including an
    assault of Mr. McClane and damage to a car as a result of the assault.
    Consequently, the plaintiffs assert that the offset should be less than three
    thousand dollars.
    We disagree, concluding that the district court did not clearly err in
    reducing the actual damages award by the entire amount of the settlement.
    Admittedly, there is some evidence in the record that suggests Mr. McClane was
    assaulted and that this assault led to property damage. Furthermore, the
    settlement agreement specified that it covered not only actual claims raised in the
    pleadings but potential claims as well.   See Aplts’ App. vol. V, at 001136-37
    (agreed journal entry of compromise, settlement and judgment dismissing claims
    with prejudice, filed Aug. 26, 1996). However, even if the assault and property
    damage were taken into account in negotiating the settlement, the settlement
    agreement on its face made no distinction as to which part of the award was
    compensation for which injury. The district court therefore had no meaningful
    way of determining an appropriate set-off. Notably, the plaintiffs themselves
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    failed to provide any guidance on the matter, simply contending that the set-off
    should be an unspecified amount less than three thousand dollars.
    Accordingly, we AFFIRM in part and VACATE and REMAND in part for
    further proceedings consistent with this opinion.
    Entered for the Court,
    Robert H. Henry
    Circuit Judge
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