Bennett v. Pippin

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10380
ELLEN GAIL BENNETT
Plaintiff-Appellee,
versus
PRESLEY PIPPIN JR., Individually and as
Sheriff of Archer County, in his official
capacity (as Sheriff of Archer County, in his
official capacity deleted as per Order dated
11/16/92 - leaving Presley Pippin, Jr.
Individually as dft) (Presley Pippin, Jr., as
Sheriff of Archer County, in his official
capacity, reinstates as per oral order of
Judge Joe Kendall during non-jury trial
2/10/95)
Defendant-Appellant,
and
ARCHER COUNTY TEXAS,
Movant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
January 24, 1996
Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
In this case, a Texas sheriff and a county appeal a judgment
awarding damages to a murder suspect that the sheriff raped. We
affirm the award against the sheriff individually, reverse the
judgment against the county, and remand for a new trial.
1
I
We describe the pre-trial proceeding in some detail, given the
unusual procedural posture that this case has reached. In a
complaint filed in June of 1992, Ellen Bennett sued Presley Pippin
in the Western District of Texas under 42 U.S.C. § 1983 and Texas
common law and demanded trial by jury. The complaint named Pippin
in his individual capacity and in his official capacity as Sheriff
of Archer County, Texas. It alleged that the Sheriff raped Bennett
in the course of a homicide investigation. It further alleged that
the Sheriff was “the final policy maker for the county for matters
of law enforcement” and that the Sheriff’s acts were “the official
policy and/or custom of Archer County, Texas.”
Three weeks later, attorney William W. Krueger, III, of the
law firm of Ludlum & Ludlum, filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(6) on behalf of the Sheriff individually and in
his official capacity. A colloquy between defense counsel and the
court at the eventual trial established that the Sheriff and Archer
County had agreed initially that Krueger would represent them both
at least through the filing of motions and that any conflict of
interest in that joint representation would be waived.
The case was transferred to the Northern District of Texas and
initially assigned to Judge Belew. Judge Belew denied all motions
except the motion to dismiss with regard to the Sheriff in his
official capacity. Referring to this court’s heightened pleading
standard for claims under section 1983, Judge Belew held that the
complaint failed to state facts sufficient to allow a court to find
2
that the Sheriff’s alleged rape was pursuant to a policy or custom
of Archer County as required by Monell v. New York City Department
of Social Services, 436 U.S. 658, 694 (1978). Judge Belew reasoned
that a single, isolated incident could not constitute a policy
under Monell.
Shortly after discovery began with problems of insurance
coverage in the background, Krueger and Ludlum & Ludlum withdrew as
the attorney for the Sheriff and the Sheriff’s personal attorney
appeared for him. After various continuances and further
discovery, Judge Belew granted leave to James Ludlum, also of
Ludlum & Ludlum, to replace the Sheriff’s personal counsel. Ludlum
then moved to reopen discovery on behalf of “Presley Pippin, Jr.,
Individually and as Sheriff of Archer County, Texas, in his
Official Capacity.” As we will explain, however, Archer County was
not at this time a party and no one thought that they were.
Five days before trial was to have begun, the court entered an
order, agreed to by the parties, that the case proceed to
arbitration under 28 U.S.C. §§ 651-58. The order stated that the
parties waived their rights to a jury trial if either requested a
trial de novo under 28 U.S.C. § 655. The arbitration panel
returned an award against “Defendant, PRESLEY L. PIPPIN, JR.”
Pippin requested a trial de novo under section 655. There was no
mention of Archer County. By this time, a portion of Judge Belew’s
docket had been assigned to Judge Kendall, who set for trial on
Friday, February 10, 1995.
On the morning of February 10, Judge Kendall began the
3
proceedings by announcing his inclination to reconsider the
12(b)(6) dismissal of Archer County. Judge Kendall stated that
Judge Belew’s dismissal had been based upon this circuit’s
heightened pleading standard for section 1983 cases, and that the
Supreme Court had held that standard could not be applied to a
claim against a county Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 113 S. Ct. 1160 (1993). Judge
Kendall then asked the parties for comment on his proposed course
of action. Ludlum conceded that the court was correct regarding
the effect of Leatherman upon the case but stated that he had an
ethical obligation to inform Archer County that it was now
potentially liable for a damage judgment. Ludlum further stated
that the interests of the Sheriff individually and the County might
conflict on the issue of Monell policy or custom. Ludlum also
stated on several times that he was representing the Sheriff only
in an individual capacity. Ludlum suggested that the court
continue the case for a week to allow the County time to consider
whether it wanted a separate attorney.
Judge Kendall responded by expressing a desire to begin
testimony that morning. While agreeing that a conflict of interest
was possible in this type of lawsuit, the court saw no possibility
that such a conflict would arise because the defense’s pretrial
filings had announced an intention to defend on the grounds that
the sexual intercourse between Bennett and Pippin had occurred
outside the scope of Pippin’s duties as Sheriff. Finally, Judge
Kendall concluded that Ludlum did represent both the Sheriff and
4
Archer County, highlighting that Ludlum & Ludlum had initially
filed the 12(b)(6) motion on behalf of the Sheriff individually and
in his official capacity.1
After this exchange, Judge Kendall made the following rulings
from the bench. First, he stated that the plaintiff would begin
her case that day. Second, he would grant a 30 minute recess to
allow Ludlum to notify Archer County officials of the reinstatement
of the lawsuit against the Sheriff in his official capacity.
Third, the judge stated that, because this was a bench trial, he
would continue the case, reopen discovery, and recall witnesses for
later cross-examination, should the County wish to do so. The
judge reemphasized that the trial was to the court, and that he
could be flexible as a result, but that trial would begin that
morning.
The district court then granted a recess.2 When Ludlum
returned from the recess, the trial commenced. Testimony from
various witness established the following undisputed facts. Ms.
Bennett shot her husband in the chest after a violent domestic
dispute in which Mr. Bennett had ripped the phone out of the wall,
assaulted Ms. Bennett, then pointed a gun at her. At the time, the
Bennetts were renting a house in Archer County. Ms. Bennett drove
1
The colloquy on this latter point was extended. Ludlum
repeatedly stated that he represented only the Sheriff
individually, and the district court repeatedly disagreed.
2
At oral argument to this court, Archer County conceded that
the County Judge and Attorney came to the courthouse and sat in the
audience section of the courtroom to observe much of the trial,
which took place on the afternoons of February 10 and 17.
5
her pickup truck to a nearby convenience store located across the
county line in Wichita Falls and called the Wichita Falls
authorities. The Wichita Falls authorities arrested and handcuffed
Ms. Bennett at the store, impounded the pickup truck, and notified
the Archer County Sheriff’s Office of the incident. Sheriff Pippin
radioed Wichita Falls and instructed them to hold Ms. Bennett until
he arrived to take custody of her.
After retrieving Ms. Bennett from Wichita Falls, the Sheriff
drove her back to the house. By this time, Archer County Deputy
Sheriffs had arrived to secure the scene and to take Mr. Bennett to
the hospital. After receiving a tour of the site from a Deputy,
the Sheriff left to attend to a brush fire. A Deputy Sheriff drove
Ms. Bennett to the Archer County Sheriff’s Office, where she was
fingerprinted, photographed, and given Miranda warnings. After Ms.
Bennett described Mr. Bennett’s assault and the subsequent shooting
to the Deputy, she signed a statement. The Deputy asked Ms.
Bennett not to leave the County without the authorization of the
Sheriff’s Office and drove her home. Ms. Bennett then left briefly
in her husband’s truck to find a phone to call a friend in Austin
for consolation.
The Sheriff, in the meantime, attended to the brush fire, then
traveled to the hospital and learned that Mr. Bennett would not be
released from the hospital that evening. He returned to the
Bennett household, found no one there, and sat on the porch until
Ms. Bennett returned. The Sheriff testified that he had at least
two reasons for returning to the house. The first was that he
6
wanted to assuage Ms. Bennett’s previously expressed concern that
Mr. Bennett’s friends would attack her as a result of the shooting.
The second was that he was mildly aroused by the manner in which
Ms. Bennett had touched him as he lit a cigarette for her during
the drive from Wichita Falls to her house. At the time of his
return to the house, the Sheriff was wearing his badge and gun.
At this point, the testimony of Ms. Bennett and the Sheriff
diverged. According to Ms. Bennett, when she returned to the
house, the two sat on the porch drinking coffee while the Sheriff
questioned her about the shooting incident. After a while, the
Sheriff touched her on the leg in a way that made her feel
uncomfortable. In response, Ms. Bennett stated that she was tired
and that she wished to answer any more questions the next day. Ms.
Bennett saw the Sheriff off the porch, then went upstairs to bed
and fell asleep. She awoke to find the Sheriff standing naked over
her and attempting to remove her clothes. When she protested, the
Sheriff responded that he was the sheriff and could therefore do
what he pleased. When she persisted in objecting, the Sheriff
stated, “What are you complaining about? I could have thrown you
in jail and sorted it out later.” The Sheriff then raped Ms.
Bennett. Afterwards, the Sheriff ordered her to take a shower and
not to tell anyone of the incident.
According to the Sheriff, Ms. Bennett returned shortly after
his arrival at the house, and the two sat on the porch discussing
their backgrounds and the difficulties in both of their marriages.
The shooting that had occurred a few hours earlier did not happen
7
to come up in conversation. After a while, the Sheriff helped Ms.
Bennett remove her boots. The Sheriff then said, “Why don’t we go
get on the bed?” After Ms. Bennett put up what the Sheriff in a
grand jury proceeding called “token verbal resistance,” the two
went into the house and had sex. At no point did the Sheriff
threaten Ms. Bennett or otherwise coerce her.
Two days later, after receiving the Sheriff’s permission to
retrieve her pickup truck and to move her residence, Ms. Bennett
left Archer County for Austin. She was subsequently no-billed by
an Archer County grand jury. She reported the rape to the Austin
authorities, and the Texas Rangers arrested the Sheriff. An Archer
County grand jury, nine members of which the Sheriff knew by name,
subsequently no-billed the Sheriff.
At the close of the evidence, the district court ruled for the
plaintiff from the bench and later filed written findings of fact
and conclusions of law. The court found that the Sheriff raped Ms.
Bennett in the manner described in her testimony, and that in doing
so the Sheriff deprived Ms. Bennett of her substantive due process
right to bodily integrity. It held that the rape was under color
of state law and that, because the Sheriff was the final policy
maker of Archer County under Pembaur v. City of Cincinnati, 475
U.S. 469, 481-82 (1986), the County was liable for the rape. The
court also found that the Sheriff’s actions violated state tort
law. The court then awarded one million dollars in compensatory
damages and an equal amount in punitive damages and held the County
jointly and severally liable for the compensatory damages. The
8
court also awarded attorneys’ fees and prejudgment interest.
After the court issued its findings of fact and conclusions of
law, Archer County moved to intervene and for a new trial. The
Sheriff individually and in his official capacity also moved for a
new trial. The court denied these motions.
In this appeal, Archer County argues that the district court’s
reinstatement of the official capacity suit on the morning of trial
violated its due process rights to notice, opportunity to be heard,
and legal representation. The County also argues that the
reinstatement violated the County’s right to a trial by jury, and
that the district court abused its discretion in denying its motion
to intervene. Next, the County contends that the district court
erred in holding it liable under state tort law. Further, the
County claims that the district court erroneously held that the
Sheriff’s actions were under color of state law and constituted the
policy or custom of Archer County. Finally, the County contends
that the original 12(b)(6) dismissal of the complaint as to the
Sheriff in his official capacity was correct, and asks us to
reverse the reinstatement order and render judgment in its favor.
In a separate brief, the Sheriff repeats many of the arguments
that the County makes and essentially argues that the County has
been treated unfairly. It also argues that the district court’s
finding that the Ms. Bennett did not consent to sex was clearly
erroneous, that the district court erred in certain evidentiary
rulings, that the Judge was biased, and that the award of
attorneys’ fees was too high.
9
II
We pause to dispel one source of confusion that persists in
this litigation. Under Hafer v. Melo, 112 S. Ct. 358 (1991), Ms.
Bennett’s suit against the Sheriff in his official capacity is a
suit against Archer County directly in everything but name. When
a plaintiff sues a county or municipal official in her official
capacity, the county or municipality is liable for the resulting
judgment and, accordingly, may control the litigation on behalf of
the officer in her official capacity. A suit against the Sheriff
in his official capacity is a suit against the County. When Ms.
Bennett sued the Sheriff in his individual and official capacity,
she sued two defendants: the Sheriff and the County. As their
briefs illustrate, the defendants have apparently considered this
litigation as involving three parties: (1) the Sheriff
individually; (2) the Sheriff in his official capacity; and (3) the
County. The defendants have apparently equated the interests of
the Sheriff individually with the interests of the Sheriff
officially. Under Hafer, such is not the case. We will refer to
Ms. Bennett’s suit against the Sheriff in his official capacity as
a suit against Archer County.
It follows that Archer County’s contention that the district
court erred in denying its post-trial motion to intervene is
without merit. When the district court reinstated the suit against
the Sheriff in his official capacity, the County again became a
party to this lawsuit. At the risk of stating the obvious, one
already a party to a lawsuit may not, at least it certainly need
10
not, intervene in the same lawsuit. We affirm the district court’s
denial of the County’s motion to intervene.
III
The County contends that we should reverse and render judgment
in its favor because the complaint failed to state sufficient facts
to support a cause of action and because Ms. Bennett failed to
prove at trial that the Sheriff’s rape constituted the County’s
policy or custom under Monell v. New York City Department of Social
Services, 436 U.S. 658, 694 (1978). We find neither of the
County’s arguments persuasive.3
A
The County argues that the complaint failed to allege facts
sufficient to support a claim against it. We refuse to reach this
issue.
The reinstatement order was functionally identical to a denial
of a motion to dismiss, and this effective refusal to grant a
12(b)(6) dismissal was followed by a final judgment after a trial
on the merits. After a trial on the merits, the sufficiency of the
allegations in the complaint is irrelevant. A district court must
deny a motion to dismiss under Rule 12(b)(6) unless the complaint
fails to state any set of facts upon which relief could be granted.
Conley v. Gibson, 355 U.S. 41, 45-47 (1957). Rule 12(b)(6)
3
We reach these arguments in spite of the fact that, as we
will explain, we reverse the judgment against the County and remand
for a new trial because the County has asked us to reverse and
render judgment in its favor on these two grounds.
11
measures the sufficiency of the plaintiff’s allegations. When the
plaintiff has prevailed after a full trial on the merits, a
district court’s denial of a Rule 12(b)(6) dismissal becomes moot.
The plaintiff has proved, not merely alleged, facts sufficient to
support relief. Any pleading defect may be cured by a motion under
Fed. R. Civ. P. 15(b), and the sufficiency of the plaintiff’s
evidence may be tested by an appeal on that issue.
At least seven circuits hold that “denial of summary judgment
is not properly reviewable on an appeal from a final judgment
entered after trial.” Whalen v. Unit Rig, Inc., 974 F.2d 1248,
1250 (10th Cir. 1992) (collecting cases), cert. denied, 113 S. Ct.
1417 (1993); accord, Chesapeake Paper Products Co. v. Stone &
Webster Engineering Corp., 51 F.3d 1229, 1234-37 (4th Cir. 1995);
Watson v. Amedco Steel, Inc., 29 F.3d 274, 277 (7th Cir. 1994).
The arguments for not considering an appeal from a denial of a Rule
12(b)(6) dismissal after a trial on the merits are stronger than
those for not considering a refusal to dismiss under Rule 56, given
the ease with which a plaintiff may amend a complaint after
judgment in order to conform to the evidence. See Fed. R. Civ. P.
15(b).4
B
4
There is dictum stating that appellate courts should hear
such appeals in Wilson v. First Houston Investment Corp., 566 F.2d
1235, 1238 (5th Cir. 1978) (quoting Charles A. Wright et. al.,
Federal Practice & Procedure § 1476, at 560 (2d ed. 1990)),
vacated, 444 U.S. 959 (1979). This dictum takes place in the
discussion of the different question of whether filing an amended
complaint after an initial Rule 12(b)(6) dismissal waives the right
to appeal the dismissal after final judgment. We are not bound by
this dictum and refuse to follow it in this case.
12
Citing Monell v. Department of Social Services, 436 U.S.
658, 688-91 (1978), the County argues that the district court
erroneously held it jointly and severally liable for Sheriff
Pippin’s rape because the Sheriff’s actions did not constitute a
policy of the County. The County contends that the Sheriff’s
actions could not be County policy because they violated well-
established County policy.
Our cases make clear that under Monell, “a single decision may
create municipal liability if that decision were made by a final
policymaker responsible for that activity.” Brown v. Bryan County,
Oklahoma, 67 F.3d 1174, 1183 (5th Cir. 1995) (emphasis in
original); see also City of St. Louis v. Praprotnik, 485 U.S. 112,
124-25 (1988); Turner v. Upton County, Texas, 915 F.2d 133, 136-37
(5th Cir. 1990), cert. denied, 498 U.S. 1069 (1991). When a final
policy maker makes the relevant decision, and that decision is
within the sphere of the policy maker’s final authority, “the
existence of a well-established, officially-adopted policy will not
insulate the municipality from liability where a policymaker
herself departs from these formal rules.” Gonzales v. Ysleta
Independent School District, 996 F.2d 745, 754 (5th Cir. 1993).
State law determines whether a particular individual is a county or
municipality final decision maker with respect to a certain sphere
of activity. Praprotnik, 485 U.S. at 124; Jett v. Dallas
Independent School District, 491 U.S. 701, 737 (1989); Doe v. Rains
County Independent School District, 66 F.3d 1402, 1407 (5th Cir.
1995).
13
In this circuit, “[i]t has long been recognized that, in
Texas, the county sheriff is the county’s final policymaker in the
area of law enforcement, not by virtue of the delegation by the
county’s governing body but, rather, by virtue of the office to
which the sheriff has been elected.” 915 F.2d 136 (citing and
quoting from Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th
Cir. 1980)).5 The Turner court held a county liable for the
actions of its sheriff in planting evidence and conspiring to force
the plaintiff to plead guilty of the resulting charges, concluding
that “[w]hen the official representing the ultimate repository of
law enforcement power in the county makes a deliberate decision to
abuse that power to the detriment of its citizens, county liability
under section 1983 must attach, provided that the other
prerequisites for finding liability under that section are
satisfied.” 915 F.2d at 138.
In this case, the Sheriff’s actions were those of the County
because his relationship with Bennett grew out of the attempted
murder investigation and because, as we will explain, he used his
authority over the investigation to coerce sex with her. The fact
that rape is not a legitimate law enforcement goal does not prevent
the Sheriff’s act from falling within his law enforcement function.
See Turner, 915 F.2d at 137-38 (holding a Texas county sheriff
5
The Sheriff’s role in the County makes irrelevant the
County’s argument that no County official other than the Sheriff
knew of the Sheriff’s intention to rape Bennett. Under the Archer
County power structure, no one had state law authority to contest
the Sheriff’s use of his power to place himself in a position to
rape Bennett.
14
liable for planting evidence, presumably not a legitimate law
enforcement goal).
IV
Certain of the County’s other arguments are more persuasive.
In particular, the County was denied its right to a jury trial, and
we therefore reverse the judgment against it and remand for a new
trial.
Under Fed. R. Civ. P. 54(b), the district court had the power
to reconsider and reverse its prior 12(b)(6) dismissal of the
claims against the Sheriff in his official capacity. Rule 54(b)
provides that, in the absence of an express entry of judgment with
regard to a dismissed party, a 12(b)(6) dismissal does not
“terminate the action as to any of the claims or parties, and the
order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.” In this case, however,
the precipitous manner in which the district court proceeded after
its reversal denied the County its right to a jury trial.
The complaint included a demand for a jury trial. Under Fed.
R. Civ. P. 38(d), the County could rely on that demand, and Ms.
Bennett could not withdraw it without the consent of all parties
subject to trial on the merits, including the County. See Pinemont
Bank v. Belk, 722 F.2d 232, 235 (5th Cir. 1984). When the district
court reinstated the County on the morning of trial, the County
returned to the case with its right to a jury trial. The district
15
court, however, proceeded with a bench trial an hour after
reinstating the County.
Ms. Bennett contends that the County waived its right to a
jury trial first, by agreeing to an arbitration conditioned upon a
waiver of a jury trial, and second, by proceeding with the bench
trial. Regarding the second alleged waiver, Ms. Bennett points out
that the County Judge and Prosecutor were spectators to the bench
trial knowing that the district court thought that the County had
consented to a bench trial with Ludlum & Ludlum as the County’s
attorney. Ms. Bennett relies on Casperone v. Landmark Oil & Gas
Corp., 819 F.2d 112, 116 (5th Cir. 1987), in which we held that a
party’s participation in a bench trial without objection waived its
previously established right to a jury trial.
We do not agree. In Casperone, the waiving party participated
in the trial; in this case, the district court reinstated the
County and proceeded to a bench trial one hour later, giving the
County an insufficient opportunity to assert its rights. By the
time the County Judge and Prosecutor arrived in the courtroom,
trial to the court was well underway. Any attempt by the County to
assert its right to a jury trial at that time would have been
futile. The judge had already repeatedly stated that this was to
be a bench trial and it was to start testimony that day. The
judge’s flexibility on issues of reopening discovery and recalling
witnesses by necessity assumed that the trial would be to the
court. The County did not waive its right to a jury trial by
failing to make a futile motion.
16
Nor did the County participate in this trial via the
representation of Ludlum & Ludlum. Ms. Bennett notes, correctly,
that Fed. R. Civ. P. 54(b) provides that a party dismissed under
Rule 12(b)(6) remains in the case until final resolution of all
claims as to all parties, unless the district court expressly
directs entry of judgment with regard to that party. Ms. Bennett
interprets Rule 54(b) to mean that the County remained a party to
this lawsuit throughout the entirety of the proceedings. She
argues that Ludlum & Ludlum undertook to represent the County at
the 12(b)(6) stage of the litigation, and that because the County
remained a party, Ludlum & Ludlum continued to represent the County
thereafter. Ms. Bennett points out that although Ludlum & Ludlum
moved to withdraw from representation of the Sheriff individually,
the firm never asked to withdraw from representing the County.
Accordingly, when the district court reinstated the County as a
party, Ludlum & Ludlum still represented the County. Ms. Bennett
then asks us to treat attorney Ludlum’s protestations that he
represented the Sheriff only in his individual capacity as a motion
to withdraw from representation, which, given the late date of the
motion, the district court could deny. When attorney Ludlum and
his associates proceeded to try the case, they did so on behalf of
the County, placing this case on all fours with Casperone.
Our disagreement with Ms. Bennett begins with her construction
of Rule 54(b). We agree with Ms. Bennett that Rule 54(b) kept the
County in the lawsuit in the sense that Ms. Bennett could not
appeal the dismissal at that time. But we disagree that the County
17
remained a “party” in the sense that it had to request admissions,
ask and answer interrogatories, notice and attend depositions, file
motions, and otherwise litigate the case, all against the
possibility that it might be reinstated as a party and be required
to go to trial that same morning. Such a construction of Rule
54(b), its plain awkwardness aside, would waste resources of the
judiciary and the parties. A defendant is entitled to rely on a
dismissal under Rule 12(b)(6) until notified otherwise, at which
point it is entitled to a full and fair opportunity to assert the
rights of a party.
Upon reinstatement, the court required attorney Ludlum to
protect all of the County’s interests, despite his repeated
statements that he represented the Sheriff only in his individual
capacity. We do not find persuasive the view of the district court
and the plaintiff that Ludlum & Ludlum continued to represent the
County on the morning of trial. The plaintiff’s suggestion that we
treat the district court’s action in this case as a denial of the
motion to withdraw rests upon the erroneous premise that Ludlum &
Ludlum represented the County. On the morning of trial, attorney
Ludlum made his position clear: he represented only the Sheriff in
his individual capacity. If, as the trial court apparently
thought, Ludlum & Ludlum should not have represented a different
client in the same litigation without a full waiver of conflicts by
all involved, the remedy was not to push ahead with the litigation
by imposing a second client upon an unwilling law firm.
For identical reasons, we find unconvincing Ms. Bennett’s
18
reliance on Rule 54(b) for the proposition that Ludlum & Ludlum
continued to represent the County, even though the County had been
dismissed from the case and even though the firm had since entered
an appearance on behalf a different party in the same litigation.
We find especially puzzling Ms. Bennett’s reliance on the fact that
Ludlum & Ludlum never moved to withdraw from representation of a
party that had been dismissed from the lawsuit. We also attach
little significance to the fact that Ludlum & Ludlum moved to
reopen discovery on behalf of “Presley Pippin, Jr., Individually
and as Sheriff of Archer County, Texas, in his Official Capacity.”
The fact of the matter is that the County was out of the lawsuit at
this point, and this pleading did not purport to bring the County
back in. The parties’ conduct throughout this litigation suggests
confusion on the status of the County and the Sheriff in his
official capacity as a parties, with pleadings referring
alternatively to “Presley Pippin,” “Archer County Sheriff Presley
Pippin,” or the “defendant.” We will not let this confusion cause
us to lose sight of the fundamental fact that the County had been
dismissed from the case.
For similar reasons, we find unpersuasive Ms. Bennett’s
argument that the County waived its right to a jury trial when the
parties agreed to arbitrate the case pursuant to 28 U.S.C. §§ 651-
58. Again, the County remained a party to the lawsuit only in the
sense that the 12(b)(6) ruling in its favor lacked the finality of
a judgment. But nothing in the record suggests that the County
agreed to arbitrate the suit against it. The County could hardly
19
have been found to be jointly and severally liable for the
arbitration award having been dismissed from the case. Plaintiff’s
counsel conceded at oral argument that the arbitration award ran
only against the Sheriff individually. The County was not a party
to the arbitration and accordingly was not a party to any waiver
attending those proceedings.
We hold that the County did not waive its right to trial by
jury. We reverse the judgment below against the County and remand
for a new trial.6
V
The Sheriff individually argues that the district court erred
in finding that he engaged in sexual intercourse with Ms. Bennett
without her consent and that the rape was under color of state law.
We do not agree.
We find no clear error in the district court’s factual finding
that the Sheriff raped Ms. Bennett. At bottom, this case turned on
whether the district court believed Ms. Bennett or the Sheriff.
The court believed Ms. Bennett, and that call belongs to the
district court. We will not upset such a finding on appeal.7
6
For the above reasons, we also reverse the district court’s
judgment holding the County vicariously liable under state tort law
for the Sheriff’s rape and remand for a new trial on this issue.
We express no view at this time regarding whether the County may be
held vicariously liable for the Sheriff’s violation of state tort
law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (Vernon
1986). We believe the district court should consider the County’s
arguments on this issue in the first instance.
7
It is possible that the district court considered the
following portions of the Sheriff’s testimony in deciding whether
20
We also find no error in the district court’s conclusion that
the Sheriff acted under color of state law when he raped Ms.
Bennett. The district court found that the Sheriff questioned Ms.
Bennett about the earlier shooting for 30-45 minutes as the two sat
on her porch, just before the rape occurred. The court also found
that, in response to Ms. Bennett’s refusals to have sex, the
Sheriff said, “I can do what I want, I’m the Sheriff.” The Sheriff
himself testified that he used his authority as Sheriff to
ascertain whether Mr. Bennett would be released from the hospital
on the night of the rape. The plaintiff needed the Sheriff’s
permission to retrieve her pickup truck and to change her place of
residence. Under such circumstances, we cannot argue with the
district court’s observation that “it was not lost on Gail Bennett
(or the Sheriff) that the Sheriff carried the keys to the Archer
County Jail with him in his pocket and wielded coercive power over
to believe the Sheriff’s statement that Ms. Bennett consented to
have sex:
[Plaintiff’s counsel]: But she said several things like
no, didn’t she?
[The Sheriff]: She said one thing that was very coy.
[The Court]: What do you mean by that?
[The Sheriff]: Really not serious.
[Plaintiff’s counsel]: Well, what was it that she said?
[The Sheriff]: “I don’t know whether this is a good idea
or not,” just sort of a smile on her face.
[Plaintiff’s counsel]: You would refer to that,
perhaps, as token verbal resistance?
[The Sheriff]: Yeah, I suppose so.
. . .
[The Court]: So you understood a no not to really mean
no?
[The Sheriff]: Yes, sir.
21
Gail Bennett.” The Sheriff’s actions were an abuse of power held
uniquely because of a state position, see United States v. Classic,
313 U.S. 299, 326 (1941), and the explicit invocation of
governmental authority constituted a “real nexus” between the
duties of Sheriff and the rape. Doe v. Taylor Independent School
District, 15 F.3d 443, 452 n.4 (5th Cir.), cert. denied, 115 S. Ct.
70 (1994).
VI
Sheriff Pippin’s other arguments are also without merit. The
Sheriff complains that the district court erred on a series of
evidentiary rulings. The Sheriff further contends that these
errors, together with other comments from the bench, demonstrated
that the trial judge was personally biased against the Sheriff. We
review the district court’s evidentiary rulings for abuse of
discretion, and we will reverse on the basis of evidentiary errors
only if they resulted in substantial prejudice to the Sheriff.
Smith v. Wal-Mart Stores (No. 471), 891 F.2d 1177, 1180 (5th Cir.
1990). We find any error in the district court’s evidentiary
rulings harmless. Regarding improper bias, the Sheriff must show
that “there are reasonable grounds for finding that the judge could
not try the case fairly, either because of the appearance or the
fact of bias or prejudice.” United States v. Conforte, 624 F.2d
869, 881 (9th Cir.), cert. denied, 449 U.S. 1012 (1980). We find
no hint of bias.
The Sheriff’s first evidentiary complaint concerns the
22
testimony of Austin Police Department Sergeant Robert Merrill, the
first law enforcement official to hear of the Sheriff’s rape. Ms.
Bennett’s counsel asked why Merrill had traveled 300 miles to
testify in this case, and the district court overruled the
defense’s relevance and opinion objection. Sergeant Merrill then
stated, “I felt like [Bennett] had unconsensual sex either by
force, threat, or intimidation, and I don’t think this case was
handled properly through the criminal courts.” This statement did
not substantially prejudice the Sheriff. The district court had
already made clear that he would not consider Merrill’s opinion of
Bennett’s credibility in making its own decisions on whom to
believe, and the court’s written memorandum does not rely upon it.
The Sheriff next objects to Bennett’s testimony that she
thought the Sheriff’s questions to her on the porch shortly before
the rape were normal law enforcement questions, on the ground that
this testimony required expert knowledge. Bennett’s state of mind
at the time was relevant to the question of whether she later bowed
to a show of authority or engaged in consensual sex. She was
competent to testify to her own state of mind.
Third, the Sheriff objects that the district court allowed
Bennett to compare her feelings in a bout of depression prior to
the rape with those after the rape. The Sheriff argues that only
an expert could give such testimony. The district court’s
memorandum did not mention this testimony, and any error in its
admission was harmless.
Fourth, the Sheriff complains on relevance grounds that the
23
district court allowed plaintiff’s counsel, during cross-
examination of the Sheriff, to elicit testimony that some suspects
in potential homicide investigations would have difficulty refusing
the advances of the officer in charge of the investigation, and
that such suspects might be intimidated by the power of a sheriff.
This testimony was relevant to the issue of willful disregard of
the plaintiff’s rights, a question raised by the request for
punitive damages.
Lastly, the Sheriff complains that the district court sua
sponte prevented the defense from questioning Bennett about her
post-rape sexual activity. The Sheriff contends that this element
was relevant to show that Bennett suffered little psychological
harm from the rape. Fed. R. Evid. 412(a)(2) excludes “in any civil
. . . proceeding involving alleged sexual misconduct . . .
[e]vidence offered to prove that any alleged victim engaged in
other sexual behavior.” The Sheriff contends that this evidence
was admissible under the exception included in Rule 412(b)(2).
Although the logic of this argument escapes us, we will not
consider it, because the Sheriff admits that he did not lay the
necessary predicate for this evidence by following the procedures
outlined by Rule 412(c).
We also find unconvincing the Sheriff’s argument that the
district court’s evidentiary rulings, comments from the bench, and
questioning of witnesses demonstrated improper bias. The
evidentiary rulings of which the Sheriff complains either were
correct or constituted harmless error. The district court’s
24
comments exhibited at most a sense of humor at a bench trial.8
Regarding the questioning of witnesses, the court extensively
questioned all of the witness at the end of cross-examination, and
the court was evenhanded.
VII
We REVERSE the judgment against the County entered by the
district court and REMAND for a new trial. We AFFIRM the judgment
against the Sheriff individually. The verdict and judgment against
the Sheriff in his individual capacity determined no issue in the
suit yet to be tried against the County.9 Because we have not
affirmed the judgment in its entirety, we REMAND the issue of
attorneys’ fees for resolution upon conclusion of the case in the
district court.
Affirmed in part, reversed in part, and remanded.
8
The district court stated that the docket was not a boring
one, that the facts resembled those of a TV movie, and that despite
his experiences watching goat ropings at a county fair he had never
seen a fact situation resembling that in the case at bar.
9
Evidence of the verdict or judgment should not be admissible
at the new trial. We have, of course, rejected the County’s
attempt to prevail outright on the issues of Monell policy or
custom and insufficiency of the allegations in the complaint.
25