Thomas Frizzell v. CARL SZABO and SANGAMON COUNTY SHERIFF’S OFFICE

The Honorable Charles N. Clevert, Jr., United States District å
Court for the Eastern District of Wisconsin, sitting by designa-
tion.
In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2955
THOMAS FRIZZELL,
Plaintiff-Appellant,
v.
CARL SZABO and
SANGAMON COUNTY SHERIFF’S OFFICE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:08-cv-03147—Michael P. McCuskey, Chief Judge.
ARGUED APRIL 12, 2011—DECIDED JULY 27, 2011
Before KANNE and EVANS, Circuit Judges, and CLEVERT,
District Judge.å
EVANS, Circuit Judge. This appeal arises from Thomas
Frizzell’s excessive force and false arrest suit against

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2 No. 10-2955
former Sangamon County, Illinois, deputy Carl Szabo.
Although a jury found for Frizzell on the excessive
force claim, it awarded only nominal damages. Frizzell
now appeals the damage award and the subsequent
denial of his motion for attorney’s fees. We start with
the facts.
The arrest in this case stems from what should have
been a routine traffic stop in Springfield, Illinois, in
November 2006. Szabo was on duty in his cruiser,
parked in a gas station lot, looking to ticket drivers
who weren’t wearing their seatbelts. Around 5:45 p.m.
Frizzell drove by on his way to work at a nearby
Lowe’s Home Improvement store. Szabo saw that
Frizzell wasn’t wearing his seatbelt and pulled in behind
him, but didn’t activate the cruiser’s emergency lights.
At this point Frizzell led Szabo along an indirect route
to the Lowe’s store. By the time they arrived at Lowe’s
it was 5:57 p.m. or so, and Frizzell, who was due at
work at 6:00 p.m., sped into the parking lot. Szabo
pulled in behind him and activated his emergency lights.
At this point, the testimony of the two men diverges.
Szabo claims that Frizzell got out of his car and ignored
a command to get back in the vehicle after being told
that he was stopped for a seatbelt violation. Instead,
Frizzell responded that he was late for work and didn’t
have time for this. He continued to jog across the
parking lot toward the Lowe’s. In contrast, Frizzell says
he didn’t see Szabo until he got out of his car, at which
point he saw flashing lights and heard a lot of screaming,
but didn’t realize it was directed at him because he had

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No. 10-2955 3
done nothing wrong (Frizzell claimed throughout trial
that he was wearing his seatbelt). Unable to make out
what the deputy was saying because of the distance
between them, and assuming it wasn’t directed at him,
he continued to hurry toward the store because he
didn’t want to be late for work. In a somewhat contra-
dictory statement, Frizzell also claimed that after exiting
his car he heard the deputy calling in via radio a “suspi-
cious black” male in the Lowe’s parking lot (this despite
not being able to hear what the deputy was screaming),
and, knowing he’d done nothing wrong but fearing
police harassment, decided to jog toward the store.
Both parties agree that Szabo then drove his squad car
between Frizzell and the store, cutting off Frizzell’s route.
Szabo claims he told Frizzell to stop and that he was
under arrest. Frizzell claims it was at this point that he
finally realized Szabo wanted to speak with him. He
told Szabo he was going to go clock in and would
come back out to speak with him. Frizzell then headed
toward the exit doors to the store and began prying
them open. According to Frizzell, he usually entered the
store this way because the exit doors were closer to the
time clock where he punched in to start his work shift.
Szabo followed Frizzell toward the doors and grabbed
his wrist from behind. Frizzell broke free because, he
says, he didn’t know who was grabbing him.
Here the stories diverge further. Szabo testified he
told Frizzell again to stop, that he was under arrest and, “if
you don’t stop I’ll taser you,” but Frizzell ignored him
and continued trying to pry open the doors. Frizzell

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4 No. 10-2955
testified Szabo pointed a gun at him and said, “stop, or I’ll
shoot,” and asked Frizzell why he had run. Frizzell re-
sponded that he was going to go inside and get the
store manager to verify that he worked there, then
turned away from Szabo and continued inside. Three
eyewitnesses all testified that Szabo told Frizzell to stop
as he was trying to get in the exit doors.
Both parties agree that Frizzell continued entering the
store, and at this point Szabo, who is a foot shorter, 75
pounds lighter, and 25 years older than Frizzell, hit him
with a taser, a device designed to immobilize a suspect.
Szabo testified that he was concerned because Frizzell
had overreacted to a routine traffic stop, ignored
repeated orders to stop, and was running, without ex-
planation, toward a populated store. At this point, and
in light of the size difference between the two men,
Szabo felt the best way to stop Frizzell was to hit him
with a shot from his taser. After the first jolt, Szabo
thought that the taser was not working correctly, and so
he proceeded to tase Frizzell four more times because
Frizzell kept ignoring orders to stay down. After the
fifth attempt, he pepper-sprayed Frizzell and sub-
dued him. The taser’s internal log verified that it was
activated five times, with breaks of a few seconds between
activations, and that it was manually shut off before
the fifth activation had finished. Two witnesses testified
that after hitting the floor, Frizzell continued to try to
move toward the doors to the store.
In contrast, Frizzell testified that he stayed down and
ignored an order from Szabo to roll onto his stomach

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No. 10-2955 5
because he was unable to move. Frizzell claimed that
while he continued to lie on the ground, unable to move,
he was tased continuously, probably 6 or 7 times. He
also claims Szabo jumped or knelt on his chest, knocking
the air out of him, and that after he was handcuffed
Szabo doused him with pepper spray.
Frizzell was fired from his job at Lowe’s as a result of this
incident. He testified that he felt tired and like he was
going to pass out for approximately two weeks following
the incident. Because he did not have medical insurance,
however, he didn’t seek treatment for his problems.
Charges against Frizzell relating to this incident were
eventually dropped, and Frizzell then sued Szabo
for excessive force and false arrest under 42 U.S.C.
§§ 1983 and 1988. Szabo counter-sued for battery, seeking
$75,000.
At the close of trial, the district judge held an instruc-
tion conference. Szabo proposed a nominal damages
jury instruction, and Frizzell objected. The judge declined
to give the nominal damages instruction and instead
gave Frizzell’s proposed damages instruction to the
jury. During deliberations, the jury sent a note asking,
“Do we have to award any money if we find in favor of
the Plaintiff?” Over the objection of both parties, the
judge responded with the following nominal damages
instruction:
If you find in favor of Plaintiff but you find that the
Plaintiff has failed to prove compensatory damages,
you must return a verdict for Plaintiff in the amount
of one dollar ($1.00).

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6 No. 10-2955
If you find in favor of Plaintiff and also find that
Plaintiff has proven compensatory damages, you
must return a verdict for Plaintiff in the amount that
fairly compensates Plaintiff for the injury he has
sustained.
The jury subsequently returned a mixed verdict, finding
against Szabo on his battery claim, against Frizzell on
his false arrest claim, and for Frizzell on his excessive
force claim, but granting only nominal damages. Frizzell
moved to alter or amend the damage award or for a
new trial on damages, and the district judge denied this
motion. The judge also denied Frizzell’s motion for at-
torney’s fees, citing the de minimis nature of the damages.
Frizzell now claims the judge erred in giving the
nominal damages instruction to the jury, and in denying
his motion to amend the judgment or for a new trial, and
in denying his motion for attorney’s fees. We review
the decisions of the trial judge for abuse of discretion.
Frizzell argues that giving the nominal damages in-
struction was inappropriate in this excessive force case
because “pain, not injury, is the barometer by which we
measure claims of excessive force . . . and one need not
have personally endured a taser jolt to know the pain
that must accompany it.” Lewis v. Downey, 581 F.3d 467,
475 (7th Cir. 2009) (internal citations omitted). He argues
that even if the loss of his job wasn’t considered injury,
and even if he had no medical evidence of post-
incident treatment for physical injuries, the mere facts
that he was tasered five times and that the jury found
Szabo employed excessive force should have been
enough to take nominal damages off the table.

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No. 10-2955 7
In Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir. 1996), we
recognized three situations where nominal damages
might be appropriate to remedy an excessive force vio-
lation: (1) where an arresting officer uses both justifiable
and excessive force, but any injury results from the use
of justifiable force, (2) where a jury reasonably con-
cludes that evidence of plaintiff’s injury is not credible,
or (3) where a plaintiff’s injuries are insufficient to
justify with reasonable certainty a more substantial mea-
sure of damages. Both (1) and (3) are implicated in
this case.
Throughout the trial, Frizzell focused on the pain
caused by the tasering, but, as the district judge rightly
identified, the tasering was not necessarily the basis for
the jury’s finding of excessive force. It is possible the
jury felt Szabo was justified in his use of the taser, but
that the use of pepper spray or jumping on Frizzell’s chest
was excessive in light of the tasering. After all, Szabo
was faced with a suspect who appeared to be fleeing
from a minor traffic violation, had ignored a lit-up
cruiser and multiple requests to stop, was heading
toward a busy public place, was much larger than he,
and had refused to stay down as ordered. Given this
situation, the jury could have reasonably concluded
that using the taser multiple times was not excessive,
but that Szabo’s actions after using it were.
Given the lack of focus throughout the trial on anything
other than the pain and negative aftereffects caused by
the tasering, the jury might have believed that Szabo’s use
of pepper spray or jumping on Frizzell’s chest after he

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8 No. 10-2955
was down was excessive, but that these applications of
force caused little or no quantifiable injury or pain. If
so, nominal damages would be appropriate under situa-
tions (1) and (3) of the Briggs rationale, and the jury
instruction was a correct statement of law.
Similarly, because nominal damages were, under one
view of evidence, appropriate, Frizzell’s claim that the
judge should have granted his motion to alter the
judgment or order a new trial fails. Under Rule 59(a) of
the Federal Rules of Civil Procedure, the district judge
must determine if “the verdict is against the weight of
the evidence, the damages are excessive, or if for other
reasons the trial was not fair to the moving party.”
McNabola v. Chicago Transit Authority, 10 F.3d 501, 516
(7th Cir. 1993). Frizzell once again argues that because
tasering is so painful, nominal damages are clearly insuf-
ficient here, and the damages must be reconsidered.
However, we will uphold a jury’s verdict as long as there
is a reasonable basis in the record to support it, and, as
we have explained, the jury could reasonably have be-
lieved that the tasering was justifiable.
Finally, Frizzell claims that even if the nominal damage
award is upheld, it is more than a de minimis victory, and
the district judge should have awarded attorney’s fees.
As the judge correctly observed,
An award of attorney fees, however, is not auto-
matic to every prevailing party. Frizzell must have
achieved enough success to be entitled to an
award of attorney fees. To determine whether Frizzell
achieved enough success, the Court considers: (1) the

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No. 10-2955 9
difference between the judgment recovered and the
recovery sought; (2) the significance of the legal
issue on which the plaintiff prevailed; and (3) the
public purpose of the litigation. . . . The difference
between the judgment recovered and the recovery
sought is the most important of the three factors. The
significance of the legal issue on which the plaintiff
prevailed is the least important. . . . In this case, the
factors weigh against an award of fees.
The difference between the amount Frizzell sought and
the $1.00 awarded by the jury is significant. Although
Frizzell did not mention a specific number for the jury
at trial (this may have been a mistake), his complaint
alleged claims for false arrest and use of excessive
force, and asked for compensatory damages in excess
of $50,000 and punitive damages in excess of $30,000 on
each claim. That’s a total of $160,000. But Frizzell argues
that because the complaint was never admitted into
evidence at trial, these numbers are irrelevant. Frizzell
cites no case law to support this, nor does he make
any argument as to why admission into evidence of the
sums sought in his complaint are important. How-
ever, even using his suggested benchmark of admitted
evidence, Frizzell would lose on this factor; at trial
Frizzell referenced Szabo’s $75,000 counter-claim as a
jumping-off point for the jury to consider in assessing
damages to be awarded to him. The difference between
any number in the ballpark of $75,000 and the $1.00
awarded is still too large to allow him to prevail on this
argument.

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10 No. 10-2955
In weighing the next factor, the significance of the
legal issue on which Frizzell prevailed, the district judge
correctly considered the extent to which Frizzell prevailed
on his theory of liability. Maul v. Constan, 23 F.3d 143, 145-
46 (7th Cir. 1994). Frizzell lost on his false arrest theory,
and, considering the award of nominal damages, had
only negligible success on his excessive force theory.
Clearly, the jury rejected Frizzell’s entire theory per-
taining to false arrest and found that Szabo had probable
cause—not surprising considering the circumstances
surrounding what should have been a simple traffic
ticket and Frizzell’s refusal to stop and listen to Szabo.
The jury further rejected the idea that Szabo employed
excessive force warranting compensation, and so
awarded only nominal damages on the excessive force
claim. As the district judge found, “Frizzell, therefore,
prevailed only marginally on his theory of recovery. Such
a marginal victory does not support an award of fees
in light of the other factors.”
As for the final factor, the public purpose served by
the suit, Frizzell argues that it “vindicated the funda-
mental rights of all residents [of Sangamon County],
pursuant to the 4th Amendment, that they must not be
subjected to excessive force of the Taser and pepper
spray when such force is not reasonable.” But as the
district judge correctly noted, § 1983 cases always seek
to vindicate rights. This prong more accurately
addresses whether “the relief sought evince[s] a public
purpose rather than merely attempt[s] to redress a
private injury. . . . [and whether] victory entails some-
thing more than merely a determination that a constitu-

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No. 10-2955 11
Former District Judge Jeanne E. Scott presided over the trial. 1
Chief District Judge Michael P. McCuskey presided over the
post-verdict events.
7-27-11
tional guarantee was infringed.” Maul, 23 F.3d at 146.
Frizzell made no allegation that the excessive use of
tasers in connection with traffic stops was the general
practice in Sangamon County. In fact, the record is quiet
on this point. Common sense cautions that excessive
tasering is to be avoided. Here, the jury most likely con-
cluded that the tasering was not excessive. What hap-
pened after the last zap might have been excessive, but
Frizzell’s suit did nothing more than try to apply a com-
mon sense rule to an isolated incident in an attempt to
redress his private injury. None of the prongs of this
test support an award of attorney’s fees, and the district
judge did not abuse his discretion in denying them.1
For these reasons, the findings of the district court
are AFFIRMED.

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