Michelle L. Black-Hosang, Plaintiff, vs. Ohio Department of Public Safety, Defendant.

Case No. 2:01-cv-00623

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION

2005 U.S. Dist. LEXIS 19013

September 2, 2005, Decided
September 2, 2005, Filed

MEMORANDUM OPINION AND ORDER

This is a 42 U.S.C. § 1983 action in which the plaintiff alleges that she was falsely arrested by defendant Trooper James R. Mendenhall of the Ohio State Highway Patrol. This case proceeded to jury trial on August 29, 2005, and on August 30, 2005, the jury returned a verdict in favor of the plaintiff, awarding her compensatory damages in the amount of $ 100,000, and punitive damages in the amount of $ 250,000. The matter is now before the court for a determination of the defense of qualified immunity.

Plaintiff was employed by the State of Ohio Bureau of Motor Vehicles as a driver's license examiner at the Town & Country examination facility in Columbus, Ohio. Mendenhall [*2] was investigating the fraudulent issuance of commercial driver's licenses (CDLs) by examiners working at that office. In the course of the investigation, the state patrol interviewed all of the driver's license examiners at the Town & Country branch. Plaintiff was interviewed by Mendenhall on June 10, 1999, and cooperated fully in the investigation.

Mendenhall later came to suspect that plaintiff had falsified written test scores and facilitated the execution of a fraudulent driving skills test exemption form in order to permit an individual by the name of Gervase Flipping to obtain a CDL. Plaintiff had processed Flipping's written examination and issued him a temporary permit, which she signed, sealed and completed with her unit number. Upon being interviewed by Mendenhall, Flipping admitted that he had obtained his CDL by signing a fraudulent exemption form.

Flipping told Mendenhall that he was approached by an unidentified black female at a bar who offered to assist him in obtaining his CDL without taking the driving skills test in return for a payment of $ 200.00. Mendenhall showed Flipping a photograph of the plaintiff and Flipping told him that she was not the person who provided [*3] him with the false exemption form. Plaintiff is an African-American, whose skin color is medium brown. She suffers from a skin condition which affects her skin pigmentation, producing large irregular patches of light, nearly white, coloration. This condition is readily apparent on her hands, arms and neck. Mendenhall asked Flipping if the person who assisted him in fraudulently obtaining his CDL had such a condition, and he replied that she did not.

The only physical evidence that Mendenhall had prior to arresting plaintiff was the temporary license issued to Flipping by the plaintiff, and the fraudulent exemption form which had her unit number written on it. Plaintiff admitted that she had issued the temporary license to Flipping after he successfully passed the written examinations, and she admitted that the license bore her signature, seal and unit number in her handwriting. However, she denied having any involvement with the exemption form which permitted him to obtain his CDL, and she denied that the unit number appearing on that exemption form was in her handwriting. There are apparent differences between the handwriting of the unit number on the form admittedly completed by [*4] the plaintiff, and the unit number written on the fraudulent exemption form. Mendenhall did not obtain a handwriting analysis of these two documents even though a handwriting expert was available to him.

Mendenhall claimed that he believed that plaintiff was involved in fraudulent activity with Flipping, because Flipping told him during his interview that he had not taken the written examination. At trial, Flipping denied that he told Mendenhall that he had not taken the written examination. The written statement which Mendenhall obtained from Flipping did not say that Flipping had not taken the written examination. The following interrogatory was submitted to the jury:

4) Prior to plaintiff's arrest on June 30, 1999, did Mr. Flipping tell defendant Mendenhall that he had not taken the written examination for a CDL license?

ANSWER: No



Mendenhall further testified that he believed the plaintiff was involved in fraudulent activity because of her actions and statements at a second interview, which he attempted to conduct of her on June 16, 1999. According to Mendenhall, he asked plaintiff to be seated at a table on which he had placed a file with Flipping's name prominently [*5] displayed on the cover. He said that when he began to read plaintiff her Miranda rights, she became agitated and argumentative. According to Mendenhall, plaintiff indicated that she knew Flipping. She then said that she wanted a lawyer and refused to make any further statements. Plaintiff, in her testimony, admitted that she became upset when Mendenhall began reading her Miranda rights, said she wanted a lawyer, and refused to make any further statements. Plaintiff, however, denied that there was any discussion of Mr. Flipping, and denied that she knew him. The following interrogatory was submitted to the jury:

5) At plaintiff's second interview on June 16, 1999, did plaintiff indicate to defendant Mendenhall that she knew Gervase Flipping?

ANSWER: No



Before charging plaintiff with a crime and arresting her, Mendenhall had a telephone conversation with Assistant Prosecutor Joe Garber of the Franklin County Prosecutor's Office. Mr. Garber knew about charges which had been filed against two other license examiners and he had provided advice and assistance to the State Highway Patrol investigators, which resulted in a controlled purchase of a CDL from one of these employees [*6] while under surveillance. That arrest also led to the issuance of a search warrant for the home of Kenneth Hairston, who was the broker or middleman for the sale of the fraudulent CDLs. Additional driver's license documents were found in a night stand in Hairston's home and these included documents relating to Mr. Flipping. Mendenhall told Garber that he had Flipping's temporary license signed and sealed by the plaintiff, indicating that Flipping had passed the written exam. Mendenhall also told Garber that he had an exemption form with the plaintiff's unit number which referenced the same fictitious employer used in all of the other fraudulent exemption forms, and that this form had plaintiff's unit number written on it. He also told Garber that Flipping told him that he had not taken the written exam and that plaintiff had made statements indicating that she knew Flipping. Mendenhall did not tell Garber that he had shown Flipping a photograph of the plaintiff, and that Flipping had told him that she was not the person who assisted him in obtaining his fraudulent license. Mendenhall did not tell Garber that Flipping had denied that the woman who assisted him had an obvious skin condition. [*7] Mendenhall testified that Garber agreed that he should proceed to file a criminal complaint against the plaintiff and put her under arrest.

Based on the jury's answers to interrogatories, it is apparent that Mendenhall provided Garber with false information about Flipping not taking the written exam, and that plaintiff knew Flipping. Furthermore, Mendenhall admits that he did not disclose exculpatory information to Garber when he failed to inform him that when he had shown Flipping a photo of plaintiff, Flipping had said she was not the person who sold him a CDL, and that the person who sold him a CDL did not have a skin condition.

Qualified Immunity

Under the doctrine of qualified immunity, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Whether qualified immunity is applicable to an official's actions is a question of law. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir. 1996). [*8]

Where a violation of a constitutional right has been alleged or established, the court must determine whether the constitutional right in question was clearly established at the time of the alleged event, such that a reasonable official would understand that what he is doing violates that right. Saucier v. Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct. 2151 (2001). Whether an official may prevail in his qualified immunity defense depends upon the objective reasonableness of his conduct as measured by reference to clearly established law. Davis v. Scherer, 468 U.S. 183, 191, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984).

For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987); Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002). It is not necessary that "the very action in question has previously been held unlawful," but "in light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640. The relevant question is whether the state of the law at the time of [*9] the incident gave defendant fair warning that his alleged acts were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 153 L. Ed. 2d 666, 122 S. Ct. 2508 (2002). In determining whether a constitutional right was clearly established, this court must look first to the decisions of the Supreme Court, then to decisions of the Sixth Circuit and other courts within this circuit, and finally to the decisions of other circuits. Daugherty v. Campbell, 935 F.2d 780, 783 (6th Cir. 1991). Plaintiff bears the burden of showing that the law was clearly established at the time of the offensive conduct. Hughes v. City of North Olmsted, 93 F.3d 238, 241 (6th Cir. 1996).

Fourth Amendment

The Fourth Amendment to the Constitution of the United States provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



Plaintiff claims that defendant Mendenhall violated her Fourth Amendment rights by [*10] arresting her without probable cause. The standard for probable cause to arrest is clearly established law. The Fourth Amendment requires "a fair and reliable determination of probable cause" as a condition of an arrest. Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). "Generally, probable cause exists when the police have 'reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir. 2000) (quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964)). An officer cannot turn a blind eye toward potentially exculpatory evidence known to him in determining if probable cause exists. Gardenhire, 205 F.3d at 318.

In the context of an unlawful arrest claim, qualified immunity shields the arresting officer if a reasonable officer could have believed the arrest to be lawful in light of clearly established law and the information possessed by the arresting officer. Anderson, 483 U.S. 635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). The inquiry is an objective one, based on what conduct a reasonable police [*11] officer would believe to be lawful based on the information then possessed by the officer, not on what the officer subjectively may have believed. Anderson, 483 U.S. at 641.

The court finds that no reasonable officer could have believed the arrest of the plaintiff to be lawful in light of clearly established law and the information possessed by defendant Mendenhall. The temporary license issued to Flipping by the plaintiff and bearing her signature, seal and unit number was regular and legitimate on its face. There was nothing about it that would raise any suspicion that it had been fraudulently issued. Specifically, there was nothing about it which would suggest that Flipping had not taken and passed the written examinations as certified by Ms. Black-Hosang. The fact that these papers were found in Hairston's residence would be consistent with Flipping having given them to the woman who offered to assist him in obtaining a CDL license without taking the driving test. Hairston had been identified as the individual who was acting as a middleman. The presence of plaintiff's unit number on the fraudulent exemption form was insufficient, standing alone, to create a reasonable [*12] suspicion that the plaintiff was involved in issuing a fraudulent CDL to Flipping. The unidentified woman who assisted Flipping could have readily ascertained plaintiff's unit number from Flipping's temporary license. The handwritten numbers on the exemption form are not identical in appearance to plaintiff's handwritten numbers on the temporary license. Mendenhall did not seek a handwriting analysis to compare the handwritten numbers on these two documents. Thus, the evidence that plaintiff was involved with Flipping's fraudulent exemption form was inconclusive at best. Mendenhall's claim that he believed plaintiff had fraudulently issued a temporary license to Flipping because Flipping told him that he had not taken the written test is belied by the fact that the jury found that Flipping told him no such thing. Likewise, Mendenhall's claim that plaintiff's statements reasonably led him to believe that she knew Flipping was rejected by the jury. Not only was there a lack of evidence to constitute probable cause, but there was significant exculpatory evidence which Mendenhall chose to ignore and failed to disclose to the prosecutor when he sought advice about arresting the plaintiff. [*13] Flipping was steadfast in his denial that plaintiff was the woman who assisted him in obtaining his fraudulent CDL.

Mendenhall's testimony was fraught with contradictions. At one point, he maintained that finding Flipping's "red and white" forms bearing plaintiff's seal and signature during the search of Hairston's home was evidence of plaintiff's involvement in the fraud because the "red and white" forms were supposed to be destroyed by the examiner and not returned to the applicant. It is unclear whether Mendenhall actually believed this at the time of plaintiff's arrest or whether it was simply mistaken testimony given at the time of trial. In any event, it was completely incorrect, inasmuch as the "red and white" forms constitute the temporary driving permit which is issued to the applicant after passing the written tests. Plaintiff explained this to Mendenhall during her first interview, and anyone who took the time to read the forms and familiarize themselves with the process would immediately recognize that it would be wrong to believe that the "red and white" forms which were signed and sealed by the examiner and constituted a temporary driving permit would be destroyed by [*14] the examiner.

Defendant argues that he is entitled to qualified immunity because he consulted with an assistant prosecutor prior to obtaining the arrest warrant. Pre-arrest consultation with a prosecutor may lend reasonableness to an officer's conclusion that probable cause exists, and thus may help to establish qualified immunity. See, e.g., Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004); Dixon v. Wallowa County, 336 F.3d 1013, 1019 (9th Cir. 2003); E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989). The Sixth Circuit has held that reliance on the advice of counsel may constitute "extraordinary circumstances" under Harlow, 457 U.S. at 818-819, which would entitle a defendant to qualified immunity even where he would otherwise not be entitled to it. See York v. Purkey, 14 Fed. Appx. 628, 2001 WL 845554 (6th Cir. 2001).

However, consultation with an attorney does not automatically result in an award of qualified immunity, but rather is only one factor, among many, that enters into the totality of the circumstances relevant to the qualified immunity analysis. Cox v. Hainey, 391 F.3d 25, 35 (1st Cir. 2004). [*15] Further, reliance on the advice of counsel will not support a finding of qualified immunity where complete information was not provided to the advising attorney. Id. at 36; York, 14 Fed. Appx. 628, 2001 WL 845554 *5.

Here, Mendenhall omitted material information when he discussed the case with the assistant prosecutor. He failed to inform Garber that when he showed Flipping a photo of plaintiff, Flipping stated that she was not the person who sold him a CDL, and further that Flipping stated that the person who sold him the CDL did not have a skin condition. The jury also found that Mendenhall provided Garber with false information about Flipping not taking the written exam, and that plaintiff knew Flipping. Under these circumstances, Mendenhall's reliance on the advise of counsel does not weigh in favor of the qualified immunity defense.

No reasonable officer in the position of defendant Mendenhall could have concluded that probable cause existed to arrest the plaintiff. Mendenhall is not entitled to qualified immunity.

The Clerk shall enter final judgment in accordance with the jury's verdict, rendering judgment in favor of the plaintiff, and against the defendant, [*16] James R. Mendenhall, for compensatory damages in the amount of $ 100,000.00, and for punitive damages in the amount of $ 250,000.00. The cost of this action shall be assessed against defendant.

It is so ORDERED.

JAMES L. GRAHAM

United States District Judge

DATE: September 2, 2005

Michelle L. Black-Hosang, Plaintiff, vs. James R. Mendenhall, Defendant.

Case No. 2:01-cv-00623

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION

2005 U.S. Dist. LEXIS 30955

December 5, 2005, Decided
December 5, 2005, Filed

MEMORANDUM OPINION AND ORDER

In this 42 U.S.C. § 1983 action, Michelle Black-Hosang ("plaintiff") alleged she was falsely arrested by Trooper James R. Mendenhall ("defendant") of the Ohio State Highway Patrol. A jury trial commenced on August 29, 2005, and on August 30, 2005, the jury returned a verdict for plaintiff awarding compensatory damages of $ 100,000 and punitive damages of $ 250,000. On September 2, 2005, this court held that defendant was not entitled to qualified immunity and entered final judgment in accordance with the jury's verdict. This matter is now before the court on defendant's motion for a new trial (Document 57), defendant's motion for judgment as a matter of law (Document 58), and defendant's motion [*2] for stay of proceeding to enforce judgment and stay of plaintiff's motion for prejudgment interest and attorney fees (Document 61).

I. Defendant's Motion for a New Trial.

Defendant moves for a new trial under F.R.C.P. 59, which states that a new trial may be granted after a jury trial "for any of the reasons for which new trials have been heretofore granted in actions at law in the courts of the United States." See F.R.C.P. 59(a)(1). Trial courts have used this authorization to grant a new trial where the jury's verdict is against the clear weight of the evidence, the damages are excessive, or there were substantial errors of law that resulted in prejudice. Grimm v. Lane, 895 F. Supp. 907, 911 (S.D. Ohio 1995) [citations omitted].

Defendant argues that a new trial is warranted because: 1) the court committed prejudicial error when it excluded evidence of defendant's consultation with the assistant prosecutor; 2) the jury's award of compensatory damages was excessive; and 3) punitive damages were improper.

A. Errors of Law.

To be granted a new trial, defendant [*3] must show he was prejudiced by an error of law and that a failure to grant a new trial is inconsistent with substantial justice. Erskine v. Consolidated Rail Corporation, 814 F.2d 266, 272 (6th Cir.1987). The burden of showing harmful prejudice rests with the moving party. Tobin v. Astra Pharmaceuticals Products, Inc., 993 F.2d 528, 541 (6th Cir.1993). If the error of law was the wrongful exclusion of evidence, a new trial will not be granted unless the excluded evidence would have resulted in a different outcome at trial. Morales v. American Honda Motor Company, Inc., 151 F.3d 500, 514, (6th Cir.1998).

Here, defendant argues that the court committed prejudicial error when it refused to allow the jury to hear evidence that he consulted with an assistant prosecutor before arresting plaintiff. Because this evidence was excluded, defendant argues that the jury was left with the impression that he acted alone in arresting plaintiff, when in fact, the arrest was done with the full knowledge and support of an assistant prosecutor. Defendant's argument lacks merit because no error of law occurred.

The exclusion of evidence was proper because [*4] the jury's role in this case was to determine whether or not defendant had probable cause to arrest plaintiff. Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2002) (citing Gardenhire v. Schubert, 205 F.3d 303, 315 (6th Cir.2000)).

Probable cause to make an arrest exists if at the moment of the arrest "the facts and circumstances within the officer's knowledge ? were sufficient to warrant a prudent man in believing that the arrestee had committed or was committing an offense." Klein, 275 F.3d at 550 (citation and quotations omitted). Probable cause is evaluated from the perspective of a reasonable officer on the scene. Id. (quoting Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir.2001)). The probable cause determination involves an objective analysis of the facts known by the officer and does not take into consideration the officer's subjective state of mind. Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 593, 160 L. Ed. 2d 537 (2004).

It is undisputed that defendant made the decision to arrest plaintiff. Moreover, because probable cause involves an objective analysis of the facts known by the officer at the time of the [*5] arrest, the fact that the officer sought the opinion of others is irrelevant and should not be considered by the jury. Furthermore, defendant admitted that he withheld exculpatory evidence from the assistant prosecutor and the jury found in its answers to interrogatories that defendant gave false information to the assistant projector. See infra pp. 5-6. Defendant offered no evidence as to what the prosecutor's advice would have been if he had known about the exculpatory evidence. No error of law was committed when this court refused to allow the jury, in making its probable cause determination, to consider evidence regarding defendant's consultation with the assistant prosecutor.

This is not to say, however, that the subjective opinion of others plays no role in determining defendant's liability in this case. The opinion of an assistant prosecutor may lend reasonableness to an officer's conclusion that probable cause exists, and thus may help to establish qualified immunity. See, e.g., Kijonka v. Seitzinger, 363 F.3d 645, 648 (7th Cir. 2004); Dixon v. Wallowa County, 336 F.3d 1013, 1019 (9th Cir. 2003); E-Z Mart Stores, Inc. v. Kirksey, 885 F.2d 476, 478 (8th Cir. 1989). [*6] The Sixth Circuit has held that reliance on the advice of counsel may constitute "extraordinary circumstances" which would entitle a defendant to qualified immunity even where he would otherwise not be entitled to it. See York v. Purkey, 14 Fed.Appx. 628, 2001 WL 845554 (6th Cir. 2001). The determination of whether qualified immunity applies is one of law for the court. Dickerson v. McClellan, 101 F.3d 1151, 1157 (6th Cir.1996).

For that reason, this court, outside the presence of the jury, heard additional evidence regarding defendant's consultation with his superiors and an assistant prosecutor. Defendant's investigation revealed that one of the individuals that obtained a fraudulent commercials driver's licence with the assistance of an employee of the Ohio Department of Motor Vehicles was Gervase Flipping ("Flipping"). Defendant told the assistant prosecutor that Flipping told him that he had not taken the written exam and that plaintiff had made statements to the defendant indicating that she knew Flipping. The jury found in its answers to interrogatories that both of these statements were untrue. Defendant admitted that he did not tell [*7] the prosecutor that he had shown Flipping a photograph of plaintiff and that Flipping had told him she was not "Barbara," the person who assisted Flipping in obtaining the fraudulent licence. Defendant also admitted that he did not tell the prosecutor that Flipping told him that "Barbara" did not have an obvious skin condition. Plaintiff has an obvious skin condition. See Memorandum Opinion and Order, September 2, 2005, Document 53 at 3-5. Defendant did not qualify for immunity protection as his actions were objectively unreasonable in light of clearly established Fourth Amendment rights.

After a full and fair opportunity to present evidence outside the presence of the jury, this court determined that defendant was not entitled to qualified immunity. Because no error of law occurred and defendant was not prejudiced, defendant is not entitled to a new trial.

B. Compensatory Damages.

Defendant also takes issue with the jury's $ 100,000 compensatory damage award, arguing that plaintiff testified only about attorney fees of $ 4,000 and her emotional response to being arrested, incarcerated, and having a newspaper article published discussing her arrest. Plaintiff argues that [*8] the jury acted out of emotion and did not follow the instructions which said that compensatory damages "are not allowed as a punishment and cannot be imposed or increased to penalize the defendant."

A jury award of compensatory damages will not be set aside or reduced unless it is beyond the maximum amount that the jury reasonably could find to be compensation for a party's loss. Hill v. Marshall, 962 F.2d 1209, 1215 (6th Cir. 1992).

In this case, plaintiff suffered great humiliation and embarrassment when defendant arrested her at work and lead her off the premises in handcuffs. After her arrest, an article was published in the Columbus Dispatch newspaper identifying plaintiff by name. Plaintiff was jailed for two days. While in jail, she learned that she had been fired from her job of fifteen years. This began a two-year struggle to get her job back. During those two years, plaintiff suffered great anxiety over her future employment and overall financial security and she spent her entire life savings providing for herself and her children. She accepted a job tending bar to provide additional support. Plaintiff also had to hire an attorney to secure dismissal of [*9] the felony charge.

The jury's award of $ 100,000 to compensate plaintiff for the embarrassment, anxiety, and fear she endured, while perhaps high, is not unreasonable in light of the evidence presented. Because sufficient evidence was presented to support the jury's award, this court cannot grant a new trial to reduce the jury's compensatory damage award.

C. Punitive Damages.

Defendant also argues that the jury's award of punitive damages was erroneous and not supported by the facts adduced at trial. Defendant argues that because no evidence existed showing that he acted with willful or malicious intent or that his conduct was egregious in nature, it was inappropriate for the jury to award punitive damages.

Punitive damages are appropriate in a § 1983 action if plaintiff is able to show that defendant's conduct was "motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others." See Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). The imposition of punitive damages is generally reserved for cases involving egregious conduct or a showing of willfulness or malice. Beauford v. Sisters of Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1109 (6th Cir.1987) [*10] (citing Wolfel v. Bates, 707 F.2d 932, 934 (6th Cir.1983)).

In this case, the evidence would support a finding that defendant engaged in egregious conduct which demonstrated a reckless or callous indifference to plaintiff's federally protected rights. As discussed in this court's order dated September 2, 2005 (Document 53), no reasonable officer could have believed probable cause existed. Yet, not only did defendant arrest plaintiff, but he inserted false information in the criminal complaint and unsuccessfully pressured a key witness to identify plaintiff.

In arresting plaintiff, defendant purportedly relied on the statement of Flipping regarding his purchase of a fraudulent commercial driver's license from "Barbara." He also relied on the physical description Flipping gave of "Barbara," claiming that it matched plaintiff's physical description. Flipping's description of "Barbara" was vague and did not include any reference to a very obvious variation in skin pigmentation which plaintiff has. When Flipping refused to identify plaintiff as "Barbara" from a photograph, defendant disregarded Flipping's denial and instead pressured him to make a positive identification.

[*11] The jury found that defendant had no evidence to support his statement in the criminal complaint that plaintiff falsified exam scores for Flipping. The following interrogatory was submitted to the jury:

4) Prior to plaintiff's arrest on June 30, 1999, did Mr. Flipping tell defendant Mendenhall that he had not taken the written examination for a CDL license?

ANSWER: No

Because the evidence would support a finding that defendant acted egregiously and with a reckless indifference for plaintiff's protected Fourth Amendment rights, the jury's award of punitive damages was appropriate.

Defendant's motion could also be interpreted as arguing that it was error for this court to instruct the jury on punitive damages. As discussed above, sufficient evidence was presented at trial to justify an instruction on, and the subsequent award of punitive damages. Therefore, defendant's motion must be denied.

II. Defendant's Motion for Judgment as a Matter of Law.

Defendant moves, pursuant to F.R.C.P. 50, for judgment as a matter of law, arguing that the compensatory damages awarded were excessive and that evidence was not presented [*12] justifying a punitive damage award. These arguments are identical to the arguments in defendant's motion for a new trial which this court has rejected for lack of merit. This motion is denied for the reasons stated above in Section I, parts (b) and (c).

III. Defendant's Motion for Stay of Proceeding to Enforce Judgment and Stay of Plaintiff's Motions for Prejudgment Interest and Attorney Fees.

Defendant moves, pursuant to F.R.C.P. 62(b), for a stay of proceedings to enforce the judgment rendered against him. Under Rule 62(b), execution of judgment may be stayed "pending the disposition of a motion for a new trial or to alter or amend a judgment." Sections I and II of this order dispose of defendant's motions for a new trial and for judgment as a matter of law. Because these motions are no longer pending, defendant's motion for a stay of proceedings to enforce judgment is denied as moot. Likewise, defendant's motion to stay plaintiff's motion for prejudgment interest and attorney fees is denied.

IV. Conclusion

For the foregoing reasons, defendant's motion for a new trial is denied. Defendant's motion for judgment as a matter [*13] of law is denied and defendant's motion for stay of proceeding to enforce judgment and stay of plaintiff's motions for prejudgment interest and attorney fees is denied.

The only motions before this court that remain undecided are plaintiff's motion for prejudgment interest (Document 55) and plaintiff's motion for attorney's fees and litigation costs (Document 56). Defendant shall file his memoranda in opposition to these motions within twenty-one days. Plaintiff will have eleven days to file any reply memoranda.

It is so ORDERED.

JAMES L. GRAHAM

United States District Judge

DATE: December 5, 2005