Estate of Moreland Ex Rel. Moreland v. Dieter

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-3734 & 03-3735
ESTATE OF CHRISTOPHER A. MORELAND,
Deceased by GARY R. MORELAND and
LINDA TUTTLE, Co-Personal Representatives,
GARY R. MORELAND, in his official and
individual capacity, LINDA TUTTLE, in her
official and individual capacity, et al.,
Plaintiffs-Appellees, Cross-Appellants,
v.
ERICH DIETER and MICHAEL SAWDON,
Defendants-Appellants,
and
JOSEPH SPEYBROECK, in his individual and
official capacities, Sheriff of St. Joseph County,
Defendant, Cross-Appellee.
____________
Appeals from the United States District Court for
the Northern District of Indiana, Hammond Division.
No. 99 C 607—Allen Sharp, Judge.
____________
ARGUED SEPTEMBER 30, 2004—DECIDED JANUARY 14, 2005
____________
2 Nos. 03-3734 & 03-3735
Before ROVNER, WOOD and SYKES, Circuit Judges.
SYKES, Circuit Judge. This is an action under 42 U.S.C.
§ 1983 for deprivation of civil rights arising out of the death
of an inmate in the St. Joseph County, Indiana jail. Defen-
dants Erich Dieter and Michael Sawdon, former St. Joseph
County sheriff’s deputies, were found liable for violating
Christopher Moreland’s civil rights by wrongfully causing
his death by the use of unnecessary and excessive force. The
jury awarded substantial damages: $29 million in compensa-
tory damages and $27.5 million in punitive damages ($15
million against Dieter and $12.5 million against Sawdon).
On appeal Dieter and Sawdon assert evidentiary and
instructional errors and also challenge the punitive dam-
ages as unconstitutionally excessive. The plaintiffs cross-
appeal the district court’s order granting summary judgment
to Joseph Speybroeck, the sheriff of St. Joseph County. They
contend the evidence was sufficient to raise a jury issue
about official policy or custom in the jail for purposes of
§ 1983 liability against the sheriff. We affirm the judgment
against Dieter and Sawdon as well as the summary judg-
ment in favor of Sheriff Speybroeck.
I. Background
In the early morning hours of October 25, 1997, thirty-
year-old Christopher Moreland was arrested by officers of
the Mishiwaka Police Department for driving under the in-
fluence of alcohol. Moreland behaved erratically during his
arrest—for example, by hitting himself in the face—but the
police officers testified that Moreland’s behavior was not
unusual for someone drunk and upset. Moreland was held
for about two hours at the Mishiwaka Police Department
and then transferred to the St. Joseph County Jail. Al-
though obviously inebriated, Moreland entered the jail on
his own power and at approximately 5:50 a.m. was placed
in the “drunk tank” along with two other detainees.
Nos. 03-3734 & 03-3735 3
Almost as soon as he was in the drunk tank, Moreland
provoked a confrontation by directing racial slurs at
Reginald Coleman, one of the other detainees in the tank.
Sergeant Paul Moffa, the shift supervisor on duty that night,
responded to the disturbance and entered the tank with
another officer. Moffa grabbed Moreland by the neck or
shoulders, threw him to the floor, removed a canister of OC-
10 pepper spray1 from his waist, and sprayed Moreland’s face
from a distance of roughly four or five inches. Coleman took
cover underneath a blanket as pepper spray filled the air,
but he heard a struggle between Moreland and Moffa and
at one point heard what he said was “the sound of a basket-
ball bouncing off concrete.” The other inmate in the drunk
tank said it sounded like “a melon popping, like dropping a
watermelon.” They surmised this was the sound of More-
land’s head hitting the concrete floor.
The officers handcuffed Moreland behind his back and
dragged him out of the drunk tank to a nearby elevator.
They set him down on the floor in front of the elevator and
prepared to take him to the shower on the fourth floor to
wash off the pepper spray. Two other officers, Albright and
Holvoet, accompanied Moreland in the elevator to the fourth
floor. Moffa, who had been hit by pepper spray ricocheting
off Moreland, stayed behind on the first floor. Moreland
thrashed about as he was taken upstairs; Albright and
Holvoet tried to restrain him by pinning him to the elevator
floor.
When the elevator doors opened at the fourth floor cell
block, Dieter was waiting to meet them. Holvoet told Dieter
that Moreland was the guy “who got Moffa sprayed.” Albright
testified that he thought this comment was a signal from
1
OC-10 is a 10-percent solution of oleoresin capsicum. It causes
involuntary closure of the eyes, respiratory inflammation, and
temporary loss of muscular strength and coordination.
4 Nos. 03-3734 & 03-3735
Moffa to Dieter, his close friend, that Moreland had some
“payback” coming. Sawdon arrived on the fourth floor shortly
after Moreland and the others.
Dieter lifted Moreland up and hauled him over to the
shower. Witnesses testified that Dieter pushed Moreland
into the shower with such force that Moreland hit his head
against the far wall. Albright testified that Dieter held
Moreland from behind and accelerated toward the shower
until the two men smashed into the far wall, crushing
Moreland between the wall and Dieter’s own body. Dieter
or another officer turned on the hot water, which exacer-
bates the pain of pepper spray. In response to Moreland’s
cries from inside the shower (the defendants maintained he
was belligerent, but other officers and witnesses testified
that he was crying out for help), Sawdon said to the other
officers, “Hey, guys, do you want to see something funny?”
He then threw a five-gallon bucket of cold water over
Moreland. Other officers gathered outside the shower,
watching and laughing as Moreland, still handcuffed, lay
with his head in a shallow puddle of water, spit, and mucus,
trying to wash the pepper spray off his face.
Dieter and Sawdon then dragged Moreland from the shower
and strapped him into a “restraint chair.” Designed to con-
trol or impair an aggressive inmate who may endanger an
officer or another inmate, the “Pro-Straint Restraining
Chair” enables officers to shackle and tie down an inmate
while keeping him in a seated, upright position. Moreland
remained handcuffed while in the restraint chair. According
to several inmates who observed what happened from inside
their cells, Moreland sat in the restraint chair for several
minutes, cursing and yelling at the defendants and asking
them why they were doing this to him. According to the
inmates, Sawdon kept telling Moreland to shut up. Then
Sawdon went into the guard tower at the center of the floor
and came out with an OC-10 canister. He approached
Moreland and discharged the canister in his face while he
Nos. 03-3734 & 03-3735 5
was still strapped in the chair. Officers who arrived on the
fourth floor shortly thereafter reported noticing the unmis-
takable residual odor of an OC-10 blast. Some witnesses
also reported hearing the sounds of Moreland being beaten
during this time.
Dieter and Sawdon then removed Moreland from the re-
straint chair and forcibly put him back into the shower
again. Some time later the defendants put Moreland back
in the restraint chair and moved him into a nearby “attor-
ney’s room,” out of view of the other inmates. Connie Spicer,
the jail’s medication aide, arrived on the fourth floor around
this time and examined Moreland, whom she described as
slouched back in the restraint chair, moaning, and unre-
sponsive. She saw that Moreland had a cut above his left
eyebrow that had bled profusely. Dieter and Sawdon told
her that Moreland had slipped and fallen. She placed a
bandage over the cut. Spicer told the officers that Moreland
should be taken to the hospital; however, she testified that
Moffa, Dieter, and Sawdon did not want to do this because
their shift was ending and transferring Moreland to the hos-
pital would require them to remain at work. Spicer believed
(incorrectly, it seems) that she did not have the authority to
order the officers to transport Moreland to the hospital.
Moreland remained in the restraint chair in the attorney’s
room, and at 7 a.m. the night shift personnel, including the
defendants, left the jail.
Two day shift officers, Wilson and Johnson, found More-
land unconscious in the attorney’s room shortly after 7 a.m.
They noticed a large lump on the back of his head, injuries
to the front of his face, and a bandage over the cut above his
left eye. Wilson took Moreland, still unconscious, to the first
floor, changed his clothing, and placed him back in the
drunk tank. Spicer saw Moreland in the tank around 9:40
a.m., coughing and unresponsive. At 11:00 a.m., when she
checked on him again, Moreland had not moved. The next
time she checked Moreland was blue, cold, and lifeless.
6 Nos. 03-3734 & 03-3735
Moreland was pronounced dead at approximately 1:23 p.m.
The coroner and other forensic experts testified that the
cause of Moreland’s death was an acute subdural hematoma
that could only have occurred during the period of time
Moreland was confined in the St. Joseph County Jail.
Moreland’s estate and parents sued numerous parties,
most of whom either settled or were voluntarily dismissed.
Sheriff Speybroeck was sued in his official and individual
capacities; the district court granted his motion for summary
judgment. A trial was held on the claims against Moffa,
Dieter, and Sawdon. The jury found Dieter and Sawdon liable,
but could not reach agreement on Moffa and a mistrial was
declared as to him. The jury returned damages verdicts as
follows: $29 million in compensatory damages; $15 million
in punitive damages against Dieter and $12.5 million against
Sawdon. The case against Moffa was retried, resulting in a
verdict in his favor. Dieter and Sawdon appealed the judg-
ment against them, and the plaintiffs cross-appealed the
grant of summary judgment to Speybroeck.
II. Analysis
A. Admission of Videotaped Interviews of Defendants
St. Joseph County initiated an investigation of Moreland’s
death, and the defendants were interviewed several times
by investigators from the Special Crimes Unit. The inter-
views were videotaped, and the tapes were used in a federal
civil rights prosecution against the defendants, who were
acquitted. The defendants objected to the plaintiffs’ use of
the videotapes on hearsay grounds and pursuant to Rule 403
of the Federal Rules of Evidence. The district court allowed
portions of the videotapes to be played for the jury, with
occasional pauses for live witness testimony. The defendants
argue on appeal that the videotapes were unfairly prejudicial
and should have been excluded under Rule 403, especially
because the district court refused to admit evidence of the
Nos. 03-3734 & 03-3735 7
acquittals. They also appear to suggest that the district
court’s limiting instruction was inadequate.
We review the district court’s decision to admit or exclude
evidence for abuse of discretion, and the same standard ap-
plies to our review of the district court’s limiting instruction.
United States v. Fawley, 137 F.3d 458, 464 (7th Cir. 1998).
“Because the trial court is in the best position to make deci-
sions regarding jury guidance and evidentiary matters, the
appellate court must give special deference to the rulings of
the trial court.” Id. The defendants argued in the district
court that the videotaped interviews should be excluded
because the interrogators’ questions to Dieter and Sawdon—
some of which incorporated information gathered by inves-
tigators looking into Moreland’s death—were hearsay. They
now concede that the interrogators’ questions were not
hearsay because they were offered to provide context for
the defendants’ statements in the interviews and were not
offered for their truth. United States v. Woods, 301 F.3d 556,
561 (7th Cir. 2002) (informant’s side of recorded conver-
sation with defendant provided context for the recorded con-
versation and was not hearsay). The defendants argue
instead that the interrogators’ questions were at times in-
flammatory and so laden with information from other sources
in the investigation as to be unfairly prejudicial under
Rule 403. This prejudice, they assert, was compounded by
the district court’s refusal to admit evidence of the acquittals.
Having viewed the videotapes in their entirety, we find no
abuse of discretion. The jury saw what was actually the third
interview with Sawdon, recorded two days after Moreland’s
death. In this interview, which Sawdon himself requested,
Sawdon and the investigating officer, Sgt. Richmond, discuss
Sawdon’s admission that two days earlier he had prepared
a misleading report about Moreland’s death. Sawdon appears
concerned about the repercussions of his false report, and
Richmond tries to get him to come clean with the details of
the night Moreland died. But apart from the false report,
8 Nos. 03-3734 & 03-3735
Sawdon does not actually admit to any wrongdoing. He
blames Dieter for being too rough with Moreland but is not
sure whether Dieter truly injured him. Much of the inter-
view focuses on Sawdon’s state of mind, as he is extremely
depressed about what might happen to him. Richmond ap-
pears impatient but is generally friendly in the interview
(or was trying to appear so); he thanks Sawdon for coming
clean about the false report and expresses concern for
Sawdon’s emotional well-being. When Richmond leaves the
room, Sawdon breaks down crying.
Two videotaped interviews with Dieter were admitted, and
they are markedly different than Sawdon’s. After listening
at length to Dieter’s account of the night in question,
Richmond accuses him of lying, pointing out that Dieter’s
story is contradicted by the accounts of numerous witnesses.
At one point Richmond, visibly upset, abruptly leaves the
room and is replaced by another investigator, evidently a
friend of Dieter’s family, who adopts a conciliatory tone but
expresses suspicion that Dieter is not being truthful.
Dieter’s account of what he did to Moreland changes as the
interviews progress. For example, at first he says that he
“turned Moreland over” as Moreland lay on the floor, but
after questioning admits to dropping a handcuffed Moreland
to the ground from a height of roughly three feet and then
falling on top of him with his full weight. The tone of the
interviews is confrontational, and Dieter is evasive or de-
fensive throughout. When Dieter is left alone in the inter-
view room, he sits impassively, showing no emotion.
The videotapes were surely prejudicial, especially to
Dieter, but only unfairly prejudicial evidence is subject to
exclusion. Kelsay v. Consolidated Rail Corp., 749 F.2d 437, 443
(7th Cir. 1984). Evidence is unfairly prejudicial under
Rule 403 “if it will induce the jury to decide the case on an
improper basis, commonly an emotional one, rather than on
the evidence presented.” United States v. Vretta, 790 F.2d
651, 655 (7th Cir.), cert. denied, 479 U.S. 851, 107 S.Ct. 179,
Nos. 03-3734 & 03-3735 9
93, L.Ed.2d 115 (1986). In weighing the probative value of
the challenged evidence against the danger of unfair preju-
dice under Rule 403, the district court is engaged in “a com-
parison of intangibles” and is thus “afforded a special degree
of deference: ‘[o]nly in an extreme case are appellate judges
competent to second-guess the judgment of the person on
the spot, the trial judge.’ ” United States v. Glecier, 923 F.2d
496, 503 (7th Cir.), cert. denied, 502 U.S. 810, 112 S.Ct. 54,
116 L.Ed.2d 31 (1991) (quoting United States v. Krenzelok,
874 F.2d 480, 482 (7th Cir. 1989)).
The danger of unfair prejudice was not so extreme here
that the district court’s decision to admit the videotaped in-
terviews is called into question. As a record of the defendants’
respective versions of the events leading up to Moreland’s
death, the tapes are highly probative of their actions, state
of mind, and credibility. The interviews are not so dramatic,
confusing, or misleading as to induce the jury to disregard
the other evidence or to decide the case on an improper
basis. The district court indicated its willingness to give the
defendants substantial leeway to introduce evidence
concerning Richmond’s interrogation techniques in order to
ameliorate any prejudicial effect of those techniques, but
the defendants passed up the opportunity.
We also reject the defendants’ argument that the admis-
sion of the videotaped interviews was unfairly prejudicial
because the jury knew they were connected to a criminal
investigation but was not allowed to hear evidence that the
defendants had been acquitted of the criminal charges
brought against them. Evidence of acquittal in a criminal
action is generally irrelevant and inadmissible in a civil
case involving the same incident “since it constitutes a ‘neg-
ative sort of conclusion lodged in a finding of failure of the
prosecution to sustain the burden of proof beyond a reason-
able doubt.’ ” Borunda v. Richmond, 885 F.2d 1384, 1387
(9th Cir. 1989). See also Donald v. Rast, 927 F.2d 379, 381
(8th Cir. 1991); Royal Exchange Assurance v. Fraylon, 228
10 Nos. 03-3734 & 03-3735
F. 2d 351, 354 (4th Cir. 1955). The district court did not
abuse its discretion in excluding the acquittal evidence, and
the videotaped interviews were not rendered unfairly
prejudicial under Rule 403 because of the absence of this
evidence.
Finally, the defendants appear to suggest that the district
court’s limiting instruction was inadequate, but this
argument is not developed. The court instructed the jury as
follows: “As you were informed at the outset of this trial, two
defendants on trial here [Dieter and Sawdon] were the
subject of criminal proceedings. Neither that fact nor the
result of those proceedings have any relevance to this case.”
The defendants have identified no authority, in this circuit
or elsewhere, casting doubt on the propriety of this kind of
instruction, and we have been unable to find any ourselves.
B. Dr. Lustgarten’s Expert Testimony
The defendants also challenge the district court’s admis-
sion of a portion of the testimony of Dr. Gary Lustgarten, a
board-certified neurologist and neurosurgeon who testified
concerning the cause of Moreland’s death. They argue that
Lustgarten’s opinion as to where Moreland received his
fatal injury was not scientific in the sense required by Rule
702 of the Federal Rules of Evidence and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 597 (1993).
The parties dispute whether the defendants preserved
this issue for appeal. The record reflects that the defendants
challenged another expert’s testimony on Daubert grounds
before trial, and the district court expressed some dissatis-
faction with the requirements of Daubert as a general
matter. Then, during Lustgarten’s testimony, when the
plaintiffs’ attorney asked whether the expert had an opinion
as to where the injury that caused Moreland’s death
occurred, the defendants’ lawyer objected in the following
terms:
Nos. 03-3734 & 03-3735 11
MR. KUS: Objection; based on hearsay, Your Honor. He
has to believe a certain set of witnesses and testi-
mony—unless you’re talking about where in the body,
but I think he’s talking about where it occurred in the
location, so I’ll make that objection.
THE COURT: The objection is overruled.
It is hard to discern even the germ of a Daubert challenge
in this objection. The defendants’ Daubert challenge to the
testimony of a different expert hardly suffices to preserve
the argument against Lustgarten. Their failure to address
a Daubert challenge to Lustgarten’s testimony is not ex-
cused by the district court’s expression of dissatisfaction
with the requirements of Daubert. The issue was forfeited.
Plain error review of a forfeited evidentiary issue in a civil
case is available only under extraordinary circumstances
when the party seeking review can demonstrate that: (1)
exceptional circumstances exist; (2) substantial rights are
affected; and (3) a miscarriage of justice will occur if plain
error review is not applied. Stringel v. Methodist Hosp. of
Ind., Inc., 89 F.3d 415, 421 (7th Cir. 1996); Prymer v. Ogden,
29 F.3d 1208, 1214 (7th Cir. 1994). The defendants have not
even attempted to meet this standard.
C. Punitive Damages
The jury awarded $15 million in punitive damages against
Dieter and $12.5 million against Sawdon, in addition to as-
sessing compensatory damages at $29 million. The defendants
do not directly attack the punitive damages award—they do
not argue, for example, that the evidence is insufficient to
sustain an award of punitive damages under the “reckless
or callous indifference” standard for punitive damages in
§ 1983 actions. See Smith v. Wade, 461 U.S. 30, 55 (1983).
Rather, they challenge the size of the awards as constitu-
tionally excessive under BMW of North America, Inc. v. Gore,
12 Nos. 03-3734 & 03-3735
517 U.S. 559 (1996); Cooper Industries, Inc. v. Leatherman
Tool Group, Inc., 532 U.S. 424 (2001); and State Farm
Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408(2003).
In Gore the Supreme Court “instructed courts reviewing
punitive damages to consider three guideposts: (1) the de-
gree of reprehensibility of the defendant’s misconduct; (2)
the disparity between the actual or potential harm suffered
by the plaintiff and the punitive damage award; and (3) the
difference between the punitive damages awarded by the
jury and the civil penalties authorized or imposed in com-
parable cases.” Campbell, 538 U.S. at 418 (citing Gore, 517
U.S. at 575). Review of a constitutional challenge to a punitive
damages award is de novo, which operates to “ensure[ ] that
an award of punitive damages is based upon an ‘application
of law rather than a decisionmaker’s caprice.’ ” Id. (quoting
Cooper Industries, 532 U.S. at 436; quoting Gore, 517 U.S.
at 587).
The degree of reprehensibility is the most significant
factor. Campbell, 538 U.S. at 419. The defendant’s conduct
is evaluated according to five variables: (1) whether the harm
was physical or economic; (2) whether the conduct evinced
an indifference to or reckless disregard for the health or
safety of others; (3) whether the target of the conduct was
financially vulnerable; (4) whether the conduct involved
repeated actions; and (5) whether the harm was the result
of malice, trickery, or deceit, or mere accident. Id. We pre-
sume that the “plaintiff has been made whole for his injuries
by compensatory damages, so punitive damages should only
be awarded if the defendant’s culpability, after having paid
compensatory damages, is so reprehensible as to warrant
imposition of further sanctions to achieve punishment or
deterrence.” Id.The defendants’ conduct in this case qualifies as truly
reprehensible. Taking the facts in the light most favorable
to the verdict, Roy v. Austin Co., 194 F.3d 840, 842 (7th Cir.
Nos. 03-3734 & 03-3735 13
1999), the defendants’ conduct was malicious and cruel,
evincing a clear intent to cause Moreland great pain and
suffering. To throw a man’s head against concrete when he
is handcuffed and presents no threat is clearly excessive
and malicious. To discharge a canister of pepper spray into
the face of a fully restrained, incapacitated individual is
vicious and unconscionable. Moreland was roughed up re-
peatedly before the defendants ultimately ceased abusing
him. In the end, the defendants placed Moreland in the at-
torney’s room, shackled and strapped into the restraint
chair, leaving his medical needs unattended.
The defendants’ assault on Moreland was sustained rather
than momentary, and involved a series of wrongful acts, not
just a single blow; and Moreland died from the injuries
inflicted by the defendants. All this exacerbates the repre-
hensibility of their behavior. Although it was not possible
to determine which of Moreland’s head traumas caused the
fatal hematoma, Moreland clearly received more than one
injury at the defendants’ hands. The evidence also shows
that the prolonged nature of the assault compounded
Moreland’s suffering. That the defendants knew Moreland
was suffering but continued to abuse him is obvious from
nearly all the testimony presented at trial. The jury clearly
disbelieved the defendants’ versions—that they were merely
reacting to Moreland’s own violent attempts to avoid being
restrained and showered.
Finally, the defendants lied to the nurse and filed false
reports to conceal their wrongdoing. The evidence supports
a conclusion that the defendants were utterly and callously
indifferent to Moreland’s rights, engaged in wanton physi-
cal violence, disregard of obvious medical needs, and sub-
sequent deceit.
The ratio between the compensatory and punitive dam-
ages in this case does not test the limits of constitutionality,
although we acknowledge that both the compensatory and
14 Nos. 03-3734 & 03-3735
punitive damages awards are very large. There is no set
formula for determining when the line is crossed, although
the Supreme Court in Campbell suggested that “single-digit
multipliers are more likely to comport with due process.”
Campbell, 538 U.S. at 425. In a recent case, this court
upheld a punitive damages award of more than 37 times the
size of the underlying compensatory damages in a case
involving only minor, albeit highly troublesome, physical
injury (bedbug bites). See Mathias v. Accor Economy
Lodging, Inc., 347 F.3d 672, 676-78 (7th Cir. 2003).
The court emphasized in Mathias that “the judicial func-
tion is to police a range, not a point,” and we cannot say that
the punitive damages in this case are beyond the range of
what is acceptable. The awards are roughly half the amount
of the compensatory damages. The defendants have not iden-
tified a single appellate case questioning the constitutional-
ity of a punitive damages award that is a fraction of the
underlying compensatory damages award. Nor have we.
On the third Gore guidepost the defendants cite several
excessive force cases decided by this and other courts, point-
ing out that the amount of the punitive damages in those
cases was much smaller than the awards here. But the cases
cited by the defendants are either quite dated or factually
distinguishable. Cf. Bell v. Milwaukee, 746 F.2d 1205, 1266-
67 (7th Cir. 1984) (upholding punitive damages of $25,000,
$150,000, and $350,000 for police officers’ participation in
conspiracy to conceal facts of a fatal shooting); Freeman v.
Franzen, 695 F.2d 485, 490 (7th Cir. 1982) (upholding $1,000
award against correctional officer for twice hitting the face
of a restrained prisoner); Hagge v. Bauer, 827 F.2d 101, 110
(7th Cir. 1987) (upholding $25,000 award to an arrestee
whose leg was broken as a result of officer’s kick); Bogan v.
Stroud, 958 F.2d 180, 186 (7th Cir. 1992) (upholding awards
of $5,000 and $1,000 against correctional officers who hit and
stabbed an inmate during altercation provoked in part by in-
mate slashing officer’s face); Thomson v. Jones, 619 F.Supp.
Nos. 03-3734 & 03-3735 15
745, 755 (N.D. Ill. 1985) (upholding award of $10,000 against
correctional officer for hitting a handcuffed prisoner and
causing hearing loss, and award of $5,000 against officer for
acquiescence in co-worker’s use of force); Brown v. Triche,
660 F.Supp. 281, 287 (N.D. Ill. 1987) (upholding award of
$15,000 against deputy sheriff for beating of inmate that
caused momentary unconsciousness, continuing pain “for
some time,” and humiliation). In light of the degree of repre-
hensibility of the defendants’ conduct and the nature of the
injuries inflicted, we conclude that the punitive damages
awards against Dieter and Sawdon are not unconstitutional.
D. Cross-appeal of summary judgment in favor of
Sheriff Speybroeck
The plaintiffs cross-appeal the grant of summary judgment
to Sheriff Speybroeck; they contend that they presented suf-
ficient evidence to create a jury question as to Speybroek’s
§ 1983 liability. We review de novo the grant of summary
judgment, construing the record and all reasonable infer-
ences drawn from it in the light most favorable to the non-
moving party, in this case the plaintiffs. Del Raso v. United
States, 244 F.3d 567 (7th Cir. 2001). Summary judgment is
appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a
matter of law. FED. R. CIV. P. 56(c); Cengr v. Fusibond Piping
Sys., Inc., 135 F.3d 445, 450 (7th Cir. 1998).
Because Moreland was a pretrial detainee in the jail at
the time of his death in custody, the plaintiffs’ claim falls
within the Fourteenth Amendment; however, we have pre-
viously noted that in this context a Fourteenth Amendment
claim is evaluated by the same legal standards as an Eighth
Amendment claim. Butera v. Cottey, 285 F.3d 601, 605 (7th
Cir. 2002) (citing Henderson v. Sheahan, 196 F.3d 839, 844
n.2 (7th Cir. 1999)). The plaintiffs must demonstrate that the
sheriff was deliberately indifferent to Moreland’s safety,
16 Nos. 03-3734 & 03-3735
that is, that the sheriff “was aware of a substantial risk of
serious injury [to Moreland] but nevertheless failed to take
appropriate steps to protect him from a known danger.” Id.This requires the plaintiffs to show that “deliberate action
attributable to [the sheriff] directly caused the deprivation
of [Morelend’s] civil rights.” Id. (quoting Frake v. City of
Chicago, 210 F.3d 779, 781 (7th Cir. 2000)). Stated differently,
the plaintiffs must demonstrate that the sheriff made a
deliberate choice and that the injury was caused by the pol-
icy chosen. Id. That a different or better policy might have
been used “does not necessarily mean that the [Sheriff] was
being deliberately indifferent.” Id.Unconstitutional policies for purposes of § 1983 liability
fall into three categories: “(1) an express policy that, when
enforced, causes a constitutional deprivation; (2) a wide-
spread practice that, although not authorized by written
law or express municipal policy, is so permanent and well
settled as to constitute a ‘custom or usage’ with the force of
law; or (3) an allegation that the constitutional injury was
caused by a person with final policymaking authority.”
Butera, 285 F.3d at 605 (citing Brokaw v. Mercer Cty., 235
F.3d 1000, 1013 (7th Cir. 2000)). The plaintiffs’ complaint
alleged that unconstitutional policies of the sheriff were
partly to blame for Moreland’s death, but in response to the
sheriff’s motion for summary judgment that claim seems to
have been dropped. The plaintiffs do not now argue that the
sheriff instituted policies that were reasonably certain to
result in Moreland’s death; indeed, their expert testified
that the jail policies in force at the time were adequate.
Their claim is rather that the sheriff’s deputies in the jail
routinely violated the department’s policies, and that the
sheriff was deliberately indifferent to this widespread pat-
tern of violations.
In their opening brief to this court, the plaintiffs failed to
discuss the facts relevant to their claim against the sheriff,
relying instead almost entirely on a series of string citations
Nos. 03-3734 & 03-3735 17
to affidavits and other documents in the record. We will not
scour a record to locate evidence supporting a party’s legal
argument. See Peters v. Renaissance Hotel Operating Co.,
307 F.3d 535, 547 n.10 (7th Cir. 2002). Perfunctory or
undeveloped arguments are waived. Colburn v. Trustees of
Ind. Univ., 973 F.2d 581, 593 (7th Cir. 1992); Hunter v.
Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986). In
their reply brief the plaintiffs have tried to flesh out their
argument with a more detailed discussion of the evidence.
Even if the initial underdeveloped argument is not con-
strued as a waiver, the evidence is insufficient to raise a
jury question on the plaintiffs’ claim against the sheriff.
The plaintiffs assert ongoing violations of jail policies in
three areas: (1) use of the OC-10 spray; (2) a federal order
requiring the sheriff to abate overcrowding in the jail; and
(3) provision of medical care to injured inmates. As to the
first of these, the plaintiffs point to tabulations of reported
incidents of OC-10 spray use in the jail during the years
1995 (128 incidents), 1996 (73 incidents), and 1997 (17 inci-
dents). They argue that this evidence demonstrates that the
sheriff was aware of a pattern of violations of jail policy on
the use of OC-10. But the number of pepper spray incidents,
without more, does not establish that pepper spray was
being routinely misused or that the jail’s OC-10 policy was
being violated.
The plaintiffs also contend that a memo sent to jail per-
sonnel in 1997 regarding the filing of incident reports con-
stitutes an admission that OC-10 reports were not being
filed, in violation of department policy. This is quite a stretch.
The memo specifies when officers must file incident reports
as a general matter. The jail policy on pepper spray in-
structs personnel to file an incident report “when chemical
agents are used,” and the memo clarifies that officers must
file incident reports (presumably including OC-10 incident
reports) before they go off duty from the shift during which
the incident occurred. This does not constitute an admission
18 Nos. 03-3734 & 03-3735
that jail personnel were not filing OC-10 reports at all or
that pepper spray was being misused. Furthermore, the
memo was from the jail warden, Major William Goss, not
Sheriff Speybroeck. At any rate, we fail to see how the report-
filing policy or practice was likely to lead to Moreland’s
death.
The plaintiffs also claim that there were six specific inci-
dents of improper use of OC-10 at the jail, but the record
evidence at the time of summary judgment points to only
three. Incident reports indicate that inmate Daniel Grimm
was sprayed after kicking the door of the drunk tank, then
brought to the fourth floor for a shower, then placed in a
restraint chair. While restrained, he spat on an officer and
was charged with felony battery with bodily waste. Grimm
sustained no injuries requiring medical care. In another
incident, inmate Robert Coaron freed his legs from the
shackles of a restraint chair and started kicking officers and
spitting in all directions. The officers warned him that he
would be sprayed if he did not desist; when he continued to
spit at them, Dieter sprayed him. Coaron sustained no
injuries requiring medical attention. In a third incident,
inmate Casimer Wawrzyniak was in the drunk tank making
loud noises and kicking the door. Officers opened the door
intending to remove him to another floor, Wawrzyniak rushed
the door and one of the officers sprayed him. He, too,
sustained no injuries requiring medical attention.
There is nothing in the summary judgment record to sug-
gest that these incidents involved a violation of the jail’s
policy on OC-10 use in the jail.2 Equally important, these
2
The plaintiffs have requested that we supplement the record
with Daniel Grimm’s trial testimony. This testimony was not in
the summary judgment record before the district court; therefore,
we will not consider it. Hildebrandt v. Illinois Dep’t of Nat. Res.,
347 F.3d 1014, 1024-25 (7th Cir. 2003).
Nos. 03-3734 & 03-3735 19
incidents do not amount to “a widespread practice” that is
“permanent and well settled” so as to constitute an uncon-
stitutional custom or policy about which the sheriff was
deliberately indifferent. In any event, to be liable, Sheriff
Speybroeck must have known there was a substantial risk
of serious harm to Moreland; the primary injury here is
Moreland’s death, not the pain he suffered when sprayed
with OC-10.
The plaintiffs also argue that Sheriff Speybroeck’s delib-
erate indifference to Moreland’s safety is demonstrated by
his knowing violation of a federal consent decree requiring
him to attempt to keep the inmate population at the jail
at or below 300, or 350 on weekends. The jail housed 360
inmates on the day of Moreland’s death, a Friday. The
plaintiffs have not linked jail overcrowding to Moreland’s
death.
Finally, the plaintiffs argue that jail personnel were in-
adequately trained to recognize the signs of serious head
injury and otherwise respond to a medical emergency. But
they have not brought forward any evidence of inadequate
training with respect to inmates’ medical care. The plaintiffs’
expert, Dr. George Kirkham, concluded that “there was a
lack of training regarding the appropriate steps to be taken
in a medical emergency,” but he based this conclusion on
the fact that Moreland himself was not treated adequately.
There is no evidence that the policies, customs, or practices
of the department were deficient. One cannot infer a custom
or practice from a single incident.
The plaintiffs cite Woodward v. Correctional Medical
Services of Illinois, 368 F.3d 917, 929 (7th Cir. 2004) for the
proposition that a single violation of federal rights can
trigger § 1983 under Monell v. New York City Dep’t of Soc.
Servs., 436 U.S. 658 (1978) if the violation was a “highly
predictable consequence” of the failure to act. But Woodward
does not relieve the plaintiff from the requirement of show-
20 Nos. 03-3734 & 03-3735
ing that an unconstitutional policy, custom, or practice ex-
isted at the time the plaintiff’s rights were violated; it says
only that the plaintiff need not show that the policy, prac-
tice, or custom resulted in past deprivations of rights.
Woodward, 368 F.3d at 929.
III. Conclusion
We conclude that the district court did not abuse its dis-
cretion under Rule 403 by admitting the videotaped inter-
views of the defendants and excluding evidence that the
defendants were acquitted of criminal charges; also, the
court’s limiting instruction regarding this evidence was not
inappropriate in any way. The defendants’ Daubert chal-
lenge to Dr. Lustgarten’s testimony was forfeited. The
punitive damages awards against Dieter and Sawdon are
not unconstitutionally excessive. We also conclude that
summary judgment dismissing the plaintiffs’ claim against
Sheriff Speybroeck was appropriate. We affirm the judgment
against Dieter and Sawdon and the summary judgment in
favor of Speybroeck.
AFFIRMED
Nos. 03-3734 & 03-3735 21
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-14-05