Trentadue v. United States

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
KENNETH MICHAEL TRENTADUE,
The Estate of by and through its
Personal Representative Carmen
Aguilar, et al,
Nos. 01-6444, 02-6037
Plaintiff-Appellee/Cross- 02-6030 and 02-6051
Appellant,
v.
STUART LEE, et al.,
Defendant-Appellant/Cross-
Appellee.
ORDER
Filed February 3, 2005
Before O’BRIEN, Circuit Judge , BRORBY , Senior Circuit Judge, and
TYMKOVICH , Circuit Judge.
The petitions for panel rehearing filed on November 9, 2004, November 26,
2004, and December 27, 2004, are granted in part. A revised opinion is attached.
The petitions for rehearing en banc was transmitted to all of the judges of
the court who are in regular active service as required by Fed. R. App. P. 35. As
no member of the panel and no judge in regular active service on the court
requested that the court be polled, the petitions are denied. Judge McConnell did
not participate.
Entered for the Court
Patrick J. Fisher, Clerk
By:
Deputy Clerk
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F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 3 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
KENNETH MICHAEL TRENTADUE,
The Estate of by and through its
Personal Representative Carmen
Aguilar,
Plaintiff-Appellee/Cross-
Appellant,
and Nos. 01-6444 and 02-6037
CARMEN AGUILAR TRENTADUE,
individually and as Personal
Representative for the Estate of
Kenneth Michael Trentadue and
Guardian Ad Litem for Vito Miguel
Trentadue; WILMA LOU
TRENTADUE; JESSE JAMES
TRENTADUE; DONNA
TRENTADUE SWEENEY; LEE
FREDERICK TRENTADUE; JESSE
CARL TRENTADUE,
Plaintiffs-Appellees,
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF JUSTICE;
FEDERAL BUREAU OF PRISONS;
FEDERAL BUREAU OF
INVESTIGATION,
Defendants,
STUART LEE,
Defendant-Appellant/Cross-
Appellee,
KENNETH FREEMAN,
Defendant-Cross-Appellee.
____________________
UNITED STATES OF AMERICA,
Amicus Curiae.
KENNETH MICHAEL TRENTADUE,
The Estate of by and through its
Personal Representative Carmen
Aguilar; CARMEN AGUILAR
TRENTADUE, individually and as
Personal Representative for the Estate
of Kenneth Michael Trentadue and
Guardian Ad Litem for Vito Miguel
Trentadue; WILMA LOU
TRENTADUE; JESSE JAMES
TRENTADUE; DONNA
TRENTADUE SWEENEY; LEE
FREDERICK TRENTADUE; JESSE
CARL TRENTADUE, Nos. 02-6030 and 02-6051
Plaintiffs-Appellees/Cross -
Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant/Cross-
Appellee,
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and
DEPARTMENT OF JUSTICE;
FEDERAL BUREAU OF PRISONS;
FEDERAL BUREAU OF
INVESTIGATION; STUART LEE,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 97 849 F)
Michael E. Robinson, Department of Justice (Robert D. McCallum, Jr., Assistant
Attorney General, Robert G. McCampbell, United States Attorney, and Robert S.
Greenspan, Attorney, Department of Justice, with him on the briefs), Washington,
D.C., for Defendants-Appellants/Cross-Appellees United States of America,
Department of Justice, Federal Bureau of Prisons, and Federal Bureau of
Investigations, and for Amicus Curiae United States in support of Stuart Lee.
Robert D. Baron (Gloyd McCoy with him on the brief), Coyle, McCoy & Burton,
Oklahoma City, Oklahoma, for Defendant-Appellant/Cross-Appellee Stuart Lee.
Charles P. Sampson, Suitter Axland (Joe B. Reynolds and R. Scott Adams, Adams
& Associates, Oklahoma City, Oklahoma, with him on the briefs) Salt Lake City,
Utah, for Plaintiffs-Appellees/Cross-Appellants.
Barry W. Nance, Kenneth R. Nance, filed a brief for Cross-Appellee Kenneth
Freeman.
Before O’BRIEN, Circuit Judge, BRORBY , Senior Circuit Judge, and
TYMKOVICH , Circuit Judge.
TYMKOVICH , Circuit Judge.
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The United States appeals from an adverse judgment awarding the Estate of
Kenneth M. Trentadue and members of Trentadue’s family $1.1 million in
damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-
80 (2000), for the intentional infliction of emotional distress following
Trentadue’s death at a federal detention center in Oklahoma. Prison official
Stuart A. Lee appeals the judgment entered on a jury verdict finding him liable
for deliberate indifference to Trentadue’s medical needs under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The Estate and family members (Trentadues or plaintiffs) in turn raise twenty-one
issues on cross-appeal. They primarily contend that the district court committed
clear error in finding Trentadue committed suicide in his prison cell and in
finding that federal officials did not engage in the intentional destruction of
evidence.
The principal issues presented by the government’s appeal are (1) whether
plaintiffs have exhausted the FTCA’s notice requirements; (2) whether the
FTCA’s misrepresentation exception bars plaintiffs’ intentional infliction of
emotional distress claim; (3) whether plaintiffs have satisfied the elements of
intentional infliction of emotional distress under Oklahoma law; and (4) whether
the FTCA’s judgment bar provision precludes imposition of the Bivens judgment
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against Lee. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm in
part, reverse in part, and remand for further proceedings.
I. Background
A. Introduction
Kenneth M. Trentadue was arrested in California in June 1995 for driving
while intoxicated. During the booking procedure police determined that
Trentadue had an outstanding warrant based on federal parole violations
committed after his 1988 release from prison, where he had served six years for
bank robbery. He was arrested for these parole violations and held in local jails
for the next few weeks.
On August 18, 1995, the Bureau of Prisons (BOP) sent Trentadue to the
Federal Transfer Center (FTC) in Oklahoma City for a parole revocation hearing.
Upon arrival, Trentadue was placed in the Parole Violator’s Unit of the prison
where he made several calls to family members and assured them he would not be
at the FTC long. Two days later, on August 20, Trentadue asked to be placed in
protective custody and prison officials moved him to a cell in the prison’s Special
Housing Unit (SHU). At 3:02 a.m. the following morning, guards found
Trentadue’s blood-soaked body in his cell hanging from a noose made of torn bed
sheets. He was pronounced dead a few minutes later.
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The circumstances surrounding Trentadue’s death raise troubling questions.
Trentadue’s family maintains Trentadue was murdered by prison guards or
another inmate, and claims prison officials acted to cover up the suspicious nature
of his death by destroying evidence and cleaning his cell before an investigation
could be completed. They also allege prison officials were deliberately
indifferent to Trentadue’s medical needs as guards waited several minutes to open
the cell door and cut Trentadue’s noose. The government disputes this version of
the events, claiming Trentadue’s wounds were self-inflicted and asserting he was
dead by the time guards discovered him.
B. Trentadue’s Death
On the morning of August 20, 1995, two days after arriving at the FTC,
Trentadue filled out an administrative form requesting admission to the SHU. He
stated on the form that he believed other inmates were “out to get him” and that
he was requesting admission for his own protection. After a strip search and
physical inspection, officers noted only that Trentadue had a blister on his heel,
and placed him in a cell alone at approximately 8:00 a.m. FTC records from
August 20 indicate that other inmates were housed nearby Trentadue in the SHU,
but the records contain no reports of abnormal activity.
Officers conducting a routine cell check saw Trentadue asleep in his bed at
2:38 a.m. the following morning. There were no indications that anything was
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amiss at that time as officers saw no signs of blood or torn bed sheets. FTC
records indicate the next cell check occurred twenty-four minutes later, at 3:02
a.m., at which time Officers Ellis and Creasey discovered Trentadue hanging in
his cell by a ligature made of torn bed sheets. Officer Ellis radioed the prison
control center: “I have one hanging,” and an emergency message was broadcast
throughout the FTC.
The emergency message prompted a flurry of activity within the prison.
Lieutenant Stuart A. Lee, the highest ranking officer in the FTC during the
relevant period, was in the control center when guards discovered Trentadue.
Lieutenant Lee immediately departed for the SHU and on the way radioed the
prison physician assistant to report to Trentadue’s cell. Lee also radioed Officer
Ellis and instructed him not to go into the cell and not to unlock the door.
Lieutenant Lee and other officers arrived at the cell two to three minutes
after receiving the initial radio call. Lee looked through the cell door window and
saw Trentadue hanging from a vent in the ceiling, blood on his body and blood on
the floor. Lee testified that Trentadue’s eyes were closed “as if he was in a deep
sleep” and that he was pale and “silently still.” Based on these observations, Lee
concluded that Trentadue was already dead and did not immediately open the cell
door. Some of the delay was also apparently due to Lee’s decision to videotape
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the cell entry and the need to obtain scissors from the control center to cut the
noose.
Once inside the cell, officers did not immediately cut Trentadue down nor
did they attempt to lift him in order to relieve pressure on his neck. When
Trentadue was finally lowered to the ground the physician assistant conducted a
cursory physical examination and determined that Trentadue was dead. No one
attempted CPR. FTC records show that Trentadue’s body was removed from his
cell to the prison infirmary at 3:10 a.m., eight minutes after officers discovered
him hanging.
C. The Initial Investigation and Autopsy
The FTC official responsible for investigating inmate deaths, Special
Investigative Supervisor Lieutenant Kenneth Freeman, was notified of
Trentadue’s death shortly after his body was removed from the SHU. Lieutenant
Freeman’s official duties included securing potential crime scenes and collecting
and preserving evidence. At trial he testified that he did not consider Trentadue’s
cell a crime scene because prison officials told him Trentadue committed suicide.
As a result, Freeman’s investigation of the cell was perfunctory. He arrived at the
FTC at approximately 5:30 a.m. and attempted to photograph everything in the
cell with blood on it. He collected some physical evidence from the cell,
including several of Trentadue’s bloodstained personal items, and later
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photographed Trentadue’s body in the infirmary. After Freeman completed his
investigation, FTC officials ordered Trentadue’s cell cleaned by prison staff.
Both the cell and the infirmary were clean by early afternoon.
Shortly thereafter Trentadue’s body was transferred to the Oklahoma
Medical Examiner’s Office. The Chief Medical Examiner of the State of
Oklahoma, Dr. Fred Jordan, completed an autopsy report that afternoon. He
documented numerous injuries to Trentadue’s body, including multiple contusions
on the head, arms, back, and legs; a bruised anal verge; lacerations on the head
and neck; a small fracture to a neck bone; and several skin abrasions. Because of
these extensive injuries, Dr. Jordan initially listed the manner of death as
“pending,” and later classified it as “unknown.”
D. The Treatment of the Family
The FTC’s acting warden, Marie Carter, called Trentadue’s mother the
morning of his death, as Trentadue had listed her as his next of kin upon being
committed to the FTC. Warden Carter testified that she told Wilma Trentadue her
son had died of an apparent suicide and that BOP would be performing an autopsy
with the family’s concurrence. Wilma Trentadue told Carter that only
Trentadue’s wife, Carmen, could give permission for such a procedure. Carmen
Trentadue testified that she spoke with Warden Carter that morning but never
consented to an autopsy.
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Later that day, Warden Carter spoke with Trentadue’s brother, Jesse
Trentadue, a lawyer, who insisted on handling all matters relating to his brother’s
death. During this conversation Jesse Trentadue asked BOP to conduct an
autopsy, but Carter told him no autopsy could be performed without Wilma
Trentadue’s written authorization as next of kin. Despite this statement, the
record is clear that prison officials had already authorized the medical examiner’s
autopsy and that it was completed by the afternoon of August 21.
The next day, August 22, Jesse Trentadue faxed a letter to Warden Carter.
He reiterated that he wanted to handle his brother’s affairs, told BOP an autopsy
authorization was forthcoming, and requested information regarding the details of
his brother’s death, including any evidence suggesting the cause was other than
suicide. Jesse received no response to these inquiries. The district court found
that BOP never notified Trentadue’s family an autopsy had in fact been performed
and never told the family about the obvious and extensive trauma to Trentadue’s
body. Jesse testified: “I was never told that he had any injuries at all.”
E. The Body Is Shipped To California
On August 26, the medical examiner shipped Trentadue’s remains to a
California funeral home. Trentadue’s wife, mother and sister were present when
the body arrived. Upon opening the casket, the family members saw the autopsy
incisions and numerous bruises and lacerations on Trentadue’s body. These
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injuries were unexpected, so they had the body removed from the casket and
photographed by funeral home employees. Trentadue’s wife told Jesse Trentadue
and other family members about the body’s condition later that same day.
On September 1, the FTC issued a press release regarding Trentadue’s
death. It stated that the Oklahoma Medical Examiner had tentatively ruled the
death a suicide and that Trentadue’s injuries were the result of his persistent
attempts to harm himself. This press release conflicted with the facts then known
to BOP. As previously noted, the medical examiner had listed the cause of death
as “unknown,” not suicide. The press release was the first time the Trentadues
heard of an official investigation into their relative’s death.
F. The Subsequent Investigations
Trentadue’s death spawned a number of federal and local investigations.
The BOP conducted an initial internal investigation in the months following
Trentadue’s death, but its investigation ended soon after the FBI’s Oklahoma
Field Office opened a criminal investigation into the death in late 1995. The FBI
investigation continued at a slow pace for the next several months. Trentadue’s
family and the Oklahoma Medical Examiner, suspicious of the way the federal
government was handling the case, raised numerous questions about the manner
and circumstances of Trentadue’s death. In response to these questions, the
Criminal Section of the United States Department of Justice, Civil Rights
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Division, began to supervise the investigation, and in early 1996, determined that
the matter warranted presentation to a federal grand jury. The FBI conducted
numerous witness interviews, which the Department of Justice (DOJ) presented
along with other evidence to the grand jury. After several months of grand jury
proceedings, DOJ issued a press release stating that the investigation revealed no
credible evidence that FTC personnel had violated Trentadue’s civil rights, and no
evidence that Trentadue had been murdered.
After the grand jury proceedings, the DOJ Office of the Inspector General
commenced its own inquiry into Trentadue’s death. Like the Civil Rights
Division, it concluded the evidence showed Trentadue had committed suicide, but
found serious deficiencies in BOP’s response to his death. Among other things, it
noted that FTC’s investigation of the incident was inadequate and that FTC
personnel had misplaced or altered crucial evidence.
The Oklahoma City Police Department also conducted an investigation at
the urging of the Oklahoma City District Attorney. The District Attorney
concluded, based on its independent review of the matter, that Trentadue’s death
was a suicide and that he had not been beaten and murdered by correctional
officers or inmates. Following this investigation, the medical examiner, Dr.
Jordan, changed the manner of death in his autopsy report from “unknown” to
“suicide,” and identified the cause of death as “traumatic asphyxia.”
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G. Course of Proceedings
In August 1996, Trentadue’s estate filed an administrative claim with the
DOJ. The claim generally was based on the belief that prison guards had
murdered Trentadue, and included a claim for damages for intentional infliction
of emotional distress based on prison officials’ attempt to conceal the manner of
his death. DOJ denied the administrative claim.
Thereafter, Trentadue’s estate and members of his family filed this action
against the United States, the DOJ, the BOP, and the FBI, and against twelve
prison officials and employees in their individual capacities. Among other
claims, the Trentadues brought a claim against the government under the FTCA
for intentional infliction of emotional distress. Plaintiffs’ amended complaint
asserted that the government:
engaged in extreme acts of misconduct such as, but not
limited to concealing the manner and circumstances of
Kenneth Michael Trentadue’s death, the mutilation of
Kenneth Michael Trentadue’s body, falsely asserting that
Kenneth Michael Trentadue had committed suicide,
saying that the injuries and trauma upon Kenneth
Michael Trentadue’s body [were] self-inflicted or
implying that those injuries had been done by his family
following death, stating that Kenneth Michael Trentadue
had killed himself because he had AIDS, and other
illegal and wrongful acts.
Plaintiffs alleged “[t]hese and other acts” by the government “were so outrageous
and extreme as to exceed all bounds of what is tolerated in a civilized
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community.” Their complaint also asserted civil rights violations by Lieutenants
Lee and Freeman under Bivens. 1
Before trial, the district court granted summary judgment to Freeman on the
basis of qualified immunity. The district court tried the FTCA action and
remaining Bivens claims against Lee together; the FTCA action was tried to the
bench and the Bivens claims presented to a jury. After a four-week trial, the jury
in the Bivens case returned a verdict finding Lee liable for violating Trentadue’s
civil rights by being deliberately indifferent to his serious medical needs, and
awarded the plaintiffs $20,000 in compensatory damages. The jury rejected all of
plaintiffs’ remaining Bivens claims.
Five months later, the district court in the FTCA action entered judgment
against the government for intentional infliction of emotional distress, and
awarded plaintiffs $1.1 million in damages. 2 The court found against plaintiffs on
all other FTCA claims. The government’s motion to amend the judgment was
denied.
1
In addition, the amended complaint alleged that the government committed
assault and battery resulting in Trentadue’s injuries and death, was negligent in
failing to provide for Trentadue’s safety and not immediately administering to his
medical needs, intentionally destroyed or altered evidence in order to conceal the
manner and circumstances of his death, engaged in a conspiracy to violate his
constitutional rights, and committed various statutory torts under Oklahoma law.
2
The district court awarded Trentadue’s wife $250,000, his mother and three
siblings $200,000 each, and his deceased father’s estate $50,000.
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Both the government and Lee filed timely notices of appeal.
II. FTCA
The FTCA constitutes a limited waiver of the federal government’s
sovereign immunity from private suit. See 28 U.S.C. § 1346(b). The prerequisite
for liability under the FTCA is a “negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.” Id. The government and Lee raise a total of four
issues on appeal with regard to the district court’s award of damages under the
FTCA. The issues involve (a) the notice of claim; (b) the misrepresentation
exception to the FTCA; (c) the application of the tort of intentional infliction of
emotional distress; and (d) the judgment bar to the FTCA. 3
A. Notice of the Claim
3
We note up front that circuit courts have allowed cases involving emotional
distress under the FTCA. See, e.g. , Jimenez-Nieves v. United States , 682 F.2d 1(1st Cir. 1982); Kohn v. United States , 680 F.2d 922 (2d Cir. 1982); Plummer v.
United States , 580 F.2d 72 (3d Cir. 1978); Andrews v. United States , 732 F.2d
366 (4th Cir. 1984); Truman v. United States , 26 F.3d 592 (5th Cir. 1994);
McLean v. United States , 613 F.2d 603 (5th Cir. 1980); Ferguson v. United States
Army , 938 F.2d 55 (6th Cir. 1991); Gross v. United States , 676 F.2d 295 (8th Cir.
1982); Sabow v. United States , 93 F.3d 1445 (9th Cir. 1996). In any event, the
government has not claimed in this appeal that the tort of intentional infliction of
emotional distress is per se unavailable under the FTCA.
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The first issue is whether plaintiffs’ administrative claim satisfied the
FTCA’s notice requirements. “Because the FTCA constitutes a waiver of the
government’s sovereign immunity, the notice requirements established by the
FTCA must be strictly construed. The requirements are jurisdictional and cannot
be waived.” Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270
(10th Cir. 1991) (citation omitted).
The jurisdictional statute, 28 U.S.C. § 2675(a), “requires that claims for
damages against the government be presented to the appropriate federal agency by
filing ‘(1) a written statement sufficiently describing the injury to enable the
agency to begin its own investigation, and (2) a sum certain damages claim.’”
Bradley, 951 F.2d at 270 (quoting Warren v. United States Dep’t of Interior
Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984)). Whether the district
court has subject matter jurisdiction over a claim is a question of law we review
de novo. Id.The plaintiffs’ administrative claim in this case included an intentional
infliction of emotional distress claim and specified the damages sought.
Nonetheless, the government contends the claim was insufficient in that it was
based on a theory that prison officials had murdered Trentadue and did not
discuss the specific grounds relied on by the district court in awarding damages,
namely, the government’s treatment of the Trentadue family in the aftermath of
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his death and its actions in conducting an autopsy after claiming that no autopsy
would be performed without prior approval. We disagree with the government’s
position.
In Dynamic Image Technologies, Inc. v. United States, the First Circuit
described the test under § 2675(a) as “an eminently pragmatic one: as long as the
language of an administrative claim serves due notice that the agency should
investigate the possibility of particular (potentially tortious) conduct and includes
a specification of the damages sought, it fulfills the notice-of-claim requirement.”
221 F.3d 34, 40 (1st Cir. 2000). Several courts in this jurisdiction have similarly
interpreted the provision to require notice of the facts and circumstances
underlying a claim rather than the exact grounds upon which plaintiff seeks to
hold the government liable. See Barnson v. United States, 531 F. Supp. 614, 623
(D. Utah 1982) (“[A] claim is sufficient which notifies the agency of the facts of
the incident and need not elaborate all possible causes of action or theories of
liability.”); see also Mellor v. United States, 484 F. Supp. 641, 642 (D. Utah
1978) (“The purpose of the administrative claim procedure is to allow the agency
to expedite the claims procedure and avoid unnecessary litigation by providing a
relatively informal nonjudicial resolution of the claim.”). We agree that the
FTCA’s notice requirements should not be interpreted inflexibly. See Dynamic
Image, 221 F.3d at 40.
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Applying these standards here, we conclude that plaintiffs’ administrative
claim provided notice that DOJ should investigate the prison officials’ conduct.
Plaintiffs’ complaint sought damages based on the government’s “extreme acts of
misconduct,” including the mutilation of Trentadue’s body, the assertion that
Trentadue’s family caused his injuries, and the statement that Trentadue killed
himself because he had AIDS. The complaint further stated that “[t]hese and
other acts . . . were so extreme as to exceed all bounds of what is tolerated in a
civilized community.” This language gave DOJ notice of the facts and
circumstances surrounding plaintiffs’ emotional distress claim and, moreover, is
consistent with plaintiffs’ subsequent allegations in their amended complaint.
The government nevertheless argues that Dynamic Image requires a
different outcome. There, plaintiff filed an administrative claim for damages with
the United States Postal Service following his forcible removal from a postal
service trade show. Dynamic Image, 221 F.3d at 36. In the claim he alleged
“negligent misrepresentation, libel, slander, intentional interference with
contractual relations, and discrimination under 42 U.S.C. § 1983.” Id. He then
brought claims under the FTCA for false arrest, intentional infliction of emotional
distress and negligent supervision. Id. at 37. Because those causes of action were
based on an incident not mentioned in plaintiff’s administrative claim, the First
Circuit held that the agency was not put on notice that it should investigate the
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potentially tortious conduct, and dismissed the complaint for lack of subject
matter jurisdiction. Id. at 40-41. In contrast, here, the plaintiffs’ administrative
claim specifically included a claim for intentional infliction of emotional distress
and was based on the same underlying conduct that supported their amended
complaint.
Because we conclude plaintiffs’ administrative claim provided the
government with sufficient notice of their intentional infliction of emotional
distress claim, the district court did not lack jurisdiction under § 2675(a) of the
FTCA.
B. Misrepresentation Exception
The second issue on appeal involves the FTCA’s intentional torts
exception. See 28 U.S.C. § 2680(h). 4 If a claim against the government falls
within an exception to the FTCA, the cause of action must be dismissed for want
of federal subject matter jurisdiction. See Dalehite v. United States, 346 U.S. 15,
31 (1953) (holding that where discretionary function exception of § 2680(a)
applied, district court lacked subject matter jurisdiction over cause of action),
partially overruled on other grounds by Rayonier, Inc. v. United States, 352 U.S.
4Section 2680(h) provides that the FTCA does not apply to “[a]ny claim arising
out of assault, battery, false imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation, deceit, or interference with
contract rights.”
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315 (1957); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997) (also
holding no subject matter jurisdiction where § 2680(a) applied); see also
Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1161 (1st Cir. 1987)
(“[B]ecause 28 U.S.C. § 1346(b) provides that federal courts shall have
jurisdiction over FTCA claims ‘subject to,’ . . . section 2680, the exceptions
found in that section define the limits of federal subject matter jurisdiction in this
area.”). Application of the misrepresentation exception therefore presents a
threshold jurisdictional determination which we review de novo. See Daigle v.
Shell Oil Co., 972 F.2d 1527, 1537 (10th Cir. 1992).
Section 2680(h) provides that the FTCA does not apply to claims “arising
out of” misrepresentation or deceit. The government argues plaintiffs’ emotional
distress claim falls within the misrepresentation exception because the district
court found that the Trentadues suffered damages when the government failed to
communicate certain facts to the family, namely, the battered condition of
Trentadue’s body and that an autopsy had been performed. The government
contends that plaintiffs can point to no conduct independent of this failure to
communicate, thus their emotional distress claim must be deemed to arise of out
misrepresentation within the meaning of § 2680(h). We disagree.
“The misrepresentation exception applies only when the action itself falls
within the commonly understood definition of a misrepresentation claim.” Block
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v. Neal, 460 U.S. 289, 296 n.5 (1983) (citations and quotations omitted). For
purposes of the FTCA, misrepresentation includes those claims “arising out of
negligent, as well as willful, misrepresentation.” United States v. Neustadt, 366
U.S. 696, 702 (1961). Negligent misrepresentation, in the “traditional and
commonly understood legal definition of the tort,” involves a violation of the
“duty to use due care in obtaining and communicating information upon which [a]
party may reasonably be expected to rely in the conduct of his economic affairs.”
Id. at 706. Such claims have “been confined ‘very largely to the invasion of
interests of a financial or commercial character, in the course of business
dealings.’” Block, 460 U.S. at 296 n.5 (quoting Neustadt, 366 U.S. at 711 n.26);
see also Jimenez-Nieves v. United States, 682 F.2d 1, 5 (1st Cir. 1982)
(“misrepresentation” in the Tort Claims Act should be confined to its traditional,
or core, meaning as a separate tort).
In accordance with these rules, circuit courts have held that a claim must
contain the essential elements of misrepresentation to come within the exception.
See Jimenez-Nieves, 682 F.2d at 4-5; Kohn v. United States, 680 F.2d 922, 926
(2d Cir. 1982) (exception generally has been applied only to actions for damages
due to commercial decisions that were predicated on incorrect or incomplete
information); Reynolds v. United States, 643 F.2d 707, 711 (10th Cir. 1981)
(exception applies where plaintiff relies on false representations to his financial
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detriment). Those elements include “reliance by the plaintiff . . . upon the false
information that has been provided,” and “pecuniary loss.” Jimenez-Nieves, 682
F.2d at 4 (citing applicable sections of the Restatement (Second) of Torts).
Furthermore, courts have held that the misrepresentation exception does not
bar suits on other grounds in cases in which misrepresentations are collaterally
involved. See, e.g., Saraw P’ship v. United States, 67 F.3d 567, 570-71 (5th Cir.
1995) (holding misrepresentation exception does not bar plaintiff’s negligence
claim where government’s lack of communication was collateral to the essential
act that spawned the damages). As the First Circuit said in Jimenez-Nieves, “we
can discern no congressional purpose that might have been served in defining
[misrepresentation] more broadly, to include false statements that are
happenstance causal elements of other torts.” 682 F.2d at 5.
The government argues the misrepresentations at issue here are more than
collaterally involved and constitute the very conduct giving rise to plaintiffs’
emotional distress claim. However, even acknowledging that the government
failed to inform the Trentadues of certain facts, we agree with the district court’s
conclusion that the misrepresentation exception does not apply in this case.
Plaintiffs’ emotional distress arises from the government’s callous treatment of
the family in the aftermath of Trentadue’s death, including its shipping of
Trentadue’s battered remains to unsuspecting family members. Two essential
-22-
components of negligent misrepresentation — reliance and pecuniary loss — are
not present on the record before us. See Jimenez-Nieves, 682 F.2d at 4.
Therefore, in our view, the district court correctly found that this is not an action
for negligent misrepresentation or deceit under § 2680(h). 5
Accordingly, we conclude plaintiffs’ intentional infliction of emotional
distress claim is not barred by the FTCA’s misrepresentation exception.
C. Intentional Infliction of Emotional Distress
The next hurdle faced by the Trentadues is the government’s assertion that
the district court erred in awarding damages for intentional infliction of emotional
distress. Specifically, the government argues plaintiffs’ evidence failed to satisfy
any of the elements of intentional infliction of emotional distress under Oklahoma
law. Whether plaintiffs have proved intentional infliction of emotional distress is
a matter of law we review de novo. See Clark v. Brien, 59 F.3d 1082, 1086 (10th
Cir. 1995).
1. The Elements of the Tort
5
JBP Acquisitions, LP v. United States ex rel. FDIC , 224 F.3d 1260 (11th Cir.
2000), a case relied on by the government, supports this conclusion. The
Eleventh Circuit made clear that the FTCA’s misrepresentation exception applies
when the essential elements of reliance and pecuniary loss are present. It stated:
“[w]ithout the false representation by the Government that it was the owner of the
Property, the consent agreement in the condemnation proceedings never would
have been consummated, the Property would not have been demolished, and
[plaintiff] would have suffered no injury.” Id. at 1265.
-23-
Oklahoma first recognized intentional infliction of emotional distress as an
independent tort in Breeden v. League Services Corp., 575 P.2d 1374 (Okla.
1978). Breeden teaches that the cause of action is governed by the narrow
standards of the Restatement (Second) of Torts § 46. 6 Id. at 1376. To recover
damages for intentional infliction of emotional distress a plaintiff must prove: (1)
the defendant acted intentionally or recklessly; (2) the defendant’s conduct was
extreme and outrageous; (3) the defendant’s conduct caused the plaintiff
emotional distress; and (4) the emotional distress was severe. See Daemi v.
Church's Fried Chicken, Inc., 931 F.2d 1379, 1387 (10th Cir. 1991) (applying
Oklahoma law); Computer Publ’n, Inc. v. Welton, 49 P.3d 732, 735 (Okla. 2002).
The commentary to Restatement § 46 explains that “recklessness” in the
first element includes actions that are in “deliberate disregard of a high degree of
probability that the emotional distress will follow.” Restatement (Second) of
Torts § 46 cmt. i.
The second element of the tort requires proof that the tortfeasor’s conduct
was “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
6
Section 46 of the Restatement (Second) of Torts provides, in pertinent part:
“One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.”
-24-
intolerable in a civilized community.” Kraszewski v. Baptist Med. Ctr. of Okla.,
Inc., 916 P.2d 241, 248 n.25 (Okla. 1996) (quoting Restatement (Second) of Torts
§ 46 cmt. d). Generally, the case is one where “the recitation of the facts to an
average member of the community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous!’” Id. at 249 n.25. In addition, whether the
tortfeasor’s conduct was extreme and outrageous must be considered in the setting
in which the conduct occurred. Eddy v. Brown, 715 P.2d 74, 77 (Okla. 1986)
(holding that nature of the conduct should not be considered in a sterile setting,
detached from the milieu in which it took place); see also Starr v. Pearle Vision,
Inc., 54 F.3d 1548, 1559 (10th Cir. 1995) (applying Oklahoma law and noting that
court must focus on the totality of the circumstances).
The third element of an emotional distress claim requires proof that the
tortfeasor’s conduct caused the plaintiff’s emotional distress. Computer Publ’n,
49 P.3d at 735.
Finally, the fourth element requires proof that the plaintiff’s emotional
distress was “so severe that no reasonable [person] could be expected to endure
it.” Computer Publ’n, 49 P.3d at 736 (quoting Breeden, 575 P.2d at 1377 n.6).
While emotional distress includes “all highly unpleasant mental reactions,” it is
only where the emotional distress is extreme that liability arises. Miller v. Miller,
956 P.2d 887, 901 n.44 (Okla. 1998). “The intensity and the duration of the
-25-
distress are factors to be considered in determining its severity.” Breeden, 575
P.2d at 1378 n.6 (quoting Restatement (Second) of Torts § 46 cmt. j). Moreover,
although severe distress must be proved, “in many cases the extreme and
outrageous character of the defendant’s conduct is in itself important evidence
that the distress has existed.” Id.
2. The District Court’s Order
After a bench trial, the district court found the government liable for
intentional infliction of emotional distress. 7 The court found in part:
Trial testimony established that news of Trentadue’s
death came as a shock to his family members. . . . The
family [had not been] advised by anyone at the FTC or
the BOP that an autopsy had been performed; thus the
family was first made aware of the autopsy by viewing
the obvious signs of the intrusive procedure on his body
after it was received on August 26, 1995. Despite the
numerous, unusual, and obvious extensive injuries to
7
Under Oklahoma law the trial court must assume a gatekeeper role with respect
to intentional infliction of emotional distress claims by making a threshold legal
determination that the defendant’s conduct may reasonably be regarded as
sufficiently extreme and outrageous to meet the Restatement § 46 standards.
Breeden , 575 P.2d at 1377-78. If the court concludes that reasonable persons
could differ in the assessment of the disputed facts, the court submits the claim to
the jury to determine whether the defendant’s conduct should result in liability.
Id. Similarly, the court makes an initial determination whether severe emotional
distress can be found and the jury determines whether such distress in fact
existed. Id.
Since the FTCA portion of this case was tried to the court, the court made
both the initial legal determinations of outrageousness and severe distress, as well
as the ultimate findings of injury and liability.
-26-
Trentadue’s body, the family had not been told in
advance of these injuries and were thus also forced to
discover these on their own, much to their horror.
Order, No. CIV-97-849-L, at 16-17 (W.D. Okla. May 1, 2001).
The court went on to conclude:
[F]rom the testimony of family members, the court
determines that they suffered a quantifiable level of
distress over and above the expected level of emotional
distress they would have suffered due to Trentadue’s
death and that the United States should be held liable for
this distress.
Evidence at trial established that the plaintiffs suffered
severe emotional distress as a result of the reckless way
in which they were treated by the United States in the
aftermath of Trentadue’s death. The court finds that
plaintiffs’ understandable emotional reaction to
Trentadue’s death was needlessly and recklessly
intensified by the United States’ failure to inform the
family in advance as to the existence of the extensive
injuries on Trentadue’s body and that an autopsy had
been performed. Throughout the trial, the court heard
no explanation for defendant’s silence in this regard. In
the face of the evidence regarding the emotional distress
of the plaintiffs, the court finds that plaintiffs have met
their burden on their claim for intentional infliction of
emotional distress and are entitled to judgment on this
claim.
Id. at 17-18, 23.
We agree with the district court that the government acted in deliberate
disregard of a high probability that its actions would cause the Trentadues
emotional distress. The Trentadues were a grieving family searching for answers
-27-
in the wake of Kenneth Trentadue’s untimely death. BOP’s overall treatment of
the Trentadue family, including its initial nondisclosure of the unusual
circumstances of death, its obstinance concerning authorization for an autopsy,
and its failure to inform the Trentadues of the body’s battered condition amounted
to outrageous conduct that “needlessly and recklessly” intensified the family’s
emotional distress. 8 Thus the district court properly determined that plaintiffs
proved the first, second, and third elements of the tort of emotional distress,
intentional or reckless conduct, outrageousness, and causation.
However, because the district court did not make explicit findings as to the
severity of each individual plaintiff’s emotional distress, we are unable to
determine from the district court’s order whether the fourth element of the tort
has been met. Accordingly, we vacate the FTCA judgment in favor of the
plaintiffs and remand for additional findings on whether the emotional distress
suffered by each plaintiff was severe under Oklahoma law.
D. Judgment Bar
8
The government argues at length that the Trentadues were on notice that an
autopsy would be performed and that Jesse Trentadue in fact consented to one.
However, the record shows Warden Carter told Jesse that he could not authorize
Trentadue’s autopsy without his mother’s power of attorney. The record is
unclear on whether the FTC ever received Wilma Trentadue’s power of attorney.
However, whether such authorization was later received does not excuse BOP’s
treatment of the family, especially in light of Warden Carter’s repeated insistence
that proper consent was necessary and her failure to inform the family that an
autopsy had in fact been performed.
-28-
Relying on the judgment bar provision of the FTCA, 28 U.S.C. § 2676, 9
Lieutenant Stuart Lee argues that the district court’s entry of judgment on
plaintiffs’ FTCA claims required the court to vacate the judgment entered against
him in the Bivens action. We agree.
We note first that the district court tried plaintiffs’ FTCA and Bivens
claims contemporaneously in a bifurcated proceeding. See United States v.
Yellow Cab Co., 340 U.S. 543, 555-56 (1951) (suggesting bifurcation when FTCA
claims are joined with claims carrying the right to a jury). On December 15,
2000, the jury found Lee liable for constitutional violations under Bivens and the
district court entered judgment on the verdict on January 12, 2001. The court
entered judgment on the FTCA claims several months later. Lee argues that the
district court was required at this point to vacate the Bivens judgment under
§ 2676. We review de novo a district court’s legal conclusions under the FTCA.
Farmer v. Perrill, 275 F.3d 958, 962 (10th Cir. 2001).
We have previously explained the effect that a final judgment in a FTCA
case has on a Bivens action based on the same underlying conduct. We said in
Engle v. Mecke:
9
The judgment bar provides that a “judgment in an action under [the FTCA] shall
constitute a complete bar to any action by the claimant, by reason of the same
subject matter, against the employee of the government whose act or omission
gave rise to the claim.” 28 U.S.C. § 2676.
-29-
When a federal law enforcement officer commits an
intentional tort, the victim has two avenues of redress:
1) he may bring a Bivens claim against the individual
officer based on the constitutional violation, or 2) he
may bring a common law tort action against the United
States pursuant to the FTCA. These are separate and
distinct causes of action arising out of the same
transaction. A decision to sue the government, however,
affects the availability of a Bivens action against the
federal officer. Although the plaintiff may elect initially
to bring his action against either defendant, a judgment
against the United States under the FTCA constitutes “a
complete bar to any action by the claimant, by reason of
the same subject matter, against the employee . . . whose
act or omission gave rise to the claim.” 28 U.S.C.
§ 2676.
24 F.3d 133, 135 (10th Cir. 1994) (citations omitted) (ellipses in original).
As we made clear in Farmer, the judgment bar in § 2676 precludes
plaintiffs from bringing a Bivens claim regarding the same subject matter
regardless of whether the final FTCA judgment is rendered in favor of a plaintiff
or the government. See 275 F.3d at 963. The phrase “by reason of the same
subject matter” in § 2676 has been interpreted to mean “arising out of the same
actions, transactions, or occurrences.” Serra v. Pichardo, 786 F.2d 237, 239-40
(6th Cir. 1986); see also Armstrong v. Vogel, 424 F. Supp. 445, 447 (D.S.C. 1977)
(substance of claim must be considered in deciding whether the claim arises by
reason of same subject matter as previous action brought under FTCA).
Here, plaintiffs’ FTCA action involved the same subject matter as their
Bivens claim: the alleged misconduct of prison officials, including Lee, in
-30-
responding to Trentadue’s death. Although plaintiffs ultimately recovered on
narrower grounds than those alleged in their complaint, this does not affect our
determination that the two claims arose out of the same “actions, transactions, or
occurrences” for the purposes of § 2676.
Further, the fact that the district court entered judgment on the Bivens
claims before issuing its order and judgment in the FTCA case is inconsequential
under § 2676. The FTCA’s judgment bar constitutes “a complete bar to any
action” based on the same subject matter as the claimant’s FTCA case. 28 U.S.C.
§ 2676 (emphasis added). Although the language of the statute does not speak to
situations where FTCA and non-FTCA claims are tried together in the same
action, see Kreines v. United States, 959 F.2d 834, 838 (9th Cir. 1992), we
interpret § 2676 to apply to the Bivens judgment here. A contrary rule would
permit plaintiffs to escape the judgment bar’s preclusive effect in cases like this,
where the district court waited to enter judgment on FTCA claims tried
contemporaneously with Bivens claims. Such is not the intent of the rule. See
Farmer, 275 F.3d at 963 n.7 (Congress intended to prevent multiple lawsuits as
well as multiple recoveries) (citing Hoosier Bancorp of Ind. v. Rasmussen, 90
F.3d 180, 184 (7th Cir. 1996), and Gasho v. United States, 39 F.3d 1420, 1437
(9th Cir. 1994)).
-31-
We thus conclude that a final judgment in the FTCA action will bar the
Bivens action against Lee. Accordingly, upon entry of a final judgment in the
FTCA action, the district court shall dismiss the Bivens action against Lee. 10
III. Cross-Appeals
In a voluminous cross-appeal, plaintiffs assert twenty-one legal and factual
errors by the district court that they contend individually or cumulatively require
reversal of the issues below on which they failed to prevail. We conclude that
none of the asserted errors requires reversal.
A. Standards of Review
A district court’s factual findings are reviewed under the clearly erroneous
standard of Fed. R. Civ. P. 52(a). 11 “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed.” Anderson v. Bessemer City, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); United
10
Given our conclusion, we need not address plaintiffs’ contention on cross-appeal
that the district court erred in granting summary judgment in favor of Lieutenant
Kenneth Freeman. The FTCA’s judgment bar applies to the suit against him for
the same reasons we determined it barred the Bivens judgment against Lee.
Therefore, we affirm the district court’s dismissal of the Bivens action against
Freeman.
11
The rule provides in part: “Findings of fact . . . shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity of the trial
court to judge of the credibility of the witnesses.”
-32-
States v. De La Cruz-Tapia, 162 F.3d 1275, 1277 (10th Cir. 1998) (same). “This
standard plainly does not entitle a reviewing court to reverse the finding of the
trier of fact simply because it is convinced that it would have decided the case
differently.” Anderson, 470 U.S. at 573. “In applying the clearly erroneous
standard . . . appellate courts must constantly have in mind that their function is
not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research,
Inc., 395 U.S. 100, 123 (1969).
A district court’s decision to review certain documents in camera or ex
parte is reviewed for abuse of discretion, United States v. Perez-Gomez, 638 F.2d
215, 218 (10th Cir. 1981), as are decisions to require permission to file certain
pleadings and to deny motions for sanctions. See Gust v. Jones, 162 F.3d 587,
598 (10th Cir. 1998). We similarly review evidentiary rulings for abuse of
discretion. United States v. Fuentez, 231 F.3d 700, 708 (10th Cir. 2000). Finally,
we review the district court’s legal conclusions de novo. Battenfield v. Gibson,
236 F.3d 1215, 1220 (10th Cir. 2001).
The harmless-error rule is used to determine “whether an individual error
requires reversal.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990).
Cumulative-error analysis, on the other hand, “aggregates all the errors that
individually have been found to be harmless, and therefore not reversible, and it
analyzes whether their cumulative effect on the outcome of the trial is such that
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collectively they can no longer be determined to be harmless.” Id. at 1470. “The
harmlessness of cumulative error is determined by conducting the same inquiry as
for individual error--courts look to see whether the defendant’s substantial rights
were affected.” Id. “However, just as harmless-error analysis is utilized only to
determine whether actual error should be disregarded, a cumulative-error analysis
aggregates only actual errors to determine their cumulative effect.” Id. (emphasis
in original).
B. Evidentiary Findings
Plaintiffs first contend on cross-appeal that the district court’s finding that
Trentadue’s injuries were self-inflicted was clearly erroneous. According to
plaintiffs, the finding is in direct conflict with uncontroverted testimony about the
injuries to Trentadue’s head and the bruises on Trentadue’s arms, lower body, and
soles of his feet. The plaintiffs also argue the finding is in conflict with
uncontroverted evidence that someone else’s blood was found in the cell. To the
plaintiffs, this evidence contradicts BOP’s assertion that Trentadue was the sole
occupant of the cell. While the facts of this case are indeed troubling, we
disagree that the district court committed clear error on this record.
At trial, Commander Tom Bevel of the Oklahoma City Police Department
testified that the forensic evidence led to the conclusions (1) that Trentadue tried
to hang himself twice, and (2) that Trentadue sustained the injuries to his head
-34-
and body when the sheet he used as a ligature gave way during the first attempt. 12
Bevel also testified that the physical evidence showed Trentadue used a
toothpaste tube to cut multiple lacerations into his throat before trying to hang
himself the second time. A handwriting expert testified that the note written on
Trentadue’s cell wall—“My Mind No Longer It’s Friend Love ya.
Familia!”—matched previous samples of Trentadue’s handwriting. The district
court concluded that this writing could reasonably be regarded as a suicide note.
In addition, the court found that the government introduced credible evidence
discounting the importance of finding someone else’s blood in the cell: the blood
was a small spot on the mattress from the top bunk and the cell had previously
been used to house other inmates.
In addition to this testimonial evidence, the record shows multiple
investigations by federal and local law enforcement agencies that arrived at the
same conclusion about Trentadue’s death. After the DOJ’s Civil Rights Division
began supervising the FBI’s investigation of Trentadue’s death, a federal grand
jury was convened, and the Civil Rights Division presented evidence to the grand
jury over the course of a year. The grand jury declined to pursue murder charges
12
Commander Bevel testified, “Upon [the ligature] breaking, [Trentadue] falls
forward striking his head. His own inertia upon striking his head basically [sic]
he ricochets off the edge of the desk. His head then impacts the wall . . . . Then
we have his head coming upward hitting . . . the underside of the stool.”
-35-
against any of the prison officials or inmates. Thereafter, the DOJ’s Office of the
Inspector General conducted an extensive investigation into the matter and issued
a report in November 1999 that substantiated the grand jury findings. 13 In 1998,
the Oklahoma City Police Department, at the direction of the Oklahoma City
District Attorney, conducted its own criminal investigation into Trentadue’s
death. The investigation team “found no evidence that [Trentadue] was beaten”
and concluded that “Mr. Trentadue’s death was a suicide.” Based on this report,
the Oklahoma Medical Examiner, Dr. Fred Jordon, a person who had previously
expressed doubt about whether Trentadue committed suicide, amended his
findings on the cause of death from “unknown” to “suicide.”
We acknowledge that many of the circumstances surrounding Trentadue’s
death have given us pause, not the least of which was the response by FTC
officials on the morning Trentadue was found hanging. Few institutional deaths
raise so many questions. The district court, however, after listening to witness
testimony over the course of a four-week trial, thoroughly documented the
evidentiary problems that have prevented investigators from determining exactly
what happened the morning of August 21, 1995. In light of the record on appeal
we cannot say that our review of the evidence leaves us with the definite and firm
13
The district court placed the contents of the Office of the Inspector General’s
report under seal.
-36-
conviction that the district court committed a mistake. 14 Therefore, we conclude
the district court’s findings that Trentadue’s injuries were self-inflicted and that
his death was a suicide were not clearly erroneous.
C. Destruction of Evidence
Plaintiffs next argue that the district court committed clear error in finding
that federal officials had not engaged in the intentional destruction of evidence.
In related contentions, plaintiffs argue that the district court erred in rejecting
their spoliation claim and abused its discretion in refusing to sanction the
government for the destruction or loss of evidence. We reject each contention in
turn.
1. Destruction of Evidence
With regard to the destruction of evidence claim, the district court found
that “the loss of potential evidence was the result of ignorance or incompetence
[by federal officials] as opposed to intentional behavior.” Although we agree
with the district court that the government’s handling of evidence in this case
deviated from standard investigative practices, on the evidence before us we
14
Notably, the jury that heard the assault, battery, and conspiracy claims against
Lee also declined to find that Lee or someone else had inflicted Trentadue’s
injuries.
-37-
cannot conclude that the court erred in finding that prison officials did not
intentionally destroy relevant evidence. 15
As part of his investigation, Lieutenant Freeman took photographs of the
scene in an attempt “to photograph everything in the cell that had blood on it.” 16
He photographed the handwritten note on Trentadue’s cell wall, as well as
Trentadue’s body in the infirmary. Trial witnesses testified that Freeman’s
photographs accurately portrayed the cell and the body as they appeared on the
morning of Trentadue’s death. In addition to the photographs, Freeman collected
several items of physical evidence that he turned over to the medical examiner’s
office. Given that prison guards told Freeman that Trentadue’s death was a
suicide, he had less reason to consider the cell a crime scene, and his actions
therefore support the district court’s conclusion that he did not intentionally
destroy evidence. Further, plaintiffs’ counsel thoroughly tested Freeman’s
credibility on this issue during cross-examination at trial.
15
Plaintiffs contend BOP officials intentionally destroyed Trentadue’s clothing,
the SHU’s cell rotation log, and other records of an inmate’s location in the SHU.
Plaintiffs also argue cleaning Trentadue’s cell the day after his death and painting
over the hand written note in his cell constitute intentional destruction of
evidence.
16
In addition to the photographs and items of physical evidence collected from
the cell, subsequent luminol testing revealed that blood was located in the cell
where the photographs showed it to be.
-38-
The government provides less satisfactory explanations for the missing cell
rotation log and Trentadue’s missing clothing. Nonetheless, giving due regard to
the opportunity of the trial court to judge the credibility of witnesses, Fed. R. Civ.
P. 52(a), we conclude the district court did not commit clear error in finding no
intentional destruction of evidence.
2. Spoliation
Citing Patel v. OMH Medical Center, Inc., 987 P.2d 1185 (Okla. 1999), the
district court rejected plaintiffs’ spoliation claim. In Patel, the Oklahoma
Supreme Court stated “[n]either spoliation of evidence nor prima facie tort (for
acts constituting spoliation of evidence) has ever been recognized by this court as
actionable.” Id. at 1202. We have found no authority that suggests otherwise.
See id. (“Although a few jurisdictions have adopted the tort of spoliation, most of
the courts which have considered the issue have refused to recognize spoliation as
an independent cause of action in tort.”) (footnotes omitted).
Because the “test established by the Tort Claims Act for determining the
United States’ liability is whether a private person would be responsible for
similar negligence under the laws of the State where the acts occurred,” Rayonier,
Inc. v. United States, 352 U.S. 315, 319 (1957), and spoliation is not a recognized
-39-
tort in Oklahoma, we conclude that the district court did not err in denying
plaintiffs’ claim. 17
3. Sanctions
Nor do we agree that the district court abused its discretion in refusing to
sanction the government for the destruction or loss of evidence. The district court
has discretion to fashion an appropriate remedy depending on the culpability of
the responsible party and whether the evidence was relevant to proof of an issue
at trial. See Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)
(requiring bad faith before imposing adverse inference). “Mere negligence in
losing or destroying records is not enough because it does not support an
inference of consciousness of a weak case.” Id.Above we upheld the district court’s finding that the loss of potential
evidence was the result of ignorance or incompetence as opposed to intentional
acts. Contrary to the Trentadues’ arguments on appeal, the district court did
consider the loss or destruction of evidence by drawing “reasonable inferences
from the circumstances surrounding lost or inaccurate evidence in deciding what
weight should be given to that evidence.” Order, No. CIV-97-849-L, at 24 (W.D.
Okla. May 1, 2001). Moreover, “[d]uring trial, plaintiffs were allowed to explore
17
We also reject for the same reason plaintiffs’ argument that the Restatement
(Second) Torts § 870 establishes the tort of spoliation in Oklahoma.
-40-
the possible reasons for the mishandling of evidence and were allowed to make
arguments regarding the significance of the evidence” to the judge. Id. Under
these circumstances, we conclude the district court did not abuse its discretion in
refusing to sanction the government.
D. Injunctive or Declaratory Relief
Plaintiffs also contend that the district court abused its discretion in
refusing to grant declaratory or injunctive relief against the government.
According to plaintiffs, the loss or destruction of documents by the government
and the perjury by government employees violated plaintiffs’ civil rights under
the Fifth Amendment. Even if this were true, however, the district court lacks
subject matter jurisdiction under the FTCA to provide injunctive and declaratory
relief. See 28 U.S.C. § 1346(b) (providing the district courts have jurisdiction
over all civil actions on claims against the United States, “for money damages,
. . . for injury or loss of property, or personal injury or death”). At trial, no
individual defendants remained except for Lee, and no basis existed for any
injunctive relief directed to him. Except for the order dismissing Freeman, the
Trentadues did not appeal the orders dismissing the individual defendants, and
they voluntarily dismissed several of the FTC defendants before trial. Therefore,
we perceive no abuse of discretion in the trial court’s decision not to grant any
form of injunctive relief.
-41-
E. Burden-Shifting Presumptions
Plaintiffs argue that the district court erred in requiring the plaintiffs to
prove that Trentadue was alive when discovered by prison guards, and in failing
to apply appropriate burden-shifting presumptions regarding suicide, time of
death, and spoliation. We disagree.
Without citing any Oklahoma authority, plaintiffs maintain that the district
court improperly placed the burden on them to prove Trentadue was revivable
when discovered, rather than requiring the government to prove that Trentadue
was dead. Under Oklahoma law, however, “[i]n an action for the recovery of
damages for wrongful death of decedent, the burden of proof is upon the plaintiff
to establish by competent evidence that a negligent or wrongful act of defendant
was the proximate cause of death.” Jines v. City of Norman, 351 P.2d 1048, 1052
(Okla. 1960). We therefore conclude that the district court properly left the
burden of proving Trentadue was still alive with the plaintiffs.
Plaintiffs next argue that the law’s presumption against suicide places the
burden of proving suicide on the party claiming that fact and, further, that a
presumption of continuance of life arises whenever the time of a person’s death is
uncertain. In Oklahoma, “a presumption is merely a procedural tool for ordering
proof, and does not constitute affirmative evidence.” Weber v. Continental Cas.
Co., 379 F.2d 729, 732 (10th Cir. 1967) (quotations omitted). “When evidence is
-42-
introduced rebutting the presumption, the presumption disappears, leaving in
evidence the basic facts which are to be weighed.” Id. (quoting Stumpf v.
Montgomery, 226 P. 65, 68 (Okla. 1924)). Thus, “the presumption against suicide
is overcome by evidence showing the death was self-inflicted, . . . or
circumstances and conditions leaving no room for any reasonable hypothesis but
suicide.” Runyon v. Reid, 510 P.2d 943, 952 (Okla. 1973) (quoting Frankel v.
New York Life Ins. Co., 51 F.2d 933, 935 (10th Cir. 1931)).
Here, the presumption against suicide disappears in the face of evidence
that Trentadue’s injuries were self-inflicted. See Weber, 379 F.2d at 732.
Further, with regard to the uncertainty about the precise time of Trentadue’s
death, the district court found “there was no evidence from lay witnesses or
experts that Trentadue could have been revived,” and therefore, “plaintiffs [could
not] demonstrate that the actions of the FTC personnel were the cause of
Trentadue’s death.” Order, No. CIV-97-849-L, at 21 (W.D. Okla. May 1, 2001).
Lastly, an adverse presumption that follows the destruction or spoliation of
evidence “arises only in cases of ‘willful destruction [or] suppression.’” Beverly
v. Wal-Mart Stores, Inc., 3 P.3d 163, 165 (Okla. Civ. App. 1999) (citing Harril v.
Penn, 273 P. 235, 237 (Okla. 1927)). Thus, “[m]ere negligence in losing or
destroying records is not enough because it does not support an inference of
consciousness of a weak case.” Aramburu v. Boeing Co., 112 F.3d 1398, 1407
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(10th Cir. 1997). Above we concluded that the district court’s finding that the
government did not intentionally destroy evidence was not clearly erroneous.
Consequently, the district court did not err.
F. Physical Fact Rule
Plaintiffs contend that the district court erred in not applying the “physical
fact” rule. The physical fact rule is an evidentiary device that disregards oral
testimony at odds with physical evidence introduced at trial. See, e.g.,
Whittington v. Mayberry, 190 F.2d 703, 705 (10th Cir. 1951). Specifically,
plaintiffs assert that evidence at trial established (1) that “the noose portion of the
ligature was not cut”; (2) that “the remaining ligature in Trentadue’s cell hung to
within four feet of the cell floor”; (3) that “the presence of liver [sic] mortis in
the tip of Trentadue’s nose resulted from him lying face down on the floor of his
cell after death rather than hanging”; and (4) that “someone else’s blood [was
present] in Trentadue’s cell.” This evidence, they argue, “required the District
Court to reject all testimony, including Lee’s, about Trentadue having been found
hanging and cut down[,]” and “all testimony, including Lee’s, about Trentadue
having been alone in his cell.”
Although no trier of fact “can be allowed to return a verdict based upon
oral testimony which is flatly opposed to physical facts, the existence of which is
incontrovertibly established, . . . courts should not indulge in arbitrary deductions
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from physical law and fact except where they appear to be so clear and irrefutable
that no room is left for the entertainment, by reasonable minds, of any other
deductions.” Grubbs v. Hannigan, 982 F.2d 1483, 1488 (10th Cir. 1993) (quoting
Born v. Osendorf, 329 F.2d 669, 672 (8th Cir. 1964)). In this case, none of the
evidence offered by plaintiffs is “so clear and irrefutable” as to leave no room for
other reasonable explanations, such as those made by the district court and jury
here. Accordingly, we detect no error.
G. Presumption of Life
We also reject plaintiffs’ contention that the district court erred in refusing
to apply the Oklahoma definition of “death.” Plaintiffs cite the Oklahoma
Uniform Determination of Death Act for the proposition that Lee and other FTC
personnel were required to make “all reasonable attempts to restore spontaneous
circulation or respiratory functions.” Okla. Stat. tit. 63, § 3122 (2002). However,
the section on which plaintiffs rely is “part of the public health laws and defines
the conditions establishing that a person is dead,” In re Estates of Perry, 40 P.3d
492, 496 (Okla. Civ. App. 2001), and does not in our view create an evidentiary
presumption contrary to the district court’s findings. The district court did not
commit error in refusing the proffered instruction.
H. In Camera Review
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Plaintiffs contend that the government’s “ex parte submissions” to the court
violated their rights to due process and access to the courts. However, the four
submissions identified by plaintiffs as “ex parte” are more properly characterized
as “in camera” submissions. Each matter was submitted for the trial court’s
consideration under a claim of privilege or legal obligation of secrecy, and the
plaintiffs had adequate notice of such submissions and an opportunity to argue for
the matter’s disclosure.
To the extent the submission of any matter can rightly be construed as an ex
parte proceeding, we note that “[n]ot all ex parte proceedings violate due process
or even raise a serious constitutional issue.” Simer v. Rios, 661 F.2d 655, 679
(7th Cir. 1981). We have carefully examined the record regarding these
submissions and find no merit in the Trentadues’ allegation of error. Moreover,
the Trentadues can point to no prejudice or harm arising from the motions for in
camera review, nor did they contemporaneously allege bias by the district court.
Accordingly, we conclude that the district court did not abuse its discretion. See
United States v. Perez-Gomez, 638 F.2d 215, 218 (10th Cir. 1981).
I. Protective Order
Nor do we agree that the protective order entered by the district court
violated plaintiffs’ constitutional rights. District courts have discretion to issue
protective orders consistent with the limitations set forth in Fed. R. Civ. P. 26(c).
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After reviewing its order we cannot say that the district court “abdicate[d] its
responsibility to oversee the discovery process and to determine whether filings
should be made available to the public.” Procter & Gamble Co. v. Bankers Trust
Co., 78 F.3d 219, 227 (6th Cir. 1996). The government showed good cause for
the need to protect confidential materials produced during discovery, and the
court’s order “provide[d] a mechanism for the parties to challenge the designation
of confidentiality as to particular items of information.” Order, No. CIV-97-
849-L, at 6 (W.D. Okla. Aug. 18, 2001).
J. Permission to File
Plaintiffs also contend that the district court’s order preventing them from
filing motions, briefs, and other matters of record without prior court approval
constituted an unconstitutional “filing ban.” The order, however, was not a ban.
It merely required the Trentadues to apply to the court for permission to file
motions. Order, No. CIV-97-849-L, at 1 (W.D. Okla. June 28, 2000). Further,
the district court imposed the order because it found that “the parties filed what
must be a record-setting number of new motions which, from the court’s brief
review, suggest anything but an attempt to prepare this matter for trial in an
efficient and reasonable manner.” Id. In their conclusory allegations, plaintiffs
do not identify any documents whose exclusion as a result of the district court’s
order prejudiced their case. Thus, no constitutionally significant deprivation
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occurred and the court’s action was soundly within its discretion. See Gust v.
Jones, 162 F.3d 587, 598 (10th Cir. 1998).
K. Additional Findings of Fact
Plaintiffs next contend that the district court erred in denying their request
to make findings that the government’s efforts to conceal the true manner of
Trentadue’s death by destroying or fabricating evidence, perjury, and other
similar acts constituted intentional infliction of emotional distress.
We previously concluded that the district court’s finding that the
government did not intentionally destroy evidence was not clearly erroneous.
Further, the district court stated that its “rulings on plaintiffs’ claims for
emotional distress are not based on actions taken by the United States in
connection with the investigation of Trentadue’s death.” Order, No. CIV-97-849-
L, at 24 (W.D. Okla. May 1, 2001). Accordingly, no basis existed for the court to
find that such acts constituted intentional infliction of emotional distress.
Nor is there any basis for reversing the district court’s determination not to
find perjury on the part of the guard who allegedly videotaped the entry into
Trentadue’s cell. Deference to the trial court’s findings is at its greatest when
those findings are based on determinations regarding witness credibility. See
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). Nothing in the record
suggests the district court’s determination in this respect was clear error.
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L. Hearsay Objections and Discovery Conduct
Plaintiffs argue that the district court erred in excluding seven trial exhibits
on the basis of hearsay. “Given the fact specific nature of hearsay objections, we
accord greater deference to the district court’s hearsay rulings.” United States v.
Fuentez, 231 F.3d 700, 708 (10th Cir. 2000) (citing United States v. Trujillo, 136
F.3d 1388, 1395 (10th Cir. 1998)). Even assuming the district court abused its
discretion in excluding a particular exhibit, any error in this regard must be
considered harmless, given our conclusions above. See United States v. Rivera,
900 F.2d 1462, 1470 (10th Cir. 1990) (a district court’s evidentiary decisions
must affect a defendant’s substantial rights to warrant reversal).
For the same reasons, we reject plaintiffs’ argument that the district court
erred in not allowing Jesse Trentadue to pursue his separate emotional distress
claim against the government along with plaintiffs’ other FTCA claims. Plaintiffs
made a series of conclusory allegations that the DOJ was attempting to “indict”
Jesse Trentadue for tampering with witnesses. The district court properly
concluded that these allegations were collateral to the issues before the court
involving Kenneth Trentadue’s death and declined to make additional findings.
Moreover, the plaintiffs’ allegations are primarily centered around the conduct of
the government’s trial counsel during discovery, and are not evidence of
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misconduct by federal officials investigating Trentadue’s death. We see no abuse
of discretion by the court in limiting evidence on this issue.
M. Cumulative Error
Finally, because the Trentadues have failed to demonstrate on cross-appeal
that the district court committed any material factual or legal errors during the
course of a nearly four-week trial, their assertion that the cumulative impact of
errors deprived them of a fair trial is without merit. See Rivera, 900 F.2d at 1471.
IV. Conclusion
The FTCA action, 02-6030, is vacated and remanded to the district court
for supplemental findings on whether, under Oklahoma law, each plaintiff
suffered severe emotional distress. We reverse the judgment entered against
Stuart Lee in 01-6444 as barred under § 2676 of the FTCA. Finally, we affirm
the district court’s dismissal of plaintiffs’ cross-appeals in case numbers 02-6037
and 02-6051, and affirm the court’s dismissal of the Bivens action against
Kenneth Freeman.
The judgment is affirmed in part, reversed in part, and the case remanded.
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