Brandon v. Holt Joint Appendix

    No. 83-1622 

IN IHE

SUPREME COURI OF THE UNITED STATES 

October Term, 1984

ELIZABETH BRANDON, et a l ., 

Petit loner s,

V .

JOHN D. HOLT, etc., e^ a 1 . , 

Respondent s

On Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

JOINT APPENDIX

TABLE Of CONTENTS

Relevant Docket Entries ..........

Complaint, february 2 2 , 1978 ....

Order Granting Summary Judgment
for Defendant Wyeth Chandler,

Page 

1 a 

3a



-  11 -

Page

July 1 3, 1978 ..................

Findings of Fact, C o nc lu si on s of
Law, and Order, July f 19a
1981 ..............................

Report and Re co mm en d a t i o n s
of Magistrate, February 8,
1982 ..............................

Order Approving J J . " ? .  ^ed"^and R e c o m m e n d a t i o n s  of Uniteo 
States Ma g i s t r a t e  as Judgment 
of Court, May A, 1982 ......

Opinion of the Court of Appeals,
October 11 , 1983 ..............

Order of the Court of Appeals
Denying Petition for R e h e ^ ^ ^ ^  3 9^
En Banc, December 2, 1983 ....

Date

February 22, 1978

April 14, 1978

RELEVANT DOCKET ENTRIES

Proc ee d ing

May 24, 1978

July 13, 1978

July 24, 1978 

August 23, 1978

August 23, 1978

January 26, 1979

Co mp la in t

Motion to dism is s 
or in the al te rnative, 
m o t i o n  for summary 
ju dg me nt on beha lf 
o f de f e n d a n t s ,
Chandl er and Chapman

Order regarding 
su mm ar y judgment 
m o ti on  and request 
for pr o d u c t i o n  of 
doc ument s

Order gr an ti ng 
summar y judgment for 
d e fe nd an t Wyeth 
Chandler

Answer of E. Wi ns lo w 
Chapman

Request for default 
as to defendant 

Robert J. Allen

Entry of default

Renewed mo ti on  for 
summar y judgment in 
b e ha lf  of d e f e n d a n t , 
E. Wi ns lo w Chapman



2a -

March 13, 1979

September 29, 1980

September 30, 1980

July 8 , 1981

August 18, 1981

February 8 , 1982

May 5, 1982

May 20, 1982

June 3, 1982

Order denying defen­
dant C h a p m a n 's 
motion for summary 
judgment ....

Minutes: Non-jury
trial began....

M i n li t e s 
resumed

Non-j ur y

Fin d in gs  of fact, 
conclusions of law 
and order . . . .

Order of refer­
ence -- for hearing 
and recommendation 
on amount of damages

Report and recom­
mendation (Mag[is- 
trate] Allen)....

Order approving and 
adopting report and 
recommendation of 
United States 
Magistrate as j u d g ­
ment of court....

Notice of Appeal (F, 
Winslow Chapman...)

Notice of Appeal 
(Pl[aint i f ]f 
...)....

COMPLAINT

JURISDICflON AND VFNUE 

1. The j u r i s d i c t i o n  of this Court is 

invoked pursuant to 28 U.S.C. §§ 1331, 13A3, 

2201 , and 2202 . This is an actio n for

d a m a g e s  for a s s ault and b a t t e r y  and for 

dec 1 a r a t o r y  r e 1 ief ar is ing under 42 U.S.C. 

§§ 1983, 1988, and the Fourteenth Amendment 

of the U nited State s C o n s t i t u t i o n ,  to 

redress  the d e p r i v a t i o n ,  un de r color of 

T e n n essee law of rights, p r i v i l e g e s  and 

i m m u n i t i e s  s e c u r e d  by said s t a t u t o r y  and 

constitutional provisions.

2. The m a t t e r  in c o n t r o v e r s y  h e r e i n  

exceeds the jurisdictional sum of $ 1 0 ,0 0 0 . 0 0  

exclusive of interest and costs.



PLAINTIFFS

3. P l a i n t i f f s ,  Elizabeth Anne Brandon 

and James Sherman Muse are adult citizens of 

the Unit ed S tates and the State of T e n ­

nessee, residing in Memphis, Shelby County, 

Tennessee.

DEFENDANTS

A. Wyet h C h a n d l e r ,  is the Mayor of

Memphis, Tennessee and was the Mayor at the 

time the i n c i d e n t  c o m p l a i n e d  of h e rein 

h a p p e n e d .  In his c a p a c i t y  as Mayor of

Memphis, Tennessee he is responsible for the 

overall administration of the Memphis Police 

Department .

5. E. Winslow Chapman was the Director 

of Pol ice  at the time of the incide nt

c o m p l a i n e d  of h e r e i n  and was d i r e c t l y

r e s p o n s i b l e  for o v erall o p e r a t i o n  of the 

Memphis Police Department. He was appointed 

by d e f e n d a n t  C h a n d l e r  and was acting with 

the approval of defendant Chandler.

6 . Robert 3. Allen was employed by the 

Memphis Police Department at the time of the 

incident  c o m p l a i n e d  of and is sued lierein 

both i n d i v i d u a l l y  and in his offic i a l  

capacity.

7. On March 5, 1977, at approximately 

11:30 P.M. following dinner and dancing the 

plaintiffs, Elizabeth Anne Brandon and James 

Sherman Muse, drove to the Memphis Hunt and 

Polo Club at 630 Shady Grove Lane, Memphis, 

Tennes see.  The p l a i n t i f f ,  James Sh erman 

Muse, was at the wheel.

8 . P l a i n t i f f  Muse p u l l e d  the car in 

the d r i v e w a y  of the M e m p h i s  Hunt and Polo 

Club, turn ed  the car a round facing Shady 

Grove Lane and parked.

9. A p e r i o d  of about thirt y (30) 

minutes elapsed be fo re a C h e v r o l e t  P i c k-up 

truck entered the drive where the plaintiffs 

were parked. The truck p r o c e e d e d  down the 

drive to the club ho us e and returtied a few



m i n u t e s  later, stopping when it reached the 

plaintiff's car. The occupant of the truck 

shined a blinding light into the car.

10. A man, later identified as P a t r o l ­

man R. J. Allen, d r e s s e d  in a short navy 

blue jacket and dark pants stepped from the 

p i c k u p  tr uck  and approached the plaintiff's 

v e h i c l e .

11. He i d e n t i f i e d  h i m s e l f  to both 

plaintiffs as a Mem phis p o l i c e  o f f i c e r  and 

show ed  the p l a i n t i f f s  an official Memphis 

Poli ce  D e p a r t m e n t  I d e n t i f i c a t i o n  card 

b e a r i n g  his p h o t o g r a p h  and the name of 

Robert J. Alleti.

12. He o r d e r e d  the p l a i n t i f f  Muse to 

get out of ttie car and d i r e c t e d  him to the 

rear of the car.

13. Once both Off icer Robert 3. Allen 

and the plaintiff Muse r e a c h e d  the rear of 

the car, the f o l l o w i n g  c o n v e r s a t i o n  took 

p l a c e :

Allen: "Do you know you are on

private property?"

Muse: "Yes Sir"

Allen: "Son do you know that's

illegal?"

Muse: "Yes, sir I do"

PAUSE

Muse: "Well, sir, what do you want

me to do?

14. A few s e c o n d s  aft er p l a i n t i f f  

M use's last re sponse. O f f i c e r  Robert J. 

Allen maliciously, sadistically, and without 

provocation, struck and cut p l a i n t i f f  Muse 

on the neck, the bl ow causing Muse to fall 

to his knees behind the car.

15. Whi le p l a i n t i f f  Muse was on his 

knees. O f f i c e r  Robert J. Al le n g r i p p e d  

Muse's head and cut his ear and head with a 

knife, and stated, "If you scream. I'll kill 

you" .

16. Muse s l u m p e d  to the gr ou nd , and 

Officer Robert J. Allen walked away.



- au -

17. Officer Robert J. Allen returned to 

the passenger side of the car and asked that 

the p l a i n t i f f ,  E l i z a b e t h  Anne B r a n d o n  get 

out of the car.

18. Robert J. Allen was at the door of 

the passenger side of the car when plaintiff 

Muse m a n a g e d  to s c r a m b l e  back into the 

driver's seat and start the car.

19. As the p l a i n t i f f ' s  car sped away 

from the driveway, Off icer Robert J. Allen 

fired a shot from his service revolver into 

the car shattering the front w i n d o w  on the 

d r i v e r ' s  side. The flying glas s from the 

window injured both plaintiffs. Part of the 

b ullet cam e to rest in plaintiff Brandon s 

cheek.

20. Officer Robert J. Allen followed in 

his p i c k u p  truck, b u m p e r  to b u m p e r ,  in a 

high  speed chase  which c u l m i n a t e d  at St. 

Joseph H o s p i t a l  East, 5959 Park Avenue, 

M e m p h i s ,  T e n n e s s e e  whe re  the p l a i n t i f f s  

sought medical help and reported the crime.

21. As a result of the b r u t a l i t y  

suffered at the hands of Robert J. Allen, 

p l a i n t i f f  Muse was s e v e r e l y  injur ed.  His 

injuries r e g u i r e d  h o s p i t a l  t r e a t m e n t  and 

resulted in p e r m a n e n t  sca rs on p l a i n t i f f  

Muse's neck and ear.

22. P l a i n t i f f  Brandon sustained facial 

cuts from fly in g gla ss and part of the 

bullet fired from Robert J. Allen's service 

revolver lodged in her cheek.

23. P l a i n t i f f  Muse has su ffered great 

bodily pain and injury and both p l a i n t i f f s  

have s u f f e r e d  fear and mental anguish; have 

been subjected to h a r a s s m e n t  by m e m b e r s  of 

the community and have been required to seek 

medical car e and t r e a t m e n t  for their 

injuries. Both p l a i n t i f f s  will bear the 

physical and mental scars of this experience 

all of their lives.

2A. P l a i n t i f f  Muse s u s t a i n e d  property 

damag e to his v e h i c l e  as a result of the 

shot fired into the car by Robert J. Allen.



-  10a

25. A l t h o u g h  Robert J. Allen was 

techni ca lly  "off  duty" at the time of the 

incident c o m p l a i n e d  of herein, all Memphis 

police officers are required to carry their 

gun s and official identification documents 

with them at all times and they are a u t h o r ­

ized and empowered to act in their official 

capacities as police officers when off duty. 

Thus, the acts of defendant Robert 3. Allen 

complained of herein, were done under colo r 

of state law.

26. D e f e n d a n t s  Chapman and Chandler by 

virtue of tbeir cotitrol and r e s p o n s i b i l i t y  

for the o p e r a t i o n  of the M e m p h i s  Police 

Department knew or s hould have known that 

Robert  J. Allen was not a good and proper 

person to be entr us ted  with the a u t h o r i t y ,  

powe r and r e s p o n s i b i l i t y  of a p o l i c e  

o f ficer.

27. D e f e n d a n t s  Chandler and Chapman by 

their continued employment of Officer Robert 

J. Allen act ed  in a matiner which was

r e c k less, w i llful and w a n t o n  ag ainst the 

p l a i n t i f f s  h e r e i n  and thus, by this c o n ­

tinued e m p l o y m e n t  of O f f i c e r  Robert J. 

Allen, defendants Chandler and C h apman have 

i n t e n t i o n a l l y  and under color of state law 

deprived the p l a i n t i f f s  of due p r o c e s s  of 

law and are thus liable to them.

WHEREFORE, plaintiffs pray that 

this Court:

1. Accep t j u r i s d i c t i o n  of this

cause and set this case for speedy hearing.

2. Award the p l a i n t i f f ,  James

Sherman Muse, a joint and severable judgment 

agai nst tlie d e f e n d a n t s  in the amount of

$500,000.00 actual and punitive d a m a g e s  for 

p r o p e r t y  d a m a g e ,  inj ur ie s, pain and s u f ­

fering and men ta l a n g u i s h  s u s t a i n e d  as a 

result of Officer Robert J. Allen's actions.

3. Award the p l a i n t i f f ,  E l i z a b e t h

Anne B r a n d o n  a joint and severable judgment 

in the a mount of $ 5 0 0 , 0 0 0 . 0 0  actual and 

(junitive d a m a g e s  for i n j u r i e s ,  pain and



s u f f e r i n g  and mental anguish sustained as a 

result of the assault and b a t t e r y  and the 

shot fired by Off ic er Robert J. Allen into

the car in which she was riding.

4. Award p l a i n t i f f s  all costs, 

o u t - o f - p o c k e t  expen s e s ,  a r e a s o n a b l e  

a t t o r n e y s  fee and such other relief as to 

the court may appear just and proper.

-  I / a  -

Respectfully submitted,

NANCY B. SORAK 
COLEMAN, SORAK & WILLIAMS 
242 Poplar Avenue 
Memphis, lennessee 38103 
(901) 522-9861

G. PHILIP ARNOLD 
RAINER, SUGARMON, LUCAS, 
SALKY & HENDERSON 
525 Commerce Title Building

Attorneys for Plaintiffs

By;
NANCY B. SORAK

filed July 13, 1978

ORDER GRANTING SUMMARY JUDGMENT FOR 
DEFENDANT WYETH CHANDLER

This a c t i o n  was b r o u g h t  by E l i z a b e t h  

Anne B r a n d o n  and James Sherman Muse under 

42 U.S.C. § 1983, to r e d r e s s  the a l leged

v i o l a t i o n  of their constitutional rights by 

d e f e n d a n t s .  Now b efore the court is a 

m o t i o n  for s u m m a r y  j u d g m e n t  filed by 

d e f e n d a n t s  Wyeth C h a n d l e r  and E. W i n s l o w

Chapman .

The c o m p l a i n t  a l l e g e s  the fo llowing 

facta :

D e f e n d a n t  Robert J. All en approached a 

car in wh ic h p l a i n t i f f s  were si tting, 

i d e n t i f i e d  h i m s e l f  as a M e m p h i s  pol ic e 

officer, and ordered Muse to get out of the 

car. Alle n then p r o c e e d e d  to b r u t a l l y  

assault Muse. When Allen ordered Brandon to



get out of the car, Muse managed to scramble 

back into the car and d r i v e  away. Allen 

fired his service revolver at plaintiffs' 

car and s t r u c k  the w i n d s h i e l d .  Both

plaintiffs were injured by flying glass, and 

Brandon was struck by a fragment of Alle n's 

bullet. At the time this incident occurred, 

Allen was o f f - d u t y ,  but, as r e q u i r e d  by 

r e g u l a t i o n ,  was carrying his police identi­

fication and gun. M e m p h i s  p o l i c e  o f f i c e r s  

are a u t h o r i z e d  to act in their o f f icial

capacity even when off-duty.

As to C h a p m a n  and C h a n d l e r ,  it is 

alleged that C h a n d l e r  as Mayo r of M e m p h i s  

was r e s p o n s i b l e  for the o v e r a l l  a d m i n i s ­

tration of the police d e p a r t m e n t ,  and that 

C h a p m a n  as D i r e c t o r  of Police was directly 

responsible for the overall operation of the 

p o lice d e p a r t m e n t ,  at the time of the 

a b o v e - d e s c r i b e d  incident. It is further 

a l l eged that C h a p m a n  and C h a n d l e r  knew or 

should have known that Allen was not "a good

and prope r p e r s o n  to be entrusted with the 

authority, po we r and r e s p o n s i b i l i t y  of a 

police o f f i c e r . "  Therefore, the complaint 

states, the continued employment of Allen as 

an officer constituted reckless, willful and 

wanton conduct amounti ng  to an i n t e n t i o n a l  

v i o l a t i o n  of p l a i n t i f f s '  c o n s t i t u t i o n a l  

rights.

It is u n d i s p u t e d  that C h apman and 

Chandler were not p r esent at the scene of 

the a l l e g e d  inci den t.  The a f f i d a v i t s  on 

file show there is no g e n u i n e  issue as to 

the facts that Chandler had no knowledge of 

the incident until some time after it had 

o c c u rred, and that he did not know, nor had 

he ever heard of Allen. C h a n d l e r  had no 

k n o w l e d g e  prior to the inc ide nt  of any of 

Allen's characteristics which might make him 

unfit for s e r v i c e  as a police officer, and 

had no information which would indicate that 

Allen s h o u l d  be d i s c h a r g e d  from his duties 

as an o f f i c e r .



It is the o p i n i o n  of the court that in 

these circumstances, Chandler is entitled to 

j u d g m e n t  as a m a t t e r  of law. A § 1983

action is not m a i n t a i n a b l e  on a r e s p o n d e a t  

s u p e r i o r  theo ry aga in st s u p e r i o r  officers 

who have neither caused nor p a r t i c i p a t e d  in 

alleged deprivation of constitutional rights 

c o m m i t t e d  by s u b o r d i n a t e s .  Jennin(]s v_̂ ,

D a v i s , 476 f.2d 1271 (8th Cir. 1973); A da ins

V. P a t e , 445 F.2d 105 (7th Cir. 1971); Mo o t £

v. B u c k l e s , 404 F. Supp. 1382 (E.D. lenn.

1975); Kn ipp  v. W e i k l e , 415 F. Supp. 782 

(N.D. Ohio 1975). See Shannon v. tes t ^ >  ^19 

F.2d 76, 81 (6 th Cir. 1975), indicating that 

the Sixth C i r c u i t  has yet to rule on this 

q u e s t i o n .  Cf. Mone ll v . Dept, of SociaJ_

S e r v i c e s , ____ U . S .____, 46 U.S.L.W. 4569

(June 6 , 1978) (Monell held that a m unici­

pality could not be held liable under § 1983 

on a strict respondeat superior theory. The 

r a t i o n a l e  of this h o l d i n g  would seem to 

precltide respondeat s u p e r i o r  l i a b i l i t y  for

superior officials, as well.)

It is true that a superior may be liable 

for his own participation in the deprivation 

of constitutional rights, where he a f f o r d s  

a s u b o r d i n a t e  with a known t e n d e n c y  to 

commit constitutional v i o l a t i o n s  an o p p o r ­

tunity to c ommit them. H o w e v e r ,  as noted 

above. Chandler had no knowledge of any such

propensity on Allen's part.

As to the defendant Chapman, a f f i d a v i t s  

have been filed which, if u n c o n t r o v e r t e d ,  

would sho w that he, like C h a n d l e r ,  had no 

k n o w l e d g e  of the incid ent  from wh ic h this 

action ar ises, or of any d a n g e r o u s  p r o ­

p e n s i t i e s  on the part of d e f e n d a n t  Allen. 

However, p l a i n t i f f s  have  d i s c o v e r e d  d o c u ­

ment s which tend to sho w that Chapman was, 

in fact, aware of d e p a r t m e n t a l  i n v e s t i ­

g a t i o n s  into prior c o m p l a i n t s  r e g a r d i n g  

Allen's c o n d u c t  as a p o l i c e  offic e r .  The



record is somewhat incomplete in this regard 

and the court would be e x t r e m e l y  r e l u c t a n t  

to rule on the m a t t e r  at this time. The 

motion for s u m m a r y  j u d g m e n t  for d e f e n d a n t  

C h a p m a n  is therefore denied, with leave to 

file a renewed moti on for s u m m a r y  j u d g m e n t  

if a d d i t i o n a l  discovery shows that there is 

actually no g e n u i n e  issue as to C h a p m a n ' s  

lack of knowledge.

For the reasons stated above, defendant 

Cha nd le r' s m o t i o n  for s u m m a r y  j u d g m e n t  is 

g r a n t e d ,  and defendant Chapman's motion for 

summary judgment is denied.

It is so ORDERED.

enter this 13 day of July, 1978

CHIEF JUDGE

FINDINGS OF FACT, CONCLUSIONS 
OF LAW, AND ORDER 

__________ July 8 , 1981__________

[The D i s t r i c t  Court's Findings of Fact, 

Conclusions of Law, and Order are r e p r i n t e d  

at pp. la-28a of the Petition]



Filed February 8, 1902

REPORT AND RECOMMENDATION 

Plaintiffs Elizabeth A. Brandon (here in- 

after " B r a n d o n " )  and James S h e r m a n  Muse 

( h e r e i n a f t e r  "Muse") have brought an action 

pursuant to 42 USE §§ 1983 and 1988, as well 

as the F o u r t e e n t h  Amendm en t of the Consti­

tution of the United States, for actual and 

p u n i t i v e  d a m a g e s ,  as well as other relief, 

for an alleged assault and battery committed 

upon them by defendant Robert J. Allen, who 

was at the time an officer with the M e m p h i s  

Poli ce  D e p a r t m e n t .  Suit was also brought 

against E. Winslow Chapman, the Director of 

the M e m p h i s  P olice Department. The theory 

of recovery was his inaction in the face of 

knowledge of Allen's dangerous propensities.

A d e f a u l t  j u d g m e n t  was taken against 

d e f e n d a n t  Robert J. Allen, upon his failure 

to re spond to this l i t i g a t i o n .  Ttie court 

ruled that d e f e n d a n t  C h a p m a n  s h o u l d  have

known of A l l e n ' s  d a n g e r o u s  p r o p e n s i t i e s ,  

c o n s i d e r i n g  the t o t a l i t y  or all the

c i r c u m s t a n c e s  of the case, and should have 

taken steps to dismiss Allen from the police 

force. There f o r e ,  the court ruled that 

Chapman's unjustified inaction was the cause 

of p l a i n t i f f ’s d a m a g e s  and injurie s,  and 

Chapman was held liable in his c a p a c i t y  as 

director of the Memphis Police Department.

This cause was r e f e r r e d  to the Uni te d 

State s M a g i s t r a t e  for a h e a r i n g  and a 

recommendation on the amoun t of d a m a g e s  to 

be awarded. B riefs were filed by counsel 

for plaintiffs Brandon and Muse and co unsel 

for d e f e n d a n t  Chapman. Notice was given to 

Allen, but no brief was filed on his behalf. 

The p a r t i e s  were given an o p p o r t u n i t y  to 

prod uce e v i d e n c e .  H o w ever, p l a i n t i f f s

B r a n d o n  and Muse, as well as d e f e n d a n t  

Chapman elected to proceed upon p o r t i o n s  of 

the evidence adduced at the liability trial, 

as well as the d e p o s i t i o n  of Dr. Asgha r



LL'a -

Kol eyni, and e x h i b i t s  p r e s e n t e d  at the 

trial. Oral arguments were tieard. At the 

time of oral a r g u m e n t ,  defendant Robert 3. 

Allen a p p e a r e d ,  w i t h o u t  c o u n s e l ,  and was 

giv en  an o p p o r t u n i t y  to make a statement, 

and did s o .

Ttie caus e is now ready for disposition. 

Ihis report will be divided into two parts: 

( 1 ) c o m p e n s a t o r y  damages; and (2 ) punitive 

d a m a g e s .

COMPENSATORY DAMAGES

A. G e n e r a l l y  in d e t e r m i n i n g  an appro­

p riate aw ar d for a p l a i n t i f f  e n t i t l e d  to 

damages for the unconstitutional deprivation 

of his federally-protected civil rights, the 

c o u r t s  have said that he (or she) is 

entitled to be put in the same p o s i t i o n ,  so 

far as m o n e y  can do it, as he (or she) 

would have been, had there been no injury. 

That is, the court is to compensate him (or 

her) for the inj ury a c t u a l l y  s u s t a i n e d .  

Krue ge r v. Miller , 489 E. Supp. 321, at 331

(E.D. Tenn. 1978), a f f ’d wUJjout o£inion, 

617 E. 2d 603 (6th Cir. 1980). In addition 

to actual out -o f- poc ke t lo sses, and actual 

physic al injuries, m e n t a l  and e m o t i o n a l  

d i s t r e s s  may be c o n s i d e r e d  as fa ctors in 

d e t e r m i n i n g  an a p p r o p r i a t e  award for 

damages. Carey v. P i p h u a . ^^5 U.S. 247, at 

262 (1978). Pain and suffering should also

be considered.

Plaintiffs have, however, contended that 

they are e n t i t l e d  in a d d i t i o n  to the 

forego ing, to an i ndependent award for the 

violation of civil rights. In effe ct,  the 

c o n t e n t i o n  is that a p l a i n t i f f  who is 

injured as a result of the v i o l a t i o n  of his 

c o n s t i t u t i o n a l  rights should be entitled to 

recover more than an i n d i v i d u a l  i n jured 

similarly only as the result of a common-law 

or n o n - c o n s t i t u t i o n a l  tort. The case of 

Herrera v. Va lentine, 693 E.2d 1220, at 1231 

(8 th Cir. 1981) is cit ed . A l t h o u g h  this 

case could be said to be distinguishable, it



can a r g u a b l y  be cited for that proposition.

To the e xtent that it does allow for the 

a d d i t i o n a l  recovery sought herein, however, 

it is s u b m i t t e d  that the o p i n i o n  is not 

consistent with controlling law.

An inquiry in this area must start with

the case of Harey v. P i p h u s , ^35 U.S. 2A7 

(1978). That case held that in a § 1983

action, in the a b s e n c e  of p r o o f  of actua l 

injury, a p l a i n t i f f  is entitled to recover 

onl y n o m i n a l  dam ages. The court, m

r e a c h i n g  this c o n c l u s i o n ,  e n g a g e d  in a 

l e n g t h y  d i s c u s s i o n  of the p r i n c i p l e s  of 

damages in Anglo-American Law. at 295.

The court i n d i c a t e d  that the c a r d i n a l  

principle of damages is that of compensati^  

for the i njury c a u s e d  to p l a i n t i f f  by the 

defendant's breach of duty. D a m a g e  a w a r d s  

under § 1983 s h o u l d  be d e t e r m i n e d  by the

compensat ion principle. , at 2 55 . The

court stated, at pages 256-257;

.■To the exten t that Con gre ss  intended

t L t  awards under § ^ t  u 11 o n a 1

^ " ^ t s ' ^ f h L l ' i s  n o  e v i d e n c e  that it
“ f „ " ' t o ^ ‘’e V l a b l l s b  a ^ - - r r a n t  mar s 
f o r m i d a b l e  than t h a t i nh e r e n t 
award of compensatory damages... •

f in fact ruled that an award of The c o u r t , J n race,

.nr based on c o m p e n s a t i o n  would d a mages not baseo ---- n---- -

constitute a windfall. Jd_^, at 260.

The c ourt did go on to speak of certain 

special common law torts, m  w h i c h  dam ag 

are p r e s u m e d ,  such as libel and sland er.  

Further, the court went on to i n d icate that 

the c o m m o n  law c o u r t s  traditionally vi nd i­

cate deprivation or certain absol ute  rights 

that are not shown to ho ve c a u s e d  actual 

injury through the award of a nominal sum of 

money. U K .  26 6- 26 7 . But c ompensat U n is 

e m p h a s i z e d .  The word " c o m p e n s a t i o n "  is

defined os "something given or r e c e i v e d  as

an e g u l v a l e n t  for s e r v i c e s ,  debt, loss,

lorvi, pfe " THE RANDOM injury, suffering, lack, etc. .

h o u s e  d i c t i o n a r y  o f  t h e  E N G L I S H  L A N G U A G E  

(unabr idqed ).



Ihe Sixth Circuit has assumed this to be

an a p p r o p r i a t e  i n t e r p r e t a t i o n  of C a r e j ^

P i p h u s . The c o u r t  i n d i c a t e d ,  in d o r d ^

nellwav V i l la of Tenn., Ltd., et a l^-, • 2d

(6th Cir. No. 80-5 409 , decided October 19,

1 9 8 1 ) said:

"... C arey held thah wheji a c t ^  
damages a££ P ^ e s e , i „ r are
V T F t f e  of due reci^ery
still e n ti tl ed  to nominal recovery

(e mph a si s added)".

There is no j u s t i f i c a t i o n  for ruli ng 

that a p e r s o n  who r e c e i v e s  a broken arm as 

the res ult  or v i o l a t i o n  of his c o n s t i t u ­

tional r i ghts should be entitled to collect 

any more money than a p e r s o n  who s u f f e r s  a 

b r o k e n  arm as the result of c o m m o n  law 

a s sault and b a t t e r y .  The Injury is the 

same, and the c o nduct of the d e f e n d a n t  is 

egually as serious. U  should he noted that 

the d i s c u s s i o n  here only i n v o l v e s  c o r n e r  

s atory d a m a g e s .  The fact that c e r t a i n  

constitutional rights have been violated may 

be c o n s i d e r e d  In d e t e r m i n i n g  w h ether to

--H o u n i t i v e  damages.
awar £--------" ,  3 g r e a t e r  award m
reason do not just , „ the

i torts, and t h e r e f o r e  the
c o n s t i t u t i o n a l  tort

ill not c o n s i d e r
follo wing a n a l y s i s  w . f a

h q  are g u i l t y
fact that d e f e n d a n t s

1 tort to enhance the damages
c o n s t i t u t i o n a l  tort

awarded.
B .  n l r a b e t h  Ann _ B X 4 J l i ! ^ -

00 to B r a n d o n  would
actual p h y s i c a l  d a m a g e s

ihe s u r f a c e  to be minor,
appear on the sur

i -r» h e r  T s c g
r e c eived m i n o r  l a c e r a t i o n s  to

It of the w i n d s h i e l d  s h a t t e r i n g .

, t the vehicle b e i n g
,hen M i e n  fired a shot at

/Trial Transcript at 1 
driven by Muse (Trial

ri that a splin ter
aas further d e t e r m i n e d

^ a in he r c h e e k ,  and was
the bulle t l odged m

ilh t w e e z e r s  a tew 
a hi/ he r f a th er  w i t h  twr e m o v e d b y n e i  . , . ^ 0

, . Brandon was treaieu
days later ( • phper

ri r p o u i r e d  no further 
e m e r g e n c y  room and

treatment (13).



- ZHa -

However, Brandon was obviously terrified 

when she saw Muse, b l e e d i n g  s e r i o u s l y ,  and 

c l a i m i n g  that he was "hurt real bad", 

attempting to outrun the enraged Allen in a 

wild v e h i c l e  chase to the h o s p i t a l .  She 

also i n d i c a t e d  that, since that time, she 

has b e c o m e  afraid and cringes when she sees 

a p o l i c e m a n  or p olice car. This incident  

d i s r u p t e d  her senior year in high school. 

Her p a r e n t s  had to e scort her on date s 

b e c a u s e  of her fear that Allen might finish 

what he started to do (Transcript, 18-19).

Under the c i r c u m s t a n c e s ,  an award of 

$5,000.00 jointly aga inst d e f e n d a n t s  Allen 

and C h a p m a n  would  be a p p r o p r i a t e ,  as to 

plaintiff Elizabeth Ann Brandon.

C. James S h e r m a n  M u s e . The 

i n j u r i e s  of plaintiff Muse are considerably 

mor e s e r i o u s  than those of p l a i n t i f f  

Br andon. Allen m a l i c i o u s l y ,  and without 

p r o v o c a t i o n ,  s truck Muse in the neck and 

hea d witli his fist, and then s t a b b e d  and

„„ the ri,ht side oi the head. The e u t t i n ,  

on the left side of the neek »as dangerously 

otose t„ the j u g u l a r  vein, and c a u s e d  a

ft to 10 inches (Trial 
l a c e r a t i o n  of some 8 to

xn As a result of this
Transcript at p. 30-33). As

,ot "a f o u n t a i n  of b lood" e r u p t e d  (T ra n­

script at 20). Muse had to be kept aw ak e 

b oring his ti.e at the hospiptal to he sure 

that the artery or vein in his neck had not 

,een so d a m a g e d ,  as to cause the b l o o d

script at 51). This wound was reconstructed 

t,, or. Asgha r K o l eyni, a p l a s t i c  su rgeon. 

Howeve r, the injury left a scar on the neck 

of Muse, which is p e r m a n e n t  ( D e p o s i t i o n  of

Dr. Koleyni, at page 12).

As mentioned Muse was also seriously cut

down to his right cheek. The right ear was 

cut t h r o u g h  and t h r o u g h  (Dr. Koleyni, page 

6). While the injury was r e p a i r e d  by Dr.



— > O tJ

Koley ni , the re  will be a permanent scar on 

his ear, as well as a slight d e f o r m i t y  

( D e p o s i t i o n  of Dr. K o l eyni, at page 12). 

Muse also received a small laceration on the 

right side of his temple, near the hair 

line.

Muse was i m m e d i a t e l y  aware of the 

seriousness of his wound, since he told Ms. 

Br andon, his date, that he was "hurt real 

bad" ( T r a n s c r i p t  of Trial, at pages 8 and 

9). No netheless, he was concerned for his 

further well being and the well being of Ms. 

Br andon, to the exte nt that he forced 

himself to get into his automobile and drive 

to the nearest hospital. In doing so, he had 

to undergo a harrowing experience, trying to 

o u t r u n  defen d a n t  Allen, and being bumped by 

Allen's v e h i c l e  in the p r o cess. The fear 

and emotional distress during this period is 

self-evident.

The e v i d e n c e  p r o d u c e d  at the trial 

indicates that Muse s u f f e r e d  e m b a r r a s s m e n t  

t h e r e a f t e r  and has developed a bad attitude 

toward police offic ers  ( T r a n s c r i p t  at page

30) .

The o u t - o f - p o c k e t  e x p e n s e s  incurred by

Muse were as follows:

1. Dr. Ashgar Koleyni $925.00

2. St. Joseph Hospital East 385.75

3. Depreciation of automobile ‘̂ 00- OP

TOTAL $1,310.75

Muse is t h e r e f o r e  e n t i t l e d  to re co ve r 

from Allen and Ch apman, jointly and sever­

ally, the sum of $1,310.75 as o u t - o f - p o c k e t  

expenses.

Under all the circumstances, taking into 

account the physical injuries, the pain and 

suffer i n g ,  and the e m o t i o n a l  and p s ychic 

trauma of p l a i n t i f f  Muse, an a d d i t i o n a l  

award of $20,000.00 appears appropriate.



- 32a -

Theref o r e ,  p l a i n t i f f  Muse shoul d be 

entitled to r e c o v e r  from d e f e n d a n t s  Allen 

and C h a pman, j o i n t l y  and s e v e r a l l y ,  the 

aggregate sum of $21,310.75.

PUNITIVE DAMAGES

The p a r t i e s  have a greed as they must, 

that no p u n i t i v e  d a m a g e s  may be a w a r d e d  

against defendant Chapman, since he was sued 

as D i r ector of the M e m p h i s  Poli ce D e p a r t ­

ment . City of Newpor t v. Pact C o n c erts, 

I n c ., ____ 0.5. ____, 69 L.Ed.2d 616 (1981).

H o w e v e r ,  p u n i t i v e  d a m a g e s  must be 

a w a r d e d  to both p l a i n t i f f s  under these 

c i r c u m s t a n c e s  agains t d e f e n d a n t  Allen. 

There has been a s p e c i f i c  find ing by the 

court that d e f e n d a n t  Al len acted with 

m a l i cious intent to d e p r i v e  p l a i n t i f f s  of 

their c o n s t i t u t i o n a l  rights.  ̂ ^

I q l e b u r g e r , 584 F.2d 767, at 769 (6th Cir.

1978).

P u n i t i v e  d a m a g e s  are not in tended to 

compensate the injured party, but rat he r to 

punish the tortfeasor whose wrongful action 

was intentional or m a l i c i o u s ,  and to deter 

him and others from similar extreme conduct.

City of N e w p o r t , id., at 632.

The three c a t e g o r i e s  c o a l e s c e  in this 

case. There is a need to p u n i s h  d e f e n d a n t  

Allen for his outrageous conduct, performed 

in his capacity as police officer. Punitive 

damages are needed to deter him from similar 

extreme conduct (this is a lesser factor 

this cause,  si nc e Allen is no longer with 

the Memphis Police Department). It is also 

e x t r e m e l y  i m p o r t a n t  to impos e p u n i t i v e  

damages in this case to deter other p o lice 

officers from similar extreme conduct.

Under these c i r c u m s t a n c e s ,  it is 

recommended that each plaintiff individually 

be a w a r d e d  the sum of $ 2 5 ,0 0 0 . 0 0  ag ai ns t 

defendant Allen as punitive damages.



The parties are hereby informed that any 

objections to the foregoing report and recom­

mendation must be filed within ten (10) days 

or further appeal may be held to have been 

wa ive d.  United States v. W a l t e r s , 638 F.2d

947 (6th Cir. 1981).

Respectfully submitted: This 4th day of

February, 1982

s / s
JAMES H. ALLEN
UNITED STATES MAG1STRA1E

Filed May 4, 1982

ORDER APPROVING AND ADOPTING REPORT AND
r e c o m m e n d a t i o n  o f u n i t e d  s t a t e s  m a g i s ­

t r a t e  AS JUDGMENT OF COURT

This Court filed its findings of fact, 

conclusions of law and Order in this lawsuit 

on du ly 8, 1981.^ T h e r e a f t e r ,  the Court

referr ed the case to a Un it ed Sta te s 

M a g i s t r a t e  for a h e a r i n g  on the issue of 

damages and for a r e c o m m e n d a t i o n  to the 

Court on the amo un t of damages that should 

be a w a r d e d  p l a i n t i f f s .  Un it ed State s

Magistrate James H. Allen conducted hearings 

and considered briefs filed by the parties.

M a g i s t r a t e  Allen filed his report and 

recommendation with this Court on F e b r u a r y  

5, 1982. Both p l a i n t i f f s  and d e f e n d a n t

Chapman filed exceptions to that report and

recommendation.

1 B r an do n V . A l l e n , S16 F. Supp. 1355 (W.D. 
Tenn^ 1981 )^ '



II,e Court has read and c o n s i d e r e d  the 

Magistrate's entire report ae »ell as briefs 

filed by the parties. Based upon a complete 

i-eview of the report and the b r i efs, the 

Court c o n c u r s  in the recommendations of the 

M a g i s t r a t e  and a dopts the same as the 

o p i n i o n  of this Court. The Court finds the 

award of $5,000.00 to Elizabeth Ann B r a n d o n  

J o i n t l y  and s e v e r a l l y  a g a i n s t  d e f e n d a n t s  

Robert 3. Allen and E. Winslow Chapman to be

The award of $ 2 5 , 0 0 0 . 0 0a p p r o p r i a t e .  ine awdi

punitive damages against defendant Robert J. 

Allen is approved.

Ihe court finds the M a g i s t r a t e ' s  

a g g r e g a t e  award of $ 2 1 , 3 1 0 . 7 5  to the 

p l a i n t i f f  James S h erman Muse against the 

defend a n t s  Robert J. Allen and E. W i n s l o w  

C h a pman, J o i n t l y  and s e v e r a l l y  to be 

a p p r o p r i a t e .  Ihe award of $ 2 5 , 0 0 0 . 0 0

p u n i t i v e  d a mages against Robert J. Al l e n  

favor of James Sherman Muse is approved.

finally, this Court will note that since 

Ibis ease was d e c i d e d  the U nited St at es 

court of Appeals decided the case of H a j ^  

,„rrers on C o u n t y ^ , 668 E. 2d 869 ( 6th

Cir. 1982). The Court has read that ease 

and, b ased upon the f i n d i n g s  of fact and 

c o n c l u s i o n s  of law in this case, finds no 

i n c o n s i s t e n c y  b e t w e e n  its r uling in this 

case and the ruling of the Sixth Circuit in 

Hays V. -lefferson County, Ky._, - — ‘

It is therefore by the Court 

o r d e r e d  that the Magistrate's Report and 

R e c o m m e n d a t i o n s  as to the issue of damages 

awardable to plaint i f f s  be and the same Is 

hereby in all things approved and adopted

the judgment of this Court.

All of which IS so Ordered this Ath day

o f Ma y , 19 82 .

ODELL HUKTON, rnilKT
UNITED STATES DISTRICT COURT



OPINION OF THE COORT OF APPEALS 
Oc tober 11, 1983

[The Court of Appeals' O p i n i o n  is 

reprinted at pp. 29a-4Aa of the Petition.]

f '  -Twap** w rw ' ** ■■ ■ "

ORDER OF THE COURT OF APPEALS 
DENYING PETITION FOR 

REHEARING EN BANC 
December 2, 1983

[The Court of Appeals' Order denying the 

petition for rehearing en banc is reprinted 

at pp. 45a-47a of the Appendix.]