United States v. Bryan Boneshirt

1 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2971
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Clayton Miller, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Mark Albright; Patrick E. Cobb, *
*
Appellees. *
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Submitted: April 12, 2011
Filed: October 6, 2011
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Before WOLLMAN and MELLOY, Circuit Judges, and MILLER,1 District Judge.
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MILLER, District Judge.
Clayton Miller filed suit against St. Louis police officers Mark Albright and
Patrick E. Cobb for violating his Fourth Amendment rights by unlawfully entering his
home, using excessive force, and unlawfully arresting him, and for violating Missouri
common law by maliciously prosecuting him. A jury rendered a verdict for Miller on
the unlawful entry claim and for Albright and Cobb on the excessive force, unlawful

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2The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
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arrest, and malicious prosecution claims. Because the jury awarded no damages to
Miller on his unlawful entry claim, Miller asked the district court2 to direct the jury
to award nominal damages. The district court denied Miller’s request, and Miller
subsequently moved, pursuant to Federal Rule of Civil Procedure 59(e), for the district
court to alter or amend the judgment to award nominal damages. When that motion
was denied, Miller brought this appeal. We affirm.
I.
Officials at Dewey Elementary School in St. Louis, Missouri noticed Clayton
Miller, an unfamiliar and noticeably intoxicated adult, in the schoolyard taking
pictures of the students. They asked him to leave but he refused, so they called 911
to seek emergency help. By the time Mark Albright and Patrick E. Cobb of the St.
Louis Police Department arrived, Miller had left the scene. One of Miller’s neighbors,
however, directed the officers to Miller’s home. Upon arriving at Miller’s home, the
officers noticed that it appeared to be uninhabited, so they entered and found Miller
asleep in a bedroom. When they entered the bedroom, an altercation ensued and
Miller was arrested. Charges were filed against Miller but were subsequently
dismissed.
Miller sued Albright and Cobb under the Fourth Amendment for unlawful
entry, excessive force, and unlawful arrest. He also brought a state common law claim
of malicious prosecution. At the conclusion of the proof, Miller proposed jury
instructions for both compensatory and punitive damages, but did not propose an
instruction for nominal damages. Miller also proposed a verdict form that addressed
each claim but did not provide specifically for nominal damages. The verdict form
merely provided blank spaces for the jury to write in the amount of damages awarded

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to Miller on each claim for which the jury rendered a verdict in his favor. The district
court held an instructions conference and gave the parties an opportunity to object to
the proposed instructions and verdict forms; however, Miller did not object to the
instructions or verdict form. In fact, the damages instructions and verdict form given
to the jury were practically identical to those submitted by Miller.
After deliberating, the jury entered a verdict for Miller on the unlawful entry
claim and entered verdicts for Albright and Cobb on the remaining claims. The jury,
however, wrote “none” on the damages line of the verdict form. After the verdict was
read, but before the jury was discharged, Miller’s lawyer approached the bench and
requested that the district court direct the jury to award nominal damages, but that
request was denied. Miller subsequently filed a Federal Rule of Civil Procedure Rule
59(e) motion to alter or amend the judgment to include an award of nominal damages,
but that motion was also denied.
II.
Miller appeals, asserting that the district court abused its discretion by failing
to order the jury to award nominal damages following entry of the verdict and by
denying Miller’s Rule 59(e) motion to alter or amend the judgment to award nominal
damages. He concedes that under Federal Rule of Civil Procedure 51, a party waives
the right to request an instruction if the party does not request the instruction before
the jury retires. Appellant’s Opening Brief (App. Br.), at 9. He also acknowledges
that he neither requested a nominal damages instruction nor objected to the damages
instructions or the verdict form at the instructions conference. App. Br., at 3, 6.
Miller further concedes that the damages instruction given to the jury was nearly
identical to the one he proffered. Id. Miller, however, asks that we adopt an
exception to Rule 51 that would permit a plaintiff to request nominal damages after
the return of a verdict, but before dismissal of the jury, in cases where a plaintiff
alleges multiple constitutional claims and one claim has damages and one does not.

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We affirm because the district court did not plainly err in denying either
Miller’s post-verdict request to direct the jury to award nominal damages, or his Rule
59(e) motion to alter or amend the judgment to award nominal damages. We also
decline to adopt an exception to Rule 51 that would permit plaintiffs to request
nominal damages after the verdict is rendered.
A.
Miller waived the right to appeal any error in the jury instructions and verdict
form because he failed to object to them. “Error cannot be based on the giving of an
instruction to which the complaining party has not properly objected.” Westcott v.
Crinklaw, 133 F.3d 658, 662 (8th Cir. 1998) (citing Fed. R. Civ. P. 51). To overcome
his failure to object to the instructions and verdict form, Miller must show that the
giving of the instructions and verdict form was plain error that resulted in a
“miscarriage of justice.” See Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir.
1991), cert. denied, 506 U.S. 836, 113 S.Ct. 111, 121 L.Ed. 2d 68 (1992); Fed. R. Civ.
P. 51(d)(2) (“A court may consider a plain error in the instructions that has not been
preserved as required by Rule 51(d)(1) if the error affects substantial rights”). “Our
review under [the plain error] standard is narrow and is confined to the exceptional
case in which error has ‘seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.’” Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460
F.3d 1047, 1054 (8th Cir. 2006) (quoting Genthe v. Lincoln, 383 F.3d 713, 718 (8th
Cir. 2004)).
Miller does not argue, and the record does not indicate, that the fairness,
integrity, or public reputation of the judicial proceedings were effected by the district
court’s ruling. Instead, Miller argues that the district court was obligated to award
nominal damages, regardless of the timeliness of the request, once the jury found that
Albright and Cobb violated his constitutional rights. In support of his position, Miller
cites Carey v. Piphus, 435 U.S. 247, 266 (1978) (“[T]he denial of procedural due

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process is actionable for nominal damages without proof of actual injury.”); Farrar v.
Hobby, 506 U.S. 103, 112 (1992) (“[A] court [must] award nominal damages when
a plaintiff establishes a violation of his right to procedural due process but cannot
prove actual injury.”); and Risdal v. Halford, 209 F.3d 1071, 1072-73 (8th Cir. 2000)
(holding that the First Amendment right to free speech is absolute and an award of
nominal damages is required even if the defendant fails to object to the nominal
damages instruction).
These cases, however, do not address whether a nominal damages instruction
must be given for a Fourth Amendment unlawful entry violation. In Farrar the
Supreme Court held that a district court is obligated to award nominal damages
pursuant to Carey, when a plaintiff prevails on a procedural due process claim but
cannot prove actual injury. 506 U.S. at 112. Likewise, in Risdal we cited Farrar for
the proposition that nominal damages must be awarded when a plaintiff establishes
a violation of the right to free speech. 209 F.3d at 1072.
Further, even if we determine that a nominal damages instruction must be given
for unlawful entry violations, Miller still cannot overcome his failure to object to the
instructions and verdict form given. To the extent that Miller argues plain error
should be found because we found such in Risdal, his argument fails. Although we
found plain error in Risdal despite the fact that Risdal failed to object to the nominal
damages instruction submitted to the jury, we were presented with a very different set
of facts from the ones we face today. This is true because, in Risdal, the defendants
submitted the correct jury instruction to the district court for consideration and the
court sua sponte rejected that instruction and submitted its own improper variant. Id.
at 1071. Thus, “[t]he trial court’s unsolicited error caused it to enter judgment for the
defendants, prevented Mr. Risdal from vindicating his right to free speech, and barred
any potential award of attorney’s fees . . . .” Id. at 1072-73. (citations omitted).

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In Risdal we specifically distinguished Warren v. Fanning, which has facts
similar to the facts herein. Id. at 1072. Warren involved an inmate in the Missouri
Department of Corrections who alleged that defendants violated his Eighth
Amendment rights by denying him proper medical treatment. 950 F.2d at 1372. At
the close of the evidence, the jury was improperly instructed that if it “found a
violation but no substantial actual damages, the jury was allowed (but not required)
to award Warren nominal damages in the amount of one dollar.” Id. at 1372-73. The
jury found in favor of Warren against one defendant but awarded him neither actual
damages nor nominal damages. Id. at 1373. Although the instruction was improper,
we affirmed the verdict chiefly because Warren not only failed to object to the
improper instruction, but he was the one who proffered it. Id. at 1374.
We affirm on this point because Miller simply failed to timely request a
nominal damages instruction and, indeed, was the one who proffered the instructions
and verdict form that were ultimately given to the jury. Therefore, the district court
did not commit plain error either when it failed to instruct the jury, post-verdict, to
award nominal damages, or when it denied Miller’s Rule 59(e) motion.
B.
Conceding that he did not object to the jury instructions and verdict form,
Miller argues that we should adopt an exception to Rule 51 that would permit a
plaintiff to request nominal damages after the verdict has been read, but before the
jury is discharged. He suggests that the proposed exception should apply when: (1)
a plaintiff brings multiple constitutional claims and one of the claims has actual
damages and one does not; and (2) the jury finds in plaintiff’s favor on the claim that
does not have actual damages. Miller argues that failing to adopt this exception will
invite the type of error the district court would have committed had it given a nominal
damages instruction before the jury retired to deliberate. He further argues that the
district court would have committed error if it had given a nominal damages

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instruction to the jury before deliberations because he suffered actual damages as
proven by the evidence introduced in support of his excessive force claim. In support
of this contention, he cites Westcott v. Crinklaw, in which we stated that “[t]he law
is clear that a nominal damage instruction is not appropriate when there is proof of
actual injury.” 133 F.3d 658, 662 (8th Cir. 1998).
Miller’s reliance on Westcott is misplaced. In Westcott we held that the district
court erred in instructing the jury on nominal damages because the evidence
conclusively established that the plaintiff’s deceased husband suffered fatal injuries
and that the plaintiff sustained actual damages. Id. In that case, Westcott sued a
police officer for excessive force in the shooting death of her husband. Id. at 659-660,
663. The parties stipulated that Westcott incurred funeral expenses of $3,262.64. Id.
at 662. Before deliberating, the jury was instructed that “if you find for the plaintiff,
but find that the loss resulting from [decedent’s] death has no monetary value, then
you must return a verdict for the plaintiff in the nominal amount of One Dollar
($1.00).” Id. at 661 n.4. The jury found for Westcott and awarded $1.00 in nominal
damages. Id. at 660. On appeal, we held that instructing the jury on nominal damages
was reversible error because there was no dispute that Westcott’s husband was fatally
injured and the parties stipulated to the funeral expenses. Id. at 662.
In contrast to Westcott, Miller’s unlawful entry claim was not supported by
proof of actual damages. Although he introduced evidence of actual damages
resulting from his excessive force claim, he did not introduce evidence of damages
resulting from his unlawful entry claim. In that these two claims are separate and
distinct, the damages resulting from the excessive force claim are not sufficient to
show that Miller suffered damages as a result of the officers’ unlawful entry into his
home. Therefore, the district court would not have erred if it had given a nominal
damages instruction on Miller’s unlawful entry claim.

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Miller further points out that the First Circuit has held that “a plaintiff may
request the judge to instruct the jury on nominal damages, or in the absence of such
an instruction, may ask the trial court for nominal damages on the occasion of, or
immediately after, the return of the verdict.” Azimi v. Jordan’s Meats, Inc., 456 F.3d
228, 240 (1st Cir. 2006) (emphasis added). The Azimi court noted that this rule
allows a plaintiff to avoid the tactical dilemma that occurs when a plaintiff is forced
to choose between asking for only compensatory damages and risking a zero-dollar
verdict, on one hand, or requesting a nominal damages instruction and giving the jury
an easy “out” on the other hand. Id. Miller argues that this is the dilemma he faced.
Before addressing the tactical dilemma issue, it must first be noted that,
although the First Circuit has adopted an exception to Rule 51(c)(2), many circuits
that have addressed similar issues have declined to do so. See Oliver v. Falla, 258
F.3d 1277, 1282 (11th Cir. 2001) (holding that the right to nominal damages for
Eighth Amendment violations can be waived if such damages are not timely
requested); Piaubert v. MacIntosh, 10 Fed. App’x 503 (9th Cir. 2001) (unpublished
opinion) (holding that the right to nominal damages was waived in a breach of duty
action when plaintiff failed to raise the issue of nominal damages until after the
verdict); Salazaar v. Encinias, 242 F.3d 390 (10th Cir. 2000) (unpublished table
decision) (holding that plaintiff waived the right to nominal damages in an excessive
force case because nominal damages were not requested until after the verdict);
Alexander v. Riga, 208 F.3d 419, 429 (3d Cir. 2000) (holding that the right to nominal
damages for race discrimination claims can be waived if such damages are not timely
requested); Sims v. Mulcahy, 902 F.2d 524, 536 (7th Cir. 1990) (holding that
plaintiff’s failure to timely challenge jury instruction regarding nominal damages on
an unlawful entry claim waived her right to raise the issue on appeal).
Further, the facts of this case do not warrant a consideration of whether an
exception to Rule 51 should be adopted. This is true because Miller was not faced
with a tactical dilemma similar to the one discussed in Azimi because there was no

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proof of actual damages regarding Miller’s unlawful entry claim. The proof of
damages at trial was limited to the physical injuries Miller received as a result of his
altercation with Albright and Cobb, which stem from his excessive force claim. Had
Miller proceeded solely on his excessive force claim, he might have faced the tactical
dilemma discussed in Azimi. This is simply not the circumstance before us. Here,
Miller could have proposed a nominal damages instruction solely for his unlawful
entry claim and sought only actual damages on his excessive force claim.
Accordingly, we decline to adopt Miller’s suggested exception and affirm the district
court in its proper application of Rule 51.
III.
For all of the reasons set forth above, the district court’s denial of Miller’s post-
verdict request to instruct the jury to award nominal damages and its denial of Miller’s
motion to alter and amend the judgment are affirmed.
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