the court has a duty, as well as the power, to grant a new trial in order to remedy a "miscarriage of justice." Wright, Miller and Kane, Federal Practice and Procedure Civil 2d § 2803 (1995).
Here, it is undisputed that defendant Kinard, as Acting Executive Director of the Lottery Board, terminated plaintiff, and that Kinard was an agent of the District of Columbia. See Trial Transcript of January 31, 1997 at 24-25. However, it is now rudimentary "hornbook" law that § 1983 does not countenance respondeat superior liability for local governments; rather, it authorizes suits for constitutional deprivations inflicted pursuant to government custom or policy. Monell v. New York City Dept. Of Social Services, 436 U.S. 658, 690-694, 98 S. Ct. 2018, 2036-38, 56 L. Ed. 2d 611 (1978). A single action by a governmental official may rise to the level of government policy, Pembaur v. Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986), but only where the official has final policymaking authority for that area of the city's business. 475 U.S. at 482-83 (plurality opinion); City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 128-30, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988) (plurality opinion); 140-42 (Brennan, J., concurring). In Praprotnik, the plaintiff was a municipal employee transferred to a dead-end job and subsequently laid off in retaliation for exercising his right to invoke employee grievance procedures. 485 U.S. at 114-116. A jury found that these retaliatory actions violated plaintiff's First Amendment rights; however, the Supreme Court held that the city could not be liable under § 1983 when the officials responsible for the alleged constitutional deprivation--directors of two city agencies--possessed only the authority to make employment decisions (i.e. transferring or terminating an agency employee), not the authority to set employment policy for the City of St. Louis. See 485 U.S. at 128-30 (plurality opinion.); 145-147 (Brennan, J., concurring). Even in dissent, Justice Stevens conceded that "If this case involved nothing more than a personal vendetta between a municipal employee and his superiors, it would be quite wrong to impose liability on the city . . . ." Id. at 147.
Counsel for both parties neglected to address the Monell--Pembaur--Praprotnik line of cases in their briefs, which focused instead on issues concerning plaintiff's First Amendment rights, and his alleged status as a probationary employee. During the first trial, defense counsel raised Monell in an oral motion for a directed verdict which was eventually decided on other grounds .
See Trial Transcript of February 15, 1995 at 71-72. Between the first and second trials, new counsel entered an appearance on behalf of the defendants, and failed specifically to raise the Monell issue again.
And in the course of the second trial, plaintiff offered no argument or evidence to suggest that Sylvia Kinard had the final authority to make employment policy for the District of Columbia.
Indeed, during the second trial, Sylvia Kinard testified that her duties as Acting Director of the Lottery Board included "managing day-to-day operations, traveling to Lottery conferences and meetings, and giving direction to staff on special projects." Trial Transcript of January 30, 1997 at 4A-37.
The Monell doctrine as developed is a commonplace in the virtual flood of § 1983 cases brought in this Court against the District of Columbia. The raising of the Monell issue in the first trial carried the issue forward to the second trial, although counsel appear to have forgotten it. The Kinard testimony, which was the only evidence offered about the scope of her official duties, contained no suggestion that Kinard had authority to formulate employment policy for the District of Columbia. Despite the foregoing, after colloquy with counsel and a stipulation that Kinard was an agent of the District of Columbia, see Trial Transcript of January 31, 1997 at 24-26, I inexplicably approved and delivered the following jury instruction on municipal liability:
You're instructed that Defendant Kinard, as Acting Executive Director of the D.C. Lottery and Charitable Games Board, was an official whose acts constituted actions of the District of Columbia and the Board. The District of Columbia and the Board are jointly liable for any damages in which the plaintiff has proved by a preponderance of the evidence to have been proximately caused by her actions in terminating him.
Trial Transcript of January 31, 1997 at 95. The instruction reflects the respondeat superior theory of municipal liability rejected by the Supreme Court in Monell and Praprotnik.
While it may be unusual for a court to grant a new trial on grounds raised in a first trial but not specifically called to its attention in a re-trial, in this instance, the jury instruction constituted such a fundamental and substantial error of law with constitutional ramifications, so that to let judgment stand against the District of Columbia under these circumstances would be a gross miscarriage of justice. For these reasons, a new trial must be granted with respect to the District of Columbia defendants, in which both parties will have an opportunity to brief the relevance of Praprotnik to the instant case, and file dispositive motions as appropriate. For reasons discussed in Part III infra, defendants' motion for a new trial will also be granted with respect to defendant Kinard. Defendants' motion for remittitur is thus moot.
Defendant Sylvia Kinard
During the course of a March 19, 1997 evidentiary hearing on the issue of punitive damages, the Court invited briefing as to whether Defendant Kinard was named in her official or individual capacity. On April 1, 1997, plaintiff moved for "clarification," or in the alternative, for leave to amend the complaint. Plaintiff requests that this court clarify that Kinard was sued in her individual capacity. Defendant opposed on April 14, 1997.
Government officials are not personally liable for damages when sued in their official capacities. See Atchinson v. District of Columbia, 315 U.S. App. D.C. 318, 73 F.3d 418, 424 (D.C. Cir. 1996) (citing Kentucky v. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). A section 1983 suit for damages against municipal officials in their official capacities is thus equivalent to a suit against the municipality itself.
Id. Where the complaint fails to specify the capacity in which a government official is sued, the course of proceedings indicates the sort of liability plaintiff seeks to impose. 73 F.3d at 425 (citing Graham, 473 U.S. at 167 n.4).
Plaintiff in this case obtained counsel only after filing his complaint. Both parties go to some length dissecting various components of the pro se complaint to divine some greater meaning as to the capacity in which Kinard was sued. These efforts shed little light on the issue. The simple fact remains that the complaint fails to specify the capacity in which Kinard is sued. The Supreme Court has unambiguously stated that in such circumstances, the "course of proceedings" defines the capacity in which the government official at issue is sued. Id.
Plaintiff first asks the court to "clarify," per Graham, that Kinard was in fact, in "the course of proceedings," tried in her individual capacity. Unfortunately, the course of the proceedings in this case is ill-defined. Plaintiff makes a strong argument that by conceding that Kinard was theoretically liable for punitive damages, defense counsel implicitly acknowledged and consented to suit in her individual capacity.
However, other actions taken by defense counsel--in particular, their failure to vigorously assert a qualified immunity defense prior to trial--suggest an assumption that Kinard was being sued in her official capacity only.
As stated, the complaint gave her no notice that she was being sued individually. Kinard sat at the counsel table during the trial. But she was represented only by the Corporation Counsel, who was also (and primarily) representing the District. It may reasonably be inferred that if Kinard thought she was exposed as an individual to liability for compensatory and punitive damages, she would have had her own lawyer. Her stance was much more suggestive of that of a "corporate representative." It is difficult to discern which, if any, of these actions represents Kinard's true understanding of the nature of the suit.
Neither were plaintiff's own litigation tactics entirely consistent with an individual-capacity suit. While plaintiff did consistently demand punitive damages, which would only be available in an individual capacity suit against Kinard, he neglected to present any evidence to the jury concerning Kinard's ability to pay such damages. More importantly, the jury instruction on liability, proposed by plaintiff's counsel and delivered by the Court, suggested that Kinard's liability was co-extensive with that of the District of Columbia defendants, an indicia of an official-capacity suit.
Finally, the special verdict form submitted to the jury, with the approval of plaintiff's counsel, refers only to "the defendants" collectively. In fact, plaintiff's counsel interrupted the Court's delivery of jury instructions to request a last-minute change in the special verdict form: where the form previously required the jury to make separate findings of liability against each of the three defendants, counsel requested, without objection by defendants, that Kinard and the District of Columbia defendants be placed on a single line.
More significantly, with respect to punitive damages, the jury was asked "what amount of money would punish defendants and deter others from engaging in similar conduct in the future?" See Verdict (99-1) (emphasis supplied).
The foregoing points strongly to the conclusion that the case against Kinard was submitted to the jury as an official capacity suit. Their verdict cannot be characterized or "clarified" ex post facto as a finding of individual liability. Plaintiff's request for "clarification" is therefore denied.
In the alternative, plaintiff asks for leave to amend the complaint in order to name Kinard in her individual capacity. Federal Rule of Civil Procedure 15(b) provides:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.